SZEHM v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 756

FEDERAL COURT OF AUSTRALIA

SZEHM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 756

SZEHM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 424 OF 2006

TAMBERLIN J
SYDNEY
10 MAY 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 424 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZEHM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	10 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 424 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZEHM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	10 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal filed on 2 March 2006.  The application is to appeal from a judgment of Federal Magistrate Scarlett given on 30 August 2005.  The application is more than four months out of time. The application is supported by an affidavit by the applicant, also filed on 2 March 2006, and the basis for the delay is said to be that the applicant made an application to the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) for more favourable consideration.  Federal Magistrate Scarlett commented in paragraph 39 that the Minister may well consider that the applicant and his wife and children may be people who would be worthy of consideration their application to remain living in Australia.  However, the Federal Magistrate went on to say that this was a decision for the Minister.

2. As it transpired, the Minister refused the request for further consideration, but during the period between the request and the refusal, the applicant had assumed that it was not necessary to file a notice of appeal.  This is the explanation.  In my view, this explanation, although I can understand the reason for it, is not a sufficient reason to explain the delay.  However, more importantly, the question which must be asked is whether any appeal would be futile if leave were granted in this matter.  The proposed grounds of appeal as indicated in a draft notice of appeal are not very illuminating, as Mr El-Hanania has said. 

3. The first ground stated is that the Federal Magistrate failed to give proper consideration for the applicant to ascertain representation at the hearing, and that in these circumstances, the Federal Magistrate should have adjourned the matter.  The second ground stated is that the Magistrate failed to adhere to procedural fairness.  The first ground has not been supported.  The Magistrate in his reasons gave full consideration to the matters which had been raised.  However, he indicated in paragraph 17 that he was not prepared to allow Mr Sarkis to speak on the applicant's behalf, and he also referred to a number of precedents in the Federal Magistrates Court relating to representation by unqualified persons.  He allowed Mr Sarkis to sit with the applicant as a McKenzie friend, take notes for him and discuss issues with him in the presentation of the matters.

4. The Magistrate noted that the applicant and Mr Sarkis had prepared a document of some eight pages representing the applicant's thoughts.  Mr Sarkis had proposed to read that document.  However, Federal Magistrate Scarlett directed that a photocopy should be made and given to the counsel for the respondent to read, and the learned Magistrate accepted the original document as a submission on behalf of the applicant.  In his judgment, his Honour indicates at paragraph 18 that he gave it the same consideration that he would give to any other submission by or on behalf of a party.  His Honour considered that the substance of the grounds outlined in the application concerned challenges made to factual findings.  He pointed out that merits review was not one of the functions of the Court in conducting judicial review.

5. In my view, having regard to what is said in the Federal Magistrate's decision, I am not persuaded that the applicant did not have a proper opportunity to put his case before the Magistrate.  Therefore, there is no substance in the first ground raised in the draft notice of appeal.

6. The second matter referred to in the draft notice of appeal concerns a failure to adhere to procedural fairness.  This is put forward for two reasons.  The first is that the applicant was distressed, and was unable to put his case before the Magistrate and that therefore this was unfair.  In my view, it is quite normal that persons are distressed in hearings concerning their future, and it is understandable in the present case that the applicant may well have been distressed.  Nevertheless, I am not persuaded that there is evidence that he was unable to put forward his case.  The reasons of the Magistrate do not disclose any error in this regard.

7. I note that in the hearing before the Refugee Review Tribunal (“RRT”) the applicant also indicated that he had been distressed.  The RRT noted this, and said that while the applicant appeared distressed at times, there was no evidence before the RRT that he suffered from any clinical conditions such as depression that adversely affected his ability to put his case before the RRT.  The RRT was satisfied that the applicant was able to adequately present his case.  The RRT also noted that it considered the applicant's request for another hearing but was satisfied that this was not warranted.  It noted that subsequent to the hearing, the applicant provided a submission which amounted to an opportunity to provide further details.  Therefore, the RRT was not satisfied that the applicant had not been given a proper opportunity to present his case.

8. The other ground which is raised by Mr El-Hanania relates to the use by the RRT of country information.  I am not persuaded that the country information came within section 424A(1) because of its general nature.  However, Mr El-Hanania has relied on evidence given by two witnesses called for the applicant, and says that the applicant was not given an opportunity to meet this evidence.  The first point to note in relation to this matter is that the evidence was led by the applicant and therefore he must have known of the evidence which was being put before the RRT on his behalf.

9. The second point is that the applicant was present at the hearing and heard the evidence given by the two witnesses.  In my view, it can be said that this is information that the applicant gave for the purpose of the application and therefore section 424A did not apply. 

10. Another matter which was raised in the course of the hearing before me this morning was the question of whether there was information in the application for a visa used by the RRT and in respect of which the applicant was unaware that such information would be used.  The short response to this is that in the decision of the RRT, it is recorded that the applicant reiterated the claims that had been made in the passport application, and provided copies of his passport and a letter from the Consulate of the Syrian Arab Republic in Sydney dated 22 October 2003 noting that it was processing the applicant’s passport.

11. The second matter is that when regard is had to the application for review to the RRT dated 24 February 2004 there is an express reference to the earlier material as part of the claim.  In stating his reasons for making the application, the applicant stated that:

    ‘My claim is the same that I wrote to DIMIA…’

    He then goes on to spell out what his claim is in the application before the RRT.  In these circumstances, I consider that the application for the passport and the earlier correspondence to the Department was information which the applicant gave for the purpose of the application. Accordingly, I do not consider there has been a breach of section 424A on this ground.

12. This in some ways is an unfortunate case, but the final decision was for the Minister. The learned Magistrate perceived that there was some basis for making a request of the Minister, but the Minister has made his decision on the matter and that decision is not open to review by this Court. Section 417(1) of the Migration Act 1958 (Cth) provides that:

    ‘If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not  the Tribunal had the power to make that other decision.’

    However, it is expressly provided in subsection (7) of that section that:

    ‘The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances. 

13. There is no provision for any review of the decision of the Minister and it is a final decision.  Accordingly, in the circumstances of this case, I refuse the application for an extension of time and I dismiss the application with costs.  I make an order as to costs in favour of the Minister in respect of this application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:   

Dated:             23 June 2006

Solicitor for the Applicant:	Slattery Thompson
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	10 May 2006
Date of Judgment:	10 May 2006