FEDERAL COURT OF AUSTRALIA

SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1816

SZGNO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 1869 OF 2005

GRAHAM J

5 DECEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be allowed.

2.         The orders made in the Federal Magistrates Court of Australia be set aside.

3.         A writ of prohibition issue directed to the First Respondent prohibiting her from acting upon the Second Respondent’s decision of 28 June 2001.

4.         Writs of certiorari and mandamus issue directed to the Second Respondent quashing the Second Respondent’s decision and requiring redetermination of the Appellant’s Application for Review according to law.

5.         There be no order as to costs in respect of the proceedings in the Federal Magistrates Court of Australia or of the appeal in this Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The Appellant, who has been identified for the purpose of these proceedings as SZGNO, was born in the People's Republic of China.  He arrived in Australia on 11 February 2000 and applied for a Protection Visa on 17 February 2000.  A delegate of the Minister refused his application on 28 February 2000, whereupon he applied to the Refugee Review Tribunal (“the Tribunal”) for review of the Minister's delegate's decision on 21 March 2000.  Following a hearing the Tribunal decided the matter adversely to the Appellant, affirming the decision of the Minister's delegate to refuse the Appellant a Protection Visa.

2                     In reaching its decision, the Tribunal had regard to matters contained in the Appellant's original application which was said to be inconsistent with evidence placed before the Tribunal.  In doing so the Tribunal failed to give the Appellant notice in writing in accordance with s 424A of the Migration Act 1958 (Cth) (“the Act”) providing particulars of the information that the Tribunal considered would be a reason or part of a reason for affirming the decision under review.  By failing to give the Appellant particulars as required by s 424A of the Act, the Tribunal fell into jurisdictional error.

3                     The Appellant says that he did not receive notice of the Tribunal's decision handed down on 18 July 2001.  This seems to me to be incorrect because it appears that on 30 July 2001 the Appellant, or an agent on his behalf, wrote to the Minister asking that the Minister consider exercising his discretion under s 417 of the Act to substitute for the Tribunal’s decision a decision more favourable to the Appellant than that reached by the Tribunal.  This application to the Minister would seem to clearly demonstrate knowledge by the Appellant of the terms of the Tribunal's decision to affirm the decision of the Minister's delegate.

4                     At the commencement of the hearing of the appeal, the Appellant said to me that after receiving the refusal letter he went to see his migration agent who indicated that writing to the Minister was the only option.  He said words to the effect that after they wrote he did not know what happened because he never received any confirmation in relation to the matter. 

5                     In June 2005 the Appellant was arrested by compliance officers from the Department.  The Appellant then filed an application for review of the Tribunal's decision in the Federal Magistrates Court on 15 June 2005.  The application was heard before the Federal Magistrates Court on 22 September 2005 and a decision was handed down on 30 September 2005.  The decision of the Federal Magistrate was that the application for constitutional writ relief should be dismissed and that the Appellant should pay the respondent's costs and disbursements of and incidental to his application fixed in the sum of $5200.

6                     From that decision the Appellant has appealed to this court by notice of appeal filed 5 October 2005, which has been superseded by an amended notice of appeal filed 22 November 2005.  The amended notice of appeal sets out four grounds of appeal. The first two suggest that there was a late supply of information to the Appellant by the Respondent referable to the hearing before the Federal Magistrates Court and a failure of a reasonable opportunity to deal with the Minister's submissions.  It seems to me, as submitted by the Minister, that the Appellant was provided with an opportunity to explain what it was that he wanted to say about his application.  I do not consider that either ground one or ground two has been made out.  The fourth ground of appeal relates to a time limit which is plainly of no relevance in the circumstances of this case and does not need to be considered.

7                     As it transpires, when the matter came before the Federal Magistrates Court the Minister conceded that the Tribunal's decision had been affected by jurisdictional error for failure to give an appropriate notice under s 424A of the Act.  The only relevant issue then became whether or not relief in the nature of constitutional writs should be ordered or such relief should be refused in the discretion of the court.  The learned Federal Magistrate dealt with these matters in his reasons for judgment as follows:

“17.    The applicant seeks writs of prohibition and mandamus.  The respondent submitted the Court has a broad discretion to deny mandamus to an applicant who has otherwise made out a good case. re Refugee Review Tribunal ex parte aala at 136.  The Court can in the exercise of its discretion refuse 'mandamus' if good reason is shown or (sic) the discretionary refusal:  R. v Kelly; Ex parte Victorian Chamber of Manufacturers per Fullicker J (sic) at 309 and also R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd at 400.  Delay can also be seen as an indicator of an election to waive complaint of any possible illegality:  R v Transport Regulation Board; Ex parte Main Carrying Co Pty Ltd  Similarly, the Court has a discretion to refuse prohibition even though the grounds have been established.  The respondent relied on the authority of Aala and in particular, the decision of Gaudron and Gummow JJ at 105-109, Kirby J at 136-137.  Gleeson CJ at 89 and Hayne J at 144 agreed with Gaudron and Gummow JJ. 

18:      The respondent submitted that the applicant did not protect his rights by pursuing review of the decision before the Federal Court as advised in the letter from the Tribunal dated 18 July 2001.  The action of pursuing discretionary relief from the Minister was an indication of the applicant's acceptance of the Tribunal's decision.  After such a substantial delay, it is now inappropriate to seek relief from a new judicial review.  The action of seeking substituted decision by the Minister under the operation of s 417 can only be granted if the Tribunal's decision had some legal effect.  The applicant was assisted at this time by a qualified migration agent who should have been aware that to pursue a substituted decision from the Minister was an acceptance that the Tribunal's decision was legally effective and which is contrary to the position the applicant now takes seeking to have the decision of the Tribunal set aside on the grounds of legal flaw.”

8                     Counsel for the Minister submits that the learned Federal Magistrate correctly decided the issue of discretion in the manner indicated above.  He supports his argument by reference to a passage from the judgment of Goldberg J in Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (“Daniel”) (2004) 205 ALR 202.  In that case, there had been an Affidavit filed in the High Court where the applicant, after referring to an order of dismissal of his application for review in the Federal Court, said:

“I was left with the only avenue of requesting the...[minister] to exercise his power under section 417.

This course of conduct, in my view, should properly be characterised as an indication by the applicant that he was prepared to accept that the tribunal's decision was correct and that he did not intend to challenge that decision further in the court.”

9                     Daniel was not a case where there was an acceptance by the Minister of jurisdictional error on the part of the Tribunal.  The precise legal status of a decision made by the Tribunal in excess of its jurisdiction pending an order quashing same has not, so far as I am aware, been the subject of any reported decision.  Counsel for the Respondent Minister has been unable to assist me by directing me to any decision dealing with that issue.  It is conceded by the Minister that the decision was certainly voidable, if not void, and liable to be quashed.

10                  The question arises as to whether or not the exercise of discretion by the Federal Magistrate has miscarried.  The relevant principles are to be found in House v R (1936) 55 CLR 499 at 505 in the joint judgment of Dixon, Evatt and McTiernan JJ where their Honours said:

“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in effect occurred.”

11                  In my opinion the learned Federal Magistrate has fallen into error in concluding that by making an application to the Minister under s  417 of the Act and the subsequent delay the Applicant thereby elected to accept the correctness of the Tribunal's decision. 

12                  The provisions of ss 163 and 160 of the Evidence Act (1995) (Cth) may incline one to the view that the letter from the Department to the Appellant of 21 December 2001 indicating that the Minister had declined to exercise his discretion under s 417 of the Act, had been received by the Appellant on or about 21 December 2001.  However, the fact is that the presumption which flows from the relevant provisions in the Evidence Act is simply that the letter was received at the address indicated on the letter, in this case a post office box number which had been originally provided by the Appellant to the Tribunal when he lodged his application for review.  He gave a home address, an address for service, and he also indicated the name and address of a migration agent.  The letter of 21 December 2001 was posted to the address for service.  Significantly, the Appellant notified the Tribunal that his postal address had changed to another address by a notice to the Tribunal received on 18 February 2001.  Thereafter, the Tribunal communicated with the Appellant at his new address. 

13                  It may well be that the application made to the Minister on 30 July 2001 for an exercise of discretion under s  417 of the Act gave as the Appellant's address his former postal address, which explains why the response of 21 December 2001 was sent to the former rather than the current address.

14                  Be that as it may, the transcript of the hearing before the Federal Magistrate includes a statement by the Appellant that he wrote to the Minister and had no response since then.  It is not disputed that this is a reference to the application to the Minister under s 417 to which the Appellant said he had not received a response.  There is no suggestion that the learned Federal Magistrate did not accept that contention by the Appellant and he was not called upon to give evidence before the Federal Magistrate of that fact.

15                  In my opinion, the exercise of discretion by the Federal Magistrate in declining the relief that otherwise would have flowed from the jurisdictional error miscarried.  I would, in the circumstances, order that the appeal be allowed and grant appropriate constitutional writ relief. 

Associate:

Dated:              13 December 2005

The Appellant appeared in person.