SZHHG v Minister for Immigration

[2006] FMCA 1283

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHHG v  MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1283

MIGRATION – Refugee Review Tribunal – Protection visa – Applicant fails to respond to invitation to attend hearing – Tribunal decision delivered ten days before scheduled hearing – whether jurisdictional error.

PRACTICE AND PROCEDURE – Delay – change of address – change of solicitor.

Migration Act 1958, s.424

Xie v MIMIA (1999) 95 FCR 543
Cabalv MIMIA (2001) FCA 546
Dranichnikov v MIMIA (2003) 197 ALR
Re: MIMIA Ex parte Applicants S134 (2002), (2003) 211 CLR 4
SAAP v MIMIA (2005) 215 ALR 162
The King v Commonwealth Court of Conciliation and Arbitration Ex parte Ozone Theatres (Australia) Limited (1949) 78 CLR 389
Re: Commonwealth of Australia Ex parte Marks (2000) 177 ALR 491

Applicant: SZHHG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2869 of 2005

Judgment of: McInnis FM

Hearing date: 23 August 2006

Delivered at: Sydney

Delivered on: 23 August 2006

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Mr T Riley

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application filed 7 October 2005 be dismissed.

1. The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2869 of 2005

SZHHG

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second First Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 19 August 1996.   The application for review was filed on 7 October 2005.  The Applicant is self-represented and assisted by an interpreter.  The background history of this application is somewhat unusual.  The Applicant, who is a national of Pakistan, arrived in Australia on 5 September 1987.  He applied to the Department of the First Respondent for a protection visa on 11 November 1991.  A delegate of the First Respondent, in a decision made on 30 November 1994, refused the grant of a protection visa to the Applicant.  It would appear that the Applicant was notified of the delegate’s decision by letter dated 30 November 1994.

2. The Applicant, in an application dated 12 December 1994, sought review of the delegate’s decision by the Tribunal.  That application for review appears in the Court Book at page 1.  The relevance of the chronology will become evident through the course of this judgment, but at this point, it is significant to note that the First Respondent has sought orders that the application be dismissed, primarily on the basis that the application itself does not reveal any grounds which the Applicant can rely upon, but in addition and significantly, also for reasons which will become apparent, has sought to rely upon the delay in this matter which the First Respondent has asserted should be considered by the court and that the court, in the exercise of its discretion, given that some nine years have elapsed from the date of the Tribunal decision to the date of the filing of the application should be exercised against the Applicant.

3. I mention that at the outset, because when the issue of delay was raised, counsel for the First Respondent properly indicated that it would be appropriate for the Applicant to be given the opportunity, as he has been given, to give evidence concerning the delay.  I should also add that it was during the course of evidence, after giving an indication of perhaps some of the reasons for delay from the bar table, the Applicant verified that the application for review before the Tribunal, dated 12 December 1994, was, indeed, signed by him, his signature appearing at page 3 of the Court Book.

4. The first observation one makes from the application is that it provides a residential address, but also, significantly, a postal address of post office box 256 Alexandria, New South Wales, post code 2015, which I shall refer to as the postal address.  The Tribunal, by letter dated 14 December 1994, addressed to the Applicant at the postal address, Court Book page 4, acknowledges that the application for review of the decision of the delegate was received by the Tribunal on 14 December 1994.  The letter, significantly, includes the following:

   “It is also very important to advise the Tribunal in writing if you change your address or telephone number.”

5. It appears that a document entitled appointment of person to act as agent was also signed by the Applicant on 31 January 1996 (Court Book page 5) the Applicant in evidence verified that his signature appeared on that document.  That document again refers to the postal address, though significantly also refers to the agent as being a solicitor from Parish Patience, a firm of solicitors in Market Street, Sydney.  The document has marked with an ‘X’ in a box next to the words:

   All correspondence relating to my sponsorship, application is to be sent to the above agent.  If any information or additional documentation or action is required on my case, the above agent is to be contacted.

6. In the Court Book at page 6, there appears further correspondence dated 11 June 1996 from the Tribunal addressed to the Applicant care of the postal address, but also forwarded to the firm Parish Patience.  It appears, from the Court Book, that a photocopy of the envelope containing that letter was marked “return to sender” (Court Book page 7).  At the very least, at this point, it seems evident that in or about June 1996 the Applicant ceased using the postal address.  However, there is no evidence before me that the Applicant properly notified the Tribunal of any change of address.  I am also not satisfied, on the evidence before me, that as at, at least June 1996, the Applicant had ceased to retain the firm Parish Patience to whom copies of relevant documents were forwarded, as appears from the Court Book.

7. It is significant to note that in the Court Book a copy of a letter dated 8 August 1996 was forwarded by the Tribunal to the Applicant, again care of the postal address and a copy forwarded to his then solicitors offering the Applicant the opportunity to appear before the Tribunal to give evidence on Thursday, 29 August 1996 at 9.30.  That letter includes the following paragraph:

   “We have attached a form which should be completed by you and returned to the Tribunal within seven days from the date of this letter.  It is important that you complete and return this form to the Tribunal, whether you wish to have a hearing or not.  If you do not respond within seven days, your case will be decided by the Tribunal on the evidence available to it.”

8. It is clear that that paragraph has been the subject of some judicial comment in cases referred to by the First Respondent to which reference will be made later in this judgment.  Nevertheless, by further letter dated 21 August 1996, the Tribunal again wrote to the Applicant, care of the postal address, with a copy forwarded to the solicitors, who

   
   

   I accept were then on record as acting for and on behalf of the Applicant, which states as follows:

   “I enclose a copy of the Tribunal’s decision on your application for review.  A copy of the decision has also been sent to the Department of Immigration and Multicultural Affairs.”

9. That chronology of events reveals that the Tribunal, despite having advised that a hearing was scheduled for 29 August 1996 at 9.30, upon not receiving any reply from the Applicant, then for reasons which are not readily apparent, delivered a decision on 19 August 1996, some ten days prior to the scheduled date of hearing.  I also note from the Court Book a memorandum dated 16 August 1996 from the Tribunal referring to the Applicant and indicating no reply and then the following appears:

   “I rang adviser.  He has had no contact with A/N for some time and mail sent to A/Ns home address has been returned to him.  A/N has no contact number, hearing letter unclaimed at post office, request for MDB and latest address details faxed to DIMA”

   (Court Book page 13)

10. The conclusion I draw from the Court Book is that the Tribunal, though forwarding copies of correspondence to the postal address and copies to the then solicitors for the Applicant was aware that the Applicant had not received the relevant correspondence and significantly the invitation for the hearing.  It could not be suggested, however, on the material before me that the Tribunal did anything other than what might have been appropriate in the use it made of the postal address in the absence of any evidence which I am prepared to accept that it was given any or any adequate notice of change of address.  Nevertheless, unfortunately, the Tribunal, rather than waiting until 29 August 1996 proceeded, as I have indicated for reasons not readily apparent to the court, to deliver a decision dated 19 August 1996.

11. Accordingly, it is hardly surprising that the First Respondent, acting as a model litigant, should bring to the attention of the court the chronology of events and, in particular, in the written submissions whilst noting that the application contains no grounds of review and that no issue could arise under s.424A of the Migration Act 1958, as that section did not apply at the relevant time, referred appropriately to a decision of the Federal Court of Australia in Xie v MIMIA (1999) 95 FCR 543. It was submitted that in that case the court had expressed concerns about the delivery of a decision, albeit in that case it would appear that a hearing date was not even set by the Tribunal.

12. Counsel also referred the court to the decision of Cabal v MIMIA (2001) FCA 546 and, in particular, paragraphs 17 and 18 as follows:

    “17 It was submitted on behalf of the appellants that a notice in that form was invalid. Reliance was placed on Xie v Minister for Immigration and Multicultural Affairs [1999] FCA 1480 at [23], (1999) 95 FCR 543 where Cooper J said:

    "The RRT had no statutory power to impose conditions on the Applicant and his family as to the exercise of their statutory right to give evidence on the hearing of their application for review by imposing time limits within which an election to be heard must be made. Nor was the RRT entitled to make the assumption that failure to respond meant that the Applicants did not wish to attend on the hearing and give oral evidence as was their entitlement. Although it may have been administratively wearisome, the only course open to the RRT when it determined s 424 did not apply, was to set a date which it notified under s 426 and to proceed to a hearing on that date. It was the hearing which was the occasion on which the Applicant and his family were entitled to give evidence or not as they then chose. No internal administrative arrangements of the RRT could take away that entitlement of the Applicant and his family; certainly not without their informed consent communicated by them in a positive way to the RRT."

    18 In Xie, no hearing date had been set. That is a critical distinction between Xie and the instant cases, in which the letter from the RRT set a hearing date. Xie does not stand for the proposition that the RRT cannot require an Applicant to advise by a certain time whether he or she will take advantage of the specified hearing. It does stand for the proposition that the RRT is not entitled to cancel the hearing, and make a decision without a hearing, simply because the Applicant does not reply. However, in this case the RRT did not do that.”

13. It was argued that there was no jurisdiction in this instance and, as I understood the submissions, made for and on behalf of the First Respondent, that this application could be distinguished from the facts and circumstances confronting Cooper J in Xie on the basis that in this case at least a hearing date was set and a notice forwarded of that fact to the Applicant.

14. I should pause at this point to indicate that had the issue of delay not been raised in this matter, then the court would have some concerns about the procedure followed by the Tribunal.  It is a procedure which did not appear to be followed in more recent times and, in fairness, a procedure followed which pre-dated the delivery of the Federal Court decision of Cooper J in Xie.  Nevertheless, having embarked upon a process and procedure whereby a hearing date was fixed, to then deliver a decision ten days prior to that scheduled date is, at the very least, fraught with danger and may in other circumstances of itself at least provide a basis upon which it could be concluded that there has been a denial of procedural fairness.

15. Nevertheless, in this case, the chronology of events is important to understand as the First Respondent has submitted that even if the court were to be persuaded that on the face of the material, having regard to what I have described as procedural unfairness, that there has been a jurisdictional error, then it was submitted that relief should be refused in the exercise of the court’s discretion as a result of the undue, and what is submitted to be unexplained, delay in commencing the action in this court. 

16. In support of that submission, counsel has relied upon the discretion the court has in granting relief of a kind consistent with the relief under s.75(v) of the Constitution and it was submitted the court can rely upon the decision of Dranichnikov v MIMIA (2003) 197 ALR 389 at paragraph 33, Re: MIMIA Ex parte Applicants S134 (2002), (2003) 211 CLR 4 141 at paragraph 90 and, it was submitted, that delay remains a base on which relief may be refused, even if a jurisdictional error is established. Reference was made to SAAP v MIMIA (2005) 215 ALR 162 at paragraphs 80, 174 and 211 as follows:

    [80] The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary.⁵⁹ Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the Applicant or the Applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands.⁶⁰ Discretionary relief may also be refused if the Applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.

    [174] I also agree with Hayne J that such submissions as were advanced for the refusal of relief on discretionary grounds are unconvincing and should be rejected.

    [211] For the reasons given earlier, the decision reached by the tribunal is invalid. There is no basis, in this case, on which the undoubted discretion to refuse the relief sought could be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellants said to stand in their way. As Gaudron J said in Enfield City Corporation v Development Assessment Commission:¹⁵⁵

    Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less. [Footnote omitted]

    Even if the considerations advanced by the minister were relevant to considering whether relief should go for jurisdictional error constituted by a want of procedural fairness (a question I need not examine) they are not considerations that bear upon whether certiorari should go to quash what is found to be an invalid decision.”

17. It was submitted that in this instance there is plainly what is described as unwarranted delay which would justify the withholding of relief.  Reliance was placed upon The King v Commonwealth Court of Conciliation and Arbitration Ex parte Ozone Theatres (Australia) Limited (1949) 78 CLR 389 at 400. It was argued the delay of more than a year should ordinarily lead to relief being refused in the exercise of the court’s discretion. See Re: Commonwealth of Australia Ex parte Marks (2000) 177 ALR 491 at 495 496.

18. It was noted that the explanation, if any, for the delay is a matter of evidence and again counsel appropriately referred the court to the desirability and, indeed, in my view necessity of permitting the Applicant to give evidence in relation to the delay once that issue has been squarely raised for and on behalf of the First Respondent.  Accordingly, the Applicant gave evidence.

19. In his evidence the Applicant indicated that he had received a copy of the Tribunal’s decision in 1996.  It is not necessary for me to make a finding of a precise month in which the Applicant received the decision.  It is clear that the Applicant had apparently had some contact with another firm of solicitors, namely Adrian Joel and Co who, on a later date, appear to have acted for the Applicant in High Court proceedings to which reference will be made presently.

20. The Applicant’s evidence, however, in relation to when he first retained Adrian Joel and Co was, at best, vague.  At one point during the course of his evidence, the Applicant referred to first meeting Adrian Joel in 1990.  He then referred to not seeing or dealing with Adrian Joel until after he received the Tribunal’s decision which I take to be perhaps some time in 1996.  In any event, the Applicant otherwise denied seeing Adrian Joel in 1999.  What is evident from the material in the Court Book, upon which I am prepared to rely, is that the firm Adrian Joel and Co had commenced proceedings in the High Court of Australia for and on behalf of the Applicant and others and did so by the filing of a draft order nisi on 18 July 2003 (Court Book page 48).

21. It appears evident also from the Court Book and indeed an affidavit of Adrian Joel filed in the same proceedings (Court Book page 50) and sworn 14 May 2003, that instructions were received from the Applicant on an earlier date.  It is difficult for the court to identify with a degree of precision the exact date when Adrian Joel was retained to act for and on behalf of the Applicant.  However, I am prepared to conclude that it was on a date prior to July 2003 and at the very least I would conclude that the Applicant had been part of proceedings in the High Court at least as early as 2002.  So much appears evident from the affidavit of Adrian Joel who refers to what are now known as the Muin Li proceedings to which reference was made where the High Court handed down a decision on 8 August 2002.

22. Reference was made to the court on 25 November 2002 granting leave to the group of persons named in the schedule to the statement of claim in that matter, including the Applicant in these proceedings, to file an application in the court seeking an order nisi.  It seems clear to me from that brief chronology of events taken from High Court documents in the Court Book, that at the very least around 2002, the Applicant perhaps had retained the services of Adrian Joel and Co and certainly by 2003 had done so as is clearly evident from the documents.  That leaves open in terms of the delay that at the very least the period from 1996 when the Applicant received the decision of the Tribunal up to and including perhaps 2002, although counsel for the First Respondent was content to at least rely upon a period from 1996 to 1999 when the Applicant was questioned about further proceedings or commencing further proceedings with the assistance of Adrian Joel.

23. Whether the Applicant saw Adrian Joel in 1999 or later perhaps for present purposes is of no great significance because, in any event, a period of at least three years, I find, elapsed from the date when the Applicant received a copy of the Tribunal decision and when he took any action at all to seek review of that decision.  Ultimately, it is clear that the Applicant sought to be part of a class action before the High Court of Australia and it is noted that those proceedings were the subject of a notice of discontinuance dated 20 January 2004 (Court Book at page 54).  Hence, I conclude that at least on and from that date, and of course possibly on a date prior when instructions were given, the Applicant was aware that he then had no further proceedings pending in relation to the decision of the Tribunal dated 19 August 1996.

1. It is clear that there is then a further delay from January 2004 to October 2005, a period of almost one and a half years.  During that period the Applicant gave evidence, and I accept and it appears to be common ground, that he was in detention for a period 15 June 2004 to 1 July 2005.  The Applicant claims that he was not aware that persons in detention had a capacity to make applications for review of Tribunal decisions, albeit that the persons were, in fact, in detention.  This court, along with many other courts, is well aware of numerous instances where Applicants in detention file applications for judicial review.  There is no evidence before me to suggest that it would not be a proper inference to draw that persons in detention throughout the period 15 June 2004 to 1 July 2005 would not likewise have the opportunity to file applications.

2. The court was advised, although I do not have evidence precisely on the dates that the Applicant during his time in detention did, in fact, make application to the Minister, for the Minister to exercise a discretion pursuant to s.417 of the Migration Act. Even if I make some allowance for the fact that the Applicant was in detention for the period 15 June 2004 to 1 July 2004, that still leaves a period after release from detention to 7 October 2005 to be explained by the Applicant along with the earlier period which I have referred to as being at least a three-year period from 1996 to 1999 and perhaps even longer. During the course of his evidence the Applicant reiterated on a number of occasions that the reason why he had not pursued an application in this court or, indeed, in any other court, save and except for the proceedings in the High Court to which I have referred, that he was then acting on the advice of his lawyer.

3. Whilst he referred to the lawyer whose name was originally referred to as his agent, that is the firm Parish Patience, as acting for him up to and including the time when those proceedings, which I take to be the application to the Tribunal, were concluded, the Applicant thereafter seemed to refer to the firm Adrian Joel and Co as his solicitors and upon whose advice he acted and whose instructions he followed.  He gave that as an explanation for his inactivity during the relevant periods.  I reject that evidence.  In my view, it is implausible and unreliable evidence in the sense that I cannot accept that having been involved in High Court proceedings, that the Applicant would not at least be cognisant on proper advice that he had an outstanding and pending decision of the Tribunal which was, at the very least, not the subject of any court proceedings on and after the date of discontinuance of his High Court proceedings.

4. I am further satisfied that even if he joined other proceedings in the High Court and even if he had obtained advice in 1999, having received the Tribunal decision in 1996, he therefore had a period of almost three years of unexplained delay which I do not accept to be explained by simply acting upon solicitor’s advice.  That delay is a delay which I regard as considerable and I reject the evidence of the Applicant to the extent that he may have offered what might be described as an explanation for the delay.  I do not regard the explanation as being a reasonable explanation of a kind which would persuade this court to exercise its discretion to grant the relief, even if the court was satisfied that there was jurisdictional error. 

5. In this application, the delay, as I have indicated, is considerable.  It is considerable, even after making due allowance for the time period when the Applicant was involved in High Court proceedings.  It also remains considerable, even if I allow for the period of time in which the Applicant was in detention.  I am less inclined to make allowance for the period in detention given, as I have indicated, that it is not at all unusual for Applicants to make application for judicial review, despite the fact that they are in detention.  However, even if I do make allowance for that period of time, as I have indicated earlier, there are still the periods of time at the very least from 1996 to 1999 and further the period on and from 1 July 2005 to 7 October 2005 for which there has not been any or any reasonable explanation given by the Applicant and whose evidence, as I have indicated, I have rejected on the grounds that it is vague and uncertain and otherwise implausible.

6. Accordingly, applying the authorities to which reference has been made by the First Respondent, it is my view that it would not be appropriate in the exercise of the discretion the court undoubtedly has, to entertain this application and grant the relief sought.  As I have indicated, there may have been an argument of jurisdictional error, based upon what I can only describe as the unfortunate procedure followed by the Tribunal, in this instance, and having regard to the authorities which have been appropriately brought to the court’s attention by the First Respondent.  However, notwithstanding that there may be material upon which the court would otherwise conclude that a jurisdictional error has occurred, I am satisfied, having heard the evidence and considered the material before the court, that it would not be appropriate to exercise my discretion in favour of the Applicant.

7. It follows for the reasons given that the application should be dismissed with costs. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  23 August 2006