SZTIB v Minister for Immigration and Border Protection
[2014] FCA 1179
•5 November 2014
FEDERAL COURT OF AUSTRALIA
SZTIB v Minister for Immigration and Border Protection [2014] FCA 1179
Citation: SZTIB v Minister for Immigration and Border Protection [2014] FCA 1179 Appeal from: SZTIB v Minister for Immigration & Anor [2014] FCCA 1324 Parties: SZTIB v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 662 of 2014 Judge: GRIFFITHS J Date of judgment: 5 November 2014 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia – proposed amendment to raise fresh ground of appeal relying on WZAPN v Minister for Immigration and Border Protection [2014] FCA 947, which is the subject of a special leave application to High Court – matter adjourned pending outcome of special leave application
Legislation:
Cases:
Migration Act 1958 (Cth) s 91R
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
Date of hearing: 5 November 2014 Date of last submissions: 5 November 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 Solicitor for the appellant: Pathmanathan Rama Counsel for the first respondents: Rachel Francois Solicitors for the first respondents:
Counsel for the second respondent:
DLA Piper
The second respondent filed a submitting notice save as to costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 662 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTIB
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
5 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The hearing at 10:15 am on 5 November 2014 be vacated.
2.The matter be listed for hearing on a date to be advised administratively, following the outcome of the application for special leave to appeal against the judgment in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 and, if special leave is granted, the outcome of that appeal.
3.The solicitor for the first respondent is to notify the Court and the appellant of the outcome of the application for special leave to appeal, within seven days of the date of the finalisation of the special leave proceedings. If special leave is granted, the solicitor for the first respondent is to notify the Court and the appellant of the outcome of the appeal, within seven days of the date of the finalisation of the appeal proceedings.
4.The appellant is to file and serve any proposed amended notice of appeal within 14 days hereof.
5.Either party has liberty to apply to the Court for a listing for further directions. The other party must be given three days’ clear notice of the time, date and place of that listing.
6.The costs of and incidental to today’s hearing be costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 662 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTIB
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE:
5 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals against a decision of the Federal Circuit Court of Australia (FCCA), which was delivered on 27 June 2014 after a hearing on 14 April 2014.
When the appeal was called, Mr Pathmanathan Rama announced his appearance for the appellant. Ms Francois announced her appearance on behalf of the respondents.
Mr Rama was granted leave to file in Court an amended application for leave to appeal. The amended application for leave to appeal proposes a fresh ground of appeal, namely, that the judge below erred in failing to find that the Refugee Review Tribunal had applied the wrong test pursuant to s 91R(2)(a) of the Migration Act 1958 (the Act). It was indicated there, in the particulars, that the appellant proposed to rely on North J’s decision in September 2014 in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (WZAPN).
Mr Rama also indicated that he had very recently contacted two barristers who had expressed interest in appearing for the appellant. He sought an adjournment to enable the appellant’s lawyers to prepare his appeal.
I made inquiries during a brief adjournment as to the current status of any further proceedings in relation to North J’s decision in WZAPN. In fact, the Minister has sought special leave to appeal to the High Court in respect of that decision. The date of the hearing of that application is not known. I also became aware as a result of inquiries I made during the adjournment of the fact that there are at least three other matters currently before the Court which also rely upon North J’s decision in WZAPN. Those other three matters are SZTDB v Minister for Immigration and Border Protection (NSD830/2014) (SZTDB), BZAFM v Minister for Immigration and Border Protection (QUD537/2014) (BZAFM) and SZTEQ v Minister for Immigration and Border Protection (NSD1044/2014) (SZTEQ).
In respect of the first two of those matters, orders have been made which have the effect of adjourning the hearing of the appeals pending the outcome of the hearing of the special leave application in WZAPN. It seems to me that a similar course ought to be taken in respect of the current matter.
Ms Francois opposed this course being taken on the basis that the proposed amended application for leave to appeal was doomed to fail because of the finding made in respect of s 91R(1)(a) of the Act. I indicated that it may well be that with the involvement of counsel, the notice of appeal might be further amended to address any such difficulty. Whether or not that in fact occurs, remains to be seen.
It is the case, however, that the appellant will have to file an amended notice of appeal in any event because the form filed in Court this morning is an application for leave to appeal in circumstances where no leave is required.
For those reasons, I believe that this matter should be dealt with in a similar matter to SZTDB and BZAFM. Whether or not the same course is taken in SZTEQ is a matter for the particular judge who has that matter in his or her docket.
In relation to the costs of today’s hearing, I indicated that I did not consider it appropriate that this be a matter where the Minister should be awarded costs thrown away by the matter being adjourned. This is a rather unusual case, not least because of the fact that, as things stand at the moment, this matter appears to raise very similar issues to those raised in other cases before the Court. I also note that Mr Rama has only just become involved in the matter.
For these reasons I make the orders set out above.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 5 November 2014
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