SZVEL v Minister for Immigration and Border Protection
[2017] FCA 1287
•6 November 2017
FEDERAL COURT OF AUSTRALIA
SZVEL v Minister for Immigration and Border Protection [2017] FCA 1287
Appeal from: Application for an extension of time: SZVEL v Minister for Immigration & Anor [2017] FCCA 1630; SZVEL v Minister for Immigration & Anor (No 2) [2017] FCCA 1792 File number: NSD 1063 of 2017 Judge: BESANKO J Date of judgment: 6 November 2017 Catchwords: MIGRATION – consideration of an application for an extension of time within which to seek leave to appeal from an order of the Federal Circuit Court refusing an application for an adjournment of a show cause hearing – consideration of an application for judicial review of a decision of the Federal Circuit Court dismissing the applicant’s application for judicial review of a decision of the Tribunal – where applicant was given notice of the original decision of the Minister for Immigration and Border Protection’s delegate by registered post – where the applicant purported to lodge an application for review with the Tribunal which was outside the prescribed period – where the Tribunal notified the applicant by registered post that it did not consider his application for review to be valid and invited him to make any comments – where the applicant’s postal address contained a misdescription being one letter in the name of the street – where the address was otherwise properly described – where the Tribunal did not receive any comments from the applicant – where the Tribunal decided that it did not have any jurisdiction in the case of the applicant’s application for review. Legislation: Migration Act 1958 (Cth) ss 412, 494C
Federal Circuit Court Rules 2001 (Cth) r 44.12
Migration Regulations 1994 (Cth) reg 4.31
Cases cited: House v The King (1936) 55 CLR 499 Date of hearing: 1 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms C Hilary of DLA Piper Australia Counsel for the Second Respondent: The second respondent entered a submitting notice, save as to costs ORDERS
NSD 1063 of 2017 BETWEEN: SZVEL
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
6 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The application for an extension of time within which to seek leave to appeal dated 3 July 2017 be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
This is an application for an extension of time within which to seek leave to appeal dated 3 July 2017 from an order made by the Federal Circuit Court on 23 May 2017. On that day, that Court refused an application by the applicant for an adjournment of a show cause hearing in relation to his application for judicial review under r 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) and made an order dismissing his application for judicial review. The Federal Circuit Court delivered reasons for refusing the application for an adjournment (SZVEL v Minister for Immigration & Anor (No 2) [2017] FCCA 1792) and separate reasons for dismissing the application for judicial review (SZVEL v Minister for Immigration & Anor [2017] FCCA 1630).
It is convenient to start with a chronology of the relevant events. The applicant arrived in Australia on 17 November 2011. He lodged an application for a Protection visa with what is now the Department of Immigration and Border Protection on 6 December 2011, in which he alleged a fear of persecution in Fiji on the basis of his race and political opinion. On 6 September 2012, a delegate of the Minister refused the applicant’s application for a Protection visa. The applicant was notified of the decision by letter dated 6 September 2012 and by reason of s 494C(4) of the Migration Act 1958 (Cth) (the Act), the applicant was taken to have been notified of the decision on 17 September 2012. By reason of s 412(1)(b) of the Act and reg 4.31 of the Migration Regulations 1994 (Cth), an application for review by the Tribunal had to be made by the applicant on or before 15 October 2012. The applicant did not make an application for review by the Tribunal, or purport to do so, until 26 June 2014.
The Tribunal considered that the application for review was not a valid application and wrote to him inviting him to make any comments by 5 August 2014. The letter was addressed to the applicant’s authorised recipient, but omitted one letter from the name of the street. The address was otherwise properly described and the omission of the one letter in the name of the street may have resulted from a misdescription of the street name in the applicant’s application for review made to the Tribunal (see Federal Circuit Court appeal book p 69). The Tribunal did not receive any comments from the applicant and, on 28 August 2014, the Tribunal decided that it did not have jurisdiction in the matter.
On 29 September 2014, the applicant lodged an application for judicial review in the Federal Circuit Court.
The Federal Circuit Court held a show cause hearing under r 44.12(1). That rule provides as follows:
Show cause hearing
(1)At a hearing of an application for an order to show cause, the Court may:
(a)if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or
(b)if it is satisfied that the application has raised an arguable case for the relief claimed--adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c)without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2)To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.
After refusing the adjournment, the primary judge decided that the applicant had an arguable case for the relief claimed, but then proceeded to make an order dismissing the application for judicial review under r 44.12(1)(c).
As I have said, the application for an extension of time within which to seek leave to appeal was lodged on 3 July 2017. If any of the orders made on 23 May 2017 were interlocutory, then the applicant’s application was out of time by 25 days and, if they were final, then the applicant’s application was out of time by 18 days.
The order dismissing the application for judicial review was a final order (r 44.12(1)(c)). The decision to refuse the adjournment might be considered interlocutory, but I would be disposed to treat it as a ground of an appeal against the final order. The applicant’s explanation for the delay is that he was involved in attending to sick relatives who were involved in visits to hospitals.
An extension of time within which to appeal or to seek leave to appeal will be refused if the appeal or application for leave to appeal is without merit. I have reached the conclusion that that is the case with the applicant’s application.
The applicant’s application for judicial review contained the following grounds:
1.The Refugee Review Tribunal failed to Accept my application and failed to Request Explanation.
2.I ask the Honourable Court to give me copy of the file as I believe that my application for Review was originally lodged on time by Salim Buklls of Liverpool who died in November.
3.I will provide more information to the Court after I get copy of my file.
4.The Case officer Mrs Vee asked me to buy ticket and returned home.
5.I asked that my application before Refugee Review Tribunal be accepted
The applicant applied for an adjournment of the show cause hearing on the basis that his young brother had passed away very recently and he was very distressed by that circumstance. The primary judge refused that application. The primary judge held that the applicant had an arguable case based, as far as I can tell, on the problems associated with the address in the Tribunal’s letter dated 11 July 2014. However, he went on to resolve that issue and to conclude that it was appropriate to make a final order dismissing the application for judicial review. As to whether the Tribunal’s letter dated 11 July 2014 had discharged the Tribunal’s natural justice obligations, the primary judge said (at [12]-[13]):
There was also an issue concerning whether the Tribunal’s letter to the applicant of 11 July 2014, putting him on notice of the apparent fact that the review application was out of time, had been sent to the correct address and whether it had been effective to discharge the Tribunal’s natural justice obligations concerning that issue. It is to be observed that the letter in question went to one of the two addresses given by the applicant in his application for review. The addresses were essentially the same address with one letter missing in one of them. I infer that they were in fact the same address. The Tribunal used one of the spellings when it should have used another. The applicant has not sought to show that the misspelling was of any particular significance or had any consequence for him.
In the circumstances, I do not conclude that there has been any denial of natural justice: Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 (per French CJ, Gummow, Hayne, Crennan and Bell JJ at 640 [35]); SZOFE v the Minister for Immigration and Citizenship (2010) 185 FCR 129 (per Emmett J at 137 [30]; per Buchanan and Nicholas JJ at 145-146 [66]-[69]).
The primary judge dismissed the application on the basis that there had been no denial of natural justice and no jurisdictional error on the part of the Tribunal had been demonstrated.
His Honour noted that should he be wrong in that conclusion, he would accept the submissions of the first respondent that remitting the matter to the Tribunal for rehearing would be futile as the Tribunal could not reach any conclusion other than the one it did reach, that it lacked jurisdiction in the matter by reason of the applicant’s late lodgement of his application for review.
In his application for an extension of time within which to seek leave to appeal, the applicant identified the following matters:
1.His Honour Judge Cameron failed to give me extension of time in spite of providing to the Court compelling and compassionate circumstances, among others, the shocking death of my brother in Fiji.
2.I still believe the decision of the Tribunal is wrong.
In his Draft Notice of Appeal, the applicant identified the following matters:
1.His Honour failed to accept my request for an extension of time due to the shocking death of my brother and I provided the evidence and proper request to the Court for an extension.
2.I was not aware of the application being dismissed until I received a letter from DLA Piper dated 13 June 2017.
3.I have not yet received the Judgment of His Honour Judge Cameron.
In deciding whether to grant an adjournment, the primary judge was exercising a discretion. The exercise of a discretion can only be successfully challenged on the basis of an error of the type identified in House v The King (1936) 55 CLR 499. The primary judge’s reasons for refusing the adjournment were as follows:
1.The Court is not minded to grant the applicant’s application for an adjournment. I accept that the applicant’s loss of his younger brother would be very distressing but I am not persuaded, and certainly there is no evidence, for instance, of a medical, psychiatric or psychological nature, which leads me to think, that he is rendered incapable of presenting his case to the Court.
The primary judge was required to form a judgement as to whether or not to grant an adjournment. He did that and I see no error in his approach and none was identified or arose out of the submissions.
There is no error in the Tribunal’s conclusion that any application for review by the applicant had to be made by 15 October 2012. The applicant did not make an application for review until some considerable time later. The Tribunal correctly concluded that it did not have jurisdiction in the matter. I think the primary judge reached the correct conclusions with respect to the Tribunal’s letter dated 11 July 2014 (see [11] above). In any event, I think the primary judge was correct to conclude that remitting the matter to the Tribunal for rehearing would be futile.
The application for an extension of time within which to seek leave to appeal must be dismissed with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 6 November 2017
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