SZTIB v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The appellant appeals against a decision of the Federal Circuit Court of Australia (FCCA), which was delivered on 27 June 2014 after a hearing on 14 April 2014. 2 When the appeal was called, Mr Pathmanathan Rama announced his appearance for the appellant. Ms Francois announced her appearance on behalf of the respondents. 3 Mr Rama was granted leave to file in Court an amended application for leave to appeal. The amended application for leave to appeal proposes a fresh ground of appeal, namely, that the judge below erred in failing to find that the Refugee Review Tribunal had applied the wrong test pursuant to s 91R(2)(a) of the Migration Act 1958 (the Act). It was indicated there, in the particulars, that the appellant proposed to rely on North J's decision in September 2014 in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (WZAPN). 4 Mr Rama also indicated that he had very recently contacted two barristers who had expressed interest in appearing for the appellant. He sought an adjournment to enable the appellant's lawyers to prepare his appeal. 5 I made inquiries during a brief adjournment as to the current status of any further proceedings in relation to North J's decision in WZAPN. In fact, the Minister has sought special leave to appeal to the High Court in respect of that decision. The date of the hearing of that application is not known. I also became aware as a result of inquiries I made during the adjournment of the fact that there are at least three other matters currently before the Court which also rely upon North J's decision in WZAPN. Those other three matters are SZTDB v Minister for Immigration and Border Protection (NSD830/2014) (SZTDB), BZAFM v Minister for Immigration and Border Protection (QUD537/2014) (BZAFM) and SZTEQ v Minister for Immigration and Border Protection (NSD1044/2014) (SZTEQ). 6 In respect of the first two of those matters, orders have been made which have the effect of adjourning the hearing of the appeals pending the outcome of the hearing of the special leave application in WZAPN. It seems to me that a similar course ought to be taken in respect of the current matter. 7 Ms Francois opposed this course being taken on the basis that the proposed amended application for leave to appeal was doomed to fail because of the finding made in respect of s 91R(1)(a) of the Act. I indicated that it may well be that with the involvement of counsel, the notice of appeal might be further amended to address any such difficulty. Whether or not that in fact occurs, remains to be seen. 8 It is the case, however, that the appellant will have to file an amended notice of appeal in any event because the form filed in Court this morning is an application for leave to appeal in circumstances where no leave is required. 9 For those reasons, I believe that this matter should be dealt with in a similar matter to SZTDB and BZAFM. Whether or not the same course is taken in SZTEQ is a matter for the particular judge who has that matter in his or her docket. 10 In relation to the costs of today's hearing, I indicated that I did not consider it appropriate that this be a matter where the Minister should be awarded costs thrown away by the matter being adjourned. This is a rather unusual case, not least because of the fact that, as things stand at the moment, this matter appears to raise very similar issues to those raised in other cases before the Court. I also note that Mr Rama has only just become involved in the matter. 11 For these reasons I make the orders set out above. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.