SZOLD v Minister for Immigration & Anor [2010] FMCA 499 (16 July 2010)

Last Updated: 21 July 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOLD v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 499

MIGRATION – Review of Refugee Review Tribunal decision – application for an extension of time for judicial review under provision, s.477 of the Migration Act 1958 (Cth) – application dismissed.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZOLD”.

Migration Act 1958, ss.66, 91X, 137J, 411, 412, 426A

Hasan v Minister for Immigration & Citizenship [2010] FCA 375 SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79

Applicant:

SZOLD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1159 of 2010

Judgment of:

Lloyd-Jones FM

Hearing dates:

24 May, 10 June 2010

Date of Last Submission:

10 June 2010

Delivered at:

Sydney

Delivered on:

16 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr L.J Karp

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the First Respondent:

Mr T. Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application filed on 24 May 2010 is dismissed.
(2) The Applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1159 of 2010

SZOLD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 24 May 2010, an urgent application was brought before the Court claiming that the Refugee Review Tribunal (“the Tribunal”) in a decision dated 19 June 2008, RRT case number 0802564, being a decision of Tribunal member Antoinette Younes, had erred in finding that it had jurisdiction to review a decision of a delegate of the Minister dated 7 April 2008. The particularisation of this error is that the notification of the delegate’s decision to the Applicant did not comply with s.66(2)(d)(iv) of the Migration Act 1958 (Cth) (“the Act”). The Applicant applied to this Court for an extension of time with which to file an amended application for judicial review. The Applicant also sought an interlocutory injunction to prevent his removal from Australia until 28 days after this Court had given judgment in this matter.
2. On that occasion the parties sought time to prepare submissions which was granted and the matter was set down for hearing on 10 June 2010. As the Applicant was not being held in immigration detention and the department had not issued any notification of its intention to remove the Applicant from Australia, the application for the interlocutory injunction was not granted.
3. At the hearing on 10 June 2010, Mr Karp of counsel advised the Court that the Applicant had been refused a Bridging visa by the department and was in immigration detention. He had made another application for a Bridging visa but this was again refused and this decision was affirmed by the Tribunal on 7 June 2010. A separate application seeking review of the Tribunal’s decision was to be lodged but that had not been done at the time of the hearing before this Court.
4. Consequently, the sole issue before this Court was should the Applicant be given an extension of time to lodge an application seeking judicial review for the Tribunal’s decision made on 9 June 2008. The extension of time application was advanced on the basis of the decision :Hasan v Minister for Immigration & Citizenship [2010] FCA 375 per North J. Here, His Honour dealt with an appeal from the Federal Magistrates Court on the proper construction of s.66(2)(d)(iv) of the Act. Of particular significance was whether the Minister is required to notify of all places where a review of a decision to grant a visa may be lodged and the effect of the failure to include all places at which an application can be lodged upon a prescribed period for lodging an application for review.
5. Both counsel advised the Court that the decision of his Honour North J was pending before the Full Federal Court and was scheduled to be heard within the next few weeks. Consequently, the issue for this Court was that if I granted an extension of time I would be required to await the outcome of the Full Court decision as it would be inappropriate to proceed to decide the matter where the Full Court was going to decide the same issue in the immediate future. The alternative approach was to reserve my decision until the outcome of the Full Federal Court decision and then proceed. I elected to adopt the latter approach. I did not grant the interlocutory injunction for the following two reasons. Firstly, the Applicant had not received any notification of the department’s intention to remove him from the territory. Furthermore, in the event that an issue of removal arose, it was possible for a judicial officer on a duty roster to hear an urgent application.
6. On 30 June 2010 the Full Federal Court handed down its decision in SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79 which addressed the issue of construction of s.66(2)(d)(iv) of the Act. Furthermore, the decision was determinative of whether the Minister is required to notify of all places at which an application for review with the Refugee Review Tribunal can be lodged. His Honour Emmett J stated at [28]-[30]:
   • [28] The only requirement of s 66(2)(d)(iv) is that a notification must state where an application can be made. That requirement was satisfied in the present case. The Applicant had given the Minister an address in Harris Park where she resides. There was no suggestion that the Applicant would not receive a letter sent by registered mail to that address. In those circumstances, there was nothing unfair or inconvenient in telling the Applicant that she could lodge an application for review in Sydney or Melbourne. There has been no suggestion that the Applicant suffered any injustice by reason of the failure on the part of the Minister to state that an application for a review of the Delegate’s Decision could have been made at a registry of the Administrative Appeals Tribunal in Perth, Brisbane or Adelaide.
   • [29] In the present case, the Minister notified the Applicant of the Delegate’s Decision in a manner that was calculated to inform her fully of everything she needed to know in order to make a decision as to whether to apply to the Tribunal for review of the Delegate’s Decision. She decided to do so and made an application that complied with s 412(1). It was made in the approved form and it was given to the Tribunal within the period of 28 days after the Applicant was taken to have been notified of the Delegate’s Decision.
   • [30] In any event, even if the provision were to be properly construed as requiring a statement of every place where an application for review could be made, the same reasoning leads to the conclusion that any failure, in the present case, to comply strictly with the procedural requirements of the Act and the regulations was not of a nature that would render the application lodged by the Applicant on 2 June 2009 a nullity. It is not possible to glean, from the language of the provisions in question, an intention on the part of the Parliament to invalidate a process simply because an applicant was not told that an application for review could be lodged at a place which was of no relevance or significance, so far as that particular applicant was concerned. While the Parliament may be taken to have intended that compliance with the requirements of s 66(2) would discharge the Minister’s obligation with respect to the giving of timely and effective notice of a decision, it does not follow that it was the intention that any departure from those steps would result in invalidity, without consideration of the extent and consequences of the departure (see Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 at [35]).

Then at [36] his Honour states:

[36] The jurisdiction of the Tribunal was properly enlivened in the present case. To the extent that the decision in Hasan’s Case suggests otherwise, that decision should not be followed.

7. In the judgment of Buchanan and Nicholas JJ, their Honours stated at [64]:
   • [64] We find ourselves in disagreement with North J in Hasan insofar as his Honour stated a general rule about the requirements of s 66(2)(d)(iv). The present case is an example of the necessity to test the question whether jurisdictional error has resulted from an alleged failure to comply with a statutory requirement by reference to the particular circumstances of the case in question. It is not necessary to decide in the present case whether the failure to draw to the attention of a potential applicant for review the facility of lodging an application at a registry of the AAT in Brisbane, Adelaide or Perth would constitute a jurisdictional error in some circumstances. It does not do so in the present case.

Then at [68] their Honours state:

[68] If a potential applicant in Queensland, South Australia or Western Australia was denied an effective or adequate opportunity to make an application for review (despite being told they could do so by mail or fax to a registry of the RRT in Sydney or Melbourne) because they were not told their application might be accepted by the AAT in Brisbane, Adelaide or Perth, it is conceivable that there might be some room for the argument advanced in this case. Whether or not that was so would depend on all the circumstances of such a case. It is neither necessary nor desirable to attempt to answer such questions in the abstract. However, the possibility that some potential applicant might in some circumstances be denied an adequate or effective opportunity to exercise a statutory right to initiate a review of a delegate’s decision does not have the consequence for which the applicant contends as a general rule. So far as her own circumstances are concerned, that proposition cannot be sustained either. In our respectful view the analysis in Hasan cannot be reconciled with the principle stated in SZIZO. Hasan should not be followed on this point..

8. I believe there are a number of distinguishing features in respect of the matter currently before this Court. The Tribunal’s decision clearly indicates that the delegate decided to refuse to grant a visa on 7 April 2008 and notified the Applicant of the decision and his review rights by letter dated 7 April 2008. The Applicant applied to the Tribunal on 28 April for a review of the delegate’s decision. The Tribunal found that the delegate’s decision was an RRT-reviewable decision under s.411(1)(c) of the Act and that the Applicant made a valid application for review under s.412. The Tribunal made its decision in accordance with s.426A of the Act because the Applicant was invited to attend a hearing on 19 June 2008 to give oral evidence and present argument in support of his review claims. The Applicant was advised that if he did not attend the hearing listed on that date and a postponement was not granted, the Tribunal could make a decision on the Applicant’s case without further notice. The Applicant did not respond to the hearing invitation and failed to attend the hearing on the 19 June 2008.
9. The Tribunal in its reasons also noted that the Applicant has not made any Convention-related claims and clearly stated that his purpose for applying for a Protection visa was to enable him to make an application for Ministerial intervention. In information available to the Tribunal, the Applicant had stated that he has not suffered any harm in Bangladesh nor did he fear returning. Consequently, the Tribunal found that the Applicant had not suffered any Convention-related harm and there is not a real chance of any such harm occurring to the Applicant in the reasonably foreseeable future. The Tribunal noted that it was the Applicant’s intention to seek Ministerial intervention which would be a matter for the Minister to determine. Whereas it was the Tribunal’s task to consider if the Applicant is a person to whom Australia has protection obligations under the Refugee Convention. The Tribunal’s finding was that it did not. The only explanation advanced for the delay in filing an application in this Court seeking judicial review the Hasan point per North J. Otherwise, there is no explanation for the delay. As the Hasan point is no longer binding on this Court and a decision has been made by the Tribunal on the merits of the Applicant’s claim, an argument promoting the point that there was an alleged intention to invalidate a decision of the Tribunal on the basis of the Hasan point no longer exists.
10. Consequently, the application for an extension of time to file an application in this Court for judicial review should be dismissed with costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 16 July 2010