FEDERAL COURT OF AUSTRALIA

SZQGC v Minister for Immigration and Citizenship [2012] FCA 1209

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to appeal from the order made by Smith FM on 30 October 2012 in proceedings numbered SYG2477 of 2012.

2.    Leave be granted to the applicant to file a Notice of Appeal in a form of the draft Notice of Appeal handed up to the Court earlier today.

3.    An interlocutory injunction issue restraining the Minister, his servants and agents, from removing the applicant from Australia until 72 hours after the judgment is delivered in the Federal Court proceeding titled MZYPO v Minister for Immigration and Citizenship and Anor., numbered VID352 of 2012.

4.    Liberty to apply on 2 days’ notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1     I have come to the view, somewhat reluctantly, that given the urgent circumstances in which the matter has been argued, that there are sufficient prospects of success in establishing an error on the part of the Federal Magistrate to justify the grant of leave to appeal.

2    I recognise, as Mr Markus submitted, that the Federal Magistrate’s decision was a decision on a matter of practice and procedure and that it was a discretionary decision which turned upon his Honour’s consideration of the factual matters that were put before him in support of the application for interlocutory injunctive relief.

3    It seems to me that there is evidence which points quite strongly in favour of Mr Markus’ submission, that the case was assessed against the guidelines. That is contained in particular in the letter of 25 October 2012 from the Department and is also borne out by the exchange of emails to which Mr Markus has taken me, that is, the exchange of emails dated 25 and 26 October which are annexed to Ms Stephens’ affidavit of 29 October 2012.

4    Nonetheless, it does seem to me that what appears in the correspondence and the emails leaves open the possibility, albeit a fairly weak one, that the matters to which Mr Prince has pointed, that are raised as questions of principle in the proceeding which is to be heard by the full court of the Federal Court of Australia on 14 November 2012, might be enlivened in the present case.

5    I would not have come to this view but for the fact that I am troubled by the prospect of shutting out the applicant from running such a case, in circumstances in which if I do not grant leave to appeal and issue injunctive relief, the applicant will lose any prospect of arguing the case based upon the proper construction and effect of s 46A(2) of the Migration Act 1958 (Cth).

6    In those circumstances, notwithstanding all of the reservations which I have expressed, I think that I ought to grant leave and issue the injunction.

Associate:

Dated:    31 October 2012