SZBQJ v Minister for Immigration - [2004] FMCA 132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBQJ v MINISTER FOR IMMIGRATION

[2004] FMCA 132

MIGRATION – PRACTICE AND PROCEDURE – Where application for adjournment made on basis that a similar case is being heard in High Court – where other points are capable of being argued – whether adjournment should be granted – where Counsel appears without instructions to argue the case if no adjournment is given – where Counsel appears pro bono – where the court and the respondent are inconvenienced thereby.

Australian Citizenship Act 1948, s.10(2)(b)
Migration Act 1958 (Cth)

Singh v Commonwealth & Anor [2004] S441 of 2003

Applicant:

SZBQJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 2123 of 2003

Delivered on:

3 March 2004

Delivered at:

Sydney

Hearing date:

3 March 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Ms M Gillies

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The applicant is to file and serve on or before 17 March 2004 written submissions in support of her application.
The respondent to file and serve her written submissions on or before 24 March 2004.
Applicant to provide any submissions in reply on or before 31 March 2004.
Applicant to pay respondent's costs of today assessed in the sum of $1,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2123 of 2003

SZBQJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This application relates to an infant born of two applicants for protection visas in Australia. The proceedings are a request for review of a decision of the Refugee Review Tribunal made on 25 September 2003 which determined that the applicant was not a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol. The applicant infant would be the second child of her parents and as such considered to be a "black" child in the Peoples Republic of China.
The matter was first set down for hearing on 8 January 2004. That date was later amended to 7 January. The applicant applied for and there was appointed to her an adviser pursuant to the Minister's scheme. On 24 December 2003 a letter was received from the solicitors for the respondent advising that Mr Michael McAuley, the panel advice barrister, had contacted that firm to inform them that he would not be able to provide an advice before 7 January. The letter continued:
“As the applicant is an infant in detention our view is that the hearing of the matter should not be delayed. We would ask the court to make arrangements for another lawyer to provide an advice to the applicant.”
That did not occur. What happened was that there was a communication from Mr McAuley to my Associate who indicated that the matter would be argued on the basis of a case that was currently before the High Court and, so far as I understand the conversation, was likely to receive judgment in February this year. Acting upon those representations or what the court thought those representations were, a date was fixed for hearing today, 3 March 2004.
Yesterday afternoon my chambers received a telephone communication to the effect that Mr McAuley was unable to attend and that Ms Gillies would be briefed in his place. When the matter was called for hearing Ms Gillies did indeed appear. She appears pro bono. She requested an adjournment. She filed in court an unsigned amended application.
Before I deal with the amended application I would say that Mr McAuley wrote a letter to the court addressed to the Federal Court of Australia Registry. It was faxed on 24 December. Whilst it has now found its way to the file it may not have been there at the time of his arrangements that I have previously referred to. In fairness to Mr McAuley I can say that his letter points out that this case involved similar issues to matter Singh v Commonwealth & Anor [2004] S441 of 2003 which he states was to be heard in the High Court of Australia on 10 February 2004.
The amended application contains eight grounds of which ground No 7 has been deleted. The first four grounds relate to the applicant's citizenship. It asserts that the applicant is not an alien and that s.10(2)(b) of the Australian Citizenship Act 1948 is beyond the powers of the Commonwealth. This, apparently, is the argument that was raised in the High Court in the case to which I have referred. Ground 5 of the application states:
“ In making its decision the Refugee Review Tribunal failed to act in accordance with the substantial justice and merits of the case failing in particular to refer to an interpretation consistent with Australia's treaty obligations.”
The ground refers to the Convention on the Rights of the Child. Ground 6 is in the following form:
“ The Tribunal failed to apply the law as to refugee status of members, in particular social groups who have a well founded fear of being persecuted, including children born in contravention of China's one child policy.”
Ground 8 is in the following form:
“The Refugee Review Tribunal fails to afford the applicant natural justice in that, given the ratification by Australia of the Convention on the rights of the child, ought to have informed the applicant and invited submissions as to such proposed course.”
Ms Gillies informs me that she accepted a brief to appear in this matter on the basis that it was an application for an adjournment and she is unable to argue the case. It would appear that Mr McAuley is otherwise engaged today. She says the case should be adjourned because no decision of the High Court in Singh has yet been handed down and that a decision of the court in that case favourable to the applicant would flow on to this applicant to make the Tribunal's consideration of the case null and void.
Mr Reilly opposes the application. He argues that if the applicant is an Australian citizen and, therefore, not within the reach of the Migration Act 1958 (Cth), the applicant can make an application for a declaration to that effect at any time. He says that he is able to deal with the points made in paragraphs 5, 6 and 8 of the amended application and that the matter should proceed. I asked Mr Reilly whether his client would be prepared to deal with the matter on the basis that if I heard a case brought under paragraphs 5, 6 and 8 of the amended application and came to a decision he would accept a prohibition on deporting the applicant pending the decision of the High Court in Singh but he advised me that his client would not be prepared to deal with the matter on that basis.
When the court was informed of the importance and urgency of this matter and the necessity for it to be adjourned beyond its first hearing date it made arrangements for a Federal Magistrate to be brought down from Brisbane to hear the cases which I was otherwise hearing today and which I would have been hearing tomorrow when another case which is apparently along similar lines as this is also to be brought. The granting of an adjournment would, therefore, be inconvenient to the court as well as to the respondent and her legal advisers.
I am, however, conscious of Ms Gillies embarrassment. I do not think she should have taken a brief upon the basis on which it was offered to her. She should have obtained far more information from Mr McAuley than she apparently did. She is appearing pro bono as was Mr McAuley and it does not seem to me to be fair to the applicant to visit upon her the failings of her legal advisers.
Having considered the matter, I think the most appropriate order to make is not to grant an adjournment but to allow the matter to be dealt with by way of written submissions and to provide the respondent with an opportunity to speak to any submissions in reply to those from the applicant and are to be delivered within a very truncated timetable. If the respondent does not wish to take advantage of this then the matter will go forward and a decision will be given.
I do not think it is appropriate to hold up this case pending a decision by the High Court which may not come for another six months.

I believe it is appropriate that the case should be heard upon the law as it now stands. But I will accept that the applicant must at least argue in outline that she is not an alien in order to preserve her rights on appeal.
The timetables of the Full Bench of the Federal Court are such that if I should decide against the applicant and the applicant is discomforted by my decision she can appeal. By the time that appeal is heard the decision in Singh is likely to have been delivered.
I therefore make the following orders. The applicant is to file and serve on or before 17 March 2004 written submissions in support of her application. The respondent to file and serve her written submissions on or before 24 March 2004. Applicant to provide any submissions in reply on or before 31 March 2004. Applicant to pay respondent's costs of today assessed in the sum of $1,750.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: