FEDERAL COURT OF AUSTRALIA

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702

MIGRATION – application for leave to appeal dismissed

SZHTI & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 41 not disturbed

SZHTI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 173 OF 2006

GYLES J

24 MAY 2006

SYDNEY

THE COURT ORDERS THAT:

1.      The application for leave to appeal be dismissed. 

2.      The applicant pay the costs of the respondent assessed at $600.

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

REASONS FOR JUDGMENT

1                     [Earlier:  We will deal with the matter as SZHTI.  I have indicated that although the substance of the visa application was by the husband of the party who is in Court, she was an applicant for a visa, and was a party before the Refugee Review Tribunal and below.  It seems to me that for relevant purposes, she can put what she wishes to put in support of the application, having been at least a signatory to the application for leave.]

2                     This is an application seeking leave to appeal against orders and judgment of Federal Magistrate Driver dated 19 January 2006 (SZHTI & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 41) dismissing an application for judicial review on the grounds that it failed to disclose an arguable case for the relief claimed pursuant to r 44.12 of the Federal Magistrates Court Rules.  The affidavit in support of the application for leave to appeal has two paragraphs.  The draft notice of appeal attached to the affidavit repeats the substance of those two grounds. 

3                     The first paragraph of the affidavit in support of the application is:

‘I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme.  I was denied natural justice at the Federal Magistrates Court.’

4                     That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.

5                     The second paragraph of the affidavit in support of the application is:

‘RRT made a procedural error when conducting review on my application as the Tribunal failed to invite my wife to appear before the Tribunal.  My wife was listed as the secondary applicant and should also be given an opportunity to present our case at the hearing.  The Tribunal only sent letter to me but not to my wife.’

6                     The solicitor for the Minister pointed out that the application for review form in the Tribunal included the following in Section A:

‘Unless an included applicant advises the Tribunal otherwise, the Tribunal will communicate with Applicant 1 or his or her authorised recipient.  Applicant 1 must inform each applicant of the contents of any communication from the Tribunal and reply to the Tribunal for them.’

In Section F of that form SZHTI who is ‘Applicant 1’ signed a statement including the following:

‘If this application includes more than one applicant, I undertake to inform each other applicant of the contents of any communication from the Tribunal and reply to the Tribunal for them.’

In the same section there is also the following declaration by SZHTI’s wife (the party before the Court today) as ‘Applicant 2’:

‘Unless I advise the Tribunal otherwise, I authorise the Tribunal to communicate with Applicant 1 or his or her authorised recipient about this application.’

7                     It was then pointed out by the solicitor for the Minister that in the copy communication to SZHTI directed to the correct address there is a note emphasised in bold at the beginning of the letter as follows:

‘Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them.’

The party who is presently before the Court was named. 

8                     The party before the Court has said that her relationship with her husband was in difficulty at the time of the Tribunal proceedings and that she does not think that he told her about the matter until after the event. 

9                     It seems to me that, without any question, the procedure laid down by the Tribunal has the result that this party authorised the Tribunal to communicate with her through her husband in this case.  If he failed to communicate with her, that is not something which can be sheeted home to the Tribunal and would not amount to any defect in the procedure.

10                  The solicitor for the Minister submitted that this point was not raised in this form before the learned Federal Magistrate.  However, as it has no substance, that has no consequences in the present case. 

11                  In order for leave to appeal to be granted, there needs to be an arguable prospect of success.  There is none in the present case.  The application for leave is dismissed.  I order that the applicant pay the costs of the respondent assessed at $600.

Associate:

Dated:              6 June 2006