SZQZL v Minister for Immigration
[2012] FMCA 473
•31 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQZL v MINISTER FOR IMMIGRATION | [2012] FMCA 473 |
| MIGRATION – Application for adjournment where identical issue decided by the Full Court of the Federal Court and application for special leave to appeal to the High Court on foot – whether to hear matter on the basis of a show cause hearing. |
| Migration Act 1958 (Cth), s.91N Federal Magistrates Court Rules, r.44.12 |
| City of Sydney Council v Satara [2007] NSWCA 148 Geelong Football Club Ltd v Clifford [2002] VSCA 212 Jahan v Minister for Immigration & Anor [2009] FMCA 249 SZOAU v Minister for Immigration and Citizenship and Another (2011) 254 FLR 312; [2011] FMCA 820 SZOAU v Minister for Immigration and Citizenship and Another (2011) 199 FCR 448; [2012] FCAFC 33 |
| Applicant: | SZQZL |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2851 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 31 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr H Jewell |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
The adjournment application is refused.
The application is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $2,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2851 of 2011
| SZQZL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for an adjournment sought by the applicant who filed an application seeking judicial review of a decision of a delegate of the respondent of 9 November 2011 that his application for a Protection (Class XA) visa was not valid.
The application for an adjournment is made in circumstances where the applicant is, according to the decision of the delegate, said to be a national of North Korea whose visa was declined on the basis that he was a national of South Korea such that s.91N(1) of the Migration Act 1958 (Cth) applied to him. The respondent seeks that the matter be heard as a show cause application under r.44.12 of the Federal Magistrates Court Rules.
This is one of a number of such matters that has come to the court by way of judicial review. On 31 January 2012 the parties sought orders in chambers for the matter to be stood over by consent pending judgment of the Federal Court on appeal from a decision of Smith FM in SZOAU v Minister for Immigration and Citizenship and Another (2011) 254 FLR 312; [2011] FMCA 820.
On 27 March 2012, the matter was, by consent, further stood over until the time for any special leave application to the High Court should expire, there having been a decision of the Full Court of the Federal Court on 21 March 2012 in SZOAU v Minister for Immigration and Citizenship and Another (2011) 199 FCR 448; [2012] FCAFC 33. The Full Court dismissed the appeal and held that the preferable construction of s.91N(1) of the Act was that it had its ordinary meaning and that the reference to nationality in that context was assumed, prima facie, to carry a capability on the part of the non-citizen to avail himself or herself of protection and that it did not require an additional inquiry into the non-citizen’s ability to avail himself or herself of such protection. This court is bound to follow the decision of the Federal Court.
Counsel for the applicant concedes for the purposes of these proceedings that there is nothing distinguishing the circumstances or grounds relied on in this case from the circumstances and grounds relied on in SZOAU.
It is also acknowledged that the decision of the Federal Court in SZOAU is binding on this court. It is nonetheless sought that, rather than the court proceed (as the Minister seeks) to deal with this application by way of a show cause hearing, the matter be adjourned. At this stage, it is sought that the matter be adjourned until a date after the special leave hearing. Realistically, however, it is clear that if special leave were to be granted there would no doubt be a further application for an adjournment until the appeal was finally determined by the High Court.
There is no evidence before the court as to how long that will be although I am told from the bar table that the special leave application has not been listed, and there has been some discussion of prospective dates such that that matter could potentially be before the High Court towards the end of the year.
I have considered whether it is in the interests of the administration of justice and the parties that an adjournment should be granted. I have had regard to the submissions of the applicant in that respect, and the matters considered by Ormiston J in Geelong Football Club Ltd v Clifford [2002] VSCA 212.
It cannot be said that this case is pending awaiting a change in the law. Nor can it be said that there is no authority binding on this court in what may be seen as a test case.
Contrary to the situation in Clifford but akin to the circumstances in Jahan v Minister for Immigration & Anor [2009] FMCA 249 in this case, an adjournment was previously granted pending a determination by the Full Court of the Federal Court. It was, in my view, appropriate in circumstances where the issue that arose in that case had yet to be determined by the Federal Court, and where it was clear that it would arise in a number of cases, that there be an adjournment until the Federal Court had made its decision.
The Federal Court has now determined unanimously, that the conclusion of the federal magistrate adverse to the grounds sought to be relied on by the applicant in that case, and also in this case, was correct. Their Honours were of agreement in that respect (and see City of Sydney Council v Satara [2007] NSWCA 148). There is a decision of a superior court that is binding on this court in circumstances where the matter has been on foot for a considerable time. This matter has been before this court since December last year.
The adjournment that is sought, while expressed in terms of waiting until after the special leave hearing is held, clearly has the potential for being an adjournment of some considerable time.
I have had regard to the objects of the court and the desirability of speedy resolution of matters and also, in particular, to the fact that the issues are on all fours with those that arose in SZOAU. The law is, for present purposes, settled. It is the obligation of this court to enforce such law. I am of the view that as the Federal Court has authoritatively determined the issue that arises in this case, the matter should not be held back on an indefinite basis so as to await an eventual decision of the High Court.
Accordingly, the adjournment application is refused.
RECORDED : NOT TRANSCRIBED
The Minister seeks that the matter be dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules. It is appropriate to conduct rather than dispense with a show cause hearing in this matter.
Counsel for the applicant has conceded that the case is on all fours with SZOAU and that there is nothing to distinguish it from the circumstances considered by the Full Court of the Federal Court in SZOAU.
In these circumstances, as the law presently stands, the court cannot be satisfied that the application has raised an arguable case for the relief claimed. It is appropriate that it be dismissed. The unsuccessful applicant should meet the costs of the respondent.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 6 June 2012
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