SZTFS v Minister for Immigration and Border Protection

[2015] FCA 1227

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
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

DEPARTMENT 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
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Second Respondent

JUDGE:	JAGOT J
DATE:	10 NOVEMBER 2015
PLACE:	SYDNEY VIA VIDEO-LINK TO CANBERRA

REASONS FOR JUDGMENT

1. 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.

2. 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.

3. 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).

4. 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. 

5. 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.

6. 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. 

7. 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