SZGTA v Refugee Review Tribunal
[2006] FCA 1410
•31 OCTOBER 2006
FEDERAL COURT OF AUSTRALIA
SZGTA v Refugee Review Tribunal [2006] FCA 1410
MIGRATION – application for protection visa – application for review to Refugee Review Tribunal proceeded in the absence of appellant – appeal to Federal Magistrates Court - whether denial of procedural fairness – substantial delay in lodging application for judicial review – exercise of discretion – appeal dismissed – no error in exercise of discretion by Federal Magistrate
SZGTA v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 1007 OF 2006
MARSHALL J
31 OCTOBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1007 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZGTA
AppellantAND:
REFUGEE REVIEW TRIBUNAL
First RespondentMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
31 OCTOBER 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Minister for Immigration and Multicultural Affairs is granted leave to be named as the second respondent to the appeal.
2.The appeal is dismissed.
3.The appellant pay the second respondent’s costs of the appeal, including costs incurred since 30 May 2006.
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 1007 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZGTA
AppellantAND:
REFUGEE REVIEW TRIBUNAL
First RespondentMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent
JUDGE:
MARSHALL J
DATE:
31 OCTOBER 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from a judgment of the Federal Magistrates Court of Australia which dismissed his application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had dismissed an application by the appellant for a review of the rejection of his application for a protection visa. The notice of appeal originally listed the Tribunal as the only respondent. At the hearing of the appeal, the Court gave leave for the Minister for Immigration and Multicultural Affairs to be added as a respondent to the appeal.
The appellant represented himself before the Court below. His grounds of review were generally unparticularised and sought to cavil with matters of merit determined by the Tribunal.
One of two matters of substance dealt with by the Court below was the appellant’s criticism of the Tribunal for proceeding to determine the matter in his absence. He said that he did not receive the Tribunal’s invitation to attend a hearing and was not informed of the hearing by his migration agent. The problem about that submission was that the Tribunal received an acceptance, in writing and purportedly signed by the appellant, of a written offer from the Tribunal to attend a hearing before it.
Her Honour, Emmett FM, held that, given the appellant was in regular contact with his migration agent until at least May 2000, it is unlikely that the agent would not have informed him of the hearing scheduled for 11 March 1999. However, her Honour said that the Tribunal should have attempted to contact the migration agent by telephone when the appellant failed to appear, given that he had earlier requested an oral hearing. By proceeding without allowing the appellant to fully explain his claims, her Honour considered the Tribunal denied him procedural fairness. This ordinarily would, according to her Honour, have led the Court below to find that a jurisdictional error had occurred.
Her Honour then considered, notwithstanding her determination that a jurisdictional error had been committed by the Tribunal, whether she should refuse relief based on the appellant’s delay in bringing the proceeding.
The Tribunal’s decision is dated 12 March 1999. The appellant filed his application for judicial review on 13 July 2005, in excess of six years later. The appellant contended before her Honour that he made inquiries with his migration agent about the fate of his review application, without success, until about May 2000. The appellant said that he did not contact the Minister’s Department about the fate of his application because he did not know its telephone number and that he had been told by his migration agent to wait for the decision.
Her Honour considered the appellant’s delay in applying for judicial review of the Tribunal’s decision was unjustified. She exercised her discretion to decline to grant the appellant relief on account of that delay.
In his appeal grounds the appellant takes no issue with her Honour’s exercise of discretion but merely seeks to re-agitate the other matters raised at first instance. However, in his oral submissions, he said he had no idea what had happened to his review application. But for the exercise of her Honour’s discretion, because of the appellant’s delay, the appellant would have succeeded before the Court below. There would have been nothing for the appellant to gain by seeking to address matters other than delay. However, the Minister has filed a notice of contention dealing with the procedural fairness issue.
In the circumstances, Emmett FM was entitled to exercise her discretion to decline relief on account of the appellant’s long delay in applying to the Court below for judicial review. It is entirely implausible that the appellant would not be able to locate the telephone number of the Minister’s Department to enquire about the status of his application. Her Honour did not err in the exercise of her discretion. Consequently it is unnecessary to deal with the submission raised in the Minister’s notice of contention that the appellant had not been denied procedural fairness.
The appeal is dismissed with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 31 October 2006
The appellant appeared in person. Counsel for the second respondent: J.A.C. Potts Solicitor for the second respondent: Australian Government Solicitor Date of Hearing: 31 October 2006 Date of Judgment: 31 October 2006
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