SZFCX v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1191

FEDERAL COURT OF AUSTRALIA

SZFCX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1191

Migration Act1958 (Cth) s 417, 422B, 424A(3)

SZFCX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 762 OF 2005

HELY J
9 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 762 OF 2005

BETWEEN:	SZFCX APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	9 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The orders made on 16 June 2005 dismissing with costs the application for an extension of time be set aside.

2.The applicant be granted an extension of time in which to lodge a Notice of Appeal up until Wednesday 31 August 2005.

3.        Costs be costs in the appeal.

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 762 OF 2005

BETWEEN:	SZFCX APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	9 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The decision of the Refugee Review Tribunal (‘the RRT’) in this matter was given on 28 October 1997 and it was not until 26 November 2004 that the application for review was lodged in the Federal Magistrates Court. That passage of time is extraordinary. It is only partially explained by the fact that an application was made to the Minister under s 417 of the Migration Act1958 (Cth) (‘the Act’) in November 1997, and that in September 1998 the applicant joined a High Court class action, which ceased for some reason on 20 June 2003.

2. The Amended Application lodged with the Federal Magistrates Court claimed in the two paragraphs numbered 1, that the RRT failed to accord the applicant procedural fairness in that it failed to disclose to the applicant the country information contained on pages 82 to 176 of the Court Book.  It is clear that this information was central and critical to the RRT’s decision.  In accordance with the ordinary principles of natural justice, it should have been disclosed to the applicant, and he should have been afforded an opportunity of dealing with it.

3. Scarlett FM found that the applicant had never asked for an adjournment of the hearing before the RRT, and that the RRT was not obliged to disclose the information in question as it fell within the class of information referred to in s 424A(3) of the Act. But the proceedings before the RRT were completed in October 1997, before the introduction of s 424A, and before s 422B came into effect.

4. The Federal Magistrate’s reasons for rejecting the claim, based on the denial of procedural fairness, are therefore unsound and the applicant’s claim that he was denied procedural fairness has never been properly adjudicated upon.  

5. The respondent contends that whilst the Federal Magistrate erred in rejecting the claim on the grounds which he gave it is apparent on the face of the RRT’s decision that the RRT referred to this information and discussed the substance of it with the applicant at the hearing.  It is true that there appears to have been some discussion of this matter at the hearing, but the extent of that discussion has never been investigated and I do not think that it is a matter which I am in a position to undertake on the hearing of what is, after all, only an application for an extension of time.

6. It is also apparent that there has been considerable delay in the prosecution of these proceedings.  Delay can be a discretionary reason for refusing prerogative relief, but the time to consider the exercise of that discretion is on the hearing of the appeal, not on the hearing of an application for an extension of time.

7. The applicant has explained the short delay in lodging the application for an extension of time.  He has also explained his failure to appear on the two previous occasions when the matter was listed before me.   There is no challenge to the explanation that he gives either by direct evidence, or by cross-examination.  I therefore accept it and set aside the orders which I made on 16 June 2005 dismissing with costs the application for an extension of time.

8. In those circumstances, I am confronted with a situation in which there has been a short non-prejudicial delay in prosecuting the proposed appeal which has been satisfactorily explained, and a situation in which, at least at the prima facie level, the Federal Magistrate failed to deal with the claim which the applicant put forward.  The interests of justice therefore require that there be an extension of time within which the applicant may lodge his appeal.  Accordingly, I propose to grant an extension of time even though, on a proper investigation of the matter, it may be that the appeal will fail for the reasons which I briefly discussed, or for other reasons. 

9. I therefore make the following orders:

   (1)The orders made on 16 June 2005 dismissing with costs the application for an extension of time be set aside.

   (2)The applicant be granted an extension of time in which to lodge a Notice of Appeal up until Wednesday 31 August 2005.

   (3)       Costs be costs in the appeal.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            25 August 2005

The applicant appeared in person
Counsel for the Respondent:	R A Pepper
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	9 August 2005
Date of Judgment:	9 August 2005