SZFHV v MIMA & Anor [2008] HCATrans 172 (18 April 2008)

Last Updated: 30 April 2008

[2008] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S264 of 2006

B e t w e e n -

SZFHV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 APRIL 2008, AT 11.59 AM

Copyright in the High Court of Australia

MR J.A.C. POTTS: May it please the Court, I appear for the first respondent. (instructed by Clayton Utz)

GUMMOW J: There are no oral submissions by the applicant. Yes, Mr Potts, what do you want to say? This is a case of delay, is it not?

MR POTTS: Yes, your Honours. There were findings concurrently at the first instance and on appeal in the Federal Court that there was an unwarrantable and unexplained delay of three years and both the learned federal magistrate and Mr Justice Edmonds in the Federal Court would have and did in fact both refuse relief on that basis, inter alia, with findings of, at first instance, no jurisdictional error and in the Federal Court of jurisdictional error.

HEYDON J: There is a mystery about this delay matter. Pages 42 to 44 are an affidavit of - - -

MR POTTS: Can I resolve that mystery, your Honours. That affidavit was filed on 15 March. On 18 March, being three days later, the first respondent was advised by the applicant’s then counsel that the applicant would not rely upon this affidavit. It was therefore not read and, indeed, the ground of appeal which your Honours will see in the notice of appeal at page 46, being ground 4, was expressly abandoned in the Federal Court before Mr Justice Edmonds.

HEYDON J: It is still a mystery. Why was the affidavit in this book then?

MR POTTS: I believe it was in there at the applicant’s instigation, your Honour, but it was never read, never relied upon. Their Honours would confront, if special leave were granted, an appeal where there is no evidence to explain a delay of three years which, on its face, is capable of being found to be unwarrantable and which was in this case found to be unwarrantable and unexplained. In my respectful submission, this Court has repeatedly and recently reaffirmed that the constitutional writs are discretionary in nature, most recently in SZBYR last year following earlier authorities of Aala and Ozone Theatres.

There can be no doubt, in my respectful submission, as a matter of law, that that form of relief is discretionary and, equally, there can be no doubt that a valid reason for refusing relief in the exercise of the discretion of the Court is delay, whatever might be said of jurisdictional error. Your Honours will have seen in the paper this case was heard on 21 March and delivered before the Court’s decision in SZBYR last year.

We would say in relation to the section 424A finding his Honour made that were this matter to go on appeal the Minister would wish to contend by notice of contention that that finding of jurisdictional error should be overturned conformably with what your Honours held in SZBYR about the nature of information and the nature of what is deemed to be part of the reason under the version of section 424A that obtained in this case which is the version before the recent amendments to the Act and the version that was identical and under consideration in SZBYR. Unless I can further assist your Honours, I reply upon the written submissions.

GUMMOW J: The application for special leave should be refused with costs. Any appeal would, in the end, turn upon a discretionary ground related to delay, the delay being unexplained or insufficiently explained either at first instance and in the Full Court.

AT 12.03 PM THE MATTER WAS CONCLUDED