SZLHP v Minister for Immigration and Citizenship

[2007] FCA 1488

FEDERAL COURT OF AUSTRALIA

SZLHP v Minister for Immigration & Citizenship [2007] FCA 1488

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)

SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401

SZLHP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1867 OF 2007

BUCHANAN J
13 SEPTEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1867 OF 2007

BETWEEN:

SZLHP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	13 SEPTEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal, and the notice of motion for interlocutory relief, be adjourned to a date to be fixed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1867 OF 2007

BETWEEN:

SZLHP
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	13 SEPTEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The matter before the court is a notice of motion, which I have granted leave to file in court this morning.  I also abridged time to commence the proceedings, which are an application for leave to appeal against an interlocutory decision of the Federal Magistrates Court of Australia (‘the FMCA’) given yesterday evening.  In that decision the FMCA dismissed what it regarded as an application for interlocutory relief to stop the applicant being deported from Australia.  The present proceedings commenced at 8 am, in circumstances where the applicant was scheduled to be removed from Australia at 9.30 am.

2. The notice of motion is supported by an affidavit of Frances Milne affirmed on 13 September 2007.  Ms Milne’s affidavit attaches the application for an extension of time to file and serve a notice of review of application, which was filed yesterday evening in the FMCA, a draft application to that court under the Judiciary Act 1903 (Cth) and Migration Act 1958 (Cth) and an affidavit sworn by the applicant on 11 September 2007 in support of the application to the FMCA for an extension of time.

3. In his affidavit, the applicant stated that he was persecuted in China for, what appeared from the affidavit to be, religious reasons.  He claims that in 1997 he was misled by a migration agent into not attending a hearing of the Refugee Review Tribunal.  It appears that he wishes now to appeal to the legal principle, which was recently stated by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 81 ALJR 1401, and to contend that the proceedings before the Refugee Review Tribunal were affected by a jurisdictional error arising from the conduct of the migration agent. It appears that these issues have arisen for consideration as a result of the assistance given to him by Ms Milne, who met the applicant at Villawood Immigration Detention Centre, on 11 September 2007.

4. I should mention at this point that a decision of the Refugee Review Tribunal dated 24 January 1999 which is attached to Ms Milne’s affidavit appears, on its face, to refer to a different applicant for a visa altogether.  The applicant with which that decision deals was said to be a citizen of Indonesia who complained of persecution in Indonesia on religious grounds.  That person claimed to be an Indonesian citizen, although of Chinese descent.  There is no correspondence between the matters to which the applicant deposes in his affidavit of 11 September 2007 and the circumstances revealed by the decision of the Refugee Review Tribunal dated 24 January 1999.  Ms Watson who appeared before me this morning to represent the Minister however informed me that the inquiries so far made indicate that the applicant is, in fact, the person dealt with by the decision of the Refugee Review Tribunal and that it appears he entered Australia on a false passport, presenting to immigration authorities a false identity; a circumstance which continued at the hands, the applicant now says through his counsel, of the migration agent.

5. None of those matters, interesting as they may be factually, bear directly upon the issue which has arisen for consideration this morning.  When the application for an extension of time in which to file and serve the notice of review of the decision of the Refugee Review Tribunal was first put before the Federal Magistrates Court late yesterday afternoon, it was at first not accepted as valid, owing to apparent defects in the supporting material. 

6. However, at about 5 pm yesterday afternoon, the application was accepted as valid.  Although not in terms making any claim for interlocutory relief, I was informed this morning that the application was regarded as, at least implicitly, incorporating such a claim for relief.  In view of the applicant’s impending deportation, arrangements were made for it to be heard urgently by the FMCA. 

7. The Minister was represented before the FMCA but the applicant was not, although he had, by that time, secured legal representation, and desired to be heard on the application.  The application was dismissed with costs.  Owing to the terms of the order which was made, it is not completely certain whether the Federal Magistrate’s intention was to dismiss a claim for interlocutory relief, or to dismiss the application as a whole.  The better view appears to be that the proceedings yesterday evening were intended to, and did, dispose only of any claim for interlocutory relief which might stand in the way of the applicant’s deportation this morning.  In the circumstances which unfolded, the result was that the applicant was not afforded an opportunity to be heard on the question of whether interlocutory relief should be granted in connection with the application that he had put before the Federal Magistrates Court.

8. During the proceedings this morning, I expressed the view to Ms Watson that it appeared, as a result, that the outcome of the proceedings yesterday morning was open to the criticism that the applicant had been denied procedural fairness.  Ms Watson took instructions about the impending deportation, and informed me shortly afterwards that it would not go ahead pending at least further consideration of the matter in the present proceedings.  The question of the timing of the proposed deportation is a matter for the Minister, subject to appropriate advice to the applicant and his representatives.  The present position seems to be, however, that sensible and appropriate steps have been taken to ensure that the applicant is afforded an opportunity to argue, if necessary, that he was denied procedural fairness with respect to the application which was brought before the FMCA yesterday.

9. In my view, the appropriate course is for the matter to receive further attention by the FMCA.  However, that is a matter for that court.  For the moment, I propose to simply adjourn the application in this court for leave to appeal from the orders pronounced yesterday evening.  If those orders are revisited by the FMCA, it will become unnecessary for the present application to receive further attention, and it can be formally disposed of by some appropriate means.  If, on the other hand, the FMCA declines to revisit the orders which were made yesterday evening, which are viewed by the parties, at least, as interlocutory rather than final orders, then it will become necessary for the application for leave to appeal before this Court to receive further attention.  I will leave it in the hands of the parties to notify the court that such further attention is required.

10. For the moment, the only order I will make in the proceedings is that the application for leave to appeal, and the notice of motion for interlocutory relief, which are before this Court, are adjourned to a date to be fixed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        25 September 2007

Counsel for the Applicant:	Mr A Joseph
Solicitor for the Applicant:	SBA Lawyers
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 September 2007
Date of Judgment:	13 September 2007