SZQXP v Minister for Immigration
[2012] FMCA 432
•8 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQXP v MINISTER FOR IMMIGRATION | [2012] FMCA 432 |
| MIGRATION – Review of decision of delegate of Minister for Immigration – show cause hearing – where ground raised previously before Full Federal Court – where previous case awaiting result of special leave application to High Court – whether to adjourn proceedings. |
| Migration Act 1958 (Cth), ss.91P(2), 91N(1), 91Q, 91M |
| SZOAU v Minister for Immigration & Anor [2012] FCAFC 33 |
| Applicant: | SZQXP |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2775 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 8 May 2012 |
| Date of Last Submission: | 8 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs assessed in the sum of $1,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2775 of 2011
| SZQXP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
The matter presently before me is an application for judicial review of a decision of a delegate of the Minister refusing to grant the applicant a protection visa because he was found to be a citizen of both North and South Korea and thus an application for such a visa was rendered invalid by force of s.91P(2) and s.91N(1) of the Migration Act 1958[1]. This ground of refusal of the visa is one that has come before the courts on previous occasions and has now been authoritatively determined by a Full Bench of the Federal Court, Buchanan, Barker and Robertson JJ, in SZOAU v Minister for Immigration & Anor [2012] FCAFC 33[2]. Their Honours dismissed the appeal in that case, a finding that the applicant was a holder of dual nationality and, in those circumstances, was unable to seek the protection of this country as it is to be assumed that the protection of South Korea was available to him.
[1] “Act”
[2] “SZOAU”
The instant case is, to all extent and purposes, identical and no doubt for that reason Mr Karp, who appears on behalf of the applicant, in his helpful written submissions accepts that this court is bound by the reasoning of the Full Court and obliged to dismiss the application. However, Mr Karp, in those submissions formally submits that SZAOU was incorrectly decided because it did not construe the provisions of ss. 91N, 91P and 91Q of the Act in the context of s.91M. Mr Karp advises that an application has been made to the High Court for special leave to appeal the decision of the Full Bench and seeks that in those circumstances I stand this matter out of the list until a determination of the special leave application has been made with the competent request that if the application for special leave is successful then the matter stand in the list until the determination of the appeal. When the case was before me previously I was informed that the application for special leave was approximately three months off at the earliest and that it was expected that if special leave was granted there would be no determination of the appeal for a further 18 months or so.
The Minister opposes the application on the grounds that there is a clear statement of the law in the matter which this court should accept and that there really is no point in leaving the matter here until the determination by the High Court. If the case should proceed and if a decision is made by the High Court during the course of it proceeding into the Federal Court then the matter could be looked at at that stage. This is a view which I would support. The Federal Court has spoken and not just in the guise of one Judge but of three. The law, as it stands, is now clear. The case is, as Mr Karp accepts, unarguable in this court and so the appropriate course of action is to make a finding that on a show cause basis the application should not proceed because it has no prospects of success as at this time. I am aware that some of my colleagues take a slightly different view but this is the nature of an independent judicial system and it may well be that the approach that I have taken is found to be the better, but if it is not then no doubt those who hear subsequent applications, because I am aware that this is a reasonably sized cohort of applicants, will come to a different decision.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 24 May 2012
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