MZXLD v Minister for Immigration and Citizenship [2012] FCA 5

FEDERAL COURT OF AUSTRALIA

MZXLD v Minister for Immigration and Citizenship [2012] FCA 5 Citation: MZXLD v Minister for Immigration and Citizenship [2012] FCA 5

Parties: MZXLD v MINISTER FOR IMMIGRATION AND CITIZENSHIP

File number: VID 11 of 2012

Judge: MURPHY J

Date of judgment: 11 January 2012

Date of hearing: 10 January 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 30

Solicitor for the Applicant: Mr K Tringas of Konstantin F Tringas with Mr D Cheung

Solicitor for the Respondent: Mr D Brown of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 11 of 2012

BETWEEN: MZXLD

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: MURPHY J DATE OF ORDER: 11 January 2012 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION vid 11 of 2012

BETWEEN: MZXLD

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: MURPHY J DATE: 11 January 2012 PLACE: MELBOURNE

REASONS FOR JUDGMENT

introduction 1 This is an urgent application made on behalf of a Sri Lankan citizen MZXLD ("the applicant") for an injunction to prevent the Minister for Immigration and Citizenship from giving effect to a decision that he be removed from Australia. The flight upon which he is to be removed is scheduled to depart today at 3 pm and has as its ultimate destination, Colombo, Sri Lanka. 2 On 4 January 2012 the applicant was issued with a notice by the Department of Immigration and Citizenship which advised of his pending removal from Australia. He has moved with speed since that date to bring this application, notwithstanding that he is held in detention in the Maribyrnong Immigration Detention Centre, having been detained since 20 October 2011. 3 The applicant has not commenced any proceedings seeking final relief, although through his lawyers in the body of the Application he has undertaken to do so within 14 days. He has not specified the grounds upon which any such application might be founded. In an affidavit sworn 9 January 2012 the applicant deposes that he has not had enough time to seek legal advice so as to properly articulate the grounds of his future application. He relies on the fact that he was only informed on 4 January 2012 that an application to the Minister which he made under s 417 of the Migration Act 1958 (Cth) was unsuccessful, and that he was to be removed from Australia. He does though indicate in his affidavit and in oral submissions by his lawyers several roughly articulated grounds upon which he proposes to rely in his pending proceedings, although indicating that other grounds will be investigated should an injunction be granted. 4 The Application seeks an injunction in the following terms: An order granting an injunction preventing the Department of Immigration and Citizenship, its Minister, its Secretary and/or any of its officers from deporting the applicant from Australia under s 189(1) of the Migration Act 1958 until such time as the applicant's proposed proceeding has been determined. In oral submissions the solicitor acting for the applicant argued for an injunction only for a short time until his lawyers could further consider the legal avenues available to him. 5 The applicant came to Australia with two friends on 13 April 2002 on a short stay business visa. He alleges that all were members of the Sri Lankan Freedom Party ("SLFP") which had been defeated in the parliamentary elections in December 2001. He alleges that he had a high level involvement in SLFP activities and was a member of an intelligence gathering group formed and operated by Mr X. He says that he and his colleagues left Sri Lanka because of the real chance of persecution by their political opponents in power in Sri Lanka, including threats of torture and death. He says that after he left the intelligence gathering unit and came to Australia its leader Mr X had threatened him because he had refused to return to Sri Lanka and assist him further. I do not suggest that this short history is in any way adequate to record the details of the claims made by the applicant, but the urgency of this hearing and judgment requires brevity. 6 I note though that the applicant's claims were the subject of a detailed and lengthy decision of the Refugee Review Tribunal ("RRT") dated 6 June 2006 in which the RRT considered whether the applicant had a well founded fear of persecution. The RRT found that the applicant was nothing more than an ordinary member of the SLFP, and not a member of any special intelligence gathering group. It did not accept that he had experienced serious harm in the past because of his political opinion or that he was of interest to his political opponents prior to his departure from Sri Lanka. It did not accept that if he returned to Sri Lanka and resumed his active support of the SLFP that he would face a real chance of persecution by his political opponents. The RRT affirmed the decision of a delegate of the Minister on 29 August 2002 not to grant the applicant a protection visa. 7 Since the decision of the RRT, the applicant claims that if he is forced to return to Sri Lanka the risk of persecution that he faces has increased. In particular he says this is so because of the action taken by the RRT in publishing on its website from at least March 2009 a report titled "RRT Research Response" ("RRT Research Report") which contained information prepared by the Department of Foreign Affairs and Trade which referred to Mr X. The information had been gathered by DFAT in the context of the applicant's claim for a protection visa. The RRT Research Report can be located on the internet by a Google search. The Minister accepts that the Department published and continues to publish the RRT Research Report on its website and says that it is entitled to do so in performance of its statutory obligations. 8 One of the three men who had come to Australia in 2002 with the applicant is Mr A. Mr A has since returned to Sri Lanka. The applicant alleges that Mr A has changed his political affiliation out of necessity and now works again with Mr X. Mr A has sworn that Mr X is very angry about the publication of his name in the RRT Research Report and has informed him that he is waiting to take his revenge on the applicant should he return to Sri Lanka.