SZVXV v Minister for Immigration

[2016] FCCA 1363

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXV v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1363

Catchwords:
PRACTICE AND PROCEDURE – Application for adjournment on ground there is pending an appeal which involves issues that are relevant to the issues in the case before the Court – whether resolution of appeal will necessarily mean the resolution of all or some of the issues before the Court – whether if adjournment is not granted there would need to be a second hearing to hear submissions in light of the outcome of the appeal – adjournment granted.

Legislation:

Judiciary Act 1903 (Cth), s.39B

Applicant: SZVXV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3645 of 2014

Judgment of: Judge Manousaridis

Hearing date: 20 May 2016

Delivered at: Sydney

Delivered on: 20 May 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Williams

Counsel for the Respondent: Mr G. Johnson

Solicitors for the Respondent: DLA Piper

ORDERS

1. The matter is adjourned pending the determination of the appeal in ABX15 v Minister for Immigration and Border Protection.

2. The parties have liberty to relist this matter after the determination of that appeal.

3. The parties, otherwise, have liberty to apply on such notice as the circumstances warrant.

4. Any costs in relation to the application for an adjournment are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3645 of 2014

SZVXV

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
(revised from transcript)

1. This matter was listed for hearing before me today on 9 May 2014.  The applicant provided to the Court and, I assume, gave notice to the first respondent (Minister) of his intention to apply to amend the current application.  At the hearing today Mr Williams, who appeared for the applicant, sought leave and was granted leave by me to file a draft further amended application.

2. The draft further amended application contains three grounds of review. The first two grounds, in a manner which I do not quite fully understand yet, but from what has been submitted to me, arise under a particular interpretation of s.116 of the Constitution urged by the applicant.  The third ground is an independent ground which relies on customary international law.

3. After I granted leave for the filing of the draft further amended application, and consistently with a request that had been communicated by the applicant, both to the Court and, I assume, to the Minister, Mr Williams on behalf of the applicant sought an order that today’s hearing of the grounds specified in the draft further amended application be adjourned. The ground on which the adjournment was sought or is sought is that there is presently reserved a decision by Flick J on an appeal brought in the matter of ABX15 against the orders of Judge Smith.  The only ground, as I understand it that is before his Honour in ABX15 is ground 2 of the draft notice of appeal which was handed up in Court and which I have identified as MFI-1.

4. In broad terms, the issue in ABX15 is whether s.116 of the Constitution applies only to legislative acts, which reflects the position of the Minister, or whether it applies also to executive acts, which is the contention of the appellant.  It is submitted by Mr Williams that the resolution of that issue at the very least is relevant to grounds 1 and 2 of the draft further amended application.  The asserted relevance is that, if the ground is upheld by Flick J, grounds 1 and 2 of the draft further amended application will necessarily be made out, and I would have to set aside the order of the Tribunal.

5. On the other hand, if the ground is not made out, there is a material possibility that grounds 1 and 2 will fall away, according to Mr Williams, although he could not unqualifiedly commit to the position that those grounds would fall away. Ground 3 would remain, in any event.  Mr Williams also pointed to the existence of another matter, SZTOR. Mr Williams has informed me that that matter is in the docket of Perry J as an application brought under s.39B of the Judiciary Act 1903 (Cth) in relation to an order made by Judge Cameron, and that one of the issues that is raised by that application is identical or, at least, substantially identical to ground 3, and it is submitted that, in effect, I should not make any decision in relation to ground 3 of the application until Perry J decides the application in SZTOR.

6. The application by Mr Williams is opposed by the Minister.  Mr Johnson, who appears for the Minister, accepted that any judgment that Flick J might give in ABX15 is likely to be relevant to the issues that I would be required to determine. Mr Johnson submitted, however, that there are matters that are particular to the case before me so that even if Flick J were to hold that s.116 applies both to legislative and executive acts, that would not be determinative of the issues I would have to determine because, as I understood the submission, the conduct or the findings of the Tribunal in this particular case could not be fairly characterised as falling within the prohibition contained in s.116 of the Constitution. Mr Johnson submitted that it would be more efficient for me to hear argument today and that the questions that may arise after Flick J hands down a decision in ABX15 could be dealt with by way of my inviting counsel to make submissions in relation to it.  Mr Johnson was not in a position to make any submission in relation to SZTOR, largely because he is not involved in that matter. I would place, on this application, very limited weight to what is occurring in SZTOR because there is an absence of any specific information about it.

7. In my opinion, it is inevitable from what has been submitted to me that I would have to consult what Flick J might say in his judgment on the appeal in ABX15.  There is great force in Mr Johnson’s submission that the determination of the legal issue in that appeal will not be determinative of the application for review here because there are matters, he submits, which are specific to this particular Tribunal decision. Although I do not know the full particulars of the appeal in ABX15, it is reasonable to infer and I, in fact, do infer that Flick J will not simply be determining a pure question of law. I assume that, just as in the submissions that have been filed in this case on behalf of the Minister, the Minister in ABX15 does make the submission that even if s.116 of the Constitution applies to executive acts, the decision of the Tribunal in ABX15 does not fall within the prohibition of s.116 of the Constitution.

8. I acknowledge that it is unlikely that there will be an identity of issues between what the Tribunal in ABX15 did and what the Tribunal in the case before me did. Nevertheless, if Flick J decides that issue, either because he finds that s.116 of the Constitution applies to executive action, or because his Honour considers it prudent to deal with that question even though he finds that s116 only applies to the exercise of legislative power, what his Honour may say about that question - admittedly, particular to that case - is a matter that the parties may well wish to rely on when making submissions about the particular decision and conduct of the Tribunal member made in this case.

9. For those reasons, I think it is highly likely that even if I were to hear submissions today, the necessity of having to consider what Flick J might say in ABX15 would not be adequately dealt with simply by my inviting written submissions from the parties; and there is at least a strong possibility that at least one of the parties will seek to make oral submissions on that question, and if that were to occur, it would be difficult for the Court to resist such application.

10. The appropriate course of action, therefore, will be to grant the adjournment because the likelihood is there will be a second hearing, in any event, and it will be more efficient to deal with all of the issues in one hearing, rather than in two separate hearings.  So the application for an adjournment is granted.

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

Date: 2 June 2016