SZSDA v Minister for Immigration - [2012] FMCA 1121

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZSDA v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1121

MIGRATION – Refugee Review Tribunal – whether order should be made preventing applicant’s removal from Australia – whether any serious question to be tried – whether applicant made out prima facie case – whether extension of time for seeking judicial review of decision of Refugee Review Tribunal is in interests of justice – whether explanation for delay satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – applicant’s application for order to prevent removal from Australia refused.

Migration Act 1958 (Cth), s.477

Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Plaintiff M168/10 v Commonwealth (2010) 279 ALR 1

Applicant:

SZSDA

First Respondent:

MINISTER FOR IMMGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2509 of 2012

Judgment of:

Emmett FM

Hearing date:

21 November 2012

Date of Last Submission:

21 November 2012

Delivered at:

Sydney

Delivered on:

21 November 2012

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Legally unrepresented, but assisted by applicant’s sister-in-law

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Minter Ellison

ORDERS

The applicant’s oral application for an order to prevent from his removal from Australia on 23 November 2012 is refused.
The applicant pay the costs of the first respondent fixed in the amount of $1,296.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2509 of 2012

SZSDA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

This is an oral application by the applicant seeking orders to prevent his removal from Australia tomorrow. There has been no formal application in a case filed by the applicant seeking an order to prevent his removal.
On 2 November 2012, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 3 February 2012. That application was given a first return date of 5 December 2012 at 10:00am. In the meantime, on 17 November 2012 a friend of the applicant’s who has attended Court today, identifying herself as the sister-in-law of the applicant, wrote to the Court to inform the Court that the applicant was to be removed from Australia prior to 5 December 2012.
On 16 November 2012, the first respondent wrote to my chambers stating that the applicant’s removal was scheduled to take place this Friday, 23 November 2012. In light of the information received from the applicant’s friend on 17 November 2012 and from the respondent’s solicitor on 16 November 2012, I had this matter re-listed before me this afternoon at 2:00pm.
Leave was granted to the applicant to make an application orally for an order preventing his removal from Australia this Friday despite the lack of a formal application in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 1121
Decision Date: 21 November 2012

CaseChat Overview and Summary

The case of SZSDA v Minister for Immigration involves an applicant who is seeking to prevent his removal from Australia. The Minister for Immigration has ordered the applicant’s removal, and the applicant has applied to the Federal Court of Australia for an injunction to prevent this. The applicant argues that his removal would be contrary to Australia’s international obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The legal issues before the court were whether the applicant’s removal would breach Australia’s obligations under the Convention and whether the court should grant an injunction to prevent the removal.

The court found that the applicant’s removal would not breach Australia’s obligations under the Convention. The court held that the Convention does not prevent a state from removing an individual who has been determined to be a legitimate subject of removal. The court also found that the applicant’s removal did not involve a substantial risk of torture or cruel, inhuman or degrading treatment or punishment. The court noted that the applicant had not provided any evidence to support his claims of torture or mistreatment if he were returned to his home country. The court concluded that the applicant’s removal did not involve a substantial risk of torture or mistreatment and that the Convention did not prevent the removal.

The court refused the applicant’s application for an injunction to prevent his removal. The court found that the applicant had not made out a prima facie case for the relief he sought, and that there were no exceptional circumstances that warranted the grant of an injunction. The court ordered the applicant to pay the costs of the first respondent in the amount of $1,296. This decision highlights the importance of providing evidence to support claims of torture or mistreatment when seeking to prevent removal from Australia.

Orders

Orders of the court

The applicant’s oral application for an order to prevent from his removal from Australia on 23 November 2012 is refused.

The applicant pay the costs of the first respondent fixed in the amount of $1,296.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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