FEDERAL COURT OF AUSTRALIA
SZTFS v Minister for Immigration and Border Protection [2015] FCA 1227
Citation: SZTFS v Minister for Immigration and Border Protection [2015] FCA 1227 Parties: SZTFS v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and DEPARTMENT OF IMMIGRATION AND CITIZENSHIP File number: ACD 116 of 2015 Judge: JAGOT J Date of judgment: 10 November 2015 Catchwords: PRACTICE AND PROCEDURE – whether interlocutory injunction should be granted – no substantive relief raising a serious question to be tried – application dismissed Legislation: Migration Act 1958 (Cth) s 476A Date of hearing: 10 November 2015 Place: Sydney via video-link to Canberra Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 7 Counsel for the Applicant: Ms M Barlow Solicitor for the Respondents: Mr J Bird of Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 116 of 2015
BETWEEN: SZTFS
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentDEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
10 NOVEMBER 2015
WHERE MADE:
SYDNEY VIA VIDEO-LINK TO CANBERRA
THE COURT ORDERS THAT:
1.The identity of the applicant be suppressed and the applicant be referred to only as SZTFS.
2.The application for interlocutory relief, identified in the originating application dated 27 October 2015, be dismissed.
3.The originating application, if not discontinued at an earlier time, be made returnable for directions at 9.15 am on 23 November 2015.
4.The applicant pay the respondents’ costs of and in connection with the application for interlocutory relief, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 116 of 2015
BETWEEN: SZTFS
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentDEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Second Respondent
JUDGE:
JAGOT J
DATE:
10 NOVEMBER 2015
PLACE:
SYDNEY VIA VIDEO-LINK TO CANBERRA
REASONS FOR JUDGMENT
This is an application for interlocutory relief whereby an interlocutory injunction is sought to prevent the removal of the applicant from Australia, it is said, in order that a serious matter may be tried.
The substantive relief sought by the applicant is in two parts:
1. Review of decision by the second respondent to refuse to submit Ministerial Intervention application to the first respondent.
2. Certiorari, mandamus of protection visa refusal decision on grounds of jurisdictional error on the record.The difficulty for the applicant is that insofar as the first of the proposed final orders is concerned I consider that the respondents are correct when they submit that this Court does not have jurisdiction in relation to the migration decision which is embodied in a letter dated 7 August 2015 from the Department of Immigration and Border Protection to the applicant. This is because of the operation of s 476A of the Migration Act 1958 (Cth) (the Migration Act).
Insofar as the second substantive order is concerned, as I understand it, the relevant protection visa refusal decision is the decision of a Ministerial delegate not to grant a protection visa. Apparently this was the subject of an application to the Federal Circuit Court of Australia, which was not the subject of an appeal when determined against the applicant.
The applicant has a number of options available but, by reason of s 476A(1) of the Migration Act, these options do not include the seeking of certiorari or mandamus in respect of the protection visa decision in this Court.
It follows that the substantive relief which the applicant is seeking in this Court, in my view, is misconceived. On this basis there is no substantive relief raising a serious question to be tried to which an order for an interlocutory injunction might properly attach.
Accordingly, the applicant’s claims for interlocutory relief are dismissed, and I make orders accordingly.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 12 November 2015
- AGLC
- SZTFS v Minister for Immigration and Border Protection [2015] FCA 1227
- Case
- [2015] FCA 1227
- Decision Date
CaseChat Overview and Summary
The court found that the applicant's claims for interlocutory relief were misplaced, as the substantive relief sought was misconceived. Specifically, the court held that it did not have jurisdiction in relation to the migration decision embodied in a letter dated 7 August 2015 from the Department of Immigration and Border Protection to the applicant due to section 476A of the Migration Act 1958 (Cth). The court also noted that the applicant had a number of options available for challenging the protection visa refusal decision, none of which included seeking certiorari or mandamus in respect of the protection visa decision in the Federal Court. The court concluded that the substantive relief sought by the applicant in the Federal Court was misconceived, and there was no substantive relief raising a serious question to be tried to which an order for an interlocutory injunction might properly attach.
The court dismissed the applicant's claims for interlocutory relief and made orders accordingly. The identity of the applicant was suppressed, and the applicant was referred to as SZTFS. The application for interlocutory relief was dismissed, and the originating application was made returnable for directions at 9.15 am on 23 November 2015. The applicant was ordered to pay the respondents' costs of and in connection with the application for interlocutory relief, as agreed or taxed.
Orders
Orders of the court
1. The identity of the applicant be suppressed and the applicant be referred to only as SZTFS.
2. The application for interlocutory relief, identified in the originating application dated 27 October 2015, be dismissed.
3. The originating application, if not discontinued at an earlier time, be made returnable for directions at 9.15 am on 23 November 2015.
4. The applicant pay the respondents’ costs of and in connection with the application for interlocutory relief, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
The difficulty for the applicant is that insofar as the first of the proposed final orders is concerned I consider that the respondents are correct when they submit that this Court does not have jurisdiction in relation to the migration decision which is embodied in a letter dated 7 August 2015 from the Department of Immigration and Border Protection to the applicant. This is because of the operation of s 476A of the Migration Act 1958 (Cth) (the Migration Act). Insofar as the second substantive order is concerned, as I understand it, the relevant protection visa refusal decision is the decision of a Ministerial delegate not to grant a protection visa. Apparently this was the subject of an application to the Federal Circuit Court of Australia, which was not the subject of an appeal when determined against the applicant. The applicant has a number of options available but, by reason of s 476A(1) of the Migration Act, these options do not include the seeking of certiorari or mandamus in respect of the protection visa decision in this Court. It follows that the substantive relief which the applicant is seeking in this Court, in my view, is misconceived. On this basis there is no substantive relief raising a serious question to be tried to which an order for an interlocutory injunction might properly attach. Accordingly, the applicant’s claims for interlocutory relief are dismissed, and I make orders accordingly.