SZQYJ v Minister for Immigration
[2012] FMCA 505
•12 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQYJ & ORS v MINISTER FOR IMMIGRATION | [2012] FMCA 505 |
| MIGRATION – Review of decision of an officer of the Minister’s Department – decision that visa application invalid because applicants citizens of South Korea – binding decision of the Full Federal Court – immediate show cause hearing – no arguable case of jurisdictional error. |
| Federal Magistrates Act 1999 (Cth), s.42 Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth) |
| SZOAU v Minister for Immigration (2011) 199 FCR 448; [2012] FCAFC 33 SZRCR v Minister for Immigration [2012] FMCA 467 SZQZL v Minister for Immigration [2012] FMCA 473 |
| First Applicant: | SZQYJ |
| Second Applicant: | SZQYK |
| Third Applicant: | SZQYL |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2860 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 12 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2012 |
REPRESENTATION
| Solicitors for the Applicants: | Mr C McArdle McArdle Legal |
| Solicitors for the Respondents: | Mr M Alderton Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 44.11(a) of the Federal Magistrates Court Rules 2001 (Cth), there shall be an immediate hearing under rule 44.12.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2860 of 2011
| SZQYJ |
First Applicant
SZQYK
Second Applicant
SZQYL
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me a show cause application filed on 14 December 2011, seeking review of a decision of the Minister’s Department that the applicants’ application for a protection visa was invalid. The matter was before me for first court date directions on 7 May 2012. It is common ground that the outcome in this matter is governed by the outcome in SZOAU v Minister for Immigration[1]. On that occasion I was persuaded to adjourn the matter for further directions pending the expiry of the period for applying for special leave to appeal to the High Court.
[1] (2011) 199 FCR 448, [2012] FCAFC 33
The matter came before me again this morning for directions, at which time I was told, on the basis of a letter from the High Court Registry dated 29 May 2012, that special leave having been sought in SZOAU, oral argument would most likely be heard between mid-September and mid-October this year. Having regard to that timetable and a number of decisions by my colleagues in matters raising the same issue, I directed that the matter be listed for an immediate show cause hearing which took place after some delay this morning.
There is no dispute that, confronted with the authority of the Full Court decision in SZOAU, the applicants cannot succeed in this Court. Nevertheless, the applicants submit that I should adjourn the hearing of this matter pending the special leave argument in the High Court and to await the outcome of that argument. My attention was directed to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) which permits, but does not require, the Court to dismiss an application if it is not satisfied that the applicant has raised an arguable case for the relief claimed. The reality is that the application before me is doomed to fail unless the High Court were to disturb the decision of the Full Federal Court. It is not for this Court to question the authority of the Full Federal Court decision; this Court is obviously bound by it.
Further, in my view, there will be limited circumstances in which it is appropriate for this Court to entertain a legal argument which conflicts with a binding decision of the Federal Court, pending further appeal. The Court is enjoined by the Federal Magistrates Act 1999 (Cth) to resolve proceedings without undue delay[2]. Further, the Court, as a lower Court, must respect and give full effect to binding decisions of superior Courts. My colleagues have taken differing approaches to other cases raising the same issues; most recently Barnes FM dismissed two applications pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules on 29 May 2012 and 31 May 2012 in SZRCR v Minister for Immigration (No.3)[3] and SZQZL v Minister for Immigration[4]. Her Honour set out the reasons for her decision in SZRCR, in particular at [10] and [11] of the judgment:
I bear in mind the nature of the proceedings, the objects and resources of this court, the arguments put in favour of delay, the convenience of the parties, the time that this matter has been before the court and the expected delay if the case were to be delayed until the ultimate determination of the High Court and also the fact that there is binding authority of the Full Court of the Federal Court, a superior court, that constitutes a clear statement of the law. This court should act on the law as stated on appeal in SZOAU. This is not a case in which there is conflicting authority, either in this court or in the Federal Court. An appeal on the issues raised in this case has been determined (cf Jahan v Minister for Immigration & Anor [2009] FMCA 249).
As the law now stands the applicant’s case is unarguable. Indeed there was nothing said for the applicant that was to the contrary. Rather the suggestion was that it may be unarguable now, but if the High Court ultimately found in favour of the applicant in SZOAU then it would be arguable. That may be so. However, on balance, in all the circumstances and notwithstanding that I am told from the bar table that some of my colleagues may take a different view in similar cases I am of the view that in the circumstances of this case it is appropriate to proceed by way of a show cause hearing.
[2] Federal Magistrates Act, s.42
[3] [2012] FMCA 467
[4] [2012] FMCA 473
I agree with her Honour’s reasoning. If the Court were to adjourn the hearing of this matter, for example to a date in October, it would still not know the outcome of the proceeding in the High Court if special leave were granted in SZOAU. If special leave is refused, the Court will be in the same position that it is now. It would, in my view, be an unnecessary and unreasonable delay to adjourn this case to some unspecified date in 2013 which would be the likely outcome if special leave to appeal to the High Court were granted this year.
I have concluded that the appropriate course is to adopt the same approach as was taken by Barnes FM in SZRCR and SZQZL. I appreciate that, as a matter of practicality, this will put the applicants to additional expense in the form of a further filing fee and uncertainty, in as much as it will be necessary to seek leave to appeal in the Federal Court in order to seek to preserve the applicants’ rights. Those considerations, however, do not, in my view, outweigh the need for this Court to resolve proceedings expeditiously and with finality on the basis of clear and binding superior court authority.
I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the amount of $2,500. The solicitor for the applicant was unable to make submissions in the absence of instructions. I have no difficulty in accepting that costs of not less than $2,500 have been reasonably and properly incurred on behalf of the Minister when considered on a party/party basis. I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 June 2012
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