SZGPB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court (SZGPB v Minister for Immigration & Anor [2005] FMCA 1619) given on 28 October 2005. The decision of the trial Judge marked the commencement of a new round of litigation engaged in by the appellant. He had originally made an application for a protection visa on 8 January 2002. A delegate of that first respondent refused that application of 27 May 2002. The appellant lodged an application with the second respondent, the Refugee Review Tribunal ('the Tribunal') on 24 June 2002. 2 In the reasons for making the application for review, the appellant said, in answer to the question: 'Please tell us why you consider yourself to be a refugee': 'Reason I left India because opposition party worker were after my life. They are still looking for me. So many times they went to my house and threaten my parents to kill me if they see me again. Under same circumstances one of our party worker got killed in other area. If I go back they will find me and kill me.' 3 The appellant appointed a Mr Jivani under his own signature on the application to the Tribunal, as his agent to receive correspondence and a person whom the Tribunal would treat as a nominated representative. The appellant signed the usual declaration in Section E of the application form undertaking to inform the Tribunal of any changes to his personal circumstances while his application was being considered. There he also acknowledged that he understood that if he changed his contact details and did not inform the Tribunal of a new address, a decision could be made in his absence. 4 On 6 November 2002, the Tribunal wrote to the appellant and his agent, Mr Jivani stating inter alia, 'The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone,' but then invited the appellant to a hearing of the Tribunal to give oral evidence and present arguments in support of his claims and notified him that he could ask the Tribunal to obtain oral evidence from other persons. The hearing was fixed for 12 December 2002 at a time and place set out in the notice. 5 A Response to Hearing Invitation form was attached to that notice and was returned by or on behalf of the appellant having been signed by Mr Jivani on 13 October 2002 indicating that he wished to have a hearing, did not wish to have any witnesses or other persons attend and did not need an interpreter. On 11 December 2002, Mr Jivani asked the Tribunal to postpone his interview to a later date because the appellant was not able to attend on the next day due to acute back pain. A medical certificate in support was attached. 6 The Tribunal acceded to that request and on 16 January 2003 wrote to the appellant referring to the fact that on 11 December 2002 he had asked the Tribunal to postpone the hearing and advised him that a new hearing was to be held on 10 February 2003. That letter did not set out any information of that nature set out in the letter of 6 November 2002, that the appellant would be giving oral evidence or presenting arguments in support of his claims, or that he could ask the Tribunal, once again, to obtain oral evidence from other persons in order to set out a Response to Hearing Invitation form. It did say, as appeared in the original letter of 6 November 2002 that: 'If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.' 7 On 24 January 2003, the Tribunal wrote to the appellant again, with a copy to Mr Jivani advising that its letter of 10 February 2003 had become otiose due to circumstances beyond its control and fixed a new hearing date for 18 March 2003. 8 On 7 March 2003 the Tribunal again wrote to the appellate and Mr Jivani rescheduling the hearing for 14 April 2003. Lastly, on 31 March 2003, the Tribunal referred to its previous letter of 7 March 2003 and rescheduled the hearing date to 29 April 2003. That letter was sent with a contact officer nominated as such at the top of the letter, in these terms: 'CONTACT OFFICER: Lillian Flores.' The letter bore a signature, which is illegible, above the statement: 'for District Registrar.' 9 On 17 April 2003, it appears that Mr Jivani or someone on behalf of the appellant faxed to the Tribunal a further copy of the response to hearing invitation that had been signed by the appellant on 13 October 2002 and which bore a handwritten statement at its foot, apparently put on by the sender: 'Faxed on 12.11.02.' 10 Two changes had been made to this Response to Hearing Invitation. The first said that the appellant did need an interpreter and the second that the language was said to be Hindi. On 28 April 2003, the Tribunal received a fax from a new migration agent saying he was acting for the appellant, a Mr Sardar. Mr Sardar informed the Tribunal that he had been engaged that day as adviser of the appellant and requested that a short adjournment be granted to him because he had to study the whole case and to interview the appellant. 11 Mr Sardar sent a form 956 (authorisation of person to act and receive communication) with the letter which was an authority in a form authorising the Department of Immigration and Multicultural and Indigenous Affairs ('the Department') to communicate with Mr Sardar in respect of the appellant's case. The signature on the form 956 purporting to be the appellant's signature appears to be quite different to the other forms of signature which the Tribunal may have had in its records. 12 The CMS case notes of the Tribunal record that at 9.15 am on 29 April 2003 the new adviser was telephoned to inform him that the request for a postponement of the appellant's hearing had been denied; there was no answer and the phone rang out. It then records that on 9.35 am on that day the Member phoned the adviser and told him that the appellant's hearing was to go ahead and to pass the message on to the appellant. 13 On 5 May 2003, the Tribunal wrote to the appellant care of Mr Sardar advising him that the Tribunal had considered all the material relating to his case and had made its decision and would hand it down on 23 May 2003, which it did. The decision affirmed the decision not to grant a protection visa. In the course of the decision, the Tribunal member referred to material that had not been supplied for the purposes of the review by the appellant within the meaning of s 424A(3)(b) of the Migration Act 1958 (Cth) ('the Act'). It referred to the appellant's travel activities, as taken from his passport. 14 The reasoning in which the Tribunal concluded it would affirm the decision under review is contained in [33]-[38] of the decision: '33. Notwithstanding that the applicant has claimed that he was the subject of persecution because of his political activities in India, he did not provide any specific details of his claims at all, merely making general assertions about what he did and what might happen to him if he returns to India. Consequently, his claims were vague and generalised, and appeared to be generic, and I am unable to establish the relevant facts of the matter. I would have questioned the applicant about the specific details of his claims at a hearing if he had attended. Accordingly, I am unable to accept that the applicant's claims have any credibility or veracity. 34. The applicant's claims of his political activity were almost completely lacking in detail. His claims were general in nature avoiding any of the where, how, why and when. He did not produce any supporting evidence of his membership of the political party he claimed to have belonged to, nor of his specific responsibilities within that organisation, despite claiming to have been an active member and important member of the BJP in his local area. He did not provide any details at all of any of his activities in supporting candidates in local elections, when the elections might have occurred or of the violence and attacks he claimed to have suffered or feared at the hands of opposition Congress Party workers. 35. In light of this evidence, I am not satisfied that the applicant was the subject of persecution for his political activities in India or that there is a real chance of being the subject of persecution if he returns to India. 36. I am supported in this respect by the applicant's travel activities. The applicant was able to obtain a passport in March 1997 and a temporary business visa to travel to Australia in November 2001. He was able to leave India without difficulties and incident in November 2001. Having arrived in Australia on 24 November 2002, the applicant did not make a protection visa application until 8 January 2002, some 7 weeks after arriving in Australia. These are not the travel details of a person who claimed that he was of adverse interest to political opponents and the authorities, and who claimed to fear persecution in India. 37. Accordingly, I am not satisfied that the applicant has a well founded fear of persecution by reason of his political opinion or for any other Convention reason in India. Further, I am not satisfied that the applicant has a well founded fear of persecution in the foreseeable future if he was to return to India by reason of his political opinion or for any other Convention reason. CONCLUSION 38. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa.' 15 I note that in [36] of the Tribunal's reasons there is material that was not submitted for the purposes of the review, within the meaning of the authorities, especially SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. 16 Dissatisfied with this result, the appellant applied to this Court for judicial review by an application filed on 19 June 2003. The grounds for review in the application made to the Court on that occasion did not assert that the appellant had been aggrieved by the failure of the Tribunal to hear him give evidence. The grounds of review asserted, relevantly, that the Tribunal had affirmed the decision of the Department, the appellant was aggrieved by that; the Tribunal had failed to take into consideration the merits of the case; it had failed to act on proper principles of fairness and natural justice and it did not act in good faith to make the decision. 17 Grounds for those contentions were set out as being: the decision made by the Tribunal was an improper exercise of the powers conferred by the Act and the regulations and it involved an error of law, being an incorrect interpretation of the applicable laws and the incorrect application of the law to the facts. The application did not get any more specific than that. 18 On 7 December 2003, the appellant applied by affidavit to the Court for an adjournment of the hearing that had been fixed at 10.15 am on 8 December 2003 before Stone J. He said he was unable to attend the hearing and that a medical certificate annexed to the affidavit was provided as evidence. The medical certificate was in the form: 'This is to certify that the [appellant] is suffering from … or he/she has … He/she is unfit for any duties from 7/12/03 to 8/12/03' 19 A signature appearing to be that of a doctor was subscribed and, dated 7 December 2003. No medical condition was set out which warranted the assertion in the certificate. On 8 December 2003, Stone J ordered that the application be dismissed pursuant to O 32 r 2(1)(c) of the Federal Court Rules and that the appellant pay the then only respondent's costs, that respondent being the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'). 20 On 15 October 2004, the appellant applied for an extension of time in which to file and serve a notice of appeal from her Honour's decision. That application came before Emmett J on 11 November 2004, who dismissed it ordering the appellant to pay the respondent's costs in a fixed sum. The appellant then applied to the High Court of Australia for special leave to appeal, by an application filed on 4 February 2005. 21 On 27 April 2005, McHugh and Heydon JJ dismissed that application for leave to appeal. McHugh J, giving the judgment of the Court, said: 'The applicant is a citizen of India. He arrived in Australia on 25 November 2001 and lodged an application for a protection visa on 8 January 2002. On 27 May 2002 a delegate for the Minister for Immigration and Multicultural Affairs refused to grant the visa. The Refugee Review Tribunal affirmed that decision on 30 April 2003. The applicant did not attend the determination hearing and the Tribunal refused to grant the postponement requested by the applicant. On 8 December 2003, Stone J dismissed an application to have the Tribunal's decision set aside by the Federal Court. On 11 November 2004, Emmett J dismissed an application for an extension of time to appeal against Stone J's decision. The applicant submits that the Tribunal's decision was attended by jurisdictional error and that he was denied procedural fairness. He claims that the Tribunal did not take all relevant information into account and that the decision was affected by actual bias. The applicant has not included in the papers the reasons for the orders made by Stone J and Emmett J, and did not particularise these allegations. Upon examining the Tribunal's reasons, nothing amounting to denial of procedural fairness or actual bias is apparent. The applicant does not specifically claim that he was denied procedural fairness due to the refusal to postpone the determination hearing. In any event, such a claim could not succeed in light of the history of correspondence between the Tribunal and the applicant in relation to fixing a hearing date, and the fact that the Tribunal contacted the applicant's agent, who informed the Tribunal that he would inform the applicant of the refusal and that the applicant should attend the hearing. The application is out of time. There is nothing in the draft notice of appeal or summary of argument to suggest that either the Tribunal or the Federal Court erred in their findings. An appeal in this matter would have no prospect of success. Accordingly, the application must be dismissed. Under the power conferred by rule 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application. I publish our joint reasons.' 22 On 27 June, 2005, the appellant filed an application for judicial review in the Federal Magistrates Court. That application claimed a declaration that the decision of the Tribunal was not a privative clause decision, it was made in excess of the jurisdiction of the Tribunal and was consequently an order of no effect and sought mandamus, requiring the Tribunal to hear and determine the matter according to law. 23 The grounds for the application asserted an excess of jurisdiction or a constructive failure to exercise the jurisdiction by asking a wrong question regarding persecution and not taking into consideration 'the oral evidence that was given by the RRT hearing'. Quite how that could be alleged, given that there was no oral evidence, I do not understand. The next ground alleged that the Tribunal denied natural justice to the appellant because it was biased or that there was an apprehension of bias. The next ground alleged that there was an excess of jurisdiction, being a constructive failure to exercise jurisdiction in that the appellant's genuine claims were not assessed and that it was harsh of the Tribunal to have said its investigation had found that his claims had not been established without any investigation. 24 It was said that the Tribunal should not have said his claim was fabricated; that the country information gathered by the Tribunal and used in the decision was specific and not general; that the appellant was a political activist and generally persecuted in his previous country of residence, and the Tribunal was preoccupied and did not have a fresh look at his case. It then said that he had never been in the Federal Magistrates Court and therefore this was the first time there. References were then made to Plaintiff S157 v The Commonwealth (2003) 211 CLR 476. It can be seen that once again there was no reliance upon failure to have an oral hearing. 25 The matter came before his Honour on 28 October 2005. The substantial issue argued before his Honour was that the Tribunal ought not to have used the failure of the appellant to appear at the hearing set for 29 April 2003 as a basis on which it could proceed thereafter to determine the application for review on the papers. His Honour set out the reasons which the Tribunal gave and the account of what had happened in the review process. Paragraphs 15 and 16 of the Tribunal's reasons, in substance repeated the procedural history between 6 November 2002 and the letter of 31 March 2003 which I have set out above. Paragraphs 17 and 18 were in the following terms: '17. On 17 April 2003 the Tribunal received a response to hearing invitation, dated 13 October 2002, indicating that the applicant would be attending the hearing and that he did require an interpreter in the Hindi language. On 28 April 2003, at about 4 pm, the applicant's new migration agent tendered by facsimile a Form 956 authorisation of person to act and receive communication, and requested a postponement of the hearing as the applicant had appointed him as his new migration agent that day and he needed to study the whole case and interview the applicant. The Tribunal attempted to contact the applicant and the new migration agent to inform them that the postponement was refused. The applicant had not provided the Tribunal with a telephone, facsimile or email contact. The Tribunal finally contacted the migration agent by telephone on 29 April 2003, at about 9:30 am, and he was informed that the postponement was refused and that the applicant should attend the hearing. He was also informed that time for additional submissions would be discussed with the applicant and migration agent at the hearing. The migration agent informed that he would contact the applicant, inform of the refusal of the postponement and that the applicant should attend the hearing. 18. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.' 26 His Honour concluded that on the evidence before him that was an accurate account of the circumstances in which the appellant was refused the adjournment application in relation to the Tribunal's hearing on 29 April 2003. I agree with his Honour's conclusion both for the reasons that his Honour gave, brief as they were, and from my own independent review of that evidence. His Honour also set out at [13] that on 10 November 2004, prior to the hearing at which Emmett J dismissed the application for an extension of time in which to file a notice of appeal, the Court had received a facsimile request from the applicant stating: 'Unfortunately from this afternoon I did not feel good. I am not physically not fit for appear before your Honour abovementioned hearing date tomorrow (Medical Certificate attached).' 27 His Honour found that the medical certificate stated that the appellant was suffering from severe viral upper respiratory tract infection and would be unfit for work/school/Court attendance from 10/11/04 to 12/11/04. Search has not revealed any reasons given by either of Emmett or Stone JJ for their decisions. 28 The applicant filed a detailed argument against the Minister's notice of motion that had been filed in the Federal Magistrates Court for summary dismissal as an abuse of process (a similar submission was made orally by the Minister to me today). Then on 14 October 2005, the appellant sent an outline of submissions to the Federal Magistrates Court containing two specific contentions which were agitated before his Honour and re-argued with more detail by counsel, who, for the first time appeared for the appellant before me. 29 In substance, what was asserted in the submissions considered by his Honour was that the invitation to a hearing in the letter of 31 March 2003 did not comply with the statutory requirements of the Act as it failed to give a prescribed notification period to the applicant. That ground has not been pressed, as I understood the argument today before me. Next the appellant submitted that the Tribunal had failed to give a prescribed notification period under s 425A(3) to him and therefore by reason of the decision of the High Court in SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 there was a jurisdictional error. 30 His Honour noted that the Minister's submissions pointed out that the contravention of s 425A(3) alleged then was that the appellant had got more than the prescribed statutory period of notice. His Honour then noted submissions on the merits that the applicant had made to him. His Honour considered and rejected the argument that there had been a non-compliance with s 424A in relation to the material in [36] of the Tribunal's reasons. However, I think that argument was well-founded and the trial judge erred in rejecting it. His Honour dismissed the argument on the basis that [36] was not 'integral' to the Tribunal's reasoning process. In my opinion, that is unlikely to be correct because of the way in which the Tribunal expressed its reasons. In [36], it stated that its earlier conclusion (that in light of the consideration that the material put forward by the applicant for review did not justify a finding that he was the subject of persecution for his political activities or that there was a real chance of him being persecuted if returned to India) was supported by the travel activities of the appellant which led to the final conclusions in [37] and [38]. 31 In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs, [2006] FCAFC 2 Allsop J at [233], with whom Weinberg J agreed at [155], said that if it could be shown that a reason given by the Tribunal for affirming the decision under review which failed to follow the procedure mandated by section 424A was entirely independent of another basis which did not fall foul of any jurisdictional error, the independent basis could support the decision under review notwithstanding the other jurisdictional error. 32 The appellant also argued to his Honour that he had not been given an opportunity to give evidence at the hearing before the Tribunal. His Honour concluded that it was open to the Tribunal to refuse the request for the adjournment that had been made by Mr Sardar and, inter alia, adopted the opinion expressed by McHugh and Heydon JJ in their reasons for refusing special leave which I have set out above. 33 An applicant for review is bound by the way in which his agent acts on his behalf even though the agent may do things that cause the applicant to be unaware of what is happening. As Jacobson J said in SZEYH v Minister of Immigration and Multicultural and Indigenous Affairs [2006] FCA 93 at [25]: 'In NADK of (2002) v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 a Full Court dealt with a claim by an applicant that his migration agent did not notify him of the hearing. The Full Court concluded at [16] that "the asserted fact that the applicant was unaware of the Tribunal's hearing was of no legal relevance".' 34 I do not see any error in what his Honour said. However, the appellant argued that because of the irregularity of what purported to be the appellant's signature on the form 956 sent in by Mr Sardar on 28 April 2006, the Tribunal ought to have realised that the appellant had not authorised Mr Sardar to receive communications and then in some way it should then have not merely communicated with Mr Sardar or perhaps not communicated with him at all but sought to communicate with the appellant. A number of hurdles appear to this argument. 35 The first involves the fact the appellant, on the material before the Court, namely that I have set out, appeared to authorise Mr Sardar to make the application. There is no evidence that his signature is a forgery. I accept the signature looks different. I have already dealt with an application to adduce further evidence on appeal and rejected it for reasons I gave earlier today. Accordingly, on the material before me, in the conduct of this appeal, there is no evidence that the signature, albeit that it was different to the ordinary signature appearing on other documents at least that the Tribunal had before it, would have, in the ordinary course, been looked at by the Tribunal as being or be thought by it to be anything other than regular. 36 Secondly, the appellant sought an adjournment from the Tribunal which was rejected. Communication of the rejection was made to the agent. If Mr Sardar, was unauthorised, to be the appellant's agent because the signature on the form 956 was a forgery or if the Tribunal had accepted the reasoning which I am asked to accept that a glance at the form 956 would have shown Mr Sardar had put forward a signature that could not be relied on as that of the appellant, then communications with him should have been of no moment to the Tribunal. The fact is Mr Jivani was previously notified of the hearing and had sent back, as recently as 17 April 2003, a form of response to an invitation to hearing indicating that the appellant knew of the hearing and wished to give evidence. Mr Jivani had not sought any adjournment. 37 A party is not entitled to blow hot and cold about a position such as that which is relied on here. What the appellant is seeking to do is approbate the application for an adjournment as being made on his behalf but reprobate its source, namely Mr Sardar. Albeit this is an application for judicial review, it is difficult to understand why a person in the position of the Tribunal, having received an application for adjournment apparently made on behalf of the appellant and having communicated the refusal of that application to the person who made it, should be bound to go behind that communication and communicate directly with the appellant in the circumstances of the notification of the application at about 4 o'clock in the afternoon before the hearing and its consideration and rejection early the next morning. 38 If the appellant is entitled to rely on the application for adjournment at all, I think he must be taken as being bound by communication to Mr Sardar by the Tribunal rejecting the application. The appellant gave the Tribunal no independent immediate means of communicating with him, that is by telephone or otherwise, apart from by letter, as to the result of the application for adjournment. If it were refused, the proceeding was going to take place as, indeed, it did. 39 As Isaacs J observed giving the judgment of the Court in Craine v Colonial and Mutual Life Fire Insurance Company Limited (1920) 28 CLR 305 at 326: '"Waiver" is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions (see per James L.J. in Pilcher v. Rawlins (7 Ch App 259, at pp. 268 et seqq)). It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has "approbated" so as to prevent him from "reprobating"--in English terms, whether he has elected to get some advantage to which he would not otherwise have been entitled, so as to deny to him a later election to the contrary (see per Lord Shaw in Pitman v. Crum Ewing ((1911) AC 217, at p. 239)). His knowledge is necessary, or he cannot be said to have approbated or elected.' 40 This, of course, is not a case of election per se but it is a case in which the appellant sought to get from the Tribunal the benefit of having his new migration agent act for him, apparently on the evidence, by instructing that agent to seek an adjournment. Such was Mr Sardar's request of 28 April 2003. 41 I think that if the appellant wants to rely on that request having been made for an adjournment, as having been one which the Tribunal should have taken notice of, he must accept that it was reasonable for the Tribunal in the circumstances to take Mr Sardar as being the person authorised to receive communications in response to that request, including a rejection and to leave it to him to communicate with the appellant about it. Therefore, in addition to the reasons that his Honour gave for rejecting the argument concerning the refusal of the adjournment for these additional reasons above, I would also refuse that ground of appeal. I hasten to add that I agree with his Honour's analysis and the analysis for rejecting that ground as an independent ground. 42 The appellant argued that the letter of 31 March 2003 was not signed by a person within the meaning of s 407 of the Act, being a Registrar of the Tribunal, a Deputy Registrar or other officer of the Tribunal. In my opinion this ground is without substance. The letter stated that there was a contact officer, Ms Flores, who I infer, pursuant to my powers under the Evidence Act 1995 (Cth) from the form of the document was authorised to send the document. It is a business record. It records accurately that Ms Flores was an officer of the Tribunal as it stated. She was the person who sent the document or on whose behalf it was sent. Therefore it was a document that emanated from an officer of the Tribunal. I reject the ground of appeal that asserts to the contrary. 43 Next it was argued that there was non-compliance with the statutory regime prescribed by Division 4, Part 7 of the Act in relation to the way in which the letter of 31 March 2003 notified the hearing. It is necessary to set out the relevant sections of the Act, namely ss 425, 425A, 426A and 427(1): S 425 'Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it: or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it: or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. S 425A Notice of invitation to appear (1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. (2) The notice must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period. (4) The notice must contain a statement of the effect of section 426A. S 426A Failure of applicant to appear before Tribunal (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled. S 427 Powers of the Refugee Review Tribunal etc. (1) For the purpose of the review of a decision, the Tribunal may: (a) take evidence on oath or affirmation; or (b) adjourn the review from time to time; or (c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.' 44 The appellant argued that the letter dated 31 March 2003 was one which had to comply with the scheme mandated by a combination of ss 425A and 426 in this way. 45 It was accepted by the appellant that the original letter of 6 November 2002 did comply with the statutory scheme. He argued that, in effect, what was required was that whenever the Tribunal rescheduled, before any hearing had taken place or any oral evidence had been given, the hearings or time for the appellant to give oral evidence, complete compliance with this regime was necessary. Accepting the argument that the Tribunal had, in the original letter, given an invitation to the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review by its letter of 6 November 2002, the appellant argued that section 425A(1) created an additional requirement. 46 The argument ran that an invitation having once been given, the Tribunal was required to give the applicant for review notice of the day and the time and place at which the applicant is 'scheduled' to appear. The notice had to comply with the requirements, inter alia, of s 426A and 425A(4). By force of s 426, each notice scheduling a hearing under s 425A had to include a notification to the applicant that he or she is invited to appear before the Tribunal to give evidence and must set out the effect of s 426(2), namely that the applicant has within 7 days of being notified under s 426(1) to give the Tribunal written notice that he or she wants the Tribunal to obtain oral evidence from a person or persons named in the notice. 47 These steps had been followed in the letter of 6 November 2002 but they were not followed in any of the subsequent letters and, in particular, in the letter of 31 March 2003. The appellant also relied on the word 'rescheduling' in s 426A(2) which picked up the word 'scheduled' in s 425A(1) in contradistinction to the use of the word 'adjourn' in s 427(1)(b). 48 The appellant says that by failing to notify the appellant in the letter of 31 March 2003 of the effect of s 426(2) the Tribunal fell into the same kind of jurisdictional error as occurred in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. It was said that one of the purposes of the requirement of giving notice was to ensure that the natural justice to which the appellant was entitled by force of s 422B(1) would be provided and any failure to adhere strictly to this code constituted a jurisdictional error. 49 The Minister responded by arguing that in SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [7]-[8] Bennett J had explained why a failure to comply strictly with a 14 day notification period when a rescheduling or adjournment occurred before an appellant had actually given evidence at a hearing was the exercise of power under s 427(1)(b) of the Act. Her Honour applied a remark of the Federal Magistrate in that case that it was clear that the Tribunal had seen itself as exercising its adjournment power in rescheduling when video conferencing facilities were not available due to technical difficulties on the day and at the time appointed for the hearing. 50 I think that the present facts are different in that the re-schedulings that have occurred in the history of the appellant's notifications all happened well before any hearing had been appointed, apart from the first which was done at his request on the day before the hearing. I am fortified in this view by the fact that the language of ss 425A and 426A use the expression 'scheduled and rescheduling' rather than the word 'adjourned' as in s 427(1)(b). 51 Bennett J did not, of course, have this argument before her when deciding the case to which I have just referred. In my opinion there is some substance in the argument, but I do not propose to decide it as I think it is appropriate to decide this matter on a different ground. I have already referred to the substantial delays which this matter has had in its progress. The appellant, for whatever reason, sought an adjournment without appearing before the Tribunal on 29 April 2003. I understand the argument that that occurred because his migration agent asked for an adjournment, it was refused and the appellant was not able to attend, whether because he was not told of the adjournment having been refused, or was unable to make it to the hearing that day for other reasons. 52 Then, when the matter first came before this Court, the appellant put forward material to Stone J seeking an adjournment which gave no basis in the medical certificate on which the Court could exercise its discretion and he left it to the Court to do as it might. Thereafter, the appellant delayed a period of over 10 months before filing an application seeking leave to appeal. No explanation is before the Court for that delay. 53 Once again it appears from the material accepted by his Honour in evidence, that an application was made to Emmett J on medical grounds that an adjournment should be had of that application. Once again that was refused. Then almost 3 months later, on 4 February 2005, an application for special leave to appeal was filed in the High Court and after that was refused another 2 months delay occurred before an application was filed before the Federal Magistrates Court. 54 Although the appellant asserts that he wants to give evidence to the Tribunal and did in fact accept its invitation to do so on two occasions by the responses sent in by Mr Jivani, there is nothing in the material before me to suggest any reason for the unexplained delays and the failure of the appellant to look after his own interests, particularly after the first unfortunate experience before the Tribunal of not having someone present when the hearing was set down. To then treat this Court, on two occasions, as not requiring him to attend, even when he had, accepting that he did have, some kind of medical problems, is, in my opinion, a substantial factor to be weighed in considering whether the time of the Court should be taken up by further applications or appeals. 55 I have taken into account that this is the first occasion on which the appellant has been legally represented and competently so, but the delays that had occurred up to the time at which the matter was heard by his Honour below were such that I can see no reason why, in the exercise of the discretion to grant prerogative relief under s 39B of the Judiciary Act 1903 (Cth), I should do so. The period of delay was not explained before his Honour beyond what was in the appeal papers. His Honour's independent reason for refusing to grant relief, albeit on the assumption contrary to what I have found, at least on the s 424A point, that there was a jurisdictional error, seems to me to be perfectly well warranted. 56 I do not think there was any injustice whatsoever in the failure to tell the appellant of the travel matters, the subject of [36] of the Tribunal's reason. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, it was held that where jurisdictional error occurs, it is not a proper basis, in the exercise of discretion, to refuse relief because to do so would be in the opinion of the Court futile or that the case is so weak that it does not warrant appellate intervention. 57 However, the critical passages in that case, for present purposes are what the majority said about the issue of discretion in a case where, unlike that case, there had been delay or other circumstances which would actuate the exercise of the discretion. McHugh J said, 215 ALR 183-184 [80]: '[80] The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.' 58 Hayne J, with whom Kirby J on this point expressly agreed 215 ALR 203 [174], said at 215 ALR 212 [211]: 'For the reasons given earlier the decision reached by the tribunal is invalid. There is no basis, in this case, on which the undoubted discretion to refuse relief sought should be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellant said to stand in their way.' 59 Counsel for the appellant argued that what had been said by Gaudron and Gummow JJ in Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at 117 [82]-[83] was apposite and that I should have regard to the fact that in that case a 4-month delay was not seen as disqualifying the prosecutor from relief to which she would otherwise have been entitled after jurisdictional error had been established. 60 In my opinion the facts in that case are quite remote from the facts in the present case. In this case it seems to me that the delays, in the history that I have set out, are substantial. They have no substantive meritorious explanation that would weigh the exercise of my discretion to ignore them to allow points which might be argued in favour of the appellant, including an error I found under s 424A, and the possible constructional error of some nicety in relation to the notification provisions, to be addressed. Both the error in relation to s 424A and possible error to which I have adverted are not, in my opinion, an injustice sufficient to overcome the delay of the appellant in this case. 61 I can take into account in considering that there is substantial unexplained delay or inadequately explained delay after many applications to the Court as in this case, as a matter to affect the exercise of my discretion. However, I am not going to do that in this particular case. 62 In my opinion there is a public interest in finality of litigation. It is important that litigants know that Courts are here to administer justice fairly and impartially, but once their cases have been heard or the procedures of the law have been put in motion and the litigants have had adequate opportunity to appear and present their cases and do not take the opportunity up for reasons which are not substantial enough, it is wrong to put the other party or parties to further expense by allowing the litigation to proceed. 63 It seems to me that it would be quite unfair to the respondent Minister, in this case having been engaged now in the fifth separate application to the Court, that the appellant has made, bearing in mind there were applications that were disposed of by Stone J, Emmett J the High Court and the trial Judge below and now by me, to decide this case on new arguments which are presented on the appeal for the first time to suggest errors in what had happened when the matter was heard by the Tribunal in 2003. 64 I see no error in the way that his Honour would have exercised his discretion had there been a jurisdictional error. But for the reasons that I have given, I am of the opinion that no adequate explanation for the delay has been given and that the interests of justice would not be served having regard to the delays with or without any such explanation by granting prerogative relief. I would refuse to exercise my discretion even were I satisfied that there were an additional error, to the one I have identified, in the new argument about notification sought to be raised. 65 I do not think that this case is a proper vehicle in which those arguments should be raised. The appellant had the opportunity to put fully his case to the Tribunal, in writing, in his application for review. He did not do so. He had the opportunity to attend and give evidence to the Tribunal, albeit that there is some explanation for his not doing so, the fact is he did not give his account to the Tribunal in writing even after the scheduled but unattended hearing. Maybe that was a result of his being unrepresented; that will enable him to have his remedies against whoever gave him bad advice. 66 In my opinion, the consequences of that bad advice should not be visited in the circumstances of this case on the respondents. The explanations, such as they are, that have been given do not satisfy me that in the exercise of my discretion I should grant relief. In my opinion the appeal should be should be dismissed with costs. 67 The Minister has asked that I fix $5500 as the amount of the costs to which, in an order for costs, she would be entitled. I am of the opinion that that is a reasonable sum and it is appropriate, in the exercise of my discretion, that I do fix it. Accordingly the orders I make are the appeal is dismissed; the appellant is to pay the costs of the first respondent in the sum of $5500.