SZTKF v MIBP

[2014] FCCA 282

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZATB v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 282

Catchwords:
MIGRATION – Judicial review – Refugee Review Tribunal – protection visa application –whether judicial review proceedings ought to be adjourned pending outcome of litigation in the High Court of Australia.

PRACTICE AND PROCEDURE – Adjournment – whether judicial review proceedings ought to be adjourned pending outcome of litigation in the High Court of Australia.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.42

Federal Circuit Court Rules 2001 (Cth), r.1.03

Migration Act 1958 (Cth), ss.5(1), 5AA

Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth)
Migration Regulations 1994 (Cth), Schedule 2, cl.866.222

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Applicant: WZATB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: PEG 193 of 2013

Judgment of: Judge Antoni Lucev

Hearing date: 19 February 2014

Date of Last Submission: 19 February 2014

Delivered at: Perth

Delivered on: 19 February 2014

REPRESENTATION

Counsel for the Applicant: In person (with interpreter)

Counsel for the Respondents: Mr A Gerrard

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The title of the first respondent is amended to the ‘Minister for Immigration and Border Protection’.

2. The hearing listed at 2.15pm on 24 February 2014 is vacated.

3. The matter is adjourned for directions on a date to be advised administratively following the outcome of proceedings S297 of 2013 in the High Court.

4. Either party has liberty to apply to the Court for a listing for further directions. The other party must be given 5 days clear notice of the time, date and place of that listing.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 193 of 2013

WZATB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Application

1. This is an application by the Minister for Immigration & Border Protection (“Minister”) for the vacation of the hearing date of an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) affirming a decision of the Minister’s delegate not to grant the applicant a Protection Class XA visa (“Protection Visa”).

2. The hearing of the application for judicial review is presently listed for 24 February 2014 at 2.15pm.

3. The applicant is an unauthorised maritime arrival as defined in ss.5(1) and 5AA of the Migration Act 1958 (Cth) (“Migration Act”).

4. The Minister seeks the vacation of the 24 February 2014 hearing date because:

   a)the applicant is an unauthorised maritime arrival;

   b)on 14 December 2013 the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth) (“Unauthorised Maritime Arrival Regulation”), inserted into Schedule 2 to the Migration Regulations1994 (Cth) (“Migration Regulations”) a clause, being cl.866.222 of Schedule 2 of the Migration Regulations, which has the effect that a Protection Visa cannot be granted to a person who is an unauthorised maritime arrival where the application for a Protection Visa had been made, but not finally determined, before 14 December 2013. The applicant’s application for a Protection Visa arguably falls within the parameters of the Unauthorised Maritime Arrival Regulation;

   c)the validity of the Unauthorised Maritime Arrival Regulation is currently under challenge by other parties in the High Court of Australia (“High Court”) in proceedings designated S297 of 2013 (“S297”), and whilst separate from the applicant’s judicial review application to this Court, the outcome of the challenge in S297 may, and most likely will, have an impact on the applicant’s judicial review application; and

   d)the Minister has provided instructions to his lawyers to seek vacation of the hearing date of this judicial review application, and for it be re-listed after the challenge to the Unauthorised Maritime Arrival Regulation in S297 is resolved.

5. The applicant does not oppose the granting of the Minister’s application for vacation of the hearing date of his judicial review application.

6. The application for vacation of the hearing date is effectively a request for an adjournment. The principles with respect to the adjournment of proceedings in this Court are relatively well established. The Court has a discretion, and it is a broad discretion, as to whether or not to allow an application to adjourn proceedings, and in exercising that discretion the Court must take into account the provisions, the objects and the purposes of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), modern principles of case management, the avoidance of undue delay, prejudice to the parties, and the wastage of public resources. In that regard the Court refers to the judgment in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ; [2009] HCA 27 at paragraph 30 per French CJ (“Aon Risk Services”).

7. Prejudice to the parties includes the stress on the applicant of a delayed hearing, noting, of course, that the applicant does not oppose the Minister’s application. Given that S297 is listed for hearing on 7 March 2014 (see /cases/case_S297-2013), and allowing for time for delivery of a judgment, any further listing for hearing of this application for judicial review before this Court is unlikely to be for at least 6 months. That consideration must be balanced against the prospect that if the Court were to proceed with the hearing on 24 February 2014, and make a judgment, hypothetically, in favour of the applicant, and the High Court in S297, again hypothetically, were to rule the Unauthorised Maritime Arrival Regulation valid, then the hearing in this Court, and judgment in favour of the applicant, would be to no avail, and may in fact cause more distress to the applicant by taking away what he would have perceived to have been a successful judicial review application. Consequently, even though any delay may be nominally prejudicial to the applicant, to proceed and determine his judicial review application may be equally, if not more, prejudicial.

8. The public interest must also be considered. The Court refers to Aon Risk Services in this regard. Regard must be had to the fact that this Court is the nation’s largest and busiest federal trial court, and that this is but one of a number of similar applications listed for judicial review before the Court as presently constituted in the Perth Registry in forthcoming months. For this Court to have to hear those matters, when, dependent upon the outcome of the application to the High Court in S297, the outcome of the applications may be legislatively pre-determined, would be a waste, not only of hearing time for this Court, but also the necessary (and sometimes extensive) time necessary to prepare Reasons for Judgment. In that regard, case management and the public interest coincide insofar as it is a waste of time and resources for the Court to hear the application if the outcome is in fact legislatively pre-determined. It is, of course, not for this Court to express a view on that matter given the nature of the application to the High Court in S297. In any event, in the longer term, if the Unauthorised Maritime Arrival Regulation were to be declared invalid by the High Court in S297, the applicant would suffer no ultimate prejudice, because the application for judicial review would still ultimately be heard by this Court.

9. The protraction of proceedings is not in accord with the terms of the FCCA Act, particularly s.42, or the objects of the FCC Rules, in particular r.1.03 and the reference there to the avoidance of undue delay. Those considerations must, of course, be balanced by reference to other factors outlined above, and, in any event, in these circumstances any delay is not likely to be “undue”, and will not, ultimately, prejudice the applicant. The applicant’s application for judicial review will either be heard, or not, dependent on the outcome of S297.

10. In the circumstances this is a case where balancing the issues of delay, case management, prejudice and the public interest, including the time and expense which might be wasted conducting hearings for no good purpose if the application to the High Court in S297 results in the Unauthorised Maritime Arrival Regulation being declared valid, this Court is of the view, in the exercise of its broad discretion with respect to adjournments, that it is appropriate to vacate the hearing on 24 February 2014, and to grant the orders sought, which are not opposed by the applicant, and for the matter to be adjourned for directions on a date to be advised administratively following the outcome of proceedings in S297 of 2013 in the High Court.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Deputy Associate: 

Date: 20 February 2013