FEDERAL COURT OF AUSTRALIA

SZTEI v Minister for Immigration and Border Protection [2016] FCA 205

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent, his officers and agents be restrained from removing the applicant from Australia until the hearing of the applicant's application for extension of time within which to file an appeal, or such further order of this Court.

2.    Costs of this application be reserved.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This matter came before me this afternoon on an urgent basis. Two applications were filed in Court this afternoon: an application for an extension of time to file a notice of appeal dated 10 February 2016 and an interlocutory application seeking an injunction restraining the first respondent by himself or his agents or officers from removing the applicant from Australia. The applicant’s removal is scheduled for 7.30 pm Eastern Daylight Savings Time this evening.

2    The applicant’s application for an extension of time attaches a draft notice of appeal and is supported by an affidavit sworn by the applicant’s solicitor, Rasan T. Selliah, affirmed 12 February 2016. That affidavit was read on the application for an interlocutory injunction. Also provided to the Court was an affidavit affirmed by the applicant on 12 February 2016 and a second affidavit of Mr Selliah affirmed 6 August 2016 in proceedings SYG1845 of 2015. Those affidavits were also read on the application for an interlocutory injunction. The second affidavit of Mr Selliah annexes the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) which, together with the decision of the primary judge, is the subject of the draft notice of appeal.

3    In order for the applicant to succeed in his interlocutory application seeking to restrain his removal, the Court must be satisfied that there is a serious question to be tried and that the balance of convenience favours the grant of an injunction. That question needs to be determined in the context of the application for an extension of time. In considering an application for an extension of time to file a notice of appeal, the Court will consider whether there is an explanation for the delay in filing the notice of appeal, any prejudice to a respondent and the merits of the proposed appeal.

4    I have considered the application for an injunction in the context of the requirements of the application for an extension of time.

5    It was submitted by Ms Buchanan, appearing for the first respondent, that there was no adequate explanation for the delay. Whilst the affidavits relied on have a paucity of evidence in relation to the whole of the period of delay, being some six months, they do raise an issue about the lodgement of material with the Perth registry of this Court and whether that material was conveyed to the Sydney registry of this Court. In the circumstances in which the matter has come before me this afternoon neither party is able to further explore that issue. Given that, for the purposes of this application only, I am satisfied that some explanation for the delay has been given.

6    In relation to prejudice, Ms Buchanan submitted that this was not like a usual application of this nature where the Minister may not be able to point to any prejudice. She submitted there was some prejudice, given the advanced nature of the preparations for the applicant’s departure. In my view, that prejudice is likely to be financial only. There is no evidence of the actual prejudice suffered. If there is prejudice then, in the scheme of this matter, I see it as minimal.

7    That then leaves the merits and a consideration of whether there is a serious question to be tried in the context of the draft notice of appeal. Two grounds are raised in the draft notice of appeal. They are:

(1)    That the court erred in finding that the second respondent did consider the applicant’s claim or integer of a claim that arose on the information and evidence before it. That claim is particularised by reference to the claim made by the applicant that he was harassed by the Karuna Group, even after he stopped his construction business and started a food stall in front of his house.

(2)    That the court erred in finding the second respondent’s decision was not arbitrary and unreasonable in the legal sense that the tribunal’s conclusion that the applicant would have come to the attention of the authorities if he had been of the interest claimed and if he had travelled in the way that he did was a finding of fact that cannot be said to be so unreasonable that no person could have come to it.

8    It is not my role to determine the grounds. It is my role to determine whether I can be satisfied that there is a serious question to be tried.

9    Both parties have made helpful submissions about these grounds. I have had an opportunity, albeit not lengthy, to consider the submissions made and the decision of the primary judge in this matter. In relation to the first ground of appeal, it seems to me that the primary judge considered the decision of the Tribunal and the way in which it considered the claims made. She concluded in her decision at [69] and following that:

Notwithstanding that the tribunal did not explicitly set out the wording of this aspect of the applicant’s claims in the context of making its findings at paragraph 54, it is apparent that the tribunal’s findings dealt with the substance of the aspect of the applicant’s claim in issue under ground 1 of the application.

10    The primary judge went on to explain how she arrived at that conclusion. In relation to ground 1 of the notice of appeal and, if I was determining this matter on ground 1 alone, I would have been unlikely to be satisfied that there was a serious question to be tried.

11    Ground 2 is considered by the primary judge from [76] and following of her decision. In that ground, before the primary judge the applicant argued that the decision of the Tribunal was arbitrary and unreasonable in the legal sense and provided particulars of why he said that was so. The applicant includes in his draft notice of appeal as ground 2 that the primary judge erred in her finding that the Tribunal’s finding was not arbitrary and unreasonable.

12    Ms Buchanan raised that the ground of appeal now put before the Court and articulated this afternoon seems to go beyond what was argued before the primary judge. Mr Lawrence, in reply, took me to a submission recorded in the primary judge’s decision which he says supports the way in which the matter was argued this afternoon.

13    I do not need to determine what was and was not argued before the primary judge in relation to this ground. That is a matter for another day. But, having heard from both parties on this ground, I am satisfied that there is a serious question to be tried and that an issue is raised in this ground that should proceed to a fuller hearing. That is, a hearing of the application for an extension of time.

14    The balance of convenience, as accepted by the solicitor for the Minister, favours the making of the order sought in the interlocutory application.

15    In those circumstances, I will make the following orders:

(1)    The first respondent, his officers and agents be restrained from removing the applicant from Australia until the hearing of the applicant’s application for extension of time within which to file an appeal or such further order of this Court.

(2)    Costs of this application be reserved.

Associate:

Dated:    14 February 2016