SZROV v Minister for Immigration and Citizenship

[2013] FCA 21

FEDERAL COURT OF AUSTRALIA

SZROV v Minister for Immigration and Citizenship [2013] FCA 21

Citation:		SZROV v Minister for Immigration and Citizenship [2013] FCA 21
Parties:		SZROV v MINISTER FOR IMMIGRATION AND CITIZENSHIP
File number:		NSD 108 of 2013
Judge:		YATES J
Date of judgment:		22 January 2013
Catchwords:		MIGRATION – application for interim injunctive relief to restrain the respondent from deporting the applicant
Legislation:		Migration Act 1958 (Cth)
Cases cited:		Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465 SZROV v Minister for Immigration [2012] FMCA 1091
Date of hearing:	22 January 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	14
Counsel for the Applicant:	The Applicant appeared in person by telephone through an interpreter by telephone
Solicitor for the Respondent:	Mr A Markus of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 108 of 2013

BETWEEN:	SZROV Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	YATES J
DATE OF ORDER:	22 JANUARY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for interim injunctive relief be refused.

2.Costs of the application for interim injunctive relief be reserved.   

Note:    Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 108 of 2013

BETWEEN:	SZROV Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	YATES J
DATE:	22 JANUARY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. The applicant has filed an originating application in the Court today in which he seeks, amongst other things, a final injunction in the following terms:

   An injunction restraining the defendants or any officer, servant or agent of the defendants from removing the plaintiff from Australia until the Government of Australia warrant that plaintiff shall not be executed by the Government of Vietnam or the plaintiff is voluntary to leave Australia for another country.

   [As in original]

2. The matter has come before me urgently this evening.  I understand that the relief presently claimed is an interim injunction along the lines of the final injunction sought in the originating application.  The legal basis for that relief is not at all clear.  The basis for the application is not expressly stated in the originating application. 

3. The brief background facts are as follows. The applicant sought an extension of time pursuant to s 477 of the Migration Act 1958 (Cth) (the Act) in which to make a substantive application to the Federal Magistrates Court of Australia (Federal Magistrates Court) to review a decision of the Refugee Review Tribunal (the Tribunal) made on 2 December 2011.  The decision of the Tribunal had affirmed a decision of the delegate of the Minister for Immigration and Citizenship (the Minister) made on 14 September 2011 to refuse to grant a protection visa to the applicant.  The application was made on 22 June 2012.  On 26 November 2012, the Federal Magistrates Court delivered judgment in the matter:  SZROV v Minister for Immigration [2012] FMCA 1091. The application to extend time was refused. The presiding Federal Magistrate was not satisfied that a satisfactory explanation had been given for the delay in seeking substantive relief. The presiding Federal Magistrate also considered the merits of the case. He was not satisfied that the substantive grounds on which the applicant sought to rely were meritorious. Given the absence of any satisfactory explanation for the delay in seeking substantive relief and the lack of merit in the grounds advanced, the presiding Federal Magistrate concluded that it was not in the interests of the administration of justice to extend time.

4. The applicant took no steps to appeal from that judgment.  He has known since that judgment was given on 26 November 2012 that he is liable to be removed from Australia. 

5. On 16 January 2013, the applicant was given a notice of intention to remove him from Australia.  The notice stated that it was anticipated that he would be removed from Australia on 23 January 2013 (tomorrow) at 11.35 am.  The giving of that notice has prompted the applicant to make the present application to the Court.

6. In an affidavit filed in support of his application, the applicant stated that he had no interest in staying long-term in Australia but that he needed the Australian Government to provide him with temporary protection.  He said that he had advised the Department of Immigration and Citizenship that he would like to go to Cambodia because he could live and work in Cambodia due to his Vietnamese citizenship.  He said that his family in Vietnam was in the process of “reclaiming” its Cambodian citizenship.  By this I understand the applicant to say that his family is making arrangements to enable him to travel to and remain in Cambodia. 

7. In submissions that he has made this evening, the applicant has stated that he wishes to stay in Australia for another two months to enable him to travel to Cambodia legally.  In conformity with his affidavit, he submitted that his family is in the process of undertaking arrangements which will enable him to travel to and remain in Cambodia. 

8. The applicant also referred to the fact that there was a document being translated which would reveal to the Court that his life would be in danger if he were to be sent back to Vietnam.  The applicant said that he had elderly parents and young children, and sought compassion from the Court to accede to his application.  He said he wanted another opportunity. 

9. The Minister submitted that the present application before the Court is not competent.  The Minister submitted that the originating application did not disclose on its face a substantive legal basis upon which to grant the interim injunctive relief that the applicant seeks.  I agree.

10. The Minister submitted that if the applicant was in fact seeking to appeal from the decision of the Federal Magistrates Court, then not only was he out of time to appeal but, more fundamentally, the Court had no jurisdiction to entertain such an application.

11. In this connection the Minister referred to s 476A(3) of the Act. That subsection provides as follows:

    Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

    (a) a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2); or

    (b) a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).

12. I accept the Minister’s submission in that regard.

13. The Minister also submitted that if the applicant was in fact seeking to challenge the decision to remove him under s 198(6) of the Act, then the Court had no jurisdiction to review that decision having regard to s 476A of the Act: Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465 at [29]-[39]. In that connection the Minister also submitted that the duty imposed under s 198 was one to remove an unlawful non-citizen as soon as reasonably practicable. Section 198(6) provides:

    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

    (a)       the non-citizen is a detainee; and

    (b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

    (c)       one of the following applies:

    (i) the grant of the visa has been refused and the application has been finally determined;

    (iii)      the visa cannot be granted; and

    (d)       the non-citizen has not made another valid application for a   substantive visa that can be granted when the applicant is in the   migration zone.

    He submitted that a non-citizen’s fear of harm does not go to the question whether it is reasonably practicable to remove that person.  I accept that submission. 

14. I am not satisfied that the present application is competent.  I am not satisfied that the applicant has established a sound legal foundation for the interim relief that he seeks.  For these reasons, his application for interim injunctive relief is refused.  The Minister has asked that the question of costs be reserved.  I will so order. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:       22 January 2013