EIB19 v Minister for Immigration

[2020] FCCA 1185

FEDERAL CIRCUIT COURT OF AUSTRALIA

EIB19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1185

Catchwords:
PRACTICE & PROCEDURE – Proposed further amended application – inappropriate matter to raise in these proceedings – leave for the applicant to rely on the further amended application refused.

Applicant: EIB19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2835 of 2019

Judgment of: Judge Street

Hearing date: 5 May 2020

Date of Last Submission: 5 May 2020

Delivered at: Sydney

Delivered on: 5 May 2020

REPRESENTATION

Counsel for the Applicant: Mr J Williams via Microsoft Teams

Solicitors for the Applicant: Barriston Lawyers

Counsel for the Respondents: Mr T Reilly via Microsoft Teams

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Leave for the applicant to rely on the further amended application is refused.

2. The applicant’s request to acquire the SIEV report is refused.

DATE OF ORDER: 5 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2835 of 2019

EIB19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced on 1 November 2019. On 28 February 2020, an affidavit was filed annexing a proposed amended application. This Court granted leave to the applicant to rely upon the ground identified in the amended application. This Court also made an order dispensing with a hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) and listing the matter for a final hearing today.

2. The applicant has filed a further affidavit of Mr Ehsani sworn 23 April 2020 annexing a proposed further amended application. The proposed further amended application seeks to agitate two grounds and introduces a new ground which, it is identified by Mr Williams of counsel on behalf of the applicant, apparently also relies on the desire to obtain a SIEV report that has not been produced to date.

3. Mr Williams identified a concern as to whether the applicant might be the subject of res judicata or issue estoppel if the issues concerning his second ground are not in these proceedings. It is apparent, as Mr Reilly of counsel on behalf of the first respondent pointed out that, the second ground is not a challenge to the first respondent’s decision but, rather, seeks to introduce a cause of action for damages in relation to alleged unlawful detention.

4. The second ground is an inappropriate matter to raise in these proceedings. The proposition of any such estoppel is misconceived. There is no proper basis for the applicant to bring this belated application before the Court. Further, it was identified by Mr Williams that it would, inevitably, give rise to an adjournment. That is a further reason why, as a matter of discretion, the Court would not grant leave to the applicant to rely upon the proposed further amended application. Given the affidavit evidence filed by the first respondent in respect of the existing ground in the amended application, the Court is satisfied that the SIEV report is irrelevant. For these reasons, the Court makes the following orders.

I certify that the preceding four (4) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Date: 19 May 2020