SZAZY v Minister for Immigration (No.2)
[2005] FMCA 1635
•10 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAZY v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 1635 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for protection visa – review of decision of the Minister to refuse a protection visa to the applicant – where applicant failed to appear or provide submissions – whether Tribunal required to give applicant prescribed period of notice in relation to postponed hearing – whether failure to do so constitutes jurisdictional error – whether relief should be refused where breach of notice requirement – delay a ground for refusing relief. PRACTICE & PROCEDURE – Application to set aside order – where substantive application listed for final hearing on 19 October 2004 – delay. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth), ss.425A, 474, 477 (1A) Migration Regulations 1994 reg.4.35D Federal Magistrates Court Rules 2001 rr.13.03A, 16.05 |
| SZAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 847 SZFKF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1152 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 |
| Applicant: | SZAZY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2441 of 2003 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 October 2005 |
| Date of Last Submission: | 27 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Respondent: | Ms Bautista Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $2,000.00 and I allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2441 of 2003
| SZAZY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application to set aside orders made on 19th October 2004 dismissing the applicant’s application for review of a decision of the Refugee Review Tribunal made on 18th August 2003. The substantive application was listed for final hearing at 2:15p.m.
On 19th October 2004. There was no appearance by or on behalf of the applicant on that day. Consequently, I dismissed the application under Rule 13.03A of the Federal Magistrates Court Rules 2001.
On 14th September 2005 the applicant filed a Notice of Motion seeking that the orders of 19th October 2004 be set aside and that his substantive application be reinstated to the list and listed for final hearing on 27th October 2005 or on an alternative date.
The Notice of Motion was returnable on 13th October at 10:15 a.m.
The applicant attended Court but there was no appearance on behalf of the Respondent Minister. It transpired that the Applicant had not served any copy of the Notice of Motion on the solicitors for the Respondent. I adjourned the proceedings to 12 noon on 27th October.
The Applicant filed an affidavit sworn on 13th September 2005 in support of the Notice of Motion, in which he states that he inquired of his solicitors about his hearing, only to receive copies of the orders made on 19th October 2004. He deposed that the solicitors told him that he had consented to withdraw his application, which he denies.
He claims that he was not aware before the date of the affidavit that his application had either been withdrawn or dismissed and seeks to have his original hearing date restored. He said that he is now
self- represented.
The substantive application before the Court is an application for review of a decision by the Refugee Review Tribunal affirming a decision by the delegate of the Minister not to grant him a protection visa.
The applicant sought a review by the Refugee Review Tribunal.
On 18th August 2003 the Tribunal affirmed the decision not to grant the applicant a protection visa. The applicant sought relief in the Federal Magistrates Court but an application was made for summary dismissal on the basis of his failure to provide the relevant information to show that he had a cause of action.
The applicant consulted a solicitor, Mr Simon Diab of Simon Diab & Associates, Solicitors at Parramatta. On 22nd June when the matter came before me I permitted the applicant to file an amended application and made an order for costs in favour of the respondent. The matter was then listed for hearing before me on
19th October 2004.
Apart from the amended application, no other documentation was filed. The applicant did not appear on 19th October 2004 although I delayed the proceedings to allow at least half an hour to take place after the appointed hearing time of 2.15 p.m. The applicant did not file any affidavit in which he set out any evidence upon which he may have sought to rely. He did not file any submission setting out what his case may have been about. All that was before the Court in the applicant's case was his amended application.
Neither the applicant nor his legal adviser attended Court on the day of the hearing, although they were given ample opportunity to do so.
I expressed the view then that if the applicant had not provided his solicitor with instructions that the solicitor would have filed a notice of ceasing to act or otherwise sought to have been excused from these proceedings. That did not happen and still has not happened.
The solicitor remains on the record.
The respondent attended Court by means of a solicitor and counsel.
I dismissed the application under Rule 13.03A(c) with costs in the sum of $5,650.00. The citation for the decision is SZAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 847.
The hearing of the notice of motion
The applicant attended Court on 27th October 2005 without legal representation. He was assisted by a Nepalese interpreter. He told the Court that when he received the decision from the Refugee Review Tribunal he went straight to his solicitor who said that he would file an application for review within 21 days.
The applicant told the Court that the RRT decision was wrong because the Tribunal did not consider certain factual matters in his case relating to having been tortured by both Maoists and the Nepalese Commission for the Investigation of Abuse of Authority (CIAA). He claimed that the Tribunal did not investigate those claims. The Tribunal did not consider the situation in Nepal.
He claimed that the Tribunal should have conducted its own investigation into various matters, into the circumstances of his arrest and the motives of the police.
The respondent opposes the application to set aside the order.
Ms Bautista, solicitor for the respondent Minister, submitted that the Court should refuse the application on discretionary grounds, even though she conceded that there were two jurisdictional errors in the Tribunal’s decision.
The first error, she submitted, appears at page 76 of the Court Book. This error, she submitted is that the Tribunal noted that the applicant left on his own passport from Kathmandu airport and so the Tribunal considered that he was unlikely to have been of interest to the authorities. This information was provided with the original application for a protection visa and does not fall within the exception in
s.424A (3) (b).
In my view, this particular error is of little consequence and very little turned on it. That said, it is a jurisdictional error and cannot be ignored.
The second error relates to the prescribed periods of notice required to be given in inviting the applicant to appear before a hearing of the Tribunal. Section 425A of the Migration Act 1958 (Cth) provides that the Tribunal must give the applicant notice of the time that he or she is scheduled to appear (s.425A (1)). Sub-s.425A (3) provides that the period of notice must be at least the prescribed period.
Regulation 4.35D of the Migrations Regulations 1994 prescribes for a period of 14 days’ notice.
The Court Book shows at page 47 that the Tribunal wrote to the applicant on 17th June 2003 inviting him to attend a hearing.
That hearing was scheduled for 10:00 a.m. on 22nd July 2003.
The letter of 17th June clearly complies with s.425A.
On 16th July 2003 the Tribunal wrote to the applicant, changing the starting time for the hearing. A copy of that letter appears at page 53 of the Court Book. The hearing date and place remained the same but the time was put back half an hour, from 10:00 a.m. to 10:30 a.m.
The applicant attended the hearing and gave oral evidence.
The concern here is that the period of notice of the change of time did not comply with s.425A (3), being less than 14 days. This issue has been considered in a number of cases before this Court.
In SZFKF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1152, Barnes FM considered a situation where an applicant was in immigration detention. The period of notice provided for an applicant in detention is seven days. In SZFKF the applicant was invited to a hearing of the Tribunal on Friday 22nd October 2004.
He indicated that he wished to attend the hearing. On 22nd October, the day of the hearing, the Tribunal wrote again to the applicant changing the date to Monday 25th October 2004.
The applicant attended the hearing on 25th October. The Tribunal member told the applicant that a further hearing would be scheduled and the following day the Tribunal wrote to the applicant inviting him to a second hearing on Friday 12th November. There was no suggestion that the Tribunal failed to observe applicable procedures in relation to this letter.
Barnes FM held that the Tribunal’s failure to give the required period of notice of the rescheduled hearing from 22nd to 25th October constituted a breach of s.425A. As her Honour held at [48]:
There is nothing in the language of s. 425A or elsewhere in the Division or Act to require the general words of s. 425A to be read down or given anything other than their ordinary meaning consistent with the purpose and language of the Act. Section 425A is expressed in terms which would apply to any invitation to appear given by the Tribunal. It is in mandatory terms and is not qualified. (See SAAP[1] at [71] and [165] and cf ss. 423, 424 and 426A). Where the Tribunal postpones a hearing the initial invitation does not remain open. To meet its s. 425 obligations the Tribunal must issue a fresh invitation if the hearing is rescheduled at the behest of the Tribunal. In such a case s. 425A will apply to the fresh invitation extended to the applicant…
[1] SAAP v MIMIA [2005] HCA 24
Barnes FM held at [56] that s.425A is part of the regime of statutory procedural fairness. Sub-section 425A (3) is expressed in mandatory terms, which the High Court stressed in SAAP (supra). The obligation to give the prescribed period of notice applies to every notice of invitation to a hearing. Thus, the breach of s.425A (3) constituted a jurisdictional error.
Applying SAAP, her Honour rejected the argument that relief should be withheld because compliance with the obligation would not have made any difference to the outcome. Her Honour referred to the decision of McHugh J at [83], where his Honour limited the circumstances in which the discretion to refuse relief may be exercised despite a finding of jurisdictional error:
However, where the relevant breach is the failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision should not of itself determine whether the constitutional writs of certiorari and mandamus should be granted. If there has been a breach of the obligation to accord procedural fairness, there is jurisdictional error for the purposes of s. 75 (v) of the Constitution.
In SZEGU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1023, Nicholls FM considered the situation where the Tribunal sent a facsimile transmission to the applicant within the prescribed time advising that the time for the hearing had been changed from 10.00 a.m. to 2:00 p.m. on the same day. The applicant asserted that he did not receive the notice of the change of time and went to the hearing at the time that was given to him. When he was unable to make himself understood because of his language difficulties, the applicant eventually left the Tribunal without attending any hearing. When the applicant did not appear at the hearing at 2:00 p.m., the Tribunal proceeded to deal with the application in the applicant’s absence under s.426A of the Migration Act, without giving the applicant any further opportunity to attend a hearing.
Nicholls FM held at [16]:
It is a mandatory statutory requirement that the Tribunal must give the applicant notice of the time of the hearing, and it is a clearly prescribed notice of 14 days. The importance of this can be also be seen in the context of where an applicant indicates clearly that he wants to come to a hearing and the desire to attend is conveyed and confirmed in circumstances where the Tribunal is contemplating withdrawing the offer of a hearing. In any event, the Tribunal’s failure in this regard is an error going to jurisdiction and on this basis the Tribunal’s decision is quashed, and the matter must be remitted to the Tribunal for reconsideration.
I regard the decisions in SZFKF v Minister for Immigration & Multicultural & Indigenous Affairs (supra) and SZEGU v Minister for Immigration & Multicultural & Indigenous Affairs (supra) as persuasive. The Tribunal’s failure to give the necessary notice, even though the change of time was only half an hour and the applicant was able to attend the hearing, constituted jurisdictional error. The issue to be decided, as the respondent submits, is whether there are grounds for withholding discretionary relief in this case.
The solicitor for the respondent sought to cross-examine the applicant on his affidavit. She also filed in court an affidavit by Andrea Jane Nesbitt sworn that day. The applicant did not require the deponent to be cross-examined on her affidavit.
In his cross-examination, the applicant said that one of his friends wrote the affidavit in support of the Notice of Motion for him.
His friend read it to him in Nepali. He agreed that his application for a protection visa was important to him, saying “My previous solicitors really let me down.”
The applicant went on to say that every time the solicitors called him it was to ask for money. He would say “When is it?” meaning the hearing date. He talked to a Nepali migration agent, Shamser Singh Thapa and to Simon Diab, the solicitor. He denied that he had seen the orders dismissing the application on 19th October 2004 or the reasons for decision between 19th October 2004 and September 2005. He said he used to be in contact with Simon Diab and used to ask what was happening to his case. He said he never got the right answer. He said he trusted them because Mr Thapa was a Nepali solicitor “But they kept me in the dark and let me down”.
The applicant said he did not receive a copy of the decision until early in September, four days before lodging his Notice of Motion.
He reiterated:
I have already said I had no knowledge of the decision until a few days before.
The applicant denied knowledge of any of the documents annexed to the affidavit of Andrea Nesbitt. As Ms Nesbitt was not required for cross-examination and the applicant did not object to her affidavit being received in evidence, I accept the contents of her affidavit as unchallenged evidence.
Ms Nesbitt annexed to her affidavit a chronology and copies of various items of correspondence. On 20th October 2004, the day after the application for review had been dismissed by the Court, the respondent’s solicitors sent a letter by fax to the applicant’s solicitors, referring to the hearing the day before and to a faxed message that they had received.
The applicant’s solicitors replied on 22nd October 2004:
On 19th October 2004 we sent a facsimile to your office advising that we no longer acted for the Applicant in the above proceedings.
This facsimile was sent to your office at 1:40 p.m. Please find herewith Transmission Verification Report confirming that the fax was indeed sent to your office at 1:40 p.m., being before the commencement of the scheduled hearing. Thus, your claim that your office did not receive our facsimile until 4:p.m. is clearly incorrect.
As advised in our facsimile of 19th October 2004, we no longer act for the above Applicant. Thus, we request that you direct all correspondence concerning this matter to the Applicant directly.
Attached to that letter was a copy of a faxed message dated
19th October 2004 addressed to the respondent’s solicitors saying:
We refer to the above matter and note that it is listed for hearing at
2:15 p.m. today.
We advise that we no longer act for the Applicant in these proceedings. We also advise that we have not received any further instructions concerning the above proceedings.
Please contact Mr Simon Diab of this office if you require any further information.
On 11th November 2004 the applicant’s same solicitors wrote to the Minister for Immigration and Multicultural and Indigenous Affairs seeking a favourable decision under s.417 of the Migration Act on behalf of the applicant. The letter advised the Minister that the solicitors were “writing to you on behalf of the abovenamed”, i.e. the applicant.
On 27th April 2005, an officer from the Ministerial Intervention Unit of the Department wrote to the applicant’s solicitors, advising that the applicant’s had been referred to the Minister for Citizenship and Multicultural Affairs, the Hon Peter McGauran MP.
The Minister had decided not to consider exercising his power in the applicant’s case.
The applicant’s solicitors then wrote to the Minister for Immigration and Multicultural and Indigenous Affairs on 9th May 2005, advising that they were instructed to act for the applicant and enclosed an application for humanitarian consideration under ss. 48B and 417 of the Migration Act.
On 15th August 2005 the applicant’s solicitors sent a facsimile message to the Ministerial Intervention Unit advising that the applicant was attending the Department that day to apply for a further BVE, meaning a Bridging visa E, as his earlier Bridging visa was due to expire that day.
The respondent’s solicitors wrote to the applicant’s solicitors on
18th October 2005 enclosing a copy of the applicant’s affidavit filed on 14th September 2005 in support of his Notice of Motion.
The respondent’s solicitors note that the affidavit contains a number of serious allegations about the applicant’s solicitors and go on to say:
If you intend to respond to the allegations or provide relevant documentation in answer to the allegations made against you, we request that you prepare affidavit evidence and make arrangements to have it filed and served in these proceedings. In this regard, we note that the application to set aside orders has been listed for hearing on 27th October 2005 at 12.00 noon before Scarlett FM.
Please note that if you do not seek to challenge the allegations made against you and the applicant succeeds on his application to set aside orders, the respondent may seek to recover the costs thrown away against you personally.
Conclusions
The applicant seeks to set aside a decision made on 19th October 2004 dismissing his application for review of a decision of the Refugee Review Tribunal because of his non-appearance. He filed an affidavit sworn on 14th September 2005 in which he claimed that he was only made aware by his solicitors on 13th September 2005 that his application had been dismissed after he had consented to have his matter withdrawn. He claimed that he was not aware before that day that his application had been withdrawn or dismissed with costs.
The evidence shows that his solicitors had sent a fax to the respondent’s solicitors on 19th October 2004 advising that they no longer acted for the applicant and they persisted with that assertion on 22nd October.
Taking that information at face value, it appears that the applicant must have given his solicitors further instructions no later than
11th November 2004, when they wrote to the Minister seeking ministerial intervention.
Those instructions seem to have remained current as the applicant’s solicitors were engaging in correspondence on his behalf as late as
15th August 2005, only a month before he commenced proceedings in these seeking to set aside the orders made on 19th October 2004.
I am mindful that the decision of the Refugee Review Tribunal contains two jurisdictional errors that would normally allow an applicant to argue that he should be granted relief by way of certiorari and mandamus.
Against this, however, the applicant has been involved in unwarrantable delay in seeking relief. He did not attend court on
19th October 2004 when the application was listed for hearing.
Even if he was not legally represented at the time, it is clear that he had instructed his same solicitors on or before 11th November 2004 to make an application under s.417 of the Migration Act.
The applicant has not explained why he did not either instruct his solicitors to make an application to set aside the decision of
19th October, only about three weeks earlier, or make that application himself. It defies belief that the applicant could have been instructing his solicitors to apply for Ministerial intervention on 11th November and not be aware of the dismissal of his application only three weeks before.
I am not satisfied that the applicant has been frank with the Court.
I am certainly not satisfied that he has given any explanation for a delay of eleven months in commencing proceedings to set aside a decision made by this court. Unwarranted and unexplained delay is a ground for denying discretionary relief, even where an applicant may be able to show jurisdictional error in the substantive decision.
The applicant, through the solicitors who assert in their correspondence that they have acted on his instructions, chose to seek relief by way of an application to the Minister under s.417 in November 2004 instead of applying to set aside the decision made the previous month when he did not appear at the hearing. He cannot now be heard to seek relief through the court after this delay.
The application to set aside the Orders made on 19th October 2004 will be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 9 November 2005
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