SZGIZ v Minister for Immigration

[2012] FMCA 969

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGIZ v MINISTER FOR IMMIGRATION [2012] FMCA 969

MIGRATION – Whether there is a legal issue to be tried and therefore immediate removal of the applicant should be stayed – stay granted.

Migration Act 1958 (Cth), ss.36, 48A, 417, 476

Plaintiff M47-2012 v Director General of Security [2012] HCA 46
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41

Applicant: SZGIZ

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 2253 of 2012

Judgment of: Nicholls FM

Hearing date: 11 October 2012

Date of Last Submission: 11 October 2012

Delivered at: Sydney

Delivered on: 11 October 2012

REPRESENTATION

Appearing for the Applicant: Mr M Jones

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondent: Mr P Knowles

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The respondent, officers of his Department and their agents not remove the applicant from Australia pending further order of the Court.

2. The matter is set down for final hearing on 5 November 2012 at 2.15pm at Courtroom 10.2, Level 10, Terrace Tower, 80 William Street, Sydney, before Federal Magistrate Nicholls.

3. The applicant to file and serve any further evidence by way of affidavit by 16 October 2012.

4. The respondent to file and serve any evidence by way of affidavit by 19 October 2012.

5. The applicant must file and serve written submissions and list of authorities 10 days before the hearing.

6. The respondent must file and serve written submissions and list of authorities 5 days before the hearing.

7. The costs of today’s listing of the matter are costs in the cause.

8. Liberty is granted to the parties to apply to the Court for further directions on three clear days notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2253 of 2012

SZGIZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Interlocutory – Ex tempore; Revised from Transcript)

1. By way of application made on 11 October 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), the applicant sought review of the decision of the Minister’s delegate which determined that an application for a protection visa made by the applicant on 10 October 2012 was not validly made.

2. This matter was placed by the Registry in the docket of another Federal Magistrate. The first Court date was scheduled for 5 December 2012.

3. However, officers of the Minister’s department had taken steps to remove the applicant from Australia. The applicant, who was held in immigration detention, was scheduled to leave Australia by air at 9.40pm tonight (11 October 2012).

4. By way of Notice of Motion, the applicant sought orders staying his removal pending consideration by the Court of the legal issue raised in his substantive application of 11 October 2012. An affidavit in support, by Mr Michael Jones, solicitor, was also filed.

5. At 3.30pm general notice was given of the intention to file the Notice of Motion. The notice was filed at 4.20pm today. As duty Federal Magistrate it fell to me to consider this matter. At 4.30pm, Mr M Jones appeared for the applicant. Mr P Knowles of counsel appeared for the respondent.

6. The issue raised in the substantive proceedings was expressed as:

   “Grounds of application

   1. The application for a Protection Visa was not invalid because the applicant was not prevented by s 48A of the Migration Act 1958 from lodging a Protection Visa application.

   Particulars

   The application was expressly made in reliance only on the grounds in s 36(2)(aa) of the Act (the “complementary protection grounds”). No previous application relying on these grounds has been made by the applicant. An “application for a protection visa” is defined in subsection 48A(2) as an application for a visa a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c). The applicant has never before applied for a Protection Visa in reliance on the complementary protection grounds. The correct interpretation of s 48A(2) is that it does not prevent an application being made now in reliance on the complementary protection grounds if a prior application was made and finalised before those grounds were available for consideration.”

7. Mr Jones submitted that s.48A and s.36(2)(aa) of the Act must be read in context. That context, given the High Court’s approach in Plaintiff M47-2012 v Director General of Security [2012] HCA 46 and Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41, was said to include Australia’s obligations under International Conventions as the Act was part of a schema that put into effect those obligations.

8. The respondent tendered the following documents:

   1)A “Removal of Interest Brief” – marked Respondent’s Exhibit A (“REA”).

   2)A copy of the Ministerial Guidelines – marked Respondent’s Exhibit B (“REB”).

9. In addition, the Minister provided a copy of the Explanatory Memorandum for the amendments to the Act implementing the complementary protection provisions.

10. Mr Knowles argument was that there were four essential reasons that the removal of the applicant should not be stayed pending consideration of the substantive application. They were as follows:

    1)Section 36(2)(aa) of the Act refers to a criterion, not criteria. That means that if an application for a protection visa has been made previously by an applicant and was considered with regard to one of the matters in s.36(2) of the Act, then that satisfies the definition of an “application for a protection visa” and the bar in s.48A(1) of the Act is imposed.

    2)The use of the word “includes” in s.48A(2) of the Act is not exhaustive. Rather, it is descriptive by example. That means that any amendment to s.36 of the Act does not have the effect that any previous application, made prior to the amendment, is no longer an “application for a protection visa”.

    3)With reference to [101] to [105] of the Explanatory Memorandum, it is clear that the intention of parliament, when incorporating complementary protection, was that the bar in s.48A of the Act would still apply. That is, that an applicant who had applied for a protection visa prior to the incorporation of complementary protection, could not make a “new” application for a protection visa under the complementary protection provision.

    4)With reference to the REA and REB, the Minister submitted that Australia’s obligations to the applicant under the Torture Convention and the International Convention on Civil and Political Rights (“ICCPR”) had already been considered. The applicant had, on 17 December 2007, requested Ministerial intervention pursuant to s.417 of the Act. That request was not “referred on” to the Minister. In considering whether that intervention request should have been referred on to the Minister, REB provides that one of the relevant factors is whether there are grounds for believing that the person may be subject to torture or inhumane treatment. Further, Australia’s obligations under the ICCPR. In those circumstances, the applicant’s claims had been assessed in relation to the Torture Convention and the ICCPR under the s.417 intervention request process.

11. On a plain reading of the legislation, my preliminary view is that I am not satisfied by the applicant that his interpretation of the relevant legislation is the accepted reading. In my view, the first two reasons advanced by Mr Knowles are strong arguments when regard is had to the plain language of the statute. But the factor that has caused me to pause, are the references to recent and relevant High Court authority and the approach said to have been taken by the High Court in matters generally similar to what we are confronted with today. (That is refugee matters and Australia’s international obligations).

12. As I have understood it, the issue from the applicant here, is that the High Court has taken the approach of reading and considering such relevant legislation in light of, and as involving in its expression, Australia’s international obligations. That is, as opposed to an interpretation in isolation of those obligations. 

13. That is, as best as I understood, the “quick” argument today and, at this time, I have to say, it is unclear to me whether such an argument can ultimately succeed. However the test that I am required to apply today is whether such an argument can be made such that there is an issue in the substantive application to be tried. In my view, the answer to that, on reflection, is yes.

14. In this consideration the Minister tendered two documents and referred to the relevant Explanatory Memorandum. While the Minister submitted that the Court should have regard to the plain language of the legislation, the weight of the additional material referred to, and the perceived need to refer to this material, tends to support the applicant’s argument that the matter is not as simple or straightforward as it may appear at first blush.

15. Therefore it is appropriate to grant the stay of removal that the applicant seeks and to set the matter down for a final hearing. In the circumstances it is appropriate to hear the matter as soon as possible.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 23 October 2012