SZTVU v Minister for Home Affairs [2018] FCA 1394

SZTVU v Minister for Home Affairs [2018] FCA 1394

Leave to appeal was granted because the Federal Circuit Court's interlocutory dismissal practically finally determined the applicant's rights, the applicant's proposed construction of s 5(1AA)(b) and challenge to IMMI 17/015 were not unarguable, and the serious consequences to the applicant made it in the interests of justice to allow reconsideration. The matter was appropriate for referral to a Full Court because the decision was likely to affect a significant number of other persons specified in IMMI 17/015.

Jurisdiction
Australia
Judgment Date
07 September 2018
Procedural Posture
Migration Application for Leave to Appeal / Application for Leave to Appeal From Dismissal of Judicial Review at a Show Cause Hearing in the Federal Circuit Court; Urgent Interim Restraint Against Removal Also Sought
Outcome
Application for leave to appeal allowed; matter referred to the Full Court; first respondent restrained from removing the applicant from Australia until the proceedings are determined or withdrawn.
Legal Topics
['protection Visa' 'fast Track Applicant' 'administrative Appeals Tribunal Jurisdiction' 'validity of Legislative Instrument' 'leave to Appeal' 'show Cause Hearing' 'interim Injunction Against Removal']
['migration Law' 'administrative Law' 'federal Civil Procedure'] ['protection Visa' 'fast Track Applicant' 'administrative Appeals Tribunal Jurisdiction' 'validity of Legislative Instrument' 'leave to Appeal' 'show Cause Hearing' 'interim Injunction Against Removal']

Case Brief

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Procedural Posture

Migration Application for Leave to Appeal / Application for Leave to Appeal From Dismissal of Judicial Review at a Show Cause Hearing in the Federal Circuit Court; Urgent Interim Restraint Against Removal Also Sought

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Federal Circuit Court's dismissal of the judicial review application at a show cause hearing." 'Whether it was reasonably arguable that the applicant was not a fast track applicant under paragraph (b) of the definition of fast track applicant in s 5(1) of the Migration Act 1958 (Cth) and s 5(1AA)(b).' 'Whether it was reasonably arguable that Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017 was invalid or beyond power insofar as it purported to apply to the applicant.' 'Whether the primary judge applied the appropriate standard in determining whether there was no arguable case.' 'Whether the appeal should be referred for determination by a Full Court.']

Ratio Decidendi

Leave to appeal was granted because the Federal Circuit Court's interlocutory dismissal practically finally determined the applicant's rights, the applicant's proposed construction of s 5(1AA)(b) and challenge to IMMI 17/015 were not unarguable, and the serious consequences to the applicant made it in the interests of justice to allow reconsideration. The matter was appropriate for referral to a Full Court because the decision was likely to affect a significant number of other persons specified in IMMI 17/015.

Court Disposition

Application for leave to appeal allowed; matter referred to the Full Court; first respondent restrained from removing the applicant from Australia until the proceedings are determined or withdrawn.

Orders

  • ["The applicant's application for leave to appeal is allowed." "The first respondent is to pay the applicant's costs of the application for leave to appeal as agreed or assessed." 'The first respondent, by himself or by his Department, officers, delegates or agents is restrained from removing the applicant from...