MZWVN v Minister for Immigration
[2005] FMCA 1401
•22 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWVN v MINISTER FOR IMMIGRATION | [2005] FMCA 1401 |
| MIGRATION – Practice and Procedure – hearing date vacated by consent pending determination of special leave application to High Court – benefit of High Court decision on issue of relevance to application – whether prejudice to Applicant. |
| QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136 NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373 |
| Applicant: | MZWVN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1701 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 22 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 22 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr P.Wearne |
| Solicitors for the Applicant: | Taylor Splatt Partners |
| Counsel for the Respondent: | Mr T. Mosby |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The hearing date of 12 October 2005 be vacated.
The application be listed for mention, upon seven days' written notice to the parties, after the High Court of Australia has made a decision in relation to the special leave application arising from the Full Court decision in QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136.
The costs of and incidental to this mention be costs in the cause.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1701 of 2004
| MZWVN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The application before the court has been fixed for final hearing on 12 October 2005. Both parties have sought an order that that hearing date be vacated. The basis upon which the order is sought is that a special leave application has been filed by the first respondent arising out of a decision of the Full Court of the Federal Court of Australia in QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 136 (QAAH)
The date of the special leave application has apparently not yet been fixed, although the court would anticipate that the hearing would occur within the next month or two. The court expressed some concern about the delay which might arise in the delivery of a decision of the High Court of Australia in the event that a special leave was granted.
The issue which arose in QAAH clearly appears to be relevant in this application before the Court and others. From a case management point of view, the court was inclined to proceed with this and other applications currently listed before it on the basis that it does presently have the advantage of a binding Full Court decision in QAAH. However the Court is aware that there are other Full Courts of the Federal Court where similar issues have been argued and decisions reserved.
Without going into further detail concerning the arrangements currently made in the Federal Court of Australia to deal with outstanding appeals where a similar issue has been raised to the issue already determined by the Full Court in QAAH, it is sufficient to note that there is at least a prospect of a five-member Court being constituted to deal with those outstanding matters, noting as this Court does that at least one of those appeals from a decision of Emmett J in the matter of NBGM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1373 was heard by a Full Court presided over by the late Hill J.
It would seem that at least that matter may need to be the subject of a reconstituted hearing.
Nevertheless in my view, having considered the issues before this court and noting that both parties agree to vacating the hearing date, it is my considered view that in the interests of justice it is appropriate to vacate the hearing date, though to make an order that the application be otherwise listed for mention after the High Court of Australia has made a decision in relation to the special leave application pending in relation to QAAH. At that point the Court will then no doubt be advised as to whether or not the special leave has been granted, and hopefully will then be in a better position to assess the period of delay which may be involved in a full hearing by the High Court of that matter, and of course a decision. If the special leave application is refused then no doubt the Court will be given further updated material concerning the manner in which the Federal Court of Australia proposes dealing with the outstanding appeals in that court. Obviously it would be undesirable for this Court to be confronted with a number of Full Court decisions of three-member Courts in relation to this issue, and the preferred process would be for this Court to obtain some guidance from the High Court on the important issues raised in QAAH.
In this instance, therefore, the orders of the Court will be that the hearing date of 12 October 2005 be vacated; that the matter be otherwise listed for mention, upon seven days' notice to the parties, after the High Court of Australia has made a decision on the special leave application in QAAH. I rely upon the respondent to advise the Court accordingly.
I wish to stress, however, that the vacation of the hearing date in this matter should not be taken as the approach to be followed in all matters where the issues arising from QAAH apply, to the extent that in my view in this case there is no prejudice to either the applicant or the respondent, though there may be prejudice which applies to those applicants who are in detention. The applicants in detention, where this issue may arise, may well be prejudiced by any undue delay and that prejudice itself may provide this Court with a basis upon which it should proceed to hear and determine the matter based upon the current Full Court of the Federal Court decision in QAAH. Given the nature of the issues which affects temporary visa holders I suspect that almost all applicants will be in detention.
Hence the decision I make in this matter should not be taken to apply to other matters where this issue is relevant, automatically, though it does apply in my view appropriately to all those matters currently listed before me, other than matters where the applicant may be in detention.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 September 2005
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