SZJMA v Minister for Immigration

[2008] FMCA 711

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJMA v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 711

PRACTICE & PROCEDURE – Request that judicial officer consider whether judicial officer continue to hear the matter given findings made in an interlocutory decision – submission that judicial officer would not bring an open mind to the proceedings rejected – efficient administration of justice requires that matter be transferred to another judicial officer for final hearing.

Applicant: SZJMA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2860 of 2006

Judgment of: Nicholls FM

Hearing date: 30 May 2008

Date of Last Submission: 30 May 2008

Delivered at: Sydney

Delivered on: 30 May 2008

REPRESENTATION

Appearance for the Applicant: Ms A Kempton

Solicitors for the Applicant: Gilbert + Tobin

Appearance for the Respondents: Ms A Crittenden

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application is listed for final hearing on 24 July 2008 at 10.15am before Scarlett FM in John Maddison Tower, Level 7, 88 Goulburn Street, Sydney.

2. The Applicant file and serve an Amended Application for Review on or before 6 June 2008.

3. The Applicant file and serve any evidence in support of the Amended Application for Review on or before 16 June 2008.

4. The Applicant file and serve written submissions at least 10 working days prior to the hearing date.

5. The Respondent file and serve written submissions at least 5 working days prior to the hearing date.

6. The Applicant to file and serve any further evidence in reply at least 2 working days prior to the hearing date.

7. The Applicant file and serve any further written submissions in reply at least 2 working days prior to the hearing date.

8. The Applicant must pay the setting-down fee or obtain a waiver of that fee no later than fourteen (14) days before the final hearing date.

9. The parties have liberty on 3 days notice to apply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2860 of 2006

SZJMA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today a submission put by the first respondent that I consider whether I should continue to hear this matter given findings made in an interlocutory decision in this matter (SZJMA v Minster for Immigration and Anor [2007] FMCA 410), and that it would therefore be more appropriate for the matter to be heard by another Federal Magistrate.

2. In particular, the first respondent submitted (referring to paragraph [17] of that judgment) that having made “positive findings of credibility in relation to the applicant’s evidence”, and in light of the applicant’s legal representatives foreshadowing that an allegation of fraud on the part of the migration agent may be made in an amended application to be filed in this matter, I should consider whether it would be more appropriate for the matter to be heard by another Federal Magistrate.  

3. It was submitted that having made a finding in relation to the applicant’s evidence on an earlier occasion at an interlocutory stage, that this finding could affect any further findings in the context of an allegation by the applicant of fraud on the part of the migration agent. In effect, I understood that I was being asked to consider that there is a risk that I would not bring an open mind to the proceedings and what was being asked was that I consider this submission. The applicant did not support this submission.

4. I have considered what the first respondent has asked me to consider and I do not accept the inference that I would not bring an open mind to the subsequent proceedings. 

5. But notwithstanding this, it is my view that, for reasons concerning the efficient administration of justice, I should not hear this matter. I am concerned that the applicant has been in detention for a long time. Should I find for the applicant (and I do not know because I have not heard the evidence), then it may be that in light of what has been raised by the first respondent, that I may be contributing to prolonging the applicant’s detention. The applicant has been in detention since August 2006 and continued in immigration detention during the period that the first respondent sought leave to appeal to the High Court (which was granted (8 February 2008 (see [2008] HCATrans 86) and then the matter withdrawn (15 May 2008)).

6. My intention therefore is that I will make orders transferring this matter to Scarlett FM. His Honour will hear this matter at 10.15am on Thursday 24 July 2008. I am not convinced that this matter should wait until August. The convenience of counsel (with the greatest respect to Mr Potts, very competent counsel in my humble view), in the context of there being many other competent counsel that the first respondent can take from the taxi rank, is not material to the exercise of my discretion in this matter. What I am driven by in this case is that the applicant has been in detention for some time and clearly her well-being is an issue.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  3 June 2008