SZRCR v Minister for Immigration (No.3)
[2012] FMCA 467
•29 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRCR v MINISTER FOR IMMIGRATION (No.3) | [2012] FMCA 467 |
| 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 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 SZQXP v Minister for Immigration & Anor [2012] FMCA 432 |
| Applicant: | SZRCR |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 224 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 29 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2012 |
REPRESENTATION
| Solicitors for the Applicant: | McArdle Legal |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the costs of the respondent fixed in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 224 of 2012
| SZRCR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter comes before me as an application for an order that the respondent show cause why a remedy should not be granted in respect of a decision of a delegate of the Minister on 7 November 2011 that the applicant’s application for a protection visa was invalid. The Minister seeks that the application be dealt with in accordance with the provisions of r.44.12 of the Federal Magistrates Court Rules and that the court conduct a show cause hearing today. The applicant’s solicitor had been notified of the Minister’s intention in that respect and provided with written submissions. Although not expressed in such terms, it is apparent that in seeking that the matter be listed for final hearing at a future date the applicant seeks that the court dispense with a hearing under r.44.12 (see r.44.11(c)).
As is apparent from the extract of the decision letter attached to the affidavit of Mr McArdle affirmed on 1 February 2012, the determination that the visa application was not a valid application was made on the basis that the applicant was found to be a national of both North Korea and South Korea and thus the application for such a visa was rendered invalid by virtue of the operation of provisions in the Migration Act 1958 (Cth) applicable in such circumstances (in particular see Subdivision AK of Division 3 of the Act and s.91N).
It is apparent from the grounds of review in the application of 1 February 2012 that the applicant contends that the respondent misconstrued and misapplied s.91N of the Migration Act. Such issue was before this court in SZOAU v Minister for Immigration and Citizenship and Another (2011) 254 FLR 312; [2011] FMCA 820 which went on appeal to a Full Court of the Federal Court. The appeal was determined on 21 March 2012 by a court constituted by Buchanan, Barker and Robertson JJ (reported as 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.
The applicant has not pointed to any material before the court that would suggest that there is for the purposes of considering whether this court is bound to follow the Full Court any point of distinction between SZOAU and the present case. The solicitor for the applicant referred to this being a matter for evidence, but not in such a way as to raise a case that the decision of the Full Court of the Federal Court is not directly in point. In circumstances which appear in all relevant respects to be identical to those which arose for consideration in SZOAU, the decision of the Full Court of the Federal Court is binding on this court. There is nothing to suggest that there is any distinction such that this court would not be bound to follow the Full Court. On that basis the grounds in the application are not arguable as the law presently stands.
In these circumstances the respondent seeks that this matter, which is brought as a show cause application in accordance with the provisions of the Federal Magistrates Court Rules, should be dealt with at a show cause hearing.
The applicant seeks that the matter be listed for final hearing on the basis that it should not be heard until the High Court has determined a special leave application in SZOAU. I understand that if the High Court were to grant special leave then the applicant’s intention is that the matter should not be heard until the High Court had heard and finally determined the SZOAU matter.
There is no evidence as to how long that is likely to be. It may be that the application for special leave will be determined this year, but there is nothing before the court to indicate that, even if special leave were to be granted, there would be an ultimate determination within this calendar year.
This is not an entirely novel situation. This court and other courts have faced the situation where an adjournment or delay in a hearing is sought on the basis that there is a special leave application in another case raising a relevant issue (see for example Geelong Football Club Ltd v Clifford [2002] VSCA 212 at [6] – [8] per Ormiston J and City of Sydney Council v Satara [2007] NSWCA 148). A distinction has been drawn between circumstances where an appeal is on foot and circumstances where there is an application for special leave to appeal.
The applicant contended that a delay would be in the interests of the administration of justice, because if the applicant has his application dismissed he would be deported. There is no necessary and immediate connection between an adverse decision of this court and the immediate deportation of an applicant. I note that an extension of time in which to bring these proceedings has been granted so that if the matter is dealt with as a show cause hearing and dismissed, it would not be dismissed in circumstances where the applicant would have no right to at least seek leave to appeal (see SZQXP v Minister for Immigration & Anor [2012] FMCA 432).
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.
As I am satisfied that the application does not raise an arguable case for the relief claimed for the reasons that I have given it is appropriate that the application be dismissed with costs.
ORDERS DELIVERED
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 1 June 2012
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