SZTVW v Minister for Immigration

[2014] FCCA 243

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVW v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 243

Catchwords:
MIGRATION – Grant of interim injunction to restrain deportation of applicant for protection visa.

Legislation:  

Migration Act 1968 (Cth)

Syed & Ors v Minister for Immigration & Anor [2011] FMCA 397
Daniel v Minister for Immigration [2004] FCA 21

Applicant: SZTVW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 285 of 2014

Judgment of: Judge Raphael

Hearing date: 10 February 2014

Date of Last Submission: 10 February 2014

Delivered at: Sydney

Delivered on: 10 February 2014

REPRESENTATION

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The First Respondent be restrained from removing the Applicant from Australia until 25 February 2014 or further order of the Court.

2. Costs of this application be costs in the cause.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 285 of 2014

SZTVW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me this afternoon, on an urgent basis, an application for an injunction to restrain the Minister from deporting from Australia the applicant in this matter.  The applicant is a Chinese citizen who made an application for a protection visa which was declined by a delegate of the Minister, and then by the Refugee Review Tribunal.  An application for review of the Tribunal’s decision was filed with this court on 7 February 2013 and has already been given a first return date before Judge Driver of 25 February 2013.  The applicant claims that the Tribunal denied her natural justice by failing to comply fully with the requirements of sections 424A and 424AA of the Migration Act 1968 (Cth).[1]  No particulars of the instances in which that failure occurred appear on the document.

   [1] The Act.

2. Mr Jones, who appears on behalf of the applicant, has told me that he heard the tape recording of the interview between the Tribunal and the applicant, and what concerned him was that the Tribunal asked the applicant to comment upon matters in respect of which he had given oral information to the Department, in one form or another, before advising the applicant of the rights which he had under s.424AA.  In other words, it would seem that the Tribunal obtained the responses from the applicant before the applicant had an opportunity to decide whether or not she wished to give responses at that time, or avail herself of the other methods of dealing with the responses outlined in that subsection.

3. The applicant has a particular difficulty with regard to her application.  It is out of time.  There is a provision in the Act under s.477 for the court to extend time for the filing of an application.  The normal time limit is 35 days.  This application was filed after 116 days.  I am told that the reason for the delay was that the applicant had made a submission to the Minister under s.417 of the Act – that submission was unsuccessful.

4. There is authority, both in this court and the Federal Court, that delay resulting from an application to the Minister under section 417 is not, itself, a ground for extending time under section 477.  In Syed & Ors v Minister for Immigration & Anor [2011] FMCA 397 I said at [7]:

   “Whilst I am prepared to accept that persons in the position of Mr Syed do not find it easy to deal with applications made under the Act, which are notorious for their complexity, I am also sensible of the existence of s.477 and the clear requirement of the Act to ensure that applications in respect of decisions are made promptly. It is now well settled that the fact of an application under s.351 to the Minister is not of itself a ground for extending time under s.477; Daniel v Minister for Immigration [2004] FCA 21 per Goldberg J at [14] and [15]. His Honour noted that the existence of an application to the Minister could be construed as an acceptance by the applicant of the Tribunal’s decision. I would not be prepared to go that far in this case but feel bound by his Honour’s views to disregard the existence of the s.351 application as a ground for the extension of time.”

   I then turned to the merits of the proposed application, and made my decision based upon what I considered to be their lack.

5. In the instant case, I am troubled by the difficulty which I have in coming to any form of preliminary conclusions as to the merits of the application.  I do not have in front of me a copy of the decision of the Tribunal, and it certainly seems that the decision to remove has come very speedily.  I am not entirely clear whether the decision to remove was made before the proceedings were commenced on 7 February 2014.  It is very possible that it was, and that the instructions to Mr Jones and the urgent application are a direct result.

6. Mr Jones argues that the balance of convenience for granting an injunction is all with his client.  He says, that as an applicant for a protection visa, she is in a particularly vulnerable position, which was not the case in the matter that I determined for Mr Syed and, presumably, from the citation, the case that his Honour Goldberg J determined in Daniel v Minister for Immigration [2004] FCA 21.

7. I am influenced by the fact that this matter has got a very speedy return date, which is approximately 15 days away.  And it should be possible at that time to have a far clearer understanding of the merits of the application and some of the history.  When I refer to the merits,  I mean that it will be possible for Mr Jones, even if he does not have a transcript, to isolate those parts of the hearing record which he uses to impugn the decision, and to explain to Judge Driver how he believes this will indicate an application with reasonable prospects of success, such that the extension of time should be granted.  By the same token, Mr Baird and those he represents can bring their own arguments against the continued presence in this country of a person whose claims for asylum have been rejected.

8. In my view, the applicant and the legal representatives have acted with sufficient speed to warrant granting of a short injunction.  I have been provided with no information, either on affidavit or from the bar table, that the first respondent will suffer as a result of the injunction being granted, either in regard to the cost of the airfare or the continued detention of the applicant, although if the applicant does have a serious matter to be tried, given that she is claiming to be in fear of returning to her country of origin because of persecution, such matters would not weigh heavily.

9. I propose to grant the injunction sought by the applicant, adding only the words “25 February 2014” prior to the words “or further order of the court”.  The costs of the application to be costs in the cause.  I propose to advise Judge Driver of what has occurred today.  He will be given a copy of these reasons, so that when the matter comes before him on 25 February full argument can be made.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  17 February 2014