ENV17 v Minister for Immigration - [2018] FCCA 2516

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENV17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2516

Catchwords:
MIGRATION – Application in a case to expedite proceedings – the Court must apply the law as it exists – the Court has no right to and cannot speculate upon alterations in the law that may be made in the future – no basis to expedite proceedings – application in a case dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999, (Cth), s 13.

Cases cited:

DBC16 v Minister for Immigration & Anor [2018] FCCA 1802

DBD16 v Minister for Immigration & Anor [2018] FCCA 1801

Jupp v Computer Power Group Limited (1994) 122 ALR 711

Meggitt Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527

R v Whiteway; Ex Parte Stephenson [1961] VR 168

Ramsay v Aberfoyle Manufacturing Company (Aust) Pty Ltd (1935) 54 CLR 230

Sydney City Council v Ke‑Su Investments Pty Limited and Ors (1985) 1 NSWLR

246

Warramunda Village Inc v Pryde (2002) 116 FCR 58

Wong v Minister of Immigration and Multicultural and Indigenous Affairs

[2003] FCA 937

Applicant:

ENV17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESMENT AUTHORITY

File Number:

SYG 3138 of 2017

Judgment of:

Judge Street

Hearing date:

5 September 2018

Date of Last Submission:

5 September 2018

Delivered at:

Sydney

Delivered on:

5 September 2018

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones
Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr B Kaplan

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

The Court varies order 2 made by Judge Dowdy on 5 September 2018.
Direct the Application in a Case be heard by this Court today.
The Application in a Case is dismissed.
Costs of the Application in a Case be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3138 of 2017

ENV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

These proceedings were commenced on 9 October 2017. The applicant is seeking a Constitutional writ in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 18 September 2017. The proceedings came before a Registrar of the Court on 10 November 2017 and the matter was fixed for hearing before a different judge on 28 November 2019. Consistent with the practice adopted in this Court, where resources become available this matter was then transferred into this Court’s docket.
On 6 February 2018, this Court made orders vacating the order for the hearing date on 28 November 2019 and bringing the matter forward for hearing on 24 July 2018. On 24 July 2018, the solicitor for the applicant appeared and counsel for the first respondent appeared. The Court made orders vacating the hearing date and granting leave to the applicants to rely upon the amended application dated 12 July 2018. The Court did not formally dispense with the need for the filling of that amended application. It is apparent, that the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 2516
Decision Date: 5 September 2018

CaseChat Overview and Summary

The applicant, ENV17, sought an expedited hearing of their migration matter before Judge Street of the Federal Circuit and Family Court of Australia. The Minister for Immigration was the respondent. The core of the dispute concerned the applicant's desire to have their case heard sooner rather than later, presumably due to personal circumstances or the nature of the migration decision under review.

The central legal issue before the Court was whether there were sufficient grounds to grant an application to expedite the proceedings. This required the Court to consider the existing legal framework governing the expedition of cases and whether the applicant's circumstances met the threshold for such an order.

Judge Street dismissed the application, reasoning that the Court is bound to apply the law as it currently stands. The Court cannot, and should not, speculate on potential future changes to the law that might, if enacted, provide a basis for expedition. In the absence of any existing legal basis or compelling circumstances demonstrated by the applicant that warranted an expedited hearing under the current law, the application could not be granted.

Orders