SZNKV v Minister for Immigration

[2009] FMCA 805

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNKV v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 805

MIGRATION – Refugee Review Tribunal – practice and procedure – applicant’s adjournment application where first respondent’s written submissions were filed and served late and raised a new issue.

Migration Act 1958 (Cth), s.424

SZNAV v Minister for Immigration & Citizenship [2009] FMCA 693

Applicant: SZNKV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 831 of 2009

Judgment of: Emmett FM

Hearing date: 10 August 2009

Date of Last Submission: 10 August 2009

Delivered at: Sydney

Delivered on: 10 August 2009

REPRESENTATION

Applicant appeared in person assisted by a Bengali interpreter

Counsel for the Respondent: Mr M. Cleary

Solicitors for the Respondent: Ms K. Dunn, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 831 of 2009

SZNKV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The applicant has sought an adjournment of today’s scheduled hearing on the basis that the first respondent filed written submissions on 4 August 2009 which were received by the applicant on 5 August 2009, being last Wednesday. Today is Monday. The submissions were neither filed nor served in accordance with the Court’s directions made on 21 April 2009.

2. The submissions raise, for the first time, an issue that has arisen recently in this Court, as to the application of s.424 of the Migration Act 1958 (Cth) to a standard form letter sent by the Refugee Review Tribunal acknowledging receipt of an applicant’s application and in circumstances where those letters invite an applicant to send immediately any documents or additional material that the applicant may wish the Refugee Review Tribunal to consider.

3. That issue has been the subject of two conflicting decisions in the last two weeks of this Court, one of Federal Magistrate Raphael, the other from Federal Magistrate Smith.  It is potentially an issue that may arise in many cases that come before this Court.

4. I am informed today that the Minister is expecting an appeal to be filed in respect of the decision of Federal Magistrate Raphael in SZNAV v Minister for Immigration & Citizenship [2009] FMCA 693 today and that a Notice of Motion seeking expedition is to be filed shortly.

5. The issue is raised by counsel for the first respondent in his written submissions and is dealt with somewhat comprehensively in those written submissions. It is an issue of some complexity and the practical reality is that the applicant has had Thursday and Friday only, of last week, to consider that issue and take advice. The applicant has had no other notice from the first respondent of the issue and I am not aware that the issue has been raised by the applicant in any situation other than through the first respondent’s submissions.

6. The Court asked the first respondent whether, in the circumstances, the first respondent consents to the adjournment application made by the applicant. After obtaining instructions, counsel for the first respondent informed the Court that the first respondent opposes the adjournment. 

7. Counsel for the first respondent did not submit that the first respondent would suffer any prejudice if the hearing was adjourned. Moreover, and in any event, the applicant’s adjournment application was prompted by the conduct of the first respondent in raising the s.424 issue for the first time in submissions served late on the applicant, resulting in the applicant having only 2 clear days to consider the s.424 issue.

8. Two days is clearly not sufficient for an unrepresented non-English speaking applicant to be able to consider the complexities raised by the first respondent’s written submissions. This is particularly so where the consequences for the applicant are potentially extremely serious. In the circumstances, I am somewhat surprised by the attitude of the Minister in opposing the adjournment application.

9. In my view, the interests of justice demand that the applicant be afforded an opportunity to consider the first respondent’s written submissions on the new issue of s.424 of the Act and to seek advice, should he wish to do so. I propose to grant the applicant leave to file a further amended application, any evidence and submissions in response.

10. In the circumstances, if ultimately the applicant is unsuccessful, any costs incurred by the Minister today should not be part of any costs application made by the Minister if, ultimately, the Minister is successful in the proceeding.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  19 August 2009