FEDERAL COURT OF AUSTRALIA

SZSXT v Minister for Immigration and Border Protection (No 2) [2013] FCA 1416

THE COURT ORDERS THAT:

1.    The First Respondent be restrained from taking any steps to remove the Applicant from Australia until 4.00 pm on 20 December 2013 or until further order.

2.    Any application for leave to appeal be filed and served by noon on 18 December 2013.

3.    Liberty to apply.

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

REASONS FOR JUDGMENT

1        On 17 December 2013, I heard an urgent interlocutory application made by the applicant to restrain the first respondent (‘the Minister’) from taking action to remove the applicant from Australia. Such application arose due to the fact that the applicant was scheduled to be removed from Australia under s 198(2) of the Migration Act 1958 (Cth) by a flight departing from Sydney at 9.50 pm on 17 December 2013. Late in the afternoon of 17 December 2013, I dismissed the interlocutory application: see SZSXT v Minister for Immigration and Border Protection [2013] FCA 1394 (‘the interlocutory decision’).

2        At approximately 8.17 pm on 17 December 2013, I received a phone call from a Deputy District Registrar of the Court (‘the Registrar’). I was advised that an application had been made on behalf of the applicant for, in effect, an injunction preventing the removal of the applicant from Australia to allow the applicant to apply for leave to appeal the interlocutory decision (‘the oral application’). Such application was made by the applicant’s solicitor by telephone.

3        At approximately 8.25 pm on the same night, I notified the Registrar that the following orders would be made instanter:

1.    The First Respondent be restrained from taking any steps to remove the Applicant from Australia until 4.00 pm on 20 December 2013.

2.    Any application for leave to appeal be filed and served by noon on 18 December 2013.

3.    Liberty to apply.

4        The Minister has sought reasons as to why the substance of each order was made, and why the orders were made ex parte.

5        I made the orders as a matter of urgency to avoid a potential injustice. At the time that the applicant’s solicitor made the oral application, the applicant was in Australia but his removal was imminent. Such application would have been rendered futile unless an injunction preventing his removal was also granted.

6        In relation to the orders being made ex parte, it was a practical impossibility to convene a Court to hear submissions from each party on the oral application in the prevailing circumstances. The orders were made in my discretion under s 23 of the Federal Court of Australia Act 1976 (Cth). Despite any costs incurred by the Minister in arranging for the removal of the applicant, the balance of convenience clearly favoured the applicant.

Associate:

Dated:    19 December 2013