SZHJL v Minister for Immigration and Citizenship [2011] FCA 1199

FEDERAL COURT OF AUSTRALIA

SZHJL v Minister for Immigration and Citizenship [2011] FCA 1199 Citation: SZHJL v Minister for Immigration and Citizenship [2011] FCA 1199

Parties: SZHJL v MINISTER FOR IMMIGRATION AND CITIZENSHIP

File number: NSD 1781 of 2011

Judge: RARES J

Date of judgment: 14 October 2011

Legislation: Migration Act 1958 (Cth) ss 48A, 48B, 198(6), 417

Date of hearing: 14 October 2011

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 7

Solicitor for the Applicant: Ms S Sadiq of Lloyd Truman Sadiq Solicitors

Solicitor for the Respondent: Mr JD Pinder of DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1781 of 2011

BETWEEN: SZHJL

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: RARES J DATE OF ORDER: 14 OCTOBER 2011 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1781 of 2011

BETWEEN: SZHJL

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: RARES J DATE: 14 OCTOBER 2011 PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application made on behalf of a Chinese citizen, SZHJL, to prevent the Minister for Immigration and Citizenship giving effect to a decision that he be removed from Australia on a flight scheduled to have departed Sydney at noon today. I was informed that as at 12.30 p.m. today the flight had not left, but the proceedings were called on before me at 1.10 p.m. The applicant's de facto spouse has instructed his lawyer to appear pro bono to seek a stay or injunction of the notice of removal. 2 There is no evidence before me of any matter except the notice of removal itself, which the applicant had refused to sign. That notice records that pursuant to s 198(6) of the Migration Act 1958 (Cth), the applicant was a detainee who had been immigration cleared and whose application for a visa had been refused and finally determined. 3 The applicant's immigration history, as recounted to me, was that having arrived on a temporary business visa in 2004, he applied for a protection visa in November 2004. That application was subsequently refused by a delegate of the Minister whose decision was affirmed by the Refugee Review Tribunal in 2005. In October 2005, the applicant applied to the Federal Magistrates Court, but did not attend a hearing of his matter before Emmett FM, who dismissed the application in March 2007. The applicant lodged an application for Ministerial intervention in September 2007 and later an application for the Minister to determine that s 48A of the Act did not apply to his circumstances pursuant to s 48B of the Act. After that application was not referred to the Minister for consideration, he applied to the Minister under s 417 of the Act. That application was also not considered. The applicant's bridging visa ceased in July 2008, at which point he applied for a further bridging visa. However, he failed to attend at an interview with the Department in August 2008, so his then application was refused. He remained at large in the community until he was detained in May 2011. He then lodged an application, as I understand, for permission to apply for a combined partner visa. This application was approved but he then failed to comply with time limits for filing the combined partner visa application so it was not able to be considered. He then made a further application for a bridging visa, but it was also refused. Subsequently, he applied once more for Ministerial intervention and for consideration under s 48B. Both applications again were not accepted. 4 In these circumstances, although the applicant's lawyer has said everything she felt able properly to submit, no legal or jurisdictional error in the process leading to the removal notice having been served on the applicant has been made apparent. Although the applicant's de facto spouse would seek to urge that an injunction be granted on compassionate grounds, the Court is obliged to apply the law and to ascertain whether, in the exercise of powers given by the Parliament to the Minister under the Act, the Minister has exercised those powers in accordance with law. 5 Nothing that has been put before me suggests that the Minister or his delegates have failed to exercise their powers lawfully. Accordingly, there does not appear to me, on the admittedly sketchy factual outline that I have been given, any basis upon which it is possible to discern an arguable case that would support the grant of an injunction. 6 Moreover, the balance of convenience weighs heavily against the grant of an injunction. The application has been brought at a time when the applicant is either on a plane about to depart from Sydney airport, or his plane has already departed. To order the plane not to leave Australian air space so that the applicant could be disembarked in order to preserve an unidentified legal right he may have, or an unidentified claim that the Minister committed a jurisdictional or other legal error in the exercise of his powers under the Act, would require a reasonably compelling prima facie case that, on the material before me, cannot possibly be discerned. 7 For these reasons, I refuse the application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.