SZIXM v Minister for Immigration and Citizenship

Application for judicial review to Federal Magistrates Court 5 The appellant filed an application for review with the Federal Magistrates Court on 6 June 2006. The application alleged thereby that the appellant had been denied procedural fairness and natural justice by the Tribunal in that her request for postponing the hearing due to her health reasons was unreasonably refused by the Tribunal. Scarlett FM found on 17 October 2006 that this ground of review was not made out.

Appeal to the Federal Court 6 The appellant did not attend the Court for the hearing of the appeal. Her name was duly called by the Court officer outside the Court without any response. The following documentary material was thereupon tendered by counsel for the Minister, namely: (i) the Federal Court's notification as to the time and place of the hearing of the appeal sent to the appellant's current address and dated 12 January 2007; (ii) the notification to similar effect by letter of the Minister's solicitors dated 12 February 2007; (iii) a further couriered notification delivered 22 February 2007 to the same address. 7 In relation to the grounds raised in the appellant's notice of appeal filed on 3 November 2006, the Minister submitted to the Court in any event that the Federal Magistrate did not ignore the appellant's claim to have been denied natural justice, and was not otherwise 'unfair' in the conduct of the hearing or the findings made in respect of her grounds of review. The reasons for judgment of Scarlett FM reveal that the appellant gave evidence as to the basis for her request for postponement of the Tribunal hearing and his Honour considered the grounds of review and the evidence in support of those grounds. His Honour's findings were open to the Federal Magistrate based on the evidence before the court below. 8 Counsel for the Minister rightly submitted that the task of the Federal Magistrate was not to review the fairness of the decision made by the Tribunal, but rather whether the decision was made under the Act, and more specifically whether the Tribunal member's exercise of discretion under s 426A was properly exercised: I was referred in that regard to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-7 and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]. 9 As to the Tribunal's decision to proceed to decision-making in the absence of the appellant, that course was duly open to the Tribunal member. In that regard, the material before the Court discloses that: (i) the Tribunal invited the appellant to the Tribunal hearing in accordance with s 425A of the Act; so much was apparent from the following course of action that was put in place: (a) the invitation dated 8 March 2006 gave the appellant notice of the day, time and place of the hearing before the Tribunal; (b) the invitation contained a statement as to the effect of s 426A of the Act; (c) the period of notice given by the Tribunal was more than that prescribed by regulation 4.35D, which required 14 days notice after the date of receipt, such receipt being deemed by s 441C(4)(a) of the Act to be seven working days after the date of the invitation; the invitation was made on 8 March 2006, and the hearing was scheduled for 10 April 2006; (d) the invitation was dispatched by prepaid post to the last address for service provided by the appellant to the Tribunal in connection with the review. (ii) having complied with s 425A of the Act, the course taken was sufficient for the purposes thereof: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [14]; (iii) further, having complied with the statutory requirements provided for in ss 425A and 441A of the Act, the Tribunal was subjected to no obligations of procedural fairness at common law in respect to that invitation. In that regard, the Minister referred to s 422B of the Act and the following authorities: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62; SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 at [17] and Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 231 ALR 630 at [39]; (iv) moreover having invited the appellant to the Tribunal hearing, the Tribunal was entitled to proceed to determine the matter under s 426A of the Act when she did not attend; there was no evidence that the Tribunal member's exercise of discretion to proceed to make its decision in the absence of the appellant miscarried to any extent.

Conclusion 10 Irrespective of the appellant's failure to appear at the hearing of the present appeal, the Minister's submissions were plainly correct. It followed that the appeal was necessarily required to be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Solicitor for the First Respondent: Blake Dawson Waldron

Date of Hearing: 27 February 2007