NBMO v Minister for Immigration and Citizenship [2007] FCA 465

FEDERAL COURT OF AUSTRALIA

NBMO v Minister for Immigration and Citizenship [2007] FCA 465 NBMO, NBMP, NBMQ, NBMR AND NBMS v MINISTER FOR IMMIGRATION AND CITIZENSHIP NSD 487 OF 2007

ALLSOP J

26 MARCH 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 487 OF 2007

BETWEEN: NBMO

First Applicant

NBMP

Second Applicant

NBMQ

Third Applicant

NBMR

Fourth Applicant

NBMS

Fifth Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: ALLSOP J DATE OF ORDER: 26 MARCH 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. No member of the public have access to the court file without prior leave of a Judge of the Court.

2. The transcript of today's proceedings not be made available to the public without prior leave of a Judge of the Court.

3. The applications of the first to fourth applicants be stood over to a date to be fixed.

4. The first to fourth applicants have liberty to apply on 3 hours' notice during business hours and 12 hours' notice otherwise.

5. The notice of notion so far as brought by the fifth applicant be dismissed.

6. The fifth respondent pay the costs of the respondent of today's application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 487 OF 2007

BETWEEN: NBMO

First Applicant

NBMP

Second Applicant

NBMQ

Third Applicant

NBMR

Fourth Applicant

NBMS

Fifth Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: ALLSOP J

DATE: 26 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Application is made by five applicants against the Minister for Immigration and Citizenship for declarations as to the proper construction of s 48A of the Migration Act 1958 (Cth) and to restrain the respondent Minister and officers of the Department from removing the applicants from Australia pending the final determination of the meaning of s 48A of the Act and final determination of decisions about applications for protection visas which the applicants wish to make. The only applicant who is under an immediate and present threat of deportation is the fifth applicant. He is due to be deported at mid-morning tomorrow morning. I propose to, as I have indicated with counsel, restrict today's decision to the fifth applicant and what I will do at the end of these reasons is make various orders but I will keep open the applications of the first to the fourth applicants by adjourning their applications generally with liberty to restore on three hours' notice during business hours, 12 hours' notice otherwise. 2 Turning then to the fifth applicant, the affidavit in support of the application is by the solicitor for the applicants, Ms Michaela Byers. Her affidavit annexes various acknowledgments of removal which is unnecessary to deal with specifically. In paragraph 6 it is said that on Ms Byers' instructions the fifth applicant together with the other applicants spoke to a delegation from the Peoples Republic of China (PRC) as referred to in the statement of claim and each of the applicants advised the delegation that they were practitioners of Falun Gong. The statement of claim, which is not evidence but some of which is not in contest, seeks to put forward facts which underpin another protection visa application. I say "another" because each of the applicants has previously applied for a protection visa and each applicant has had his or her application refused after relevant procedures by the executive and judiciary in this country. 3 The gist of the complaints is that between 13 May 2005 and 30 May 2005 each of the applicants with the assistance of the respondent through officers of the Department was interviewed at the Villawood Detention Centre by officers of the Chinese Government said to be from the Ministry of Public Security. In those interviews, which were said to have been taped, the applicants, including the fifth applicant, are said to have admitted to the Chinese delegation members that they practised Falun Gong. It is also asserted in the statement of claim that the Chinese delegation had information concerning the applicants which is set out in paragraph 11 of the statement of claim. The statement of claim, in effect, through the later paragraphs therein pleads breach of various duties of confidentiality and privacy under the Migration Act 1958 (Cth), the Privacy Act 1998 (Cth) and the Refugees Convention. 4 The material placed before me today includes exhibits 1 and 2 tendered by Mr Markus on behalf of the Minister. Exhibit 1 is a case-by-case assessment under s 48B made by the Department prior to 30 August 2006 when the Department wrote to the fifth applicant indicating to him that he had not met the guidelines for s 48B and that his application would not be referred to the Minister. I will return to that case-by-case assessment in a moment. Exhibit 2 is a document in two parts. It is a letter written in Chinese addressed to the former Minister, Senator Vanstone, and sent on 23 March 2007, that is, last Friday. The letter has been translated into English. I will not read it out in its entirety but it deals with the May 2005 interview in a way which does not highlight any particular communication said to have been made in Ms Byers' affidavit. 5 In the third paragraph on the second page of the document, the following appears (this being, as I said, the submission of the fifth applicant): In May 2005, a few Chinese officials suddenly came to the Detention Centre and interviewed me. The interview was tape recorded. I could see that they had some documentation about me with them. After the interview, I was sent to the "jail inside the jail" by security guards, where I was isolated from outside. I was not allowed to make phone calls or have visits. This lasted for a fortnight. 6 The case-by-case assessment of late last year sets out the particulars of the fifth applicant. The circumstances of the fifth applicant's history, including the rejection of his previous claims for asylum by the delegate and the Refugee Review Tribunal ("RRT"), are set out. The case-by-case assessment also deals with the interview in 2005. Prior to dealing with that interview the case-by-case assessment concluded that the fifth applicant: ...has not provided new information or Convention related claims after being affirmed by the RRT [sic]. As presented above, his initial claims for protection were found not to be Convention related and he was found to lack a political profile of interest to the PRC authorities. At the RRT he also claimed to be a Falun Gong follower, but provided no evidence to support this claim. 7 The case-by-case assessment then goes on to deal with the interview by the PRC delegation. The following then appears under this heading: · No record of Mr [applicant's name] interview exists given that the interview tape is blank. Mr [applicant's name] is neither a party to the complaint to HREOC concerning the delegation interviews, nor to the Ombudsman complaint lodged by Sister Pat Sealey on behalf of some interviewees. Apart from being a co-signatory in a joint s 48B request lodged by a group of detainees interviewed by the PRC delegation in Villawood, which contains no specific allegations regarding Mr [applicant's name]'s interview, there is no record of Mr [applicant's name] providing further details about any specific concerns he may have had arising out of his particular interview by the PRC delegation. · The available evidence indicates that [applicant's name] does not have a profile that would place him at risk of being persecuted in China. Absent such a profile, and even if Mr [applicant's name] did disclose to the PRC delegation that he had applied for Asylum in Australia, his interview by Chinese officials is unlikely to have placed him at risk of persecution, as country information indicates that the act of applying for asylum abroad does not of itself expose a PRC national to a risk of persecution upon return. CX 12783 indicates that the PRC authorities are aware that many PRC nationals seek to take advantage of the opportunity to apply for refugee status abroad, and pay little attention to the claims made. In addition, advice from DFAT to the RRT [Report No. 00221 on 13/01/2003] is that: Applying for refugee status abroad in itself does not necessarily expose an applicant to persecution on return. The authorities might monitor the movements of such an applicant (if aware of the applicant's return and application status), but ongoing interest would largely depend on the applicants subsequent behaviour on return (i.e. whether the applicant engaged in illegal activities). In some circumstances, Public Security officials might initiate discussions with a returnee to obtain information on past associations or activities. · In summary, the new information discussed above, in combination with information known previously, has been assessed as not bringing Mr [applicant's name] case within your section 48B guidelines for consideration. 8 The primary application before me is one based on statutory interpretation or construction of s 48A of the Migration Act. Section 48A is in the following terms: (1) Subject to section 48B, a non‑citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa while in the migration zone. (1A) For the purposes of this section, a non‑citizen who: (a) has been removed from the migration zone under section 198; and (b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e); is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a). (1B) Subject to section 48B, a non‑citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone. (2) In this section: application for a protection visa includes: (aa) an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and (ab) an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen in Australia: (i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and (ii) who holds a protection visa; and (a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and (b) an application for a decision that a non‑citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and (c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992 . 9 It is also necessary to understand the terms of s 48B. Ms Mahony who appeared on behalf of the applicants submitted on behalf of them and in particular on behalf of the fifth applicant that s 48A should be construed in a manner not likely to prejudice Australia's obligations under the Refugees Convention and in that context not to produce a manifestly unreasonable or absurd result. While those canons of construction are, I think, not controversial, I do not see how they prevent the application of s 48A in its context applied here. 10 Section 48A is specifically subject to s 48B. If it is said that s 48A should not apply where there is a change of circumstance and the raising of a new claim, that is the very kind of circumstance to which a Minister would be directed under s 48B. I do not think that there is any warrant to construe s 48A as only limited to claims of a kind or a nature already made. The clarity and width of the words of s 48A do not admit of such an emaciating construction. 11 If, as may happen in cases from time to time, an applicant has failed on his or her claims for a protection visa and circumstances change or new circumstances arise where it becomes plainly just for Australia to accede its obligations in relation to that party based on the new circumstances these are the kind of considerations to which s 48B is sufficiently malleable to be directed to. If a Minister were of the view, or the Department were of the view, that clearly different and legitimate claims for protection arising afresh and after the previous determination of an earlier claim were not to be examined, serious questions might arise as to the proper performance of the powers under the Migration Act in the light of the cannons of construction of a kind that Ms Mahony referred. 12 But those questions would be whether any powers, duties or functions under s 48B had been properly and lawfully discharged, not whether s 48A should be construed in a narrow way to make room for contingencies that are capable of being taken up within the power and discretion provided for by s 48B. 13 Therefore, I accept the submission of Mr Markus on behalf of the Minister that I do not see a legitimate prima facie case to read down the construction of s 48A which subject to s 48B denies a non-citizen while in the immigration zone the ability to bring a protection visa application. In those circumstances, there not being in my view a legitimate or bona fide issue or real issue for determination, I do not see how I can make the interlocutory order sought. Even if I could detect a construction argument of the kind put forward by Ms Mahony at least in relation to the fifth applicant the evidence of risk and prejudice is less than potent. This man has made various applications under s 48B and has had them considered by the Department, the most recent claim made last Friday, that does not give the emphasis to the events of May 2005 which the statement of claim does. Nevertheless it is unnecessary to deal with that matter on the balance of convenience because I do not see a basis to consider that s 48A should be read down as argued. 14 In those circumstances I dismiss the notice of motion insofar as it is brought by the fifth applicant. 15 The matter dealt with on the notice of motion being argued solely by reference to the proper construction of s 48A, what I have said in relation to the fifth applicant is not intended to foreclose nor could it be intended to foreclose an argument based on s 75(v) of the Constitution as to the exercise of a power under s 48B, nor should that comment be taken as any form of encouragement for the view that a breach has occurred. 16 Further, nothing I have said deals with the related or cognate question which on my view of the facts does not arise at least this afternoon about the possible argument that breaches of Commonwealth law of the kind pleaded in the statement of claim, if made out on the evidence, could in some fashion operate in relation to ss 48A and 48B of the Migration Act in some way to give someone an enforceable right otherwise to prevent the apparent regular operation of the Migration Act. Neither of these two matters really arises in the application this afternoon, based as it is, on the proper construction of s 48A. 17 For those reasons the application brought by the fifth applicant by way of notice of motion filed in Court today is dismissed. 18 The fifth applicant should pay the costs of the respondent of today's application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.