SZQHI v Minister for Immigration
[2011] FMCA 864
•31 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQHI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 864 |
| MIGRATION – Application for adjournment – where applicant’s representative unaware of changed court date – where applicant informed of date change – where case familiar to representative – whether adjournment should be granted. |
| SZQEL v Minister for Immigration & Anor [2011] FMCA 581 SZQHH v Minister for Immigration & Anor |
| Applicant: | SZQHI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1121 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 31 October 2011 |
| Date of Last Submission: | 31 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Gormly |
| Solicitors for the Applicant: | Koutsoumis Lawyers |
| Counsel for the Respondents: | Ms R. Francois |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application for adjournment refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1121 of 2011
| SZQHI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
On 2 June 2011 the applicant, who was detained in Perth, filed an application in this court, seeking review of a decision of Steve Karas, an independent merits reviewer, handed down on 10 April 2011.
At that time the applicant was not represented. He was still not represented when the matter came before me for directions on 22 June 2011, and on that day I set his case down for hearing on 7 November 2011.
This court in Sydney has recently had to undergo some unfortunate changes. The lease of the three floors in John Maddison Tower was not renewed by the New South Wales Government and as no alternative accommodation had been arranged, it came to pass that the eight Federal Magistrates who remained in this building were required to change their accommodations, so that five of the Federal Magistrates were accommodated on level 6 of the building, a level with only four courts, and three Federal Magistrates were required to move, within the next two to three months, to accommodation associated with Fair Work Australia at 80 William Street.
The disruption caused by these matters meant that the hearing date of 7 November could no longer be utilised, and so, on 7 July 2011, a letter was written to the applicant at his detention centre, informing him that the hearing would take place at 2.15pm today, 31 October 2011.
Some time later, a solicitor, Mr Gary Koutzoumis, of 538 King George’s Road, Beverly Hills, commenced acting on behalf of the applicant. Regrettably, he did not file a notice of address for service until 23 September 2011. Thereafter, he filed a number of documents, including two very large affidavits and an amended application.
He briefed Mr Gormly of counsel to appear on behalf of the applicant. On 23 September 2011, the amended application was filed and on 20 October 2011, Mr Gormly filed his written submissions. These extend to some six pages and are, as usual, helpful and thorough.At 2.15pm today, Mr Gormly was not present in court and he was still not present at 2.30pm. Ms Francois, who appears for the respondent, agreed to telephone Mr Gormly and to remind him of the hearing. Eventually, Mr Gormly arrived and advised that he was unaware of the changed hearing date. Certainly, it is correct that no communication directly from the court to Mr Gormly was made about the new hearing date, but it was certainly made to his client some months ago. Mr Gormly asks that the case be adjourned and this adjournment is resisted by the respondents.
There are two reasons why I do not propose to grant the adjournments requested. The first reason is that the case being made by Mr Gormly is not unfamiliar to him. Mr Karas has made a number of decisions relating to his views as to whether Afghani Hazaras who are Shia Muslims are persons to whom Australia could be said to owe protection obligations. In a large number of these cases, the decision records are similar. Mr Gormly seeks to argue that this similarity indicates apprehended bias on the part of the reviewer. It is an argument that Mr Gormly accepts he has made before in this court. He made it to me in proceedings known as SZQEL v Minister for Immigration & Anor [2011] FMCA 581 (SZQEL), and before Driver FM proceedings known as SZQHH v Minister for Immigration & Anor.The only difference between the arguments that were put before Driver FM and before myself previously is that Mr Gormly has now obtained what he believes to be a complete collection of Mr Karas’ review decisions which he advises me were before Driver FM, although they were not before me.
I did not come to any decided view about the submissions being made in SZQEL because I could not be satisfied that the decision was not the emanation of the phraseology that was being impugned. A decision of Driver FM is still awaited. But Mr Gormly cannot be said to be unfamiliar with his own arguments and, most certainly, will recall them from his own submissions which it would appear he has with him. I do not see any reason why Mr Gormly would be unable to proceed with the arguments today, even though, as he says, he has not had time to sit down and think the matters through before he commences.
The second reason is that the applicant is in detention and has been in detention for a very considerable period of time. This court has jurisdiction in a number of general federal law matters of which migration is only one. Whilst it endeavours to do its best to give priority to migration matters, particularly those where applicants are in detention, it cannot abandon its other jurisdictions and it cannot abandon the cases of other applicants who seek review, both from the Refugee Review Tribunal and the Migration Review Tribunal. Mr Gormly seems to think that this court can just move cases in order to accommodate his particular applicant. This cannot be done in circumstances where we know nothing more about the applicant than he is in detention.
The situation of future listings is that this court is unable to provide Mr Gormly with a hearing date prior to 13 March 2012, that is, over five months away, and it would not be proper to allow this applicant to remain in detention for that extra time before his case is reviewed. Mr Gormly suggests that I should adjourn the case until that date, and that when Driver FM’s decision is given, he can give his client certain advice. That may be, but without wishing to call down the mischief of the gods, one does not know what may transpire that should prevent Driver FM from providing his decision with his usual degree of alacrity.
In those circumstances, the application for an adjournment is refused.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Date: 7 November 2011
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