SZKMV v Minister for Immigration and Border Protection [2016] FCA 651

FEDERAL COURT OF AUSTRALIA

SZKMV v Minister for Immigration and Border Protection [2016] FCA 651 File number: NSD 759 of 2016

Judge: BROMWICH J

Date of judgment: 23 May 2016

Legislation: Migration Act 1958 (Cth), s 417

Cases cited: SZKMV v Minister for Immigration and Border Protection [2015] FCA 1432 SZKMV v Minister for Immigration [2015] FCCA 1586

Date of hearing: 23 May 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 33

Counsel for the Applicant: The Applicant appeared in person via telephone

Solicitor for the First Respondent: Ms L Buchanan, Australian Government Solicitor

Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS NSD 759 of 2016

BETWEEN: SZKMV Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: BROMWICH J DATE OF ORDER: 23 MAY 2016

THE COURT ORDERS THAT:

1. The interlocutory application for an injunction be dismissed. 2. The applicant pay the costs of the first respondent as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

BROMWICH J: 1 The applicant was born in Nigeria on 5 May 1977. In December 2001, he went to South Africa where he lived until May 2004, at which time he flew to Australia. While in South Africa, he obtained permanent residency status. Also while he was there he married and fathered a daughter. She was born after his departure from South Africa on 31 October 2004. 2 The applicant first entered Australia on 16 May 2004 with a tourist visa valid for three months. He remained in Australia since that time. After overstaying that visa for some two and a half years, he applied for a protection visa on 7 November 2006. That application was refused on 4 December 2006. His appeal of that decision to the Refugee Review Tribunal (the RRT) was also refused on 22 March 2007. He sought a review of that decision to the then Federal Magistrates Court, which remitted the case back to the RRT. The RRT again refused his application and this time the Federal Magistrates Court refused judicial review of that decision. The applicant then sought to bring an appeal to this Court, which dismissed his application on 25 February 2009. 3 The applicant held a series of bridging visas between May 2008 and February 2010, up until his application on 8 February 2010 for a partner visa. The applicant's partner visa application was sponsored by Ms B, an Australian female citizen. The applicant began a de facto marital relationship with Ms B in about February 2008. A child was born of that relationship on 29 July 2009. 4 On 18 February 2010, about ten days after applying for the partner visa, the applicant was arrested and placed into custody. By that time, the child of the relationship with Ms B was about six and a half months old. The applicant remained in custody ever since, either on criminal charges, on criminal sentence or immigration detention. 5 On 23 February 2012, the applicant pleaded guilty to a federal offence of attempting to possess a commercial quantity of an imported border control drug. That drug was, as I understand it, cocaine. He was convicted and sentenced to a head sentence of six years and nine months imprisonment, with a non-parole period of four years. The non-parole period would therefore have ended on 22 April 2016, just over a month ago. 6 I do not need to go into the details of the sentence that was imposed on the applicant. It suffices to say that the finding of the sentencing judge was that the applicant was designated to pick up the drugs on their arrival and that he made arrangements for the transportation of the drugs to his home for the purpose of distribution. The sentence was mitigated because of the applicant's HIV positive status and took into account submissions to the effect that the applicant would be confined to hospital for his sentence (which is not in fact what happened). The applicant received a 25 per cent discount for his early guilty plea. But for that discount the head sentence would have been nine years imprisonment. 7 On 27 November 2013, a delegate of the Minister refused the grant of the partner visa sought by the applicant. He then applied for a review of that decision to the Administrative Appeals Tribunal (the Tribunal).