SZGBY v Minister for Immigration
[2007] FMCA 1772
•11 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGBY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1772 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of Nepal – second application to the Tribunal after Minister exercised discretion under s. 417. PRACTICE & PROCEDURE – Application to restrain the first respondent from removing the applicant from Australia – application granted in the interest of the administration of justice. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.38B, 48B, 417, 424A |
| SZGBY v Minister for Immigration & Anor [2005] FMCA 1303 SZGBY v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 35 |
| Applicant: | SZGBY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3161 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 October 2007 |
| Date of last submission: | 11 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Solicitors for the Respondent: | Ms Rayment |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The first respondent Minister is restrained from taking any action to remove the applicant from Australia until the applicant's application for a review of the decision of the Refugee Review Tribunal signed on 15 July 2007 is heard and decided by the Court.
The application is adjourned to 9.30 am on Tuesday, 16 October 2007 for directions.
The first respondent is to do all things necessary to facilitate the applicant's attendance at court on the next occasion.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3161 of 2007
| SZGBY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant is a citizen of Nepal. Tonight he is asking the Court to make an order restraining the Minister for Immigration & Citizenship from removing him from Australia. He asks for this order so that he can have the Court hear an application for review of a decision of the Refugee Review Tribunal. That decision was signed on 15th July 2007.
The applicant has told the Court that he received a copy of the decision the following day. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant today filed an application with the Court asking for orders setting aside the decision of the Refugee Review Tribunal.
The particular order that he wishes tonight is to be allowed to stay in Australia until his case can be heard. He has set out in his application two grounds upon which he is relying to set aside the Tribunal decision. They are very brief. He claims that the Tribunal did not consider his application properly and he also claims that the Tribunal failed to comply with s.424A of the Migration Act.
A brief history of the matter is that the applicant arrived in Australia in 1991. He originally applied for a protection visa in 1994.
He withdrew that application in 1997 and applied for another visa instead. That application was not successful. He then applied for a protection visa on 24th February 2005. When that application was refused he applied to the Refugee Review Tribunal for a review of that decision. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant then applied to the Federal Magistrates Court for a review of the Tribunal decision. That application was dismissed on
22nd September 2005 by Driver FM (see SZGBY v Minister for Immigration & Anor[1]). The applicant then appealed. His appeal was dismissed by Moore J on 6th February 2006 (see SZGBY v Minister for Immigration & Multicultural & Indigenous Affairs[2]).
[1] [2005] FMCA 1303
[2] [2006] FCA 35
What makes this case unusual is that the applicant applied to the Minister for the exercise of the Minister's discretion under s.417 of the Migration Act. On 7th February 2007 the Minister exercised that discretion in the applicant's favour. Under the provisions of s.38B of the Migration Act the applicant was permitted to make a further application for a protection visa. The applicant did apply for a protection (Class XA visa), but his application was refused. He then sought a review of that decision from the Refugee Review Tribunal. The Refugee Review Tribunal heard his application and made its decision on 15th July 2007. As I said, the applicant told the Court that he received a copy of the decision the next day, 16th July 2007.
The applicant, I am told, then made a further application to the Minister under s.417 of the Migration Act. The applicant did not at that stage commence proceedings in this Court for review of the Tribunal decision. The applicant's McKenzie Friend told the Court that the applicant elected to act in this way in the belief that a further application under s.417 would be successful. The applicant was recently informed that his application was not successful. He told the Court that he was informed yesterday that he would be removed from Australia tomorrow. I understand that the Minister proposes that the applicant will leave Australia tomorrow morning to return to Nepal via China.
The applicant lodged his application for judicial review of the Tribunal decision today. Due to the urgency of the situation, the Court has heard his application for an order restraining the Minister from removing him from Australia this evening. The applicant has addressed the Court at some length and he has challenged the factual basis of the Tribunal's decision. He has in effect asked the Court to conduct what is known as merits review. The Court, however, does not interfere with factual findings made by the Tribunal so long as there is evidence upon which a factual finding can be made.
I am informed by the applicant's McKenzie Friend that the applicant has now obtained legal representation. This legal representation I am told was only obtained this morning. It is perhaps not surprising that the legal representative did not attend court this evening. Ms Rayment, who appears for the Minister, has told the Court that she was unaware that the applicant did have legal representation. In the circumstances that is hardly surprising. The applicant's McKenzie Friend has told the Court that the applicant's case officer was informed of this at about 5 o'clock this evening. Even so, I am not surprised that the Minister's lawyers had not been made aware of that development so late in the proceedings.
The very nature of this application is that it has been hastily put together. It does not appear that the applicant's legal representative has had a great deal to do with drafting the application to the Court. Ms Rayment has told the Court that the decision of the Refugee Review Tribunal is an extremely comprehensive decision. It certainly is and it appears that the Tribunal has dealt with the applicant's case in a considerable amount of detail. It is not for me this evening to conduct a lengthy analysis of the Tribunal decision as that would be done on a final hearing if there is to be one.
Ms Rayment has pointed to the two grounds set out in the applicant's application and has submitted that in the absence of particulars of any specific claim made it would appear that the Tribunal has dealt with the matters that the applicant raises. In short, she submits that the application does not raise a serious question to be tried.
It is certainly the case that the application does not point to any significantly obvious error in the Tribunal decision. Against this the applicant believes that his legal representative does think there is an arguable case. Of course the legal representative is not here tonight to explain what it is. What the Court must decide is whether an order should be made restraining the Minister from removing the applicant from Australia tomorrow. If such an order is not made the applicant will leave Australia and he will not be able to argue his substantive application before the Court. If the order is made the applicant's legal representative will have the opportunity to argue that case.
It is difficult on a reading of the Tribunal decision tonight to see that the applicant has raised an arguable case of jurisdictional error. On the face of it the application seems to be a weak case. What concerns me is that even though the proceedings in this Court have been brought at the last moment and this action raises the suspicion that the application has only been brought to delay the applicant's exit from Australia, a refusal of his application tonight would mean that his case would not be heard.
I am aware that the applicant has been in Australia since 1991.
He certainly has some familiarity with proceedings under the Migration Act. In my view, the unusual circumstance about this case is that the applicant was permitted under s.48B of the Migration Act to make another application for a protection visa. This decision of the Refugee Review Tribunal was only made in July 2007. In the circumstances where the applicant has been in Australia for over 16 years it is questionable whether the public interest requires him to leave Australia tomorrow.
After serious consideration it is my view that it is in the interests of the administration of justice to permit the applicant the opportunity to argue his case for a review of the decision of the Refugee Review Tribunal on its merits. It should not be thought that the Court will automatically make an order restraining the Minister from removing an applicant from Australia just because an applicant says that he or she wishes to bring a case in court. Indeed I refused just such an application earlier today. I am satisfied, however, that this case on its facts is different from many of the applications of this nature that come before me.
The applicant should be aware, however, that this Court will not tolerate any efforts to unduly delay or prolong the proceedings.
The applicant has been given a chance to have his case heard and he must understand that the Court will expect his case to be dealt with promptly. I am mindful of the fact that the applicant is currently in immigration detention. That is another reason for having his case heard quickly. It is the policy of the Federal Magistrates Court to give priority to applications where parties are in detention and are not free in the community. That being the case, I propose to list this matter for directions before me at 9:30 am on Tuesday morning. I have been told that the applicant will be represented by Mr Terry Ower, barrister at law. Mr Ower is due to appear before me in this Court at 9:30 am on Tuesday morning.
At 9:30 am on Tuesday morning, or shortly after 9:30 am, if Mr Ower is in fact going to appear for the applicant he will need to be present in Court so that I will make directions for this application to be made ready for hearing on a final basis as a matter of some urgency. It will not be put over until next year. I will make time for it to be heard within the next couple of months. I will expect the parties to act promptly in preparing the case for hearing. I will make sure that it is given an early hearing date, that the case will be heard on its merits and it will be given priority.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 17 October 2007
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