SZQBQ v Minister for Immigration

[2011] FMCA 574

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQBQ v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 574

MIGRATION – Extension of time – whether in the interests of justice to extend time for the making of application.

PRACTICE & PROCEDURE – Transfer to Federal Court – judicial comity – where question of statutory interpretation already dealt with by another Federal Magistrate and due to come before a third Federal Magistrate in the near future – where differing judgments about the same principle may arise – whether to transfer matter.

Migration Act 1958 (Cth), ss.91N(1), 91P, 91Q, 477(1)

SZOUY v Minister [2011] FMCA 347
BHP Iron Ore Pty Limited & Anor v National Competition Council & Anor [2007] FCAFC 157

Applicant: SZQBQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 556 of 2011

Judgment of: Raphael FM

Hearing date: 20 July 2011

Date of Last Submission: 20 July 2011

Delivered at: Sydney

Delivered on: 20 July 2011

REPRESENTATION

Counsel for the Applicant: L. Karp

Junior counsel for the Applicant: Lachlan Robison

Solicitors for the Applicant: Legal Aid Commission

Counsel for the Respondent: S. Lloyd SC

Junior counsel for the Respondent: Anna Mitchelmore

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. An extension of time for the filing of the application be granted from 29 December 2010 until 25 March 2011.

2. The matter should be referred to the Federal Court for consideration and decision with such number of justices as that court shall determine.

3. Costs for the application before this court should be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 556 of 2011

SZQBQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This proceeding involves the judicial review of a decision made by the Refugee Review Tribunal on 24 November 2010 to the effect that:

   “…[I]t is the view of the tribunal that on 30 November 2007, when this application was made to the Department, the applicant was a national of both the Republic of Korea and the Democratic People’s Republic of Korea. This being the case, the provisions of s.91N(1) applied to the applicant on that date. There being no written notice under s.91Q in respect of the applicant, he was affected by the provisions of s.91P, such that no application he made was valid. That being the case, the delegate’s decision refusing the visa should be set aside, and a decision noting the invalidity of the application to the Department should be substituted.” [100][CB 128]

2. It is common ground between the parties that a review of the Tribunal’s decision in this case involves a question of statutory interpretation. In particular, the statutory interpretation of what is known as Subdivision AK of the Migration Act1958 (Cth) (the “Act”), and in particular, those parts of s.91 referred to in the Tribunal’s conclusion, which are referred to in the Tribunal extract set out above. It is also common ground that this question of interpretation is one that has already, at least to a very large extent, been considered by this court in the case of SZOUY v Minister [2011] FMCA 347. That case was determined by Smith FM on 3 June 2011 and for reasons which are not relevant to these proceedings was not appealed. However, as Mr Karp says in the helpful written submissions he provided to this court in relation to this case, the decision of Smith FM was “both careful and considered”.

3. At the commencement of the proceedings today, and in response to a question from me, I was informed that there is another case raising the same issues due to be heard before Cameron FM within a few days.  It appeared to me that in those circumstances, it might be appropriate that the issue be referred immediately to the Federal Court.  Although Mr Karp tells me that there is an additional point in relation to this case that was not argued before Smith FM, it is, with respect to him, at most a gloss upon the arguments that his Honour considered, and bearing in mind the strictures requiring the court at this level to follow the decision of a fellow justice unless the decision of that single judge could be said to be plainly wrong;  BHP Iron Ore Pty Limited & Anor v National Competition Council & Anor [2007] FCAFC 157 per Finkelstein J, and the dangers of a selection of differing judgments about the same principle that must arise where the matter is to be heard before me and then again before Cameron FM, I expressed the view that the case should be referred to the Federal Court for decision.

4. In this particular instance the matter was complicated by the fact that the applicant was out of time in filing his application under s.477(1) of the Act. That subsection provides that an application to this court for review of a decision of the Tribunal must be made within 35 days, but the court may extend the time for a grant of a remedy under the Act if it considers that it is in the interests of justice so to do. When the matter first came before me this morning it was indicated that the applicant would be cross-examined upon his affidavit and that the Minister would argue that that his grounds for obtaining an extension were not adequate. However, after due consideration, the Minister has agreed that it would be appropriate for the matter to be transferred to the Federal Court and that in those circumstances it would be in the interests of justice for this court to grant the extension of time.

5. Mr Karp, on behalf of the applicant, also agrees that it would be in the interests of justice for the matter to be referred to the Federal Court, and in those circumstances I propose to grant an extension of time for the filing of the application from 29 December 2010 until 25 March 2011, and I propose that the matter should be referred to the Federal Court for consideration and decision with such number of justices as that court shall determine.  The costs of the application before this court should be reserved.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  25 July 2011