SZILQ v Minister for Immigration & Anor

In the case of SZILQ v Minister for Immigration & Anor, the applicant sought judicial review of a decision by the Refugee Review Tribunal (RRT) in relation to their application for a protection visa. The applicant argued that the RRT had not properly considered certain evidence and that the decision was flawed. The applicant also sought to distinguish the case from SZEPZ by referencing a provision in the Migration Act that imposes a 90-day target for the determination of a proceeding before the RRT. The court was required to decide whether the RRT was required to repeat any procedural steps in the proceedings on a review that occurred prior to the remission of a matter. The court found that the provision did not indicate that the review proceeding was to be deemed to have been initiated afresh and that the resumed proceeding was to be conducted in disregard of all the proceedings leading to the decision which was quashed.

The court held that the only intention of the amending provision was that a 90-day target was to continue to run in such a case. The court further held that even if the implications were not open, and even if it might appear unlikely in many cases that the resumed review could be concluded within the literally described 90-day period, the court was unable to find in the provision an indication that the review proceeding which the Tribunal was required to continue by reason of a court order was to be deemed to have been initiated afresh. The court also held that the terms of the order for a writ of mandamus did not give rise to any duty to perform duties which had previously been validly performed in the review proceeding. The court found that the RRT was not required to repeat any procedural steps in the proceedings on a review that occurred prior to the remission of a matter.

In the present case, the method prescribed for the purposes of giving documents to a person in immigration detention was found in reg.5.02 of the Migration Regulations 1994 (Cth). The court held that the Tribunal had discretion to choose any appropriate method of communicating to the applicant's agent, including by facsimile to the number shown on her letterhead, if it thought that this was "appropriate". The court accepted the submission that in the present case, the repeated tendering to the Tribunal by the applicant's agent of her office facsimile number, and her failure to voice any objection to its communicating with her at that number, amounted to that number being "provided to the Tribunal by the recipient in connection with the review".

The court dismissed the application and extended the time for making the application so as to include 15 December 2006.