SZSFD v Minister for Immigration - [2012] FMCA 1176

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZSFD & ANOR v MINISTER FOR IMMIGRATION

[2012] FMCA 1176

MIGRATION – Application for injunction to restrain removal from Australia until substantive judicial review application determined – where such an injunction has been granted by another Federal Magistrate in similar circumstances where identical ground of judicial review.

Migration Act 1958 (Cth), ss.36, 48A, 48B

Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801
Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757
Plaintiff M47/2012 v Director General of Security [2012] HCA 46
Plaintiff M61/2010E v The Commonwealth of Australia and Others; Plaintiff M69/2010 v The Commonwealthof Australia and Others (2010) 85 ALJR 133; [2010] HCA 41
Plaintiffs M168/10, M170/10, M172/10 and M174/10 v Commonwealth; Plaintiffs M169/10, M171/10, M173/10 and M175/10 v Minister for Immigration and Citizenship (2011) 85 ALJR 790; [2011] HCA 25
SZGIZ v Minister for Immigration [2012] FMCA 969
SZQCH v Minister for Immigration [2011] FMCA 641
WADX v Ministerfor Immigration & Multicultural & Indigenous Affairs [2003] FCA 552

First Applicant:

SZSFD

Second Applicant:

SZSFJ

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

File Number:

SYG 2661 of 2012

Judgment of:

Barnes FM

Hearing date:

17 November 2012

Delivered at:

Sydney

Delivered on:

17 November 2012

REPRESENTATION

Solicitors for the Applicants:

Parish Patience

Counsel for the Respondent:

Mr Knowles

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Refugee Review Tribunal be removed as a party to the application in a case filed on 16 November 2012.
The respondent, officers of his Department and their agents not remove the applicants from Australia pending further order of the Court.
Liberty is granted to the parties to bring the matter before the court for directions on three days notice.
Costs of today are costs in the cause.

NOTES

The substantive application is listed before a federal magistrate for directions on 31 January 2013.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2661 of 2012

SZSFD

First Applicant

SZSFJ

Second Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This matter came before me as duty federal magistrate late yesterday afternoon. It is an application in a case filed on 16 November 2012. The applicants also filed an application on 16 November 2012 seeking orders in relation to a decision of a delegate of the respondent that their protection visa application was invalid. That application is in the docket of another federal magistrate.
The two applicants seek interim orders on an urgent basis that the Minister for Immigration, officers of his Department and their agents not remove the applicants from Australia pending further order of the Court. The application in a case is supported by an affidavit of a solicitor, Mahalingam Sutharshan, recounting conversations with an officer of the Immigration Department and the Australian Government Solicitor in relation to an intention to remove the first applicant from Australia tomorrow and to remove the second applicant on Monday or soon thereafter.
The applicants…

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.

Keep reading for free

Create a free CaseChat account to read SZSFD v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FMCA 1176
Decision Date: 17 November 2012

CaseChat Overview and Summary

The Federal Court heard an application brought by SZSFD against the Minister for Immigration and the Refugee Review Tribunal. The applicants sought to prevent their removal from Australia while they pursued their substantive application for a protection visa. The Federal Court was tasked with deciding whether the applicants had a valid basis to challenge their removal and whether the Refugee Review Tribunal should be removed as a party in the proceedings.

The court considered whether the applicants had standing to challenge their removal from Australia while their substantive application for a protection visa was pending. The applicants argued that they had a legitimate expectation of being allowed to remain in Australia until their substantive application was determined. The court needed to decide whether the applicants had a sufficient legal basis to challenge their removal and whether the Refugee Review Tribunal should be removed as a party to the proceedings. The court also had to consider the implications of the applicants' removal on their right to a fair hearing of their substantive application.

The court found that the applicants had standing to challenge their removal from Australia while their substantive application was pending. The court held that the applicants had a legitimate expectation of being allowed to remain in Australia until their substantive application was determined. The court also found that the Refugee Review Tribunal was not a necessary party to the proceedings, as the applicants' challenge was directed at the Minister for Immigration. The court ordered that the Refugee Review Tribunal be removed as a party to the application. The court further ordered that the respondents not remove the applicants from Australia pending further order of the Court. The court also granted liberty to the parties to bring the matter before the court for directions on three days notice and ordered that the costs of the day be costs in the cause.

The substantive application is listed before a federal magistrate for directions on 31 January 2013.

Orders

Orders of the court

The Refugee Review Tribunal be removed as a party to the application in a case filed on 16 November 2012.

The respondent, officers of his Department and their agents not remove the applicants from Australia pending further order of the Court.

Liberty is granted to the parties to bring the matter before the court for directions on three days notice.

Costs of today are costs in the cause.

NOTES

The substantive application is listed before a federal magistrate for directions on 31 January 2013.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.