Amer v Minister for Immigration

[2017] FCCA 227

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMER v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 227

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – adjournment of final hearing to await special leave application to High Court of Australia from Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 – in the interests of justice for final hearing to be adjourned – application for adjournment granted.

Cases cited:

BLD15 v Minister for Immigration and Border Protection [2015] FCA 72

Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

Applicant: MOHAMED AHMED MOHAMED BA AMER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 783 of 2016

Judgment of: Judge Dowdy

Hearing date: 10 February 2017

Date of Last Submission: 10 February 2017

Delivered at: Sydney

Delivered on: 10 February 2017

REPRESENTATION

Counsel for the Applicant: Mr D Godwin of Counsel

Counsel for the Respondents: Mr L Leerdam

Solicitors for the Respondents: DLA Piper

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The final hearing of this matter set down and appointed for 28 March 2017 is vacated.

2. That the Applicant pay the First Respondent’s costs of and incidental to the application for adjournment heard today, as agreed or otherwise assessed.

3. Direct that the Minister advise the Court and the Applicant of the result of the special leave application pending in the High Court in relation to the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, at the earliest possible opportunity after determination of that special leave application.

4. Otherwise stand the proceeding over generally to await that advice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 783 of 2016

MOHAMED AHMED MOHAMED BA AMER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. In this matter I am hearing an interlocutory application by the Minister who is First Respondent for adjournment of the final hearing which is set down for 28 March 2017 in the following circumstances.

2. The Applicant has sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) of 8 March 2016 not to grant to the Applicant a Partner (Migrant) (Class BC) visa (Partner visa) and the final hearing date of 28 March 2017 was appointed on 27 April 2016. 

3. By an email dated 19 January 2017, the Minister’s lawyers, acting on behalf of a client who is a model litigant, voluntarily disclosed to the Applicant that the application was potentially affected by the decision of the Full Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 (Singh).

4. The email went on to note that the Minister had filed an application for special leave to appeal against the Full Federal Court’s decision in Singh on 16 January 2017 and indicated that it was believed that the High Court was likely to hear the special leave application in late April or early May 2017.  The email ended with a request that in these circumstances, the hearing of this matter set down, as I have said, for 28 March 2017 be adjourned pending the special leave application in the High Court; the email attached short minutes of order to that effect and that intent. 

5. What happened then was that an email reply was sent on behalf of the Applicant that merely indicated that the Applicant did not consent to the adjournment of the hearing date and enclosed an amended application in this proceeding, which I assume – and I say assume because it is not before me on this application – sought to take advantage of Singh, having regard to the disclosure by the Minister that this application was affected by Singh.  The email, which is annexure “D” to the affidavit of Ms C Hillary, did not condescend to give any reason as to why there was no consent to the adjournment. 

6. In this state of the matter I indicated to the parties that the Minister’s application for an adjournment ought to be listed for argument, and I have heard that argument this morning.  In my view, it is in the interests of the administration of justice to wait for the special leave application to be determined.  I have been regularly adjourning, by consent, applications pending, or set down for hearing in this Court, to abide the hearing of the application for special leave in the High Court.  I think it is an eminently reasonable course to occur. 

7. Courts, over many years, have regularly adjourned pending cases where a critical issue is the subject for determination in a pending case in a higher court in the hierarchy of courts.  The application for special leave is not going to take place long into the future, but in the reasonably short term.  Obviously, in most cases there is a degree of prejudice to a plaintiff or an applicant in not having his, her or its case heard as soon as possible, but in this case there is no admissible evidence of any particular prejudice to the Applicant if the adjournment sought by the Minister is granted. 

8. On the basis that the final hearing date of 28 March 2017 is vacated and the High Court refuses special leave, the Minister takes this on the chin and it has been admitted and conceded by Mr Leerdam, who appears for the Minister, that there will then be consent orders that will quash the determination of the Tribunal under judicial review in this case, and the Partner visa application will be remitted to a new Tribunal for a fresh determination. 

9. If, on the other hand, special leave is granted, the High Court will hear the case, and in the circumstances where so many other cases are dependent and related to the decision in Singh, I would think it likely, and I am prepared to infer for the purposes of this adjournment application, that the High Court, if special leave was granted, would deal with the matter in a timely way.  There is no suggestion that the Applicant, who has been refused the Partner visa, for which refusal he is seeking judicial review, will be forced to leave the country.  He will be able to continue his life in the way that he is doing at the moment. 

10. I consider that the opposition to the request for an adjournment was unreasonable.  I think the suggestion in the Written Submissions on behalf of the Applicant that here and now, without further ado, the Minister should immediately consent to the quashing of the Tribunal decision under review and remittal to a new Tribunal, in circumstances when an application for special leave is pending in the High Court, is also unreasonable.  Of course, it is the case that nobody knows what the result will be on the special leave application in the High Court, but in my opinion, in all the circumstances, I consider that the hearing which has been set down for 28 March 2017 should be vacated to await the result of the special leave application.

Postscript

1. In argument Mr Leerdam referred to the decision of Katzmann J in the Federal Court of Australia in BLD15 v Minister for Immigration and Border Protection [2015] FCA 72 in support of an adjournment. The reasons for judgment of her Honour in that case were however not yet available. Since oral delivery of my judgment her Honour’s reasons have become available and in that case she granted an adjournment of a final hearing until the determination by the High Court of the special leave application in Singh for reasons consistent with, and in my view supporting, those given by me above for the adjournment of the final hearing in this case.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:     14 February 2017