SZMQA v Minister for Immigration - [2008] FMCA 1524

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMQA v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1524

MIGRATION – Minister’s exercise of powers to remove unlawful non-citizen – consent application for indefinite adjournment while Minister considers grant of visa – adjournment for only several months allowed.

Migration Act 1958 (Cth), s.198(6)

Beyazkilinc v Manager, Baxter Immigration Reception & Processing Centre (2006) 155 FCR 465
[The applicant] v Minister for Immigration & Citizenship [2008] FCA 836
[The applicant]v Minister for Immigration & Citizenship [2008] FCA 1039

Applicant:

SZMQA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1867 of 2008

Judgment of:

Smith FM

Hearing date:

3 November 2008

Delivered at:

Sydney

Delivered on:

3 November 2008

REPRESENTATION

Counsel for the Applicant:

Mr S Blanks

Solicitors for the Applicant:

SBA Lawyers

Counsel for the First Respondent:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

At the request of both parties, the hearing listed for 5 November 2008 is vacated, and the application is listed for final hearing on 29 January 2009 at 10.15 a.m.
The applicant must file and serve a written outline of his submissions and list of authorities no later than 4 p.m. on 23 January 2009.
The respondent must file and serve a written outline of his submissions and list of authorities no later than 4 p.m. on 27 January 2009.
Each party’s costs in relation to the adjournment and this listing are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1867 of 2008

SZMQA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is a matter which commenced in the Federal Court on 9 May 2008. The original application sought a declaration that s.198(6) of the Migration Act “does not authorise the removal of a person in Australia in circumstances where the removal would pose a serious threat to the safety of the applicant and of others”. It also sought an order restraining the Minister “from removing the applicant from Australia until further order”. That order may have been of the nature of an application for interim injunction, not a final injunction in the circumstances shown.
The matter was listed before Tamberlin J on 9 May 2008, when his Honour made that interim order on 9 May 2008. He later published his reasons on 4 June 2008 (see [The applicant] v Minister for Immigration & Citizenship [2008] FCA 836). His Honour was referred by the Minister to the judgment of Besanko J in Beyazkilinc v Manager, Baxter Immigration Reception & Processing Centre (2006) 155 FCR 465, which limited the Court's jurisdiction to judicially review the removal of non-citizens from Australia. However, he considered that it was reasonably arguable that the reasoning and decision of Besanko J was wrong.
On 14 July 2008, he ordered that the proceeding be transferred to this Court (see [The Applicant] v Minister for Immigration & Citizenship [2008] FCA 1039). He said that there was a doubt about the Federal Court's jurisdiction in the matter, and that this Court's jurisdiction was clearer. His Honour appears to have proceeded on the basis that a “migration decision”, as defined in the Migration Act as a precondition to this Court's jurisdiction under s.476, had been identified by the applicant, being a particular past or proposed decision by the Minister to effect the applicant's removal from Australia. He said that the considerations, on balance, favoured transferring the proceeding to this Court “thereby avoiding unnecessary delay and expense resulting from disputes concerning jurisdiction.”
The matter was then listed for directions before me on 12 August 2008. My orders provided for an amended application and affidavits, and for the matter to be listed for a hearing on 5 November 2008, at 10.15am. A motion by the Minister for the dismissal of the proceedings for want of jurisdiction was adjourned until that date for concurrent hearing.
The applicant has now filed an amended application. It identifies the migration decision under review as: “a decision said to be made on 9 May 2008”. However, the relief sought in the amended application contains no prayer for relief of the sort identified in s.75(v) of the Constitution in relation to that decision, and I was informed on the last occasion that the Minister no longer held the intention to effect the applicant’s removal from Australia which he might have had on 9 May 2008. The application also seeks an order that “the respondent is restrained from removing the applicant from Australia until further order”, but it is unclear whether this is a prayer for final relief, and how it relates to the decision under review.
Otherwise, the application continues principally to seek declaratory relief about the Minister's general authority to remove persons from Australia. The evidence which has been filed suggests that the Court will be invited to consider the general situation of a person who might be the subject of removal who is suffering from health problems. The prospects of the Court embarking upon a hypothetical consideration of this topic appears to me to be dubious.
In my opinion, the application is of such a character that the Court should address it as soon as is reasonably possible in the circumstances.
However, by email letter to the Registrar, dated 28 October 2008, the Court was informed:
The parties are close to settling the matter and have agreed to vacate the forthcoming hearing. We request that the date is vacated and the matter is adjourned to allow sufficient time for finalisation of the terms of settlement, with a view to discontinuing the proceedings. We would be very grateful if you could affect this and confirm that outcome.
At my direction, my Associate responded, indicating that I did not regard “being close to settlement” as a sufficient reason for vacating the hearing indefinitely, without further explanation. I subsequently directed that the matter be listed for directions today.
The parties are represented today, and continue to invite the Court to vacate the hearing and to adjourn a hearing indefinitely. I am informed that the reason for the adjournment is that the Minister announced on 15 October 2008 that he has agreed to consider the applicant for grant of a special global humanitarian visa, subject to public interest criteria checks. A letter to the applicant from the Department of Immigration, dated 22 October 2008, tells the applicant:
Your case has progressed to the point where you should now undertake character and health checks in order to satisfy public interest requirements.
The Minister for Immigration & Citizenship, Senator Chris Evans, will not make a final decision in your case until the information relating to your character and health is made available to him.
The purpose of this letter is to provide you with information and instructions on how to undertake the necessary checks and provide important documentation relating to matters which need to be addressed.
The applicant was given various forms involving character and health checks, which are required to be completed.
Today, the applicant's solicitor was unable to tell me when he anticipated that the forms and the various checks would be able to be completed on the part of the applicant. For his part, the Minister's representative was unable to foreshadow any time when the Minister was likely to address the issuing of a special global humanitarian visa to the applicant, including any waiver of health or other requirements that might be required.
Both parties invited me to stand the matter over generally, with liberty to restore.
However, this is a procedure which this Court is most reluctant to follow in migration matters, particularly where the merits of the application are unclear. In my opinion, it should not be followed in a matter in which the Federal Court has issued an interim restraining order on the Minister in relation to the exercise of his removal powers under the Migration Act, and has transferred the matter to this Court for an expeditious hearing. The Minister’s consideration in the past of his removal powers, has no bearing on the visa which is now currently in contemplation by the Minister and the applicant. In my opinion, there is a strong public interest in the present litigation being brought to resolution, rather than being adjourned indefinitely.
Taking into account all the submissions that have been made by the parties, I accept that it is appropriate to vacate the hearing fixed for this week, and to adjourn the matter for a reasonable time to allow the parties to effect a final resolution of the matter. However, I refuse to allow an indefinite adjournment. In my opinion, a reasonable time to allow the parties to finalise their negotiations in this matter would be until the end of the year. I, therefore, propose to list the matter for hearing at the end of January 2009.
I note that the solicitor for the applicant protested at the fixing of the date for hearing, not on the basis of the unavailability of any counsel at that time, but on the basis that counsel might not be able to be found to prepare necessary written submissions in support of the application during January. I am doubtful as to this assertion. If any counsel who the applicant wishes to brief is unavailable for the whole of January for that purpose, then, regrettably, they will have to be asked to produce submissions before they take their vacation.
In my opinion, the public interest in relation to this matter requires it to be brought to a reasonably expedited final hearing, and I propose to proceed with the hearing which I am fixing today, unless good reason is shown for departing from the opinions which I have expressed in this judgment.
It appears that the parties are not in agreement about what should happen in relation to the costs of the adjournment. I shall, therefore, reserve costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 14 November 2008