SZQEL v Minister for Immigration
[2011] FMCA 581
•21 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQEL v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 581 |
| MIGRATION – Application for adjournment – whether the production of further IMR decisions would affect any decision. PRACTICE & PROCEDURE – Transfer to Federal Court – comity – whether, in the context of decisions of Independent Merits Reviewers made contemporaneously and containing substantially similar paragraphs, the Federal Court is a more appropriate and efficient arena for judicial decision. |
| Migration Act 1958 (Cth), ss.476, 476A Federal Magistrates Act 1999 (Cth), s.39 Federal Magistrates Court Rules 2001 |
| NADH vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Ling v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1069 Applicant A165 of 2003 v Minister for Immigration Multicultural and Indigenous Affairs [2002] FCA 877 SCAA v Minister for Immigration Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZQEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 822 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 July 2011 |
| Date of Last Submission: | 21 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Gormly |
| Solicitors for the Applicant: | Koutzoumis Lawyers |
| Counsel for the 1st Respondent: | Mr H. Bevan |
| Solicitors for the 1st Respondent: | Australian Government Solicitor |
ORDERS
Application for transferral to the Federal Court declined.
Application for adjournment declined.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 822 of 2011
| SZQEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
There comes before me today an application to review a decision of a Mr S. Karas, in his capacity as an Independent Merits Reviewer, tasked with making recommendations to the Minister of Immigration as to the refugee status of persons who have arrived in Australia by boat. Mr Karas came to the conclusion that this particular applicant was not a person to whom Australia owed protection obligations, and so advised the Minister.
The applicant, as the High Court has indicated he is entitled to do, has sought judicial review of that decision, and an application was filed in this court which, by ss.476 and 476A of the Migration Act1958 (Cth) (the ‘Act’), has, effectively, exclusive jurisdiction in matters of this nature.
The application was filed on 28 April 2011 and in accordance with the procedures of this court, which I am proud to say are probably the speediest of all courts, federal and state, within the Commonwealth of Australia, the matter was given a first directions hearing on 26 May 2011 and set down for hearing substantively today, 21 July 2011. No expedition was requested. This is the normal timetable for matters being heard in this court. And those who would accuse the legal processes of delay in relation to refugee matters should take note and compare the outcomes achieved by the Federal Magistrates Court with outcomes of any court within the Commonwealth of Australia.
On 21 July 2011 there was submitted to my chambers a draft further amended application together with some further submissions by the applicant. No objection has been made to this matter being dealt with on the basis of that further amended application, and this court, in the person of myself, does not consider itself unduly disadvantaged by the lack of notice.
The further amended application helpfully deletes a considerable portion of the original application: the applicant, through his legal advisors, having conceded that those grounds lack substantive merits. The grounds that were left focused upon the manner in which the Reviewer expressed some findings concerning the refugee status of a person of the applicant’s ethnicity and religion.
This morning, Mr Gormly, who appears for the applicant, has made two preliminary applications. The first is that the matter be transferred into the Federal Court pursuant to the provisions of s.39 of the Federal Magistrates Act 1999 (Cth) and Pt.8 R.8.02 of the Federal Magistrates Court Rules 2001. The second application was for an adjournment of the proceedings, should I decline to grant the transfer.
The gravamen of s.39 and R.8.02 is that matters may be transferred between this court and the Federal Court (or Family Court), either by the court’s own motion or by application. There are provisions relating to how the application should be made but for the purposes of this decision I am prepared to waive those that have not been complied with.
Insofar as transfers from this court to the Federal Court are concerned, an application must be looked at in the light of R.8.02(4), which states:
“(4) In addition to the factors required to be considered by the Court under subsections 39 (3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c) whether the proceeding will be heard earlier in the Federal Magistrates Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.”
There is a note to the rule which makes reference to s.39(3) of the Federal Magistrates Act:
“Note 1 Subsection 39 (3) of the Act provides that, in deciding whether to transfer a proceeding to the Federal Court, the Court must have regard to:
* the factors set out in these Rules to be taken into account
* whether proceedings in respect of an associated matter are pending in the Federal Court
* whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding
* the interests of the administration of justice.”
Mr Gormly commenced his application by referring me to a number of decisions of Mr Karas and to some decisions of other Independent Merits Reviewers which contained findings expressed in almost identical terms to findings contained in the decision which is being reviewed today. It is part of his application that the existence of what he described as a “template” impugns the decision, essentially because it is common to many decisions that the Reviewer has made in connection with persons of this applicant’s ethnicity and religion, and “bleaches” the importance of those matters in relation to the Reviewer’s findings. In reality, for the purposes of judicial review, the complaint must be either that the Reviewer has not given proper consideration to the applicant’s case – by pulling out of the top drawer his standard clauses concerning persons of his ethnicity and religion, or that because of this use of standard phraseology the informed and hypothetical person sitting at the back of the review room in the Curtin Detention Centre might come away with a view that the Reviewer has not brought an impartial mind to the resolution of the question to be decided; NADH vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, per Allsop J at [115], Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27-31], Ling v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1069 per Branson J at [57], Applicant A165 of 2003 v Minister for Immigration Multicultural and Indigenous Affairs [2002] FCA 877 per Lander J at [65]; SCAA v Minister for Immigration Multicultural and Indigenous Affairs [2002] FCA 668 per von Doussa J at [36].
That is the ground for review. But it says nothing of the necessity or advantage of transferring the matter to the Federal Court. Mr Gormly informs me, and I am prepared to accept, that this case is not alone. He says there are a number of cases awaiting decision by Federal Magistrates in which the complaint made here is iterated. He says that this could lead to some confusion if there are differing views expressed by different Federal Magistrates. He says that if the matter goes to the Federal Court there will be a decision of which the justices of this court will, consistent with the principles of comity and the authorities, be reluctant to depart from unless they are able to say it was clearly wrong. He says that that will be advantageous. He believes that it will be cheaper and he argues that it will be quicker.
Mr Bevan for the Minister takes issue on these matters. He indicates that if this case is heard today it will be decided within a short compass and then the inevitable appeal will be brought. At that stage, arguments can be made to the Federal Court both for a hearing by a Full Bench of three and for expedition so that after a few months there will be not just persuasion but binding certainty. He says that if the course requested by Mr Gormly is taken there will inevitably be a delay whilst the matter is transferred to the court, placed into the docket of one of the justices, receives a directions hearing and is eventually heard. What, one may ask, will happen in the meantime to those cases that remain here? Will they all be put off? That does not seem to me to be a very efficient way of dealing with these important matters.
I am also of the view that in addition to the extra delay, in taking the course requested by Mr Gormly, there will be extra expense because this matter is already before this court and if I decline to grant both this application and that for an adjournment it will be heard this afternoon. If I do grant the application or the adjournment the expense of the day will have been wasted.
The point made by Mr Gormly is an important one and bears the type of forensic examination that counsel of his experience can bring to it, but it is not the most complex matter that has faced this court in this difficult arena. Sections 476 and 476A indicate an intention publicised by the parliament that these matters should first be dealt with in this court and it should only be the rare exception where a transfer is made because of complexity. Indeed, the word "complexity" is not defined and can equally be said to apply factual issues as to those of law. In this case, there are no factual issues as it is a review application, so I am of the view that whilst the point made by Mr Gormly is important, it is not of such general importance that it should be taken out of the hands of this court and placed in those of the Federal Court for consideration at first instance. In my view, it would be far better that my mistakes be rectified by a full bench.
In regards to Mr Gormly's application for an adjournment, it rests upon his wish to take further steps which he hopes will have the effect of being able to produce for me more than the six decisions that I already have in front of me from Mr Karas and his colleagues in which the impugned paragraphs appear. I respect his wish to be as thorough as possible in the presentation of his case, but frankly I do not think that the production of any number of additional decisions will affect my view. It is clear from the information that I already have that these phrases and paragraphs are used consistently by this particular Reviewer. The complaint that Mr Gormly makes about that action will not, to my mind, be improved by the production of more decisions. I am happy to accept that there may well be more; I do not believe, and it will be Mr Bevan's argument, that these are unique examples. The matter will be fought on a final general basis appropriately, in my view. In those circumstances, I decline to refer the matter to the Federal Court. I decline to grant Mr Gormly the adjournment he seeks. I wish the matter to proceed today. I will deal with costs after hearing the substantive matter.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 27 July 2011
2
5
3