SZWCH v Minister For Immigration and Anor (No.2)

[2015] FCCA 1127

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCH v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 1127

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application for an adjournment – application dismissed.

Legislation: 

Migration Act 1958, ss.78B, 476

Applicant: SZWCH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

File Number: SYG 342 of 2015

Judgment of: Judge Street

Hearing date: 1 May 2015

Date of Last Submission: 1 May 2015

Delivered at: Sydney

Delivered on: 1 May 2015

REPRESENTATION

Counsel for the Applicant: Mr Bodisco

Solicitors for the Applicant: Michaela Byers, Solicitor

Counsel for the First Respondent:

Mr Lloyd SC

Ms Davidson

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for an adjournment be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 342 of 2015

SZWCH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

1. This is an interlocutory application for an adjournment in respect of proceedings purportedly within s.476 of the Migration Act 1958. The applicant seeks to rely upon two grounds. The first arises in the context of the prayers for relief in the application and the grounds in support of the application that refer to provisions of the Constitution. Section 78B imposes a mandatory obligation upon the Court to require the giving of the necessary notice where there is a real and substantial Constitutional question raised in the proceedings.

2. It is clear in the present case that there is no real and substantial question arising under the Constitution raised by the proceedings. This is a matter that clearly falls within the circumstances identified by French J, as he then was – and I will have the name of the case inserted and identified. 

3. Accordingly, this is not a case in which it is necessary for the giving of any s.78B notice. That ground is advanced to support the adjournment of these proceedings in which an interlocutory injunction was obtained by the applicant. The matter was fixed for final hearing today, and that ground fails.

4. In relation to the second ground, Mr Bodisco of counsel sought to read an affidavit of Michaela Byers.  That affidavit identified matters already in evidence in relation to the applicant being in detention and the applicant’s receipt of a letter dated 12 March 2014.  The affidavit by Michaela Byers was one which was not in proper form in respect of hearsay information.  The evidence in that regard was rejected and leave was granted to the applicant to adduce oral evidence if the applicant so chose. 

5. No application was made to adduce oral evidence, and no evidence was given to explain why Michaela Byers would not be available to give evidence in proper form on information and belief in respect of the matters that were struck out in the affidavit for not being in proper form.  There is nothing in the affidavit of Michaela Byers that supports a ground on which an adjournment should be granted.  The application for an adjournment is dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  5 May 2015