FEDERAL COURT OF AUSTRALIA WZAVL v Minister for Immigration and Border Protection [2016] FCA 299 Appeal from: WZAVL v Minister for Immigration & Anor [2015] FCCA 2388 File number: WAD 59 of 2016 Judge: WIGNEY J Date of judgment: 1 March 2016 Legislation: Federal Court Rules 2011, r 36.03 Migration Act 1958 (Cth), ss 5(9), 198(6), 417 Cases cited: Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 Date of hearing: 1 March 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 37 Counsel for the Applicant: The applicant appeared in person by telephone Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting appearance save as to costs ORDERS WAD 59 of 2016 BETWEEN: WZAVL Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent FEDERAL CIRCUIT COURT Third Respondent JUDGE: WIGNEY J DATE OF ORDER: 1 MARCH 2016 THE COURT ORDERS THAT: 1. The interlocutory application filed by the applicant on 29 February 2016 is dismissed. 2. The applicant is to pay the first respondents' costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript) WIGNEY J: 1 The applicant is a citizen of Nigeria. He is an unsuccessful applicant for a protection visa under the Migration Act 1958 (Cth) (the Act). A delegate of the respondent, the Minister for Immigration and Border Protection (Minister), refused his protection visa application on 16 September 2014. The applicant sought a review of that adverse decision in the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). That application was unsuccessful. The Tribunal affirmed the decision to refuse the applicant a protection visa. Undeterred, the applicant then commenced judicial review proceedings in the Federal Circuit Court (Circuit Court). The Circuit Court dismissed the applicant's judicial review application on 9 September 2015. 2 The interlocutory application now before the Court arises largely by virtue of the fact that the applicant did not file an appeal from the judgment of the Circuit Court within the time prescribed in the Federal Court Rules 2011 (Rules). Any appeal was required to be filed by 30 September 2015 (see r 36.03). 3 It would appear that by mid-January 2016, officers in the Minister's department had commenced arrangements to have the applicant removed from Australia and returned to Nigeria as a result of the refusal of his protection visa. That intention was not immediately communicated to the applicant. Before it was, the applicant applied for an extension of time in which to file an appeal from the judgement of the Circuit Court. That application was filed on 25 January 2016, almost four months after the cut-off date for the filing of an appeal. 4 The filing of the application for an extension of time, however, did not alter the resolve of the Minister's department to remove the applicant from Australia. On 24 February 2016, the applicant was given notice of the Minister's intention to remove him from Australia. The current intention is to remove the applicant from Australia tomorrow, that is, 2 March 2016. 5 The receipt by the applicant of the notice of intention to remove him from Australia no doubt prompted the applicant to file this urgent interlocutory application, being an application to restrain the Minister or officers in his department from removing him from Australia pending the finalisation of his extension application and, if granted, his appeal. As will be seen, the applicant also contended that he should not be removed from Australia until the finalisation of compensation proceedings he claims he has commenced against the Minister or his department. 6 The Minister opposes the making of any order restraining him or his officers from removing the applicant from Australia. The Minister points out, amongst other things, that he or his officers are required by s 198(6) of the Act to remove the applicant from Australia "as soon as reasonably practicable". That is because, in the somewhat tortuous terms of s 198(6) of the Act, the applicant is a non-citizen detainee who has made a valid application for a visa which has been refused and finally determined. The expression "finally determined" is defined in s 5(9) of the Act as effectively meaning, in this context, a visa application in respect of which the merits review avenues in the Act are no longer available. The merits review avenues have been exhausted in the applicant's case. 7 The Minister accepts that the Court has jurisdiction to restrain him from acting in compliance with s 198(6) of the Act. But for a court order, however, the Act effectively compels the removal of the applicant from Australia as soon as reasonably practicable. 8 The principles that apply where an interlocutory injunction is sought to restrain public law actions in circumstances such as this are not in dispute. In order to secure an injunction the applicant must show three things: first, the applicant must establish that there is a serious question to be tried, or that he has a prima facie case in the action; second, he must establish that he will suffer irreparable injury for which damages will not provide adequate compensation unless an injunction is granted; third, he must establish that the balance of convenience favours the grant of an injunction: Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148. 9 The Minister concedes that in all the circumstances of this case, the applicant's removal from Australia would constitute action against the applicant for which damages would be an inadequate remedy if it turned out to be wrongful or unjustified. As for the balance of convenience, the Minister submits that the balance of convenience does not favour the grant of an injunction. That submission is, however, based largely on what the Minister submits is the limited prospects of success of the applicant's extension of time application. But for that consideration, the balance of convenience would, it appears, plainly lean towards the grant of an injunction. 10 The main issue on this application, therefore, is whether there is a serious question to be tried or a prima facie case for the relief sought by the applicant. In the applicant's case, the question is whether he has any, or any reasonable, or even arguable, prospects of success in obtaining an extension of time in which to file an appeal. The Minister effectively conceded that if the applicant did have an arguable case, or had reasonable prospects of success in securing an extension of time, an injunction should be granted. 11 To determine whether the applicant has an arguable case or reasonable prospects of obtaining an extension of time to file an appeal it is necessary to have regard to the Tribunal's reasons, the grounds of review before the Circuit Court, the judgment of the primary judge rejecting those grounds and the proposed grounds of appeal. 12 In very short terms, the applicant's case before the Tribunal that he was entitled to a protection visa hinged on three factual claims. First, the applicant claimed that in 1990 his father was tortured to death in the village in which he lived. He was tortured and killed because of his activities against witchcraft, which was practised by some people in the village. The applicant contended that in 2001, some years after his father was tortured and killed, he started asking questions about his father's death. That resulted in people in the village attacking him. During those attacks, the applicant claimed that he was injured. Amongst other things, he was burnt with acid. It was the applicant's case in the Tribunal that following the attacks in 2001, he moved to a town named Aba, which was about 60 miles away from the village. He lived there for about seven years until 2008, when he moved to Malaysia. 13 The second factual claim made by the applicant in support of his protection visa claim related to his reason for leaving Aba. He claimed that he left Aba because, at the time, Christians were being attacked by Muslims in the streets of Aba. It appears to be implicit in the applicant's case that he was a Christian and, therefore, that he feared harm at the hands of Muslims or other anti-Christian vigilante groups in the township of Aba. 14 Third, the applicant claimed in his evidence before the Tribunal that he feared having to return to Nigeria because he would be killed by gangsters on account of the fact that he would be perceived to be a rich man. 15 The Tribunal considered each of those three claims by the applicant. It ultimately found that it was not satisfied that the applicant met the criteria for a grant of a protection visa on the basis of the claims. 16 The Tribunal accepted that the applicant's father had been murdered and that the applicant had been subject to some attacks in 2001. The Tribunal found, however, that on the applicant's own evidence he had moved to Aba after the incidents in 2001. He resided there for seven or eight years without any apparent incident. The Tribunal found that if the applicant was to return to Nigeria, he would return to Aba. He would therefore not be subject to potential harm in the village in which his father was murdered. The Tribunal concluded that the chances of the applicant encountering any harm in Aba in the foreseeable future on account of the events that had occurred in the village was remote. Accordingly, it found that any fears that the applicant may have had based on the events that occurred in the village were not well founded. For essentially the same reasons, the Tribunal was also not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there was a real risk that he would suffer harm on account of those events. 17 As for the applicant's claims concerning his fear of attack on account of the fact that he was a Christian, and Christians were subject to attack by Muslims in Aba, the Tribunal had regard to so-called "country" information from reliable sources concerning religious conflicts in Nigeria. The Tribunal found, on the basis of that information, that religious conflicts and attacks on Christians were rare in the southern states of Nigeria in which Aba was located. The Tribunal accordingly concluded that it was not satisfied that the applicant's fear of harm from Muslims on account of his Christianity was well founded in respect of his home area in Nigeria. The Tribunal also found, for essentially the same reasons, that it was not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that he will suffer harm. 18 Finally, in relation to the applicant's claim that he feared harm from gangsters if he was returned to Nigeria, the Tribunal was not satisfied that the applicant would be identified as a rich man by any groups in Nigeria. It found that his fears of harm on that account were without foundation. The Tribunal concluded that it did not consider the likelihood of the applicant being a victim of crime was any more than remote. It was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria there was a real risk that he would suffer harm at the hands of gangsters on the basis he had contended. 19 As earlier indicated, the applicant challenged the Tribunal's decision in judicial review proceedings in the Circuit Court. The applicant's sole ground of judicial review in the Circuit Court was in the following terms: The Refugee Review Tribunal made an error of law and/or jurisdictional error in finding that the applicant was not a person to whom Australia owes protection obligations for the purposes of s.36(2) of the Migration Act 1958 (Cth). 20 The primary judge rejected that ground and dismissed the applicant's judicial review application. The primary judge found, in effect, that the applicant had not demonstrated any jurisdictional error on the part of the Tribunal. The primary judge's reasons for so finding are encapsulated in [29] of the Judgment: It is apparent from the outline of the Tribunal Decision set out above: see [10]-[18] above, that the Tribunal identified the relevant issues, asked the right questions, relied on appropriate factual material, did not ignore any relevant factual material, and exercised its power properly and within jurisdiction: Yusuf. The Tribunal clearly considered each of the applicant's claims as they were there made, and ultimately found that there was no real risk that the applicant would suffer harm if he were to return to Nigeria. Such findings were open to it on the evidence available and the merits of the Tribunal's findings in this regard are not open to review by the Court. As such the ground amounts to nothing more than a plea for impermissible merits review based on the applicant's dissatisfaction with the Tribunal Decision: Wu Shan Liang. 21 The primary judge also went on to consider some additional documentation containing written submissions and other material that the applicant put forward in support of his judicial review application. The primary judge found that that submissions were either irrelevant, on the basis that they concerned events that had occurred after the Tribunal hearing, or involved factual matters that were not the subject of the applicant's claims or evidence before the Tribunal. The primary judge ultimately concluded that the material contained in the written submissions and other written material lodged by the applicant did not establish any jurisdictional error on the part of the Tribunal. 22 One of the key considerations to have regard to in determining whether to grant an applicant an extension of time to file an appeal is the merits of the proposed appeal. An applicant must generally show that there is an arguable ground or grounds of appeal. 23 The applicant's application of an extension of time was not accompanied by a draft notice of appeal, as required by the Rules. In his affidavit filed in support of his application for an extension of time, however, the applicant sets out a series of broad contentions that appear to comprise his proposed grounds of appeal. They are as follows (at [13]-[23]): 13. The Refugee Review Tribunal constructively committed jurisdictional error when it made [its] decision on 5 December 2014. 14. The tribunal misinterpreted and misapplied section(s) of the Migration Act by not [giving] proper weigh to some evidence. 15. The Tribunal misconstrued the Complementary legislation when it failed to recognise what amounts to severe and inhuman treatment and punishment and by that failure the tribunal failed to consider Australia's international obligations under the various international Conventions. 16. The Tribunal was in error because the decision made was in denial of procedural fairness and denial of natural justice to me. 17. The Tribunal made erroneous findings, reached mistaken conclusions on material questions of fact in breach of Section of the Migration Act 1958. 18. The learned Judge of FCCA erred by misapplying section of the Migration Act 1958. 19. The Tribunal failed to make relevant enquiries into critical facts the existence of which can easily be ascertained from a good source such as the Nigerian community. 20. That the delegate failed to engage and invoke Australia's International Obligation under the International Covenant for Civil and Political Rights (ICCPR) and its second Optional Protocol aiming at the abolition of the Death Penalty and the Covenant against Torture. 21. The Tribunal misapplied real risk and real chance of significant harm. 22. The Tribunal had failed to ask relevant questions prescribed by law and its decision was beyond power. 23. Leave to file amended application with particulars and any supplementary affidavit and any relevant documents. 24 A number of points can be made concerning these proposed grounds of appeal, if that is what they are. First, they largely comprise a series of broad sweeping and unparticularised assertions of error on the part of the Tribunal. Second, they do not engage at all with the reasons of the primary judge in relation to the sole ground of review that was before the Circuit Court. Third, given that the grounds or arguments referred to in the applicant's affidavit were not advanced before the Circuit Court, the applicant would need the Court's leave to raise any such arguments on appeal. 25 At the hearing of his application for an extension of time, the applicant made oral submissions in support of his application. It is fair to say, however, that those submissions did not engage at all with the proposed grounds of appeal. Rather, the applicant essentially repeated his fears about returning to Nigeria, based on the death of his father and threats that he maintained were made to other members of his family. The applicant repeatedly stated that he was not lying and that he had a genuine fear of returning to Nigeria on good grounds. Essentially all that the applicant did was to repeat the claims or the substance of the claims that he had originally advanced in the Tribunal. 26 It follows that neither the applicant's affidavit, nor his oral submissions, raised any arguable ground of appeal. 27 Another relevant factor in determining whether an extension of time to file an appeal should be granted is whether the applicant has given an adequate explanation for the delay in filing the appeal. 28 The applicant's affidavit seeks to explain his delay in filing an appeal. In that regard, the applicant deposed as follows: I did not [lodge] an appeal to this honourable court on time because I am still going through counselling due to the injuries I sustained from the bashing that occurred at detention centre. My memory of things are blur and I suffered lose of memory among other things [sic]. 29 There is no dispute that the applicant was harmed and severely injured whilst in immigration detention. That assault occurred on 5 March 2015, well before the hearing of the applicant's judicial review application in the Circuit Court. The applicant did not lead any medical evidence concerning any ongoing effects or adverse implications from the injuries sustained during the assault. Nor did the applicant seek to explain how he was able to conduct the Circuit Court proceedings without any difficulties, but on his account, was unable to file an appeal within time. Even if it is accepted that the applicant may have continued to suffer poor memory or some other ill-effects as a result of the assault, it is difficult to accept that this provides an adequate explanation for the four-month delay in filing an appeal. 30 There is an additional fact that casts considerable doubt on the veracity and cogency of the applicant's explanation for the delay. That additional fact is that on 2 October 2015 – just under a month after the Circuit Court handed down its judgment – the applicant initiated a request for ministerial intervention pursuant to s 417 of the Act. That application was determined adversely to the applicant on 13 November 2015. The Minister effectively declined to intervene. That would tend to suggest that the applicant's failure to file an appeal within time was not the result of the ongoing effects of the assault. Rather, it indicates that the applicant made the forensic decision to pursue ministerial intervention, rather than to exercise his appeal rights in respect of the adverse decision of the Circuit Court. 31 In all the circumstances, it is simply not possible to conclude that the applicant has reasonable prospects of obtaining an extension of time to file an appeal. He has failed to adequately explain his delay in filing an appeal and has failed to put forward any arguable ground of appeal. 32 It remains to consider the applicant's additional ground for restraining the Minister from removing him from Australia. He claims that he has sought compensation from the Minister and his department arising from the assault that he suffered whilst in immigration detention. The evidence in relation to this aspect of the matter is sparse. As already indicated, there is no dispute that the applicant was assaulted whilst he was in detention or that he suffered injuries as a result of that assault. In his affidavit evidence the applicant said that he has applied for compensation against the Minister and the department in relation to that incident. Unfortunately, however, he provided no detail concerning his compensation claim. It is unclear if he has commenced proceedings in a court or Tribunal. If he has, it is unclear what stage those proceedings have reached. 33 The Minister did not cross examine the applicant. Nor did he lead any evidence about either the assault upon the applicant in March 2015, the extent of the applicant's injuries, or the applicant's claim that he has sought compensation in relation to that incident. That is unfortunate given the Minister's status as a model litigant and the fact that the applicant was not legally represented. Nevertheless, the applicant bore the onus of making out a case for injunctive relief. 34 Even putting aside the inadequacy of the evidence concerning the compensation claim, this aspect of the applicant's claim for injunctive relief must fail. The fact that the applicant either may have civil law damages rights against the Minister or his department or has already commenced civil proceedings to pursue those rights does not provide a proper basis for the grant of the interlocutory injunction sought by the applicant. The mere existence of that civil right would not provide a good ground to restrain the Minister from carrying out his duty or obligation under the Act to remove the applicant from Australia. 35 It is equally doubtful that the balance of convenience would support the grant of injunctive relief in these circumstances. Even if returned to Nigeria, the applicant would be able to continue to pursue any right of action or proceedings against the Minister, perhaps with the assistance of a lawyer. If he was ultimately required to give evidence in any proceedings concerning that injury, he could apply to the Court to give that evidence by video link if the Minister refused any application by him for a visa to travel to Australia to give such evidence. The balance of convenience would accordingly not support the making of an injunction. 36 In all the circumstances, the applicant's application for interlocutory relief in the nature of an injunction restraining the Minister or his officers from removing him from Australia must be dismissed with costs. Disposition 37 The orders of the Court are as follows: 1. The interlocutory application filed by the applicant on 29 February 2016 is dismissed. 2. The applicant is to pay the first respondents' costs as agreed or taxed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate: Dated: 1 March 2016