SZVZG v Minister for Immigration & Anor (No.2)

[2016] FCCA 2405

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZG v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 2405

Catchwords:
MIGRATION – Judicial review application of decision of Administrative Appeals Tribunal to refuse a protection visa – arguments based on s.116 of the Constitution not pressed – applicant requests dismissal of application for judicial review.

Legislation:

Constitution of the Commonwealth of Australia, s.116

Cases cited:

ABX15 v Minister for Immigration and Border Protection [2016] FCA 855

Plaintiff S178A & Ors v Minister for Immigration and Border Protection & Anor [2016] HCA (Unreported, High Court of Australia, Gageler J, 9 September 2016)

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: 14 September 2016

Delivered at: Sydney

Delivered on: 14 September 2016

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Counsel for the First Respondent: Mr G Johnson

Solicitor for the First Respondent: Mills Oakley Lawyers

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed on 13 January 2015 and the Amended Application filed in Court on 8 April 2016 are dismissed.

2. Vacate the costs orders of 8 April 2016.

3. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $11,000.

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. By an application filed in this Court on 13 January 2015, the Applicant sought judicial review of a decision of the then Refugee Review Tribunal (now Administrative Appeals Tribunal) to refuse him a protection visa. 

2. The matter was set down for final hearing to take place on 8 April 2016. On that date, when the matter was called on, Mr Williams of Counsel, who appeared for the Applicant, sought to file an Amended Application which ventilated an argument based on section 116 of the Commonwealth Constitution. Leave was granted to file that Amended Application which contained three grounds, all said to relate to the argument based on section 116.

3. After further argument, I acceded to Mr Williams’ application to adjourn the final hearing to obtain guidance from pending decisions in the Federal Court of Australia on the section 116 argument which he had raised in other cases. The hearing was stood over to 27 May 2016, when I was again persuaded to adjourn the matter to await potential guidance from judgments that were still pending in the Federal Court and which might have shed some light on the validity of Mr Williams’ argument.

4. In the result, the matter was set down for hearing today. At the commencement of the hearing today, Mr Williams properly drew my attention to a decision of Gageler J in the High Court of 9 September of this year in which His Honour, I am told, found that the arguments based on section 116 of the Constitution were not in fact truly arguable. In support of that view, there were further judgments of Flick J of 29 July 2016 in ABX15 v Minister for Immigration and Border Protection [2016] FCA 855, and of Siopis J of 29 May 2015 in SZUDI v Minister for Immigration and Border Protection [2015] FCA 530.

5. In these circumstances, Mr Williams accepted that the argument relying on section 116, which he had been intending to put in support of his client’s application for judicial review in this case, and which application had become confined only to the arguments relating to section 116, could not reasonably be put to me, because I would be bound to follow the decisions of Gageler J, the reasons for which have not yet been delivered, and the decisions of Flick and Siopis JJ, to which I have just referred.

6. In these circumstances Mr Williams asked me to dismiss the application in this proceeding and he accepted that this must be with costs.  To preserve his client’s position he does not express his request to me in terms of consent, lest that might imperil or impede his client’s right to appeal in circumstances where it may be that appeals will be taken or sought to be taken from the above decisions of Gageler J and Flick J.

7. On 8 April 2016, I had made two orders for costs.   It will be simpler and more efficient if I vacate those orders and simply make a general order relating to the costs of the proceedings.  Neither Mr Williams nor Mr Johnson object to that course. 

8. Accordingly, the orders of the Court will be as follows:

   (1)The Application filed on 13 January 2015 and the Amended Application filed in Court on 8 April 2016 are dismissed.

   (2)Vacate the costs orders of 8 April 2016.

   (3) The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $11,000.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 14 September 2016