SZAZY v Minister for Immigration (No.2) - [2005] FMCA 1635

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SZAZY v Minister for Immigration (No.2)

Details

AGLC: SZAZY v Minister for Immigration (No.2) [2005] FMCA 1635
Case: [2005] FMCA 1635
Decision Date: 10 November 2005

CaseChat Overview and Summary

The case of SZAZY v Minister for Immigration (No.2) involves the applicant, SZAZY, who was seeking a review of a decision made by the Minister for Immigration to refuse a protection visa. The legal dispute was whether the Refugee Review Tribunal was required to provide the applicant with prescribed notice for a postponed hearing and whether a failure to do so constituted a jurisdictional error. Furthermore, the court had to consider whether relief should be denied if a breach of the notice requirement was coupled with delay in the proceedings. The case was heard in the Federal Court of Australia.

The central legal issues were whether the Tribunal's failure to provide prescribed notice for the postponed hearing constituted a jurisdictional error, and if such an error, coupled with delay, warranted the refusal of relief. The applicant argued that the Tribunal's failure to give the requisite notice was a jurisdictional error that rendered its decision invalid. Additionally, the applicant contended that the delay in proceedings was a ground for refusing relief. The Minister for Immigration, on the other hand, submitted that the Tribunal's failure to provide notice did not amount to a jurisdictional error and that the delay in the proceedings was not a sufficient ground for refusing relief.

The court found that the failure of the Tribunal to provide the prescribed notice for the postponed hearing did not constitute a jurisdictional error. It held that while the Tribunal is required to provide notice to the applicant, the absence of such notice did not render the decision invalid if the applicant was aware of the hearing and did not raise the issue of notice at the time. The court also determined that the delay in the proceedings was not a sufficient ground for refusing relief. The court further held that the applicant's failure to appear or provide submissions before the Tribunal was a significant factor in the delay and thus, relief should be denied.

The orders of the court were that the application was dismissed, and the applicant was to pay the Respondent’s costs in the sum of $2,000.00, with four months allowed for payment.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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