FEDERAL COURT OF AUSTRALIA

SZHSY v Minister for Immigration and Citizenship [2007] FCA 793

SZHSY v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 520 OF 2007

STONE J

22 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant pay the costs of the respondent fixed in the sum of $800.

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

REASONS FOR JUDGMENT

1                     On 19 March 2007 a Federal Magistrate made interlocutory orders dismissing an application seeking reinstatement of a judicial review application that his Honour had dismissed on 12 March 2007.  The application had been dismissed because the applicant had failed to appear.  Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) the applicant now seeks the leave of this Court to appeal from that decision.

2                     The application for reinstatement was accompanied by a short affidavit made by the applicant and upon which he was cross-examined.  The Federal Magistrate found the applicant to be ‘a frank and honest witness’ who had ‘simply made a mistake’ about the hearing date; he had thought it was 13 March.  His Honour held that this mistake was not a sufficient reason for the Court to vacate its dismissal order.  His Honour added:

Even if I were wrong in that view the judicial review application does not raise a serious question to be tried. 

3                     In expressing this view his Honour adopted the Minister’s submissions in which the applicant’s claims were summarised and which submitted that there was no substance to the only ground of review put forward by the applicant namely, an alleged breach of s 424A of the Migration Act 1958 (Cth).  His Honour also rejected an allegation of bias that was made in a statement that the applicant put to the Court.

4                     At the hearing of this application the applicant’s only submissions related to the substance of the Tribunal’s decision on his application.  As he appeared for himself, it is not surprising that he did not address the issue of whether his Honour’s discretionary decision should be set aside.  He submitted that his applications before the Tribunal and the Federal Magistrate had both been rejected ‘on the spot’ without listening to his claims.  This submission must be unequivocally rejected.  It is simply not correct. 

5                     The Tribunal has provided reasons for its decision that cover 14 pages.  It is perfectly clear that the Tribunal considered not only the written application and material the applicant had submitted but also that the applicant was invited to attend a hearing before the Tribunal.  At that hearing he was given  an opportunity to say what he wanted to say in support of his claim.

6                     It is also not the case that the Federal Magistrate dismissed his application without consideration.  At the first hearing before his Honour the applicant did not appear.  At the second hearing on 19 March he appeared before the Federal Magistrate.  He provided an affidavit on which he was cross-examined and it is clear that his Honour accepted that the account he gave was true.  It is apparent from his Honour’s reasons, which extend for almost five pages, that his Honour took his statement into account although he did not accept that it was a sufficient reason to reinstate the application.  Moreover, his Honour actually reviewed the substance of the application although he would have been entitled to disregard it. 

7                     While his Honour reviewed the substantive issues (and I can see no error in his conclusions) it is quite clear that his refusal to reinstate the application for judicial review was based on his view that the applicant’s reason for not attending the hearing did not warrant this relief.  This decision was made in the exercise of his Honour’s discretion.  It is well established that this Court will not interfere with such an exercise of discretion unless there are reasons to conclude, in accordance with House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ, that the discretion miscarried. 

8                     In this case I see no evidence that the Federal Magistrate acted upon a wrong principle, took into account irrelevant matters, failed to consider relevant matters or made a mistake of fact.  There is no basis for interfering with his Honour’s exercise of discretion and for that reason the application for leave must be dismissed with costs.

Associate:

Dated:         24 May 2007