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SZICV v Minister for Immigration & Anor (No.3) [2009] FMCA 175 (24 March 2009)

Last Updated: 24 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20 Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105; (2007) 159 FCR 565 MZXBQ v Minister for Immigration & Citizenship [2008] FCA 319; (2008) 166 FCR 483 NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174; (2006) 156 FCR 205 NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3; (2006) 150 FCR 448 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110 SZHPP v Minister for Immigration & Anor [2007] FMCA 1031 SZICV v Minister for Immigration & Anor [2006] FMCA 1063; (2006) 202 FLR 200 SZICV v Minister for Immigration & Anor (No.2) [2006] FMCA 1363 SZICV v Minister for Immigration & Citizenship [2007] FCAFC 39; (2007) 158 FCR 260 SZICV v Minister for Immigration & Citizenship & Anor  [2008] HCATrans 238  SZKCQ v Minister for Immigration & Citizenship [2008] FCAFC 119; (2008) 170 FCR 236 SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176

REPRESENTATION

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the costs of the first respondent incurred subsequent to 13 June 2008, in the sum of $7,000.
(3) The applicant has liberty to apply within 21 days to vary order 2 or for another costs order.

SYG 142 of 2006

Applicant

And

First Respondent

Second Respondent

REASONS FOR JUDGMENT

1. This case has a long history. The applicant applied on 13 January 2006 for judicial review of a decision of the Tribunal handed down on 10 June 2003. The Tribunal affirmed a decision of a delegate made on 5 March 2002, refusing to grant a protection visa to the applicant. The application to the Court was lodged soon after the commencement of the Migration Litigation Reform Act 2005 (Cth), which introduced a strict time limit in s.477 of the Migration Act 1958 (Cth). Under the transitional provisions, the applicant needed to apply for an extension of time before 24 February 2006, if his admission of having received the Tribunal’s decision in June 2003 amounted to an admission of ‘actual notification’ prior to 1 December 2005.
2. In SZICV v Minister for Immigration & Anor [2006] FMCA 1063; (2006) 202 FLR 200, I held that the applicant had not made an application for extension of time within the time provided under s.477(2), and dismissed his substantive application as incompetent. I did not address the applicant’s contentions of jurisdictional error affecting the Tribunal’s decision, nor the Minister’s contention that relief should be refused on discretionary grounds. My judgment was upheld by a majority in the Full Court in SZICV v Minister for Immigration & Citizenship [2007] FCAFC 39; (2007) 158 FCR 260.
3. The applicant then applied for special leave to appeal to the High Court of Australia. On 13 June 2008, Kirby, Heydon & Keifel JJ made orders by consent (see SZICV v Minister for Immigration & Citizenship & Anor  [2008] HCATrans 238).  These granted special leave, upheld the appeal to the Federal Court, set aside my orders made on 4 August 2006, remitted the matter to this Court, and ordered that “a declaration issue that the application filed in the Federal Magistrates Court on 13 January 2006 is competent”. It appears from the transcript, that the Minister accepted that the Full Court’s later decision in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105; (2007) 159 FCR 565 had correctly held that ‘actual notification’ of a Tribunal decision could only occur if the decision had been physically given to an applicant by the Tribunal.
4. Although the Minister had been given leave to appeal to the High Court in SZKKC, he withdrew his appeal and pursued legislative changes. Amendments relating to the Tribunal’s procedures for notification and introducing a more flexible time limit on judicial review applications have now commenced, but these amendments may not apply to the present case (see Migration Legislation Amendment Act (No. 1) 2008 (Cth) Sch.1 cll.20 and 37, and Migration Legislation Amendment Act (No. 1) 2009 (Cth) Sch.2 cll.1, 2, and 7). Meanwhile, the Full Court of the Federal Court, differently constituted, held in SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176 at [25] that “there has been actual notification of the decision for the purposes of s 477” if an applicant “has physically received” a copy of the decision by any means, irrespective of the statutory mode of notification adopted by the Tribunal. This is contrary to the opinion which the Minister previously drew from SZKKC, and conceded in the High Court in the present matter. However, although he now no longer makes that concession in other cases, he concedes that the declaration ordered in the High Court in the present matter means that the competency of the applicant’s application can no longer be challenged in this Court.
5. The result of this history is that the application returned to the Court, and was placed in my docket in September 2008 at the request of both parties. I must now consider the issues of jurisdictional error and discretion which are raised by the application and response. Although the applicant has enjoyed some benefits from legal developments occurring since my 2006 judgment in relation to time limits, the jurisprudence on s.424A of the Migration Act has moved against him. In his written submissions, the applicant’s counsel abandoned a ground of jurisdictional error referrable to this provision, but different counsel who appeared at the hearing sought to revive it. This has led to further delays in my giving judgment, to allow both parties to make further written submissions.
6. The applicant made business visits to Australia from China after 1997, and last arrived in October 2001. On 16 January 2002 he made an application for a protection visa, assisted by a migration agent. In a somewhat obscure statement, he claimed to have incurred the animosity of a director of his employer, who was “waiting me to make any big mistake then he will have excuse to fire me”. The applicant felt that he was powerless, and “I have to resign my post before my director fires me. Dignity is very important for me, I will not give any excuse to my director to let him realize his sinful plan”. The applicant therefore resigned from that employment, and “chose to do business between China and Australia”. However, the director “knows I used say many things that show my unsatisfied to the government. ... With this reason he always threaten me that he will throw me into the prison once I go back China. ... I am afraid the director will get news of my return and use his human relationships to judge me with any fabricate crime”. The applicant said that he knew “the truth of Chinese economic” and “about Falun Gong”, and “sometime I say something comes from my deep heart, my real feeling. Nevertheless, exceeding my expectation these words give me big troubles”.
7. A delegate refused the application on 5 March 2002. He concluded that the applicant “makes no claims which are related to the Convention”, but his reasoning appears to overlook that the applicant had claimed to fear that he would be persecuted by Chinese government authorities for his actual or imputed political opinions on the accusation of his enemy.
8. The applicant appealed to the Tribunal. His application was accompanied by a brief written statement which referred to his protection visa application, and also said: “I am afraid the director will get news of my return and use his relationships to pour dirty water on me. ... I am afraid of Chinese authority and the powerful person who might punish me for their own benefits. ... If I were to back to China, I would not only be put into prison due to my unsatisfactory words to Chinese Government but all what I am enjoying in Australia would be deprived”.
9. The applicant attended a hearing on 13 May 2003. At the end of the hearing he was given the sound recording, but at no stage has he tendered a transcript as evidence. Nor has the Minister tendered the transcript. However, the Tribunal gave an account of his evidence in its statement of reasons.
10. According to the Tribunal, the applicant showed the Tribunal documents written in Chinese, which he said contained his ‘statement of claims’, and had been translated by his agent and used when making the protection visa application.
11. The applicant also told the Tribunal that he had brought back to China some Falun Gong literature for his relations and friends who were members, and “had got into a lot of trouble as a result. He said he had applied for protection because his family had told him the authorities came looking for him during the last few occasions he was in Australia”. According to the Tribunal:
    • The Tribunal asked why he had never mentioned before that Chinese authorities were looking for him because of an alleged association with Falun Gong. He said he had mentioned that he was sympathetic to Falun Gong, but had not made everything clear. The Tribunal said it would return to this issue, but first wished to verify the nature of his claims as he had previously set them out.
12. The applicant told the Tribunal that when he was working for a government enterprise, he had come under the supervision of a director who was jealous of his achievements and was hoping to find an excuse to fire him. The applicant unsuccessfully complained to district and municipal leaders about the director. According to the Tribunal:
    • The applicant said he resigned from the company in October 1999 before he left for Australia. He said that, in fact, he was made to sign a resignation agreement, and that [is] why he had to go and make the complaint. The Tribunal pointed out that he had said he complained in late 1998 or early 1999. It asked if he was saying that the director was trying to force him to resign in 1998. He said the threats started in 1998, but he did not succumb to them at that time, and complained. He eventually resigned in 1999. The Tribunal said this contradicted what he had said in his protection visa application because, in that document he had said he only worked for the company until 1998. [The Tribunal later observed that he had written that year in the relevant space in the “Chinese” version of the application form, so it was not an error of translation.] He said that was correct. He had ceased working in 1998, and then received social security for about a year.
    • The Tribunal commented that that did not make sense. If he had not resigned until October 1999, it did not understand why he stopped working in 1998. He said he could not continue working because the director was persecuting him. The Tribunal said it would not expect he would have received social security before he actually resigned. Bureaucracies being what they are, the Tribunal would expect that the Chinese authorities would have required proof he had lost his job, before authorising welfare payments. The applicant said he had possibly made a mistake about the timing of these events. He had a record book in China which showed when he received the welfare payments, but he definitely ceased working for the company in 1998.
    • The Tribunal asked if, apart from having to resign from his job, he or his family had suffered any harm, or threats of harm, as a result of the director’s enmity and, if so, to explain what happened to him and when. He said that, while he was complaining about the director, the director went to see a superior of the applicant’s wife to try to put pressure on the applicant, through her, to stop complaining. He was asked if anything else happened, but said there was nothing else. He said his wife told him that he had no choice but to resign, as he could not continue to work there.
13. The Tribunal said: “the applicant confirmed that his fears related only to the director, and to the issue of Falun Gong which he had raised earlier at the hearing. He had no other fears”. It also said that the applicant confirmed that “though the director had never actually done anything to harm the applicant since he resigned, he had enough influence to block any ambitions the applicant might have to obtain work in his area of expertise”.
14. The Tribunal questioned the applicant about why he had not made his new claim relating to Falun Gong in “either his original application for protection in January 2002, or in his application for review in April 2002”. It also asked him why he had not sought protection in his earlier visits to Australia. It also put to him other concerns about his evidence.
15. In its “Findings and Reasons”, the Tribunal rejected both the applicant’s claim to fear political persecution maliciously instigated by “the director”, and also his claim that he was under investigation for bringing Falun Gong literature back to China. It found that the first fear was not well-founded, that he was not wanted by the Chinese authorities, and that his delays in seeking protection showed that he “was not, and is not in fear of persecution”. It therefore affirmed the delegate’s decision.
16. Its reasoning first examined the applicant’s written and oral evidence relating to his claimed fear that his enemy, “the director”, would instigate political persecution by Chinese authorities. The Tribunal pointed out significant contradictions in his evidence, and the softening of the applicant’s claims in his oral evidence. These “differences” led it to conclude that “the Tribunal is not satisfied that the director sought the applicant’s dismissal or wished him ill in any other way”.
17. Its reasoning was:
    • The applicant’s claims regarding the director of his former workplace have changed somewhat between the time of his protection visa application and the date of the hearing. For example, in his original statement, he said that he had resigned before the director could fire him, the implication being that his severance was initiated by himself, albeit under what he considered to be unacceptable work conditions. His oral evidence was that he was forced to sign a letter of resignation. His written claims were that he left the company in 1998, but at the hearing, he said at one stage that he resigned in October 1999, before resiling from this when the contradiction was drawn to his attention.
    • His written claims were that, even after he had resigned from the enterprise, the director threatened to have him thrown into prison on his return to China. His words implied continued action by the director. However, when asked at the hearing, if he or his family ever experienced any harm or threats of harm, as a result of the director’s enmity, the applicant said that the only thing the director did was to put pressure on him to cease complaining. That, however, was while he was still employed in the enterprise. The Tribunal asked if anything else had happened, but he said there was nothing else. The applicant claimed in writing that the director was aware of things the applicant had said to show his dissatisfaction with the government and that this was the excuse he could use to have the applicant imprisoned. However, this was not mentioned at the hearing and, given his statement that there were no threats made, this claim was effectively abandoned.
    • Given these differences, the Tribunal is not satisfied that the director sought the applicant’s dismissal or wished him ill in any other way. Even if it were so satisfied, however, as explained to the applicant at the hearing, the alleged antipathy of the director was not motivated by any of the five Convention reasons. Rather, it was said to be motivated by personal jealousy.
    • Further, the Tribunal is of the view that, had the director seriously wished harm to the applicant, he had adequate opportunity to inflict that harm while the applicant was employed by him and in the period which followed immediately.
18. This reasoning is the subject of the first two grounds raised in a ‘further amended application’, which was foreshadowed in the applicant’s counsel’s written submissions and was filed after the hearing. They are:
    • 1. The Tribunal found that it was “not satisfied that the director sought the applicant’s dismissal or wished him ill in any other way”. The Tribunal fell into jurisdictional error in making this finding.
    • 2. The Tribunal found that “the alleged antipathy of the director was not motivated by any of the five Convention reasons. The Tribunal fell into jurisdictional error in making this finding.
19. The first ground is explained in counsel’s written submissions, which characterise it as a “no evidence issue”. His argument focused upon the Tribunal’s finding that “the applicant’s claims ... have changed somewhat” and that there were “differences” between his written and oral claims, in particular as to whether he resigned before the director could fire him or was “forced to sign a letter of resignation”. It is argued:
    • 22. There is no inconsistency between these two versions of events. Yet the Tribunal rejected this claim by the applicant because of a “change” or “difference” in the way in which the applicant put the claim. The applicant puts the complaint in two ways:
      • a) The Tribunal has rejected the claim on the basis of an alleged inconsistency between the manner in which the applicant put this aspect of his claim in his protection visa application and in oral evidence to the Tribunal. However, there was no inconsistency. In SFGB v MIMIA [2003] FCAFC 231; (2003) 77 ALD 402 at [19] the Full Court stated:
        • “If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error.”
        • The Tribunal has made a jurisdictional error in this manner.
      • b) Alternatively, if the Tribunal rejected the applicant’s claim on the basis of something less than an inconsistency, for example because the applicant used different words to describe the event, the Tribunal’s “determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: MIMA v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [38].
20. The finding which is attacked in this ground is one of assessment of evidence going to the credibility of a claim, and is only one of several findings which supported the Tribunal’s adverse conclusion. In this situation, it is doubtful whether jurisdictional error would arise, even if the Tribunal’s finding involved a misunderstanding of the evidence.
21. I do not need to explore this issue, since I accept the Minister’s principal submission that the argument faces a fundamental difficulty, in its premise. As the Minister’s counsel submitted:
    • 3. The answer to the proposed new ground lies in the portion of the Tribunal’s reasons omitted from the applicant’s submissions. Where the applicant has written “...” (submissions, paragraph 17), the Tribunal gave the explanation critical to its reasoning [CB 66.10]:
      • the implication being that his severance was initiated by himself, albeit under what he considered to be unacceptable work conditions.
    • 4. That implication is clearly available. Whether or not another decision-maker, the court, or counsel for the applicant would draw the same inference is a matter for conjecture and is irrelevant to proceedings seeking constitutional writ relief. Thus, the submission that “there is no inconsistency” between the two claims proceeds on an incomplete version of the Tribunal’s reasons and an irrelevant statement of opinion.
22. I accept his submission. I am not satisfied that it was not open to the Tribunal to conclude that the applicant had given significantly inconsistent evidence as to whether his resignation was “initiated by himself” or by his employer. On the Tribunal’s description of his oral evidence, he said that “he was made to sign a resignation agreement”, and, at least in the absence of a transcript, I would not find that the Tribunal could not take this to mean that his employer coerced him into resigning.
23. The second ground attacks the Tribunal’s reasoning in the second and third sentences of the penultimate paragraph in the above extract, in which it characterised the motives of “the director” as not being “any of the five Convention reasons”.
24. I accept that this reasoning might suggest error of law. It would have been erroneous for the Tribunal to have characterised the applicant’s fear of political persecution by Chinese authorities as not having a Convention nexus, due to a non-Convention motive of the instigator of such persecution (cf. Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 at [30]-[31], discussed by Madgwick J in SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3; (2006) 150 FCR 448 at [37]- [41]).
25. However, these parts of the Tribunal’s reasoning were not material to its rejection of the applicant’s claim to have a well-founded fear of maliciously instigated political persecution. Its rejection was firmly based upon a finding of fact, in effect, that the applicant’s fear was not well-founded because the only person who might instigate persecution was not motivated to do this. The challenged parts of the reasoning were, therefore, hypothetical upon findings which were not made.
26. The Tribunal understood that its opinion about a Convention nexus was immaterial to its rejection of this claim, when it said “even if it were so satisfied”. I therefore do not accept the submission that “the Tribunal’s ultimate decision may have been different” if it had not erred in the manner contended, and I consider that the reasoning of the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [28], [55]-[59], [91] applies.
27. The third ground of the applicant’s ‘further amended application’ attacked the Tribunal’s reasoning which rejected the applicant’s claim to fear persecution for bringing Falun Gong literature back to China. It was raised orally by counsel who appeared at the hearing, and was subsequently formulated by him:
    • 3. The Tribunal’s decision was vitiated by a breach of s 424A(1) of the Migration Act 1958.
      • Particulars
      • The Tribunal formed the view that the Applicant’s failure to make claims in respect to his association with Falun Gong and resulting police investigation in his application for protection visa would form part of the reasons for decision and the Tribunal did not put that to the Applicant in accordance with s 424A(1).
28. I accept that the absence of this claim from the applicant’s statement accompanying his visa application was taken into account by the Tribunal as one of several reasons for rejecting the claim. In its reasoning, it said:
    • The applicant mentioned Falun Gong in his protection visa application, but it was in the context of pointing out various injustices in Chinese society. He made no claim to have known any Falun Gong practitioners, no claim to have taken Falun Gong literature back into China, and no claim that authorities had come looking for him as a result. Indeed he made no claim that the authorities were looking for him for any reason and stated that, to the best of his knowledge, he was not the subject of any criminal investigation and had no criminal charges pending against him.
    • He would have been alerted, by the terms of the decision under review, that his written claims did not disclose anything related to the Convention. He was being assisted by a registered migration agent. Had the Chinese authorities been actively seeking him, as he now claims, the Tribunal would have expected him to have disclosed his fears in this regard to his agent, if not at the time of the initial application, then at least at the time of his application for review.
29. The Tribunal then also referred to discrepancies in the applicant’s oral evidence about when he was sought by the authorities, implausibility in his claimed chronology, and the applicant’s delay in seeking protection in Australia.
30. Although the Tribunal had discussed with the applicant its concern about the omission from the visa statement, it was not the subject of a written invitation for comments served under s.424A. However, I accept the submissions of the Minister’s counsel that it was under no obligation to give such an invitation.
31. The submissions of both counsel canvassed very thoroughly recent authorities on the application of s.424A(1). In particular, whether the reasoning of the High Court in SZBYR implicitly overruled the reasoning of Weinberg and Allsop JJ in NBKS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 174; (2006) 156 FCR 205.
32. In a judgment given soon after SZBYR, I concluded that it did not do so, although it was arguable that some of the opinions of Allsop J in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at [221] were no longer authoritative (see SZHPP v Minister for Immigration & Anor [2007] FMCA 1031). This has not yet been elucidated by the Federal Court, and I remain of that opinion (noting SZKCQ v Minister for Immigration & Citizenship [2008] FCAFC 119; (2008) 170 FCR 236 at [93], SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110 at [43], and Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [73]- [75]).
33. I consider that the rationes decidendi of both NBKS and SZHPP include the reliance by a Tribunal upon a factual inference negativing a refugee claim, which was drawn from the contents of a ‘prior’ document. In both cases, it was consistent with SZBYR to identify as ‘information’ coming within s.424A(1) the contents of documents which provided that evidence to the Tribunal. In NBKS, the Tribunal’s treatment of an omission from a doctor’s report was not “merely as a ‘gap’, but as implicitly probative of the psychologist’s view that there was no such danger” (see Weinberg J at [26]). In SZHPP, the Tribunal concluded that the applicant’s fear of being implicated in a false and politically motivated prosecution of her husband was not well-founded, and its reasoning was based upon a positive inference, drawn from statements and omissions in the applicant’s visa statement, that her husband had been executed for a crime of which he was, in fact, guilty. In both cases, the Tribunal’s reasoning drew more from the prior documents than a peripheral inconsistency causing disbelief of an applicant as a credible historian. In both, a positive factual conclusion was drawn from the contents of prior documents, including from their omissions, which negatived a claimed fear of persecution. The documents were taken by the Tribunal to contain “in their terms a rejection, denial or undermining of the [applicants’] claims to be persons to whom Australia owed protection obligations” (cf. SZBYR at [17]). The information drawn from the prior documents was not “information merely going to credibility” (cf. Heerey J in MZXBQ v Minister for Immigration & Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [29]).
34. I therefore do not accept the Minister’s submission that NBKS is no longer good authority on the application of s.424A. It remains authority which this Court is bound to follow.
35. However, I accept the Minister’s principal submission in support of his contention that no jurisdictional error under s.424A(1) occurred in the present case. This was that, even if the Tribunal relied upon ‘information’ within s.424A(1) taken from the applicant’s visa statement as a reason for affirming the delegate’s decision, that information was also ‘given’ by the applicant to the Tribunal for the purposes of his application for review, so as to come within the exclusion of s.424A(3)(b).
36. In the applicant’s written submission to the Tribunal which accompanied his application for review, the applicant implicitly invited the Tribunal to consider his visa statement, in his references: “as I claimed before”, and “as I claimed in my protection visa application”. Moreover, at the hearing, the applicant appears to have produced the Chinese document from which his visa statement derived, and invited the Tribunal to consider its contents. The applicant in his responses to the Tribunal’s questions readily accepted, and treated as uncontroversial, that his earlier statements had not raised his claim that he had been under investigation for bringing Falun Gong literature into China. I accept the Minister’s submissions that these circumstances come within the situation found by the Full Court in NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 at [59]- [63], and Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 at [16]- [17]).
37. I also accept, to the extent that there might be tensions between the Full Court’s reasoning in NBKS and in Applicant S301/2003 at [19], that the latter case is closer to the reasoning of the Tribunal in the present case. Here, unlike NBKS, there was no positive information taken from a prior document which negatived the existence of a well-founded fear of persecution, but only reasoning by the Tribunal about the credibility of a claim which drew upon the chronology in which it had been raised by the applicant. SZBYR now supports the proposition in Applicant S301/2003 that, in such circumstances, “the fact that the [applicant] failed to make this allegation at some earlier date is not ‘information’ within the meaning of s 424A(1)”. On this analysis, s.424A(1) did not apply to the present situation, in its own terms.
38. For the above reasons, I am not persuaded by any of the grounds of jurisdictional error which have been presented in the written and oral submissions of the applicant’s counsel. For that reason I must dismiss the application.
39. This conclusion means that I do not need to address whether I should refuse relief, if jurisdictional error were established. I note that the applicant’s evidence concerning his delay in commencing judicial review proceedings between June 2003 and January 2006 was summarised by me in my first judgment at [37]-[38]. There appears substance in the Minister’s contention that the applicant was aware of his rights of review but preferred to remain in Australia illegally until he was taken into immigration detention, and that this was conduct inconsistent with the granting of relief now (citing Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20 at [23]).
40. In relation to costs, there appears no reason why the Minister should not be awarded his costs in relation to the proceedings since their remitter by the High Court. However, I shall hear submissions on this, and on how they should be arrived at.
41. The costs of the earlier proceedings in this Court were addressed by me in a second judgment, which I published on 5 September 2006 (see SZICV v Minister for Immigration & Anor (No.2) [2006] FMCA 1363). I then refused costs applications by both the applicant and the Minister, and made no order as to costs in relation to the proceedings up to that date. This judgment was not the subject of any appeal or cross appeal in the Federal Court, although Buchanan J made observations disagreeing with my reasoning on costs. The costs of the proceedings in this Court were not addressed by the orders of the High Court, although it awarded the applicant his costs in the Federal Court and High Court. The High Court set aside only my orders made on 4 August 2006, which did not address costs.
42. There is, therefore, some obscurity whether my 2006 judgment on costs can, or should, be revisited, whether in favour of the applicant or of the Minister. The outcome of all the litigation is that the applicant has won a battle on competency, but the Minister has won the war. In all the circumstances, I am inclined to leave my previous costs judgment undisturbed, and to award the Minister only his costs since the remitter. However, I shall give the parties an opportunity to address me on this also.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 24 March 2009