Jahan v Minister for Immigration & Anor
[2009] FMCA 249
•20 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JAHAN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 249 |
| MIGRATION – Visa – Student (Temporary)(Class TU) visa – application for review of MRT decision. PRACTICE & PROCEDURE – Adjournment – reasons for adjournment – whether hearing date should be vacated – whether hearing should be delayed until after appeal decision handed down by Full Court of the Federal Court. |
| Federal Magistrates Court Rules 2001 (Cth), r.13.10, 44.10 |
| Shah v Minister for Immigration and Citizenship [2009] FMCA 108 Fan Fan v Minister for Immigration and Citizenship [2009] FMCA 123 Bhatt v Minister for Immigration & Anor [2009] FMCA 219 Al-Magableh v Minister for Immigration & Anor [2009] FMCA 230 Shibly v Minister for Immigration & Anor [2009] FMCA 193 Fazio v Centrelink [2008] FMCA 594 |
| Applicant: | SAHARIAR JAHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2592 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 March 2009 |
| Date of Last Submission: | 20 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reynolds |
| Solicitor for the Respondent: | Ms Weston |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The hearing date of 24 March 2009 is vacated.
The Application is adjourned to Monday 11 May 2009 at 11:15am for Directions only before Federal Magistrate Scarlett in Court 7B, level 7, John Maddison Tower, 88 Goulburn Street, Sydney, NSW, 2000.
The parties' costs of today are reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2592 of 2008
| SAHARIAR JAHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application that the Court has to deal with today is an application brought by the substantive applicant for a stay of the proceedings pending the determination of the Full Court of the Federal Court of the appeal from a decision in another matter, Shah v Minister for Immigration and Citizenship[1]. The basis for this application is described as r.13.09 of the Federal Magistrates Court Rules.
[1] [2009] FMCA 108
The application in the case is, as the Rules provide, supported by the affidavit of the solicitor with the carriage of this matter, Mr Trilaksono Soeryoatmodjo. Objection has been taken to paragraphs 3 through to 10 of the affidavit on various bases including opinion, hearsay and matters which are more akin to that of a submission than of a statement of the facts.
I have overruled the objection to paragraph 3, which was an objection on the basis the material contained was redundant.
In respect of paragraph 4 through to 10 inclusive, I am of the view that the matters contained are more in the nature of the submission which the Applicant through his counsel wishes to put to the Court today, and I have indicated to the parties that I would deal with those paragraphs on this basis without the necessity for making formal rulings as to whether each one of them complied with the law of evidence.
The situation that the Court faces is that this application is listed for Final Hearing on the morning of Tuesday 24th March 2009, which is next Tuesday, today being the Friday immediately beforehand. The application has been allocated half a day and the Court would normally expect the matter to proceed to a hearing on that day.
Background
The application has had a little bit of a history in that the original application and affidavit in support were filed on 8th October 2008. In the ordinary course of events the matter would have been heard and determined by now as it was listed for Final Hearing at 2:15pm on 10th December 2008. However, on that day, after some preliminary submissions, I took the decision to adjourn the hearing of the application and directed that it must proceed on 9th February 2009.
Unfortunately, on that occasion the Court was unable to deal with the matter due to judicial unavailability. The matter was adjourned until 10:15am on Tuesday 24th March 2009. In other words, it is quite clear that this matter has had more Court events than would normally be desirable for an application for review of a decision of the Migration Review Tribunal.
Relevant Rules
The Court is aware of the law relating to a stay and I have in any event had my attention drawn by Ms Weston, who appears for the Minister, not only to r. 13.09 but to r. 13.10 which relates to Disposal by Summary Dismissal and the reasons why the Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding.
It is also appropriate that the Court should consider the provision of r. 44.10 which relates to Stay of Proceedings in migration matters which says:
The Court may, at any time, grant, discharge or vary a stay of the proceedings to which an application for an order to show cause relates.
Rule 13.10 refers essentially to Disposal by Summary Dismissal and considers a stay normally in the context of a permanent stay although not necessarily and as pointed out there are three reasons given:
a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
b) the proceeding or claim for relief is frivolous or vexatious; or
c) the proceeding or claim for relief is an abuse of process of the Court.
It is quite clear that the substantive application in this matter is none of the above. It is clearly not frivolous or vexatious. It is clearly not an abuse of the process of the Court and from my reading of the file it would be difficult to say that the party prosecuting the proceeding or claim has no reasonable prospect of successfully prosecuting it. There are genuine issues to be decided.
Application for an Adjournment
The basis of the application, however, to vacate the hearing date on Tuesday is that a part of the case relates to the interpretation of cl.572.223(2) of Schedule 2 to the Migration Regulations and Item 5A407a of Schedule 5A of the Regulations. That is a matter which has been before this Court on a number of occasions quite recently. In fact this Court has now handed down decisions in five such matters dealing either with Item 5A407 or Item 5A404. Those matters are:
·Shah which is now the subject of an appeal;
·Fan Fan v Minister for Immigration and Citizenship[2];
·Bhatt v Minister for Immigration & Anor[3] which was handed down today;
·Al-Magableh v Minister for Immigration & Anor[4], a decision which was handed down today; and
·Shibly v Minister for Immigration & Anor[5], the reserve judgment which was handed down last Tuesday 17th March 2009.
[2] [2009] FMCA 123
[3] [2009] FMCA 219
[4] [2009] FMCA 230
[5] [2009] FMCA 193
I am informed by Mr Reynolds of counsel, who has appeared in a number of these matters, that it is highly likely that the Applicant will be appealing in at least one of the matters if not more. It is in fairness too early to expect the Applicant's solicitors in the matters which have recently been handed down to indicate whether they have firm instructions to appeal or not but I accept the fact that there is a likelihood that one or more appeals may arise.
In my view, the application before the Court, whilst expressed as a stay, is not so much an application for a stay as an application to:
i)vacate a hearing; and
ii)adjourn the proceedings until after the expiration of a certain event, namely the handing down of a decision by the Full Court in the matter of Shah.
Submissions
Ms Weston who appears for the Minister has very helpfully referred to the decision of Lucev FM in Fazio v Centrelink[6] where his Honour carefully set out the principles which the Court should consider when dealing with an application for an adjournment of a case that has been listed for hearing in [4], [5] and [6].
[6] [2008] FMCA 594
His Honour refers to the objects of the Federal Magistrates Court Rules in r.1.03 and refers to his own decision in Goodall v Nationwide News Pty Ltd[7] where his Honour said that:
[7] [2007] FMCA 218 at [21]
It is apparent that the Court is intended to operate in a manner:
a) as informal as possible in the exercise of judicial power;
b) which is not protracted in its proceeding;
c)which resolves proceedings justly, efficiently and economically;
d) uses streamlined procedures; and
d) avoids undue delay, expense and technicality.
His Honour went onto say that it was in that context that discretionary power to adjourn must be exercised and he said:
There are, of course, certain principles which apply generally with respect to adjournments. In determining an application for adjournment, the Court is:
a) required to afford justice to and balance the prejudice for all parties; and
b) obliged to manage cases in this Court's list appropriately.[8]
[8] See Fazio v Centrelink at [5]
With respect to his Honour, the passages to which I have referred clearly set out the matters to which the Court must have regard.
Mr Reynolds for the Applicant has made the point that whilst there have been a number of cases, now five in all, where the Court has made a ruling as to the interpretation of either Item 5A404 or 5A407 which are in similar terms, this case is different in that if it were to be heard on Tuesday it would be difficult for an appeal to be heard at the same time as the appeal in Shah and the other four matters to which I have referred, if they all go on appeal.
The reason for that is that the matters of Shah, Fan Fan, Bhatt, Shibly and Al-Magableh were essentially single issue cases relating to when an applicant must sit for an Independent English Language Testing System test (IELTS), in order to satisfy the requirement and regulations that the applicant has the appropriate English for a Student (Temporary)(Class TU) visa and when the results of such tests showing the appropriate overall of band score must be submitted for consideration by the Minister or the Minster's delegate.
That is part of the issue in this matter but it is an issue which would only be reached if the Court were to make a finding about certain factual matters which will need to be resolved by cross-examination. It has been brought to the Court's attention that the Applicant in this case and a migration agent will most likely be cross-examined by counsel for the First Respondent and that a solicitor appearing for the First Respondent may well be the subject of cross-examination on the contents of her affidavit by counsel for the Applicant.
It would not be until the Court had made a finding on the factual matters that the issue of any IELTS test would be a matter for consideration and that I am informed would be a discretionary issue. It is not therefore entirely appropriate to say that it would follow as the night follows the day that the Court would make a decision in a particular way relating to that discretionary issue relying on the findings of this Court and the other five matters to which I have referred.
It has been put by Ms Weston who appears for the Minister that the issue of the timing of the IELTS test has now been the subject of five judicial determinations by the Federal Magistrates Court. Whilst that appears to be a substantial number of matters, it is perhaps fair to say without being unduly modest that rather than five separate decisions it is really one decision five times because all of the decisions have emanated not only from this Court but in fact from me.
I am informed that there are several other matters of this nature to be heard by my learned colleagues, two of them within the next week and another one not until the month of June. But it is significant that there are no other decided cases by any other judicial officer on this very issue than the five matters to which I have referred. There have been other decisions where reference has been made to the particular regulations but in none of those cases has the Court been required to consider and rule on that very issue.
So the Court finds itself in a situation where the five decisions that are really all to this issue have all been made by the one judicial officer. At this stage there has been no hearing of any appeal and it may well be a little while until an appeal or appeals can be heard. It may be the case that if there is more than one appeal and at present there is only one but there is the potential for four more, but it may be the case that if there is more than one appeal that they will be heard together and that a Full Court of three justices of the Federal Court be empanelled to rule on this issue. It is an issue of some significance. It is not a transitory issue. It is an issue which will affect a number of applicants for student temporary class TU visas and there is a need for a definitive ruling.
Whilst I am satisfied that my earlier decisions are not plainly wrong or at least nothing has been put to me to convince me that I am plainly wrong, it is not being unduly modest to suggest that on appeal other considerations may apply and a different decision may be reached. That is entirely a matter for the Full Court.
Conclusions
I am mindful of the need for cases to be heard quickly and not to be protracted. It is necessary for the Court to resolve proceedings not only justly but efficiently and economically and it is necessary for the Court to avoid undue delay, expense and technicality. One of the matters that does concern me is the question of costs and there would be costs involved in the matter going to Final Hearing on the presently appointed date, 24th March 2009. If the matter were to be adjourned the costs and the preparation of the hearing would not be thrown away and I note that the matter appears to me to be ready for hearing.
Mr Reynolds has put that if the appeal decision upholds this Court's decision in Shah it is possible that the substantive matter in this Court may be resolved without the need for a great deal of litigation and certainly may be resolved without the need for cross-examination of various witnesses. That is a matter that in my opinion is an important consideration.
Another factor which weighs on my mind is that if the proceedings are heard on Tuesday the cross-examination of the witnesses and the submissions on the various issues may well exceed the time that has been allocated for the matter to be heard. Unfortunately, due to other commitments the Court would not be able to extend the proceedings into the afternoon and I am not satisfied that it would be at all to the benefit of the parties if the application were to be adjourned part heard.
Whilst I am not satisfied that it is appropriate to order that the proceedings be stayed, I am satisfied that it is an appropriate matter without unduly prejudicing the parties or leading to an excessive amount of costs for the Court to vacate the hearing on Tuesday 24th March 2009 and to adjourn it until either the Full Court of the Federal Court has handed down whatever appeal decisions may be heard, or one or more of my learned colleagues have handed down their own decisions on this significant issue, so that the Court and the parties can be satisfied that there is a substantial body of judicial opinion which does not all arise from the one judicial officer.
It is for that reason that I propose to vacate the hearing date on Tuesday 24th March 2009. I do not intend to leave the matter in limbo as the Court has a strong commitment to case management of its matters, especially when they remain in a particular docket. It would certainly be of assistance to this Court in deciding when it is appropriate for this matter to be heard to have information made available over the next month or weeks as to what matters are going to be appealed and whether any other Federal Magistrates have ruled on this particular issue.
Accordingly, I propose to adjourn this matter until Monday 11th May 2009 for directions only at 11:15am. At that stage I would hope that the parties may be aware of the situation relating to appeals and the situation relating to other judicial decisions by one or more of my learned colleagues. Hopefully the position will be clearer then. If it becomes clear that this matter will need to proceed to a Final Hearing on the basis of the material before me, I would consider it appropriate that the matter be allocated a full day rather than the half day it has been given at present. That, however, is a decision for another day.
I will reserve the parties' costs of today and those costs can be considered in due course.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 27 March 2009
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