SZRVV v Minister for Immigration
[2012] FMCA 967
•17 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRVV v MINISTER FOR IMMIGRATION | [2012] FMCA 967 |
| MIGRATION – Application for transfer to the Federal Court of Australia – application granted. |
| Migration Act 1958 (Cth), s.48A Federal Magistrates Court Act 1999 (Cth), ss.39, 40 Federal Magistrates Court Rules 2001 (Cth), rr.1.06, 4.01, 4.05, 8.02, 44.05 |
| SZRWI v Minister for Immigration [2012] FMCA 968 SZGIZ v Minister for Immigration [2012] FMCA 969 |
| Applicant: | SZRVV |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2154 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 17 October 2012 |
| Date of Last Submission: | 17 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr S E J Prince |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Appearing for the Respondent: | Mr M Alderton |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Pursuant to s.39 of the Federal Magistrates Court Act 1999 (Cth) and r.8.02 of the Federal Magistrates Court Rules 2001 (Cth), the matter be transferred to the NSW Registry of the Federal Court of Australia.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2154 of 2012
| SZRVV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
By application made in this Court on 2 October 2012 the applicant seeks relief in relation to a decision made by a delegate of the respondent that an application for a protection visa made either on 27 or 28 September 2012 was not validly made because of the operation of s.48A of the Migration A ct 1958 (Cth) (“the Act”).
This matter needs to be read with the judgments in SZRWI v Minister for Immigration [2012] FMCA 968 (which was heard with the current matter) and SZGIZ v Minister for Immigration [2012] FMCA 969 (“SZGIZ”) (which involved a Notice of Motion flowing from an identical legal issue).
The orders sought and grounds of the application (common to this matter and those referred to above) are as follows:
“Final orders sought by the Applicants
1. A writ of certiorari removing into this Court to be quashed the purported decision of the Respondent made on 28 September 2012 to the effect that application for a Protection Visa made by the Applicant on 28 September 2012 was invalid.
2. A declaration that the application referred to in Order 1 was validly made under the Migration Act 1958 and Regulations.
3. An order by way of mandamus that the Respondent consider the application referred to in Order 1 in accordance with law and any directions of the Court.
4. An order that the Respondent pay the Applicant’s costs.
Grounds of application
1. The application for a Protection Visa was not invalid because the applicant was not prevented by s 48A of the Migration Act 1958 from lodging a Protection Visa application.
Particulars
The application was expressly made in reliance only on the grounds in s 36(2)(aa) of the Act (the “complementary protection grounds”). No previous application relying on these grounds has been made by the applicant. An “application for a protection visa” is defined in subsection 48A(2) as an application for a visa a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c). The applicant has never before applied for a Protection Visa in reliance on the complementary protection grounds. The correct interpretation of s 48A(2) is that it does not prevent an application being made now in reliance on the complementary protection grounds if a prior application was made and finalised before those grounds were available for consideration.”
At the first Court date in this matter, Mr S E J Prince of counsel appeared for the applicant. Mr M Alderton appeared for the respondent.
Mr Prince made an application that the matter be transferred to the Federal Court of Australia. I took this to engage s.39 of the Federal Magistrates Court Act 1999 (Cth) (“FMC Act”) and r.8.02 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”).
I understand Mr Prince’s argument, in support of his application, to be that there are about thirty matters in the dockets of various Federal Magistrates (all with a similar, if not identical, ground), and that similar applications, seeking for the matter to be transferred, will be made in respect of each of those matters. Further, that there is an important question of law to be determined over a large range of matters. Importantly, that irrespective of the outcome of the matters in this Court, certainly from the applicants point of view should they be unsuccessful, there would be an appeal to the Federal Court in any event, given what the applicants say, is the importance of this issue. Mr Prince submitted that the applicants would ask for a Full Bench of the Federal Court to hear this matter.
In SZGIZ (the case involving the Notice of Motion referred to above), Mr M Jones, solicitor, who appeared for the applicant, persuaded me that there was an issue to be tried arising from the ground of the substantive application, as explained before the Court.
Mr Prince’s argument today pressed the importance of the issue connecting the notion of complementary protection with Australia’s international obligations. He emphasised the concern that applicants who have sought protection in this country should not now be denied access to consideration of complementary protection, a matter which the Parliament has now enacted through amendments to the Act. Such applicants, he submits, should not be denied that consideration. This is also because of the severe consequences said to arise from the circumstances presented by such people.
Mr Alderton’s submission was that the matter be set down for a “Show Cause” hearing (pursuant to r.44.05 of the FMC Rules). That is that, another matter (SZGIZ) with an identical ground had been set down for final hearing before me on 5 November 2012 and that this matter should be listed for a “Show Cause” hearing after 5 November 2012. It was the Minister’s submission that the matter had no prospects of success and, in that circumstance, a “Show Cause” hearing was the appropriate course. Further, the Minister submitted that a “test” case could be heard in this Court prior to when it could be heard by the Federal Court.
In my view, Mr Prince’s point (see above at [8]) elevates this case, and when seen in the context of all of these cases, to a position where there is a matter of some importance, to be considered.
It is important in considering the applicant’s transfer application to consider the matters set out at s.39 of the FMC Act. Relevant to s.39(3) of the FMC Act, regard must be had to any relevant FMC Rules made for the purpose of s.40(2) of the FMC Act. Such Rules are at Pt.8 of the FMC Rules, in particular r.8.02.
A request has been made by one of the parties to these proceedings that the matters be transferred to the Federal Court of Australia. This request has been made at the first Court date (s.39(1) and (2) of the FMC Act and r.8.02(1) and (2) of the FMC Rules). That the Minister opposes does not mean that the transfer cannot be considered.
To the extent that the FMC Rules require an application to be made in the approved form (r.4.01 of the FMC Rules), the application was made orally before the Court pursuant to r.1.06(2). In the interests of the administration of justice, the relevant rule is dispensed with. In the circumstances, such a requirement would be a matter as to form, not substance.
As to the requirement for an affidavit in support (r.4.05 of the FMC Rules), such requirement, for similar reasons, is dispensed with (r.8.02(3) of the FMC Rules).
As referred to above, in my view, these proceedings do invoke a matter of general importance such that it is desirable that the single question of law raised be considered by a Court superior to this Court.
I accept what I have been told from the bar table by Mr Prince that if there are thirty cases in this Court and each is going to be dealt with individually, it is far more cost, as well as time, efficient if the matters be dealt with in a consolidated fashion by the Federal Court. That is, rather than having thirty cases, having to replicate what we are doing today thirty times in front of Federal Magistrates, and still go no further than deciding matters at a preliminary stage (r.8.02(4)(b) of the FMC Rules).
Whether this matter is heard earlier in the Federal Court or this Court, I cannot be sure. However given that Full Benches of the Federal Court are not “plucked out of the air”, it may be that the balance there is with this Court keeping this matter, at least insofar as one “test” case is involved. Although I cannot hear this matter until February 2013, some of the other Federal Magistrates may be able to hear it a lot sooner (r.8.02(4)(c) of the FMC Rules). I just do not know.
A relevant consideration is whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding (s.39(3)(c) of the FMC Act). The resources are sufficient, and I can certainly hear this case, some time in February of next year.
The availability of particular procedures appropriate for the class of proceeding, clearly if the matter, as Mr Prince has submitted, is a matter that requires a Full Bench, then, this Court has no such facility (r.8.02(4)(d) of the FMC Rules). The Federal Court has such facility.
I also take into account the wishes of the parties (r.8.02(4)(e) of the FMC Rules). The applicant in this case strongly urges. The Minister strongly opposes. There are no associated proceedings actually pending in the Federal Court (s.39(3)(b) of the FMC Act). There are certainly associated proceedings pending in this Court.
It seems to me that, ultimately, all those matters come down to what is in the interests of the administration of justice (s.39(3)(b) of the FMC Act). I am persuaded by Mr Prince that, in my view, the administration of justice, taking into account the entire context, does favour transfer of the matter the Federal Court.
Now, whether a Full Bench is convened or not, plainly I cannot say. That is a matter for the Federal Court. However, in my view, Mr Prince should be given the opportunity of seeking this before the Federal Court.
In that way ultimately, the matter will be dealt with by, at least, one Federal Court Judge. In the interests of the administration of justice overall, the certainty that that would provide for all the other related proceedings in this Court, in my view, weighs against six or seven Federal Magistrates considering the issue over thirty cases even if some lesser number were to be seen as “test” cases. In all those circumstances, I believe the administration of justice would favour the transfer (s.39(4)(d) of the FMC Act).
I will make the order sought by the applicant.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 23 October 2012
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