SZVZG v Minister for Immigration

[2016] FCCA 855

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 855

Catchwords:
MIGRATION – Application seeking review of decision of Administrative Appeals Tribunal not to grant applicant a Protection (Class XA) visa.

PRACTICE AND PROCEDURE – Application by applicant for adjournment pending outcome of proceeding pleading same grounds of review in Full Court of Federal Court – application opposed – relevant considerations.

Legislation:

Constitution (Cth), s.116

ABX15 v Minister for Immigration & Anor [2015] FCCA 3003
SZUDI v Minister for Immigration and Border Protection [2015] FCA 530

Applicant: SZVZG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 67 of 2015

Judgment of: Judge Dowdy

Hearing date: 8 April 2016

Delivered at: Sydney

Delivered on: 8 April 2016

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: Mills Oakley Lawyers

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. Grant leave to the Applicant to file in Court and rely upon the document entitled Amended Application, being Annexure “A” to the affidavit of the Applicant sworn 5 April 2016.

2. The proceeding be adjourned pending the determination of the matter of AMF15 v Minister for Immigration and Border Protection & Anor - NSD1291/2015 and any special leave application that may arise therefrom.

3. The Applicant to notify the Court to seek a relisting of the proceeding within seven days of the date of the determination referred to in order 2.

4. The Applicant to pay the costs of and incidental to and thrown away by the filing of the Amended Application on 8 April 2016 up to and including 24 March 2016.

5. Costs reserved for the period from 25 March 2016 up to and including, 8 April 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 67 of 2015

SZVZG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was set down for final hearing today (8 April 2016) as long ago as 3 February 2015. On that date a Court timetable was consented to for the filing of relevant material, including respective written submissions. Under that timetable the Applicant was to file and serve his written submissions by 25 March 2016.

2. On the day before the Applicant’s written submissions were due, namely 24 March 2016, Counsel for the Applicant advised the First Respondent’s solicitor that the Chief Justice of the Federal Court of Australia had ordered that the case of AMF15 v Minister for Immigration – NSD 1291/2015 (AMF15) be heard by a Full Court of the Federal Court during the period 2-27 May 2016, and also provided proposed consent orders which would have had the effect of first granting leave to the applicant to file and serve an amended application, and second adjourning today’s hearing until the outcome of the decision of the Full Court in AMF15.

3. That case was said to involve an argument based on s.116 of the Constitution. The proposed amended application in this Court also relied on that section, and comprised an argument that had been made by Counsel for the Applicant recently in two other cases, namely SZUDI v Minister for Immigration and Border Protection [2015] FCA 530 and ABX15 v Minister for Immigration & Anor [2015] FCCA 3003.

4. The First Respondent refused to consent to either an adjournment or the proposed consent orders and indicated that the First Respondent was proceeding to prepare its case for hearing on 8 April 2016 on the basis of a draft amended application, never filed, which was provided to the First Respondent on 2 February 2015.

5. This morning when the matter was called argument took place on the Application in a Case dated 5 April 2016, which sought leave to file an amended application raising the argument relating to s.116 and an adjournment of the proceeding until after the determination of AMF15.

6. In short, the First Respondent did not object to the Applicant having leave to file the proposed amended application which encapsulated the s.116 argument. However, the First Respondent continued to oppose any adjournment pending the determination by the Full Court of AMF15.

7. In these circumstances I granted leave to the Applicant to file in Court and rely upon the document entitled Amended Application being Annexure “A” to the affidavit of the Applicant sworn 5 April 2016 and ordered that the Applicant pay the costs of and incidental to and thrown away by the filing of that Amended Application.

8. I later indicated to the parties during further argument that I found the arguments in favour of and against an adjournment to be evenly balanced and I wavered in my view as to the proper disposition of the Application in a Case from time to time during the course of the argument.

9. Nevertheless, in the result I indicated to the parties that I had come to the view that I would grant an adjournment pending the decision of the Full Court in AMF15 and any disposition of the matter in the High Court. It seemed to me on balance that with the Chief Justice of the Federal Court regarding it as appropriate that AMF15 be heard by a Full Court, as that case included the s.116 argument which was to be the subject of argument in this proceeding, and with the case in the Full Court being heard in the reasonably near future, that it was best to await the guidance that the decision of the Full Court in AMF15 was likely to afford.

10. A further important consideration in my decision was that the Applicant had, in [11] of his Affidavit of 5 April 2016, read in support of his Application in a Case, stated that if the relevant argument in AMF15 is unsuccessful he would discontinue his present application in this Court.

11. However, as the cost or price of the adjournment, I required that an appropriate undertaking be given by the Applicant and, having indicated the nature of the undertaking which I would require, discussions took place between Counsel for the First Respondent and Counsel for the Applicant which resulted in the agreed terms of an undertaking, which was then given to the Court and to the First Respondent.

12. I now record the terms of that undertaking and the subsequent orders made by me as to the costs and the monitoring of the future course of the proceeding, being as follows:

    Undertaking

    1.  The Applicant through his Counsel gives an undertaking to the Court and to the First Respondent  that:

    a)  He will not expand, amplify or amend the Amended Application filed in this proceeding in Court on 8 April 2016; and

    b)  If the corresponding grounds 1, 2 and 3 are unsuccessful in AMF15 v Minister for Immigration and Border Protection & Anor - NSD1291/2015 that this proceeding will stand dismissed.

Costs Orders

1.  Direct that the Applicant pay the costs of and incidental to those thrown away up to and including 24 March 2016 by the filing of the Amended Application on 8 April 2016.

2.  Otherwise reserve the question of any costs for the period from 25 March 2016 to 8 April 2016 including the cost of 8 April 2016.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  11 May 2016