SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs

In the case of SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs, the appellant, a citizen of China who had been in Australia for over twelve years, sought judicial review of the Refugee Review Tribunal's (RRT) adverse decision regarding his application for a protection visa. The central issue on appeal was whether the Federal Magistrate erred in refusing relief due to the appellant's significant delay in applying for judicial review, which was nearly nine years after the RRT's decision. The Federal Magistrate had accepted the Minister's concession that the RRT had erred in not providing the appellant with an opportunity to be heard, but nonetheless refused relief on grounds of delay.

The court examined whether the Federal Magistrate's decision to refuse relief based on the appellant's delay was justified. The appellant argued that he was unaware of the RRT's decision until it was translated for him and that he did not attend the RRT hearing because he did not receive a notification letter. He also claimed that he did not pursue the matter further due to financial constraints and fear of deportation. The Federal Magistrate cited previous cases, including Applicant M70 and Marks, which held that delay could be a bar to relief, and S58, where the Full Court found it permissible to characterise the delay as poorly or unsatisfactorily explained.

The court found that the Federal Magistrate's reasoning was flawed as it did not adequately address the appellant's explanations for the delay. The appellant's lack of awareness of the RRT's decision and his financial and legal difficulties warranted consideration. The court concluded that the Federal Magistrate had failed to properly exercise his discretion and had not sufficiently taken into account the appellant's circumstances.

Accordingly, the appeal was allowed, the orders of the Federal Magistrates Court were set aside, and the proceeding was remitted to the Federal Magistrates Court for further hearing and determination in accordance with the reasons provided.