FEDERAL COURT OF AUSTRALIA
BTA15 v Minister for Immigration and Border Protection [2017] FCA 422
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The interlocutory application filed by the appellant on 12 April 2017 seeking injunctive relief preventing the first respondent from taking action to remove the appellant from Australia be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
GILMOUR J:
Introduction
1 This is an interlocutory application, filed by the appellant on 12 April 2017, which seeks injunctive relief restraining the first respondent, the Minister for Immigration and Border Protection (Minister), from removing the appellant from Australia pending the hearing and determination of the proceedings presently on appeal to the Full Court of this Court.
2 The appellant relies upon his affidavit sworn 11 April 2017 in support of the application. The Minister filed an affidavit by Peter Corbould sworn 19 April 2017 in opposition.
Background
3 The appellant, who is a citizen of Albania, arrived in Australia on 14 February 2013 using a fraudulent Italian passport. Upon being interviewed by a Department airport inspector on 14 February 2013, the appellant presented an Albanian passport in his real name, and was subsequently refused immigration clearance and detained under s 189(1) of the Migration Act 1958 (Cth).
4 He applied to the Department of Immigration and Border Protection (Department) for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth). This application was refused by a delegate of the Minister on 15 August 2013, and the appellant unsuccessfully sought review of the refusal decision by the Refugee Review Tribunal (RRT). The refusal was made on 2 October 2013. The appellant’s application for a Protection (Class XA) visa centred on his claim that he faced a real chance of persecution in the reasonably foreseeable future: s 36(2) of the Migration Act 1958 (Cth). The gravamen of the grounds for this claim before both the Minister’s delegate and the RRT was that the appellant was at risk of serious or significant harm at the hands of foreign governments, criminal syndicates, individuals that had previously threatened the appellant, and the Albanian authorities. As to the last of these, the appellant claimed that the Albanian authorities would not protect him in relation to a purported vendetta against him by the individuals that had previously threatened him. The vendetta, the appellant claimed, arose from a wrongful accusation that he had committed certain crimes.
5 The appellant sought judicial review of the RRT’s decision before in the Federal Circuit Court of Australia, which was also unsuccessful: BTA15 v Minister for Immigration & Ors [2017] FCCA 41. The appellant has now appealed against this judgment, which is pending hearing in this Court.
6 Concurrently, the Department has made arrangements for the appellant’s removal from Australia on 29 April 2017. The Federal Circuit Court had previously issued an injunction restraining the Minister from removing the appellant from Australia pending hearing of the matter in that Court.
The applicable legal principles
7 The legal principles applicable to a consideration of whether to grant injunctive relief of the nature presently sought by the appellant were recently considered and applied by Jessup J in a similar case: ALY15 v Minister for Immigration and Border Protection [2017] FCA 281. That case concerned an application for an interlocutory injunction to restrain the appellants’ removal from Australia pending the hearing and determination of their appeal. At [3], his Honour referred to the three situations in which someone may seek interlocutory relief pending appeal that French J (as his Honour then was) had identified, as follows, in Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [6]:
In the ordinary course it is a necessary condition of the grant of such an injunction that the applicant demonstrate a serious case to be tried and that the balance of convenience favours imposition of the restraint. These requirements apply with equal force to a case, such as the present, where the restraint is sought effectively to prevent a party from exercising what have been found to be its rights after trial of an action – Hollier v Australian Maritime Safety Authority (Fed Court, unrep, 27/4/98, Sundberg J). It is to be remembered also that the strength of the case and the assessment of where the balance of convenience lies are interdependent – Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. Where the applicant’s case has been tried and found wanting there may nevertheless be a serious case to be tried on appeal. However, the Court’s assessment of the strength of that case will be influenced by the fact that there has been an adverse judgment at first instance. It is relevant to the balance of convenience that the appeal may be nugatory if the restraint is not granted. It is also relevant that the successful party will be prejudiced if impeded in the exercise of its judicially vindicated rights. The factors relevant to the grant of an interlocutory injunction under s 23 pending appeal are similar to those applicable under s 29, O 37 and O 52, but capable of expression in terms of the considerations usually applied to the grant of interlocutory relief.
8 Jessup J went on to note, at [4], that:
Since the judgment in Stirling, the High Court has made it clear that an applicant for an interlocutory injunction is required to establish a prima facie case in the sense of “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68 [19] and 82 [65]. Applied to the present forensic context, the principle may be taken to refer to a sufficient likelihood of success in what must be the appellants’ task on appeal, namely, the demonstration of error on the part of the primary Judge
9 Whether the appellant’s application for injunctive relief should be allowed first requires that the appellant’s grounds of appeal in this Court demonstrate a prima facie case that the appeal has a sufficient likelihood of success to preserve the status quo pending the hearing of the appeal. If that is the case, then it will be necessary to weight the balance of convenience.
The Federal Circuit Court Proceeding
10 The appellant unsuccessfully brought 22 grounds of appeal in the Court below concerning:
(a) the appellant’s status as an Albanian citizen said to be owed protection obligations by Australia;
(b) the personal information held by the Minister and Department in respect of the appellant which was released online without authorisation (Data Breach) potentially leading to a breach of Australia’s non-refoulement obligations;
(c) a purported lack of procedural fairness in the International Treaties Obligations Assessment (ITOA) relating to the non-refoulement obligations following the Data Breach, and the ability for the appellant to be removed pursuant to s 198 of the Migration Act; and
(d) a purported lack of procedural fairness in the Minister’s consideration of whether to grant a visa to the appellant following the Data Breach and the ITOA.
The grounds of appeal
11 The appellant raises only two grounds of appeal. It is to these grounds of appeal that consideration must be given in order to weigh their strength or otherwise.
12 Ground 1 makes two claims as to the appellant’s claimed fear of harm at the hands of the Albanian authorities should he be returned to Albania. First, the appellant claims that the decision makers have relied on country information which does not take into account the risk of harm of imprisonment faced by returnees to Albania deported from another country. Second, the appellant claims that there was no consideration by the primary judge of a risk that the appellant would be exposed to serious harm at the instance of the Albanian authorities in relation to his departure from Albania using a fraudulent Italian passport. The appellant further claims that the second claim had been implicitly included in his claimed fear of harm generally.
13 As to the first claim in Ground 1, the ITOA assessor considered this and set out relevant finding in the RRT’s reasons at [43]. These were as follows:
I acknowledge that since the claimant’s previous protection claims were assessed by the RRT, the circumstances relating to him have changed as a consequence of the website disclosure incident. On the presumption that the authorities in Albania may have accessed the information released on the department’s website, I accept that they may be aware that the claimant has applied for refugee status in Australia. However, there is no evidence to indicate that failed asylum seekers face persecution or significant harm on return to Albania.
These findings were accepted, as identified by the primary judge at Reasons [5(b)].
14 This first claim amounts to an impermissible challenge to the factual findings based on country information employed by the RRT: see SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 at [49] and SZMWQ v Minister for Immigration and Citizenship and Another (2010) 117 ALD 1, 30 at [117] per Flick J. Moreover, this challenge relies upon the appellant’s mere assertion that he is aware, anecdotally, of such things happening to unnamed people returning to Albania.
15 As to second claim in Ground 1, there is nothing in the appellant’s grounds of appeal in the court below, nor in the claims before the Minister’s delegate and the RRT, which expressly or implicitly raised this claim. That the applicant arrived in Australia on a fraudulent Italian passport was a factual assertion which was not controversial and was accepted by the Minister’s delegate and the RRT in their respective decisions. As I have previously noted in [3] of these reasons, the appellant’s claims before both the Minister’s delegate and the RRT concerned a chance of persecution in the reasonably foreseeable future from the Albanian authorities only in relation to the crimes of which the appellant claimed he was wrongfully accused.
16 The RRT had found that there were no substantial grounds for there being a real risk that the appellant will suffer significant harm at the hands of the Albanian authorities. Significantly, this claimed fear of significant harm was not based upon the fact that the appellant had illegally departed Albania with a “false Italian passport” which is the new claim set out in Ground 1 of the Notice of Appeal.
17 None of the 22 grounds of appeal raised before the Federal Circuit Court made any suggestion as to the appellant’s use of the fraudulent Italian passport, or to any failure by the Minister’s delegate or the RRT to consider any risk of serious or significant harm that the appellant faced at the hands of the Albanian authorities as a result.
18 Ground 2 merely asserts that ‘[t]here was no satisfactory judgement from the Federal Circuit Court’. This is incapable of disclosing relevant error, completely devoid, as it is, of any particulars.
19 I accept the appellant’s assertion that the grounds of appeal and his affidavit were drawn by him with the assistance of other detainees in the detention centre where he has been held. This is so, despite the semblance of reasonably well-versed legal language employed in the documents. Accordingly, I have considered the reasons for judgment of the primary judge for myself but am unable to discern any relevant error.
20 The appellant did not file written submissions in support of his application for injunctive relief. His oral submissions were not directed to the grounds of appeal but were instead a generalised complaint that the reasons as to his asserted fear of harm (should he be returned to Albania) have not been thoroughly considered.
21 The appellant also made certain allegations in his oral submissions that the Department was making it difficult for him to prepare his appeal including his application for injunctive relief. I am unable to form any conclusions as to these concerns. However, as I said, I have carefully considered the grounds of appeal. I have also considered the reasons of the Minister’s delegate, the RRT and the Court below. Not only can I not discern relevant error, I am satisfied that the reasons of the primary judge are correct, and that the appellant’s new ground of appeal, raised at the eleventh hour, is wholly without merit. The appellant’s case does not have a sufficient likelihood of success: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68 at [19] and 82 at [65]. Indeed, I consider that it has no prospect of success whatsoever. In these circumstances, it is unnecessary to consider the balance of convenience.
22 For these reasons, the appellant’s application falls short of establishing the grounds for the making of an interlocutory injunction to restrain his removal from Australia and must be dismissed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. |
Associate:
