SZQXQ v Minister for Immigration

[2012] FMCA 521

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQXQ v MINISTER FOR IMMIGRATION [2012] FMCA 521

MIGRATION – Application to show cause where identical issue decided by Full Court of the Federal Court and application for special leave to appeal to the High Court – whether to hear matter on the basis of a show cause hearing.

Migration Act 1958 (Cth), s.91N
Federal Magistrates Court Rules, rr.44.11, 44.12

City of Sydney Council v Satara [2007] NSWCA 148
Geelong Football Club Ltd v Clifford [2002] VSCA 212
SZOAU v Minister for Immigration and Citizenship and Another (2011) 199 FCR 448; [2012] FCAFC 33

Applicant: SZQXQ

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 2776 of 2011

Judgment of: Barnes FM

Hearing date: 8 June 2012

Delivered at: Sydney

Delivered on: 8 June 2012

REPRESENTATION

Counsel for the Applicant: Mr Karp

Solicitors for the Applicant: Legal Aid NSW

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the respondent fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2776 of 2011

SZQXQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter was commenced by application filed on 6 December 2011. The Minister seeks that the matter proceed by way of a show cause hearing in accordance with the provisions of r.44.12 of the Federal Magistrates Court Rules. The applicant opposes that course and in effect seeks that the court dispense with a show cause hearing (see r.44.11). I am asked to permit the matter to remain in the list until after the High Court has determined an application for special leave to appeal from a decision of the Full Court of the Federal Court in SZOAU v Minister for Immigration and Citizenship and Another (2011) 199 FCR 448; [2012] FCAFC 33. It is foreshadowed that if the High Court grants special leave, a further adjournment would be sought until final determination of the case.

2. In this case, as in SZOAU, a delegate of the Minister decided that the applicant’s application for a protection visa was invalid in circumstances where the visa applicant was found to be a national of both North and South Korea.  It is conceded by counsel for the applicant that the legal issues raised in this case are on all fours with those considered by the Full Court of the Federal Court in SZOAU.  I am nonetheless asked to “keep the matter in this court” on the basis that it would be more cost effective and more efficient to deal with the matter in this way to await the final determination by the High Court.

3. However this is no longer a case in which there is an outstanding appeal on a determinative issue to a superior court.  In December 2011 the matter was stood over until determination of the appeal in SZOAU in the Federal Court. The Full Court dismissed the appeal. It is conceded that, relevantly, its view of the preferable construction of s.91N of the Migration Act 1958 (Cth) is such that the applicant cannot succeed as the law now stands.

4. This court is bound to follow the decision of the Federal Court.  There is nothing in the circumstances of this case to distinguish it from SZOAU.  There is a distinction between cases where there is an outstanding appeal and cases where there is application for special leave.  In addition, it cannot be said that there is any relevant conflicting authority in the superior court.  (See in that respect Geelong Football Club Ltd v Clifford [2002] VSCA 212 and City of Sydney Council v Satara [2007] NSWCA 148).

5. I have considered whether or not a delay would be in the interests of the administration of justice, having regard to the circumstances raised by the applicant.  I bear in mind the nature of the proceedings, the objects and resources of this court, as well as the convenience of the parties, the time that this matter has been before the court, the delay that there has already been, and the expected further delay if the proceedings were to be delayed until the determination by the High Court. 

6. I consider it of significance that there is binding authority of the Full Court of the Federal Court, a superior court, that constitutes a clear statement of the law.  In my view the court should act on the law as stated on appeal in SZOAU in circumstances where there is no suggestion of any conflicting authority or any point of distinction.  I am of the view that the matter should proceed on the basis of a show cause hearing. 

RECORDED  :  NOT TRANSCRIBED

1. The parties have nothing further to say in relation to the show cause hearing.  It is conceded by the applicant that as the law presently stands the applicant’s case is unarguable.  In the circumstances of this case I am satisfied that the application does not raise an arguable case for the relief claimed and that it is appropriate that the matter be dismissed with costs. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  15 June 2012