SZAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 153

FEDERAL COURT OF AUSTRALIA

SZAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 153 SZAZY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR NSD 2219 of 2005 GRAHAM J 6 FEBRUARY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2219 OF 2005

BETWEEN: SZAZY

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: GRAHAM J

DATE OF ORDER: 6 FEBRUARY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Leave is granted to the Applicant to proceed with an application for leave to appeal from the decision of the Federal Magistrates Court of Australia of 10 November 2005, notwithstanding the failure of the Applicant to file a formal application for such leave. 2. The application for leave to appeal made ex tempore is dismissed. 3. The Applicant pay the Respondent's costs fixed in the agreed amount of $2,500. 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 2219 OF 2005

BETWEEN: SZAZY

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: GRAHAM J

DATE: 6 FEBRUARY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter has had a somewhat chequered and unusual history. The Applicant arrived in Australia on 8 March 2003. On 9 April 2003, he applied for a Protection (Class XA) visa. That application was refused by the Minister's delegate on 9 May 2003. On 30 May 2003, the Applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of the Minister's delegate's decision. The Tribunal decided to affirm the decision of the Minister's delegate not to grant a Protection visa to the Applicant. That decision was notified to the Applicant by a letter from the Tribunal dated 11 September 2003 which was, under s 441C(4) of the Migration Act 1958 (Cth) ("the Act"), taken to have been received on or about 20 September 2003. 2 On 12 November 2003, the Applicant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the Tribunal's decision. On 22 June 2004, an amended application was filed by the Applicant in the Federal Magistrates Court. That application came before a Federal Magistrate on 19 October 2004. The Applicant did not appear either in person or by his solicitor. In the circumstances, the court ordered that the application be dismissed and that the Applicant pay the Respondent Minister's costs in the sum of $5650. The reasons for judgment of the Federal Magistrate of 19 October 2004 referred to the non appearance of the Applicant notwithstanding that the matter had been allowed to stand in the list for a half an hour from the appointed hearing time and to the fact that no evidence had been received by way of affidavit from the Applicant. The Federal Magistrate further noted that no submission had been filed on the part of the Applicant. 3 The amended application filed 22 June 2004 nominated two grounds of review: "1. The Refugee Review Tribunal '(the Tribunal') made a jurisdictional error by failing to properly consider the Applicant's claims Particulars (a) The Applicant made certain claims against the Commission for Investigation of Abuse of Authority ('CIAA'). The Tribunal failed to properly consider those claims and instead considered the information as to the functions and purpose of the CIAA according to material published by the CIAA on its own web site. (b) The Tribunal was obliged to consider the information put to it by the Applicant as well as information collected by the Tribunal, independent of the Applicant, as to the actual work of the CIAA. The Tribunal failed to do so. 2. The Tribunal made a jurisdictional error by failing to properly consider an essential claim made by the Applicant. Particulars (a) The Applicant claimed that the motives of the police for arresting the Applicant relate to his political activities. The Tribunal failed to properly examine this claim. The Tribunal instead examined a different issue and found that the essential reason for police interest in the applicant was not the Applicant's anti-king involvement. (b) The Tribunal should have examined whether the Applicant's arrest, a claim accepted by the Tribunal, was influenced by the Applicant's political activities. It is not sufficient to find that the essential reason for police interest is not political involvement. The Tribunal was obliged to consider whether the arrest was influenced by political reasons and whether the Applicant received differential treatment because o his political activities. The Tribunal failed to do so." 4 On 14 September 2005, the Applicant filed a notice of motion in the Federal Magistrates Court seeking an order that the Court's orders of 19 October 2004 be set aside and that the matter be reinstated in the list. 5 That application came before the Federal Magistrates Court on 27 October 2005 and was decided adversely to the Applicant on 10 November 2005. The orders of the Court were that the application be dismissed and that the Applicant pay the Respondent Minister's costs fixed in the sum of $2000 for which four months to pay was allowed. Part 16 Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 ("the Rules") empowers the Federal Magistrates Court to vary or set aside a judgment or order after it has been entered if the order was made in the absence of a party. In this instance, the order of the Federal Magistrate on the Application for review of the Tribunal's decision was made in the absence of the applicant and was entered on 19 October 2004. 6 Notwithstanding the power to do so, the Federal Magistrate declined on 10 November 2005, to set aside his earlier orders of 19 October 2004. He did so in exercise of his discretion to grant or refuse relief under Rule 16.05(2)(a) of the Rules. In his carefully reasoned decision, his Honour said at [49]: "I am not satisfied that the applicant has been frank with the Court. I am certainly not satisfied that he has given any explanation for a delay of eleven months in commencing proceedings to set aside a decision made by this court. Unwarranted and unexplained delay is a ground for denying discretionary relief, even where an applicant may be able to show jurisdictional error in the substantive decision. The applicant, through the solicitors who assert in their correspondence that they have acted on his instructions, chose to seek relief by way of an application to the Minister under s 417 in November 2004 instead of applying to set aside the decision made the previous month when he did not appear at the hearing. He cannot now be heard to seek relief through the court after this delay." 7 As it transpires, the Applicant was represented in the proceedings in the Federal Magistrates Court commenced on 12 November 2003 by Simon Diab & Associates, Solicitors & Migration Agents. On 16 April 2004, that firm wrote to the Applicant reporting on a mention of the application for review on 8 April 2004. On 18 June 2004, it would appear that Mr Diab telephoned the Applicant and had a conversation with him to the following effect: "Diab: Your matter is in Court next Tuesday because we haven't filed an amended application. The Court can strike your matter out because you have not complied with the orders. Applicant: Can we file the application now? Diab: Well, you haven't paid the dollars, $1,100.00 yet. I can't brief the barrister without receiving the money first. Applicant: I don't have the money right now. Can you do the application. Diab: I'll draft the amended application and I'll let you know what happens in Court." 8 As mentioned earlier, the amended application was filed on 22 June 2004. 9 On 19 October 2004 the solicitors for the Applicant forwarded a facsimile to the solicitors for the Minister stating: "We refer to the above matter and note that it is listed for hearing at 2.15 pm today. We advise that we no longer act for the Applicant in these proceedings. We also advise that we have not received any further instructions concerning the above proceedings. Please contact Mr Simon Diab of this office if you require any further information concerning the above." 10 As mentioned earlier, the application for review was dismissed by the Federal Magistrates Court on 19 October 2004 pursuant to Order 13.03(A) of the Rules. On 22 October 2004 the solicitors for the Minister forwarded a copy of the order filed to Simon Diab & Associates. Notwithstanding the facsimile of 19 October 2004 advising that they no longer acted for the Applicant, Simon Diab & Associates wrote to the Minister on the Applicant's behalf on 11 November 2004, seeking a substitution by the Minister of a decision more favourable to the Applicant than the decision handed down by the Tribunal. That letter included a paragraph reading: "The applicant then applied to the Federal Magistrates Court, however, this application was dismissed. We understand that there are outstanding costs payable to the DIMIA regarding those proceedings. We are instructed that the applicant will attend to payment of those costs when required." 11 In support of the application to set aside the order made by the Federal Magistrate on 19 October 2004, the Applicant swore an affidavit on 13 September 2004 which included the following: "2. I have today received a copy of some orders from Simon Diad (sic) & Associates dated 19/10/2004 which I have never seen before... 5. I was not aware before today that my application to this Honourable Court had been withdrawn or dismissed with a costs order of $5,650 against me. …" 12 What is presently before the Court is an application for leave to appeal from the decision of the Federal Magistrate of 10 November 2005 seeking to set aside the decision of the Federal Magistrate of 19 October 2004 and if leave be granted, the hearing of that appeal. At the end of the day the question is whether or not the exercise of discretion by the Federal Magistrate of 10 November 2005 miscarried. 13 In this regard it is important to remember what was said by Kitto J in Lovell v Lovell (1950) 81 CLR 513 in the High Court at 532: "It may be ... that the restraint to which a court of appeal should submit itself is less stringent where the exercise of discretion is determinative of legal rights than it is where the discretion relates to points of practice or procedure. But even in the former case the court of appeal must guard against reversing a discretionary decision merely because it would itself have decided the matter differently; it is not justified in substituting its own judgment for that of the primary judge unless it is clearly satisfied that his judgment was erroneous." 14 I am not satisfied that the judgment of the Federal Magistrate of 10 November 2005 was erroneous. Indeed, had it fallen to me to decide the matter I would have exercised my discretion in the same way as did the learned Federal Magistrate and for the same reasons. 15 In the course of his submissions the Applicant, who seems to me to be reasonably fluent in the English language, said through his interpreter words to the effect: "He [referring to the applicant's solicitor] said that he applied to the Minister and appealed the case." 16 I must say that I share the learned Federal Magistrate's concerns as to whether or not the applicant has been frank with the court. 17 For a grant of leave to appeal to be made it is necessary for the Applicant to establish that the decision of the Federal Magistrate was attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave were refused. Before the Federal Magistrate, the Minister conceded that the Tribunal had committed jurisdictional error in two, if I may say so, relatively minor respects. One was a reference to the arrival by the applicant in Australia on his own passport and with his own visa, he not having been detained by the authorities prior to his departure from Nepal, a matter to which he referred in his application for a Protection visa but which had not been the subject of a notice from the Tribunal in accordance with section 424A of the Act. 18 The other matter where jurisdictional error had been conceded, was the failure to give 14 days notice of a change in the hearing time from 10.00 am on 22 July 2003 to 10.30 am on that day. 19 Notwithstanding these what I have described as minor jurisdictional errors, the learned Federal Magistrate declined to set aside his earlier order dismissing the application for review in the circumstances outlined above. In my opinion this is not a case where leave to appeal should be granted. Even if leave had been granted, I would be disposed to dismiss the appeal for substantially the same reasons as the learned Federal Magistrate dismissed the application before him. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham .