SZDWJ v Minister for Immigration

The matter before the Court was an application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate which refused to grant a protection visa to the applicant, Mr Ejaz Khan. The Court was required to determine whether the Tribunal's decision was affected by jurisdictional error. The Court could not set aside the Tribunal's decision and send the matter back unless it was satisfied that the decision was affected by jurisdictional error. The Court did not have the power to decide whether the applicant's refugee claims should be believed, nor whether he qualified for a protection visa.

The Court found that the application had a protracted history. The applicant's solicitor had filed a notice of ceasing to act without filing evidence that leave was not required under r.9.03(2) of the Federal Magistrates Court Rules 2001, i.e establishing that he had properly served his client with a notice of intention. The applicant did not attend the hearing on 1 June 2005 and the application was dismissed for non-appearance. The applicant then applied for the setting aside of that order, claiming that his migration agent had failed to inform his solicitor of a change of post office box at Griffith. The Court set aside the default order and gave directions setting the matter down for hearing. However, the applicant did not file an amended application as directed, and his solicitor filed a notice of ceasing to act again without filing evidence indicating that he had complied with r.9.03(2) by informing his client of his intention to withdraw. The applicant appeared today without representation, and did not seek an adjournment.

The Court found that the applicant had no relevant submissions to make, but indicated he had relied on the documents which had been filed by his solicitor. The Court referred to the contentions prepared by the solicitor, after explaining the nature of the applicant's refugee claims and how they were dealt with by the Tribunal. The Court found that the Tribunal had not been affected by jurisdictional error in making its decision. The Court dismissed the application and ordered the applicant to pay the first respondent's costs in the sum of $3,000, in addition to the amount in Order 3 made on 8 August 2005.