Case: SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199
Outcome: considered
The principal submission of the Minister however is that, assuming a breach of the Act in that the invitation cannot be said to have been duly sent to the still authorised recipient, in the circumstances of this case such failure cannot possibly have made any difference to the decision and the Court should, in its discretion, withhold relief. The case is to be distinguished from others such as: SZFOH v Minister for Immigration and Citizenship ( 2007) 159 FCR 199 where there had been no appearance by the applicant at the Tribunal's hearing; Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 where the failure to reply to a notice of invitation to comment allowed the Tribunal to proceed to make a decision without further invitation to the applicant; and Vean of 2002 v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 311 ; (2003) 133 FCR 570 where the appellant did not receive the invitation until a considerable time after it had been sent to and received by the authorised recipient because it had been addressed to the applicant care of the authorised recipient. Because the appellant was in fact fully heard and the Tribunal rejected the veracity of his claims it is a case where the "decision-maker was bound by the governing statute to refuse the application": SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ and separately Kirby J and Hayne J. 24 On the discretion point, the appellant chiefly relies on SZFOH 159 FCR 199 and Lee 159 FCR 181. In the latter case the Full Court considered discretionary relief and accepted a "forward looking" approach to the question of utility and futility. In SZFOH 159 FCR 199, Lee 159 FCR 181 was applied and the fact that the authorised recipient may have known of the notice, though the notification was irregular, was apparently held not sufficient to warrant a discretionary refusal of relief (cf Buchanan J at [60]). In Lee 159 FCR 181, as I understand it, the Court appeared to prefer the view given by Merkel J in a separate judgment in Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 165, favouring a "forward-looking" view. 25 However, the decision in SZBYR 235 ALR 609 was given on 13 June 2007 shortly after the decisions in Lee 159 FCR 181 and SZFOH 159 FCR 199 and in my opinion SZBYR 235 ALR 609 now provides authoritative guidance. As succinctly put by counsel for the Minister, the appellants in SZBYR 235 ALR 609 argued that the Tribunal had failed to comply with s 424A of the Act in dealing with issue A, but the Tribunal had also relied on issue B which was in itself an independent ground for refusing their application. At [29], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said: The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A , they cannot overcome the tribunal's finding that their claims lacked the requisite convention nexus. The appellants' case, like Mobile Oil Canada Limited ... cited in [ Re Refugee Tribunal; Ex parte] Aala [(2000) [2000] HCA 57 ; 204 CLR 82 at [56] ], was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse". (Footnotes omitted.) Hayne J likewise said at [91]: The Refugee Review Tribunal's finding that the appellants' claims lacked the requisite nexus with the Convention was inevitable. That being so, the appellants were not entitled to relief of the kind they sought. The discretion to grant that relief was to be exercised against them. (Footnotes omitted.) 30 If my decision should not be in accord with Lee 159 FCR 181 and SZFOH 159 FCR 199, I believe any departure of mine from the reasoning in those cases is appropriate and warranted after SZBYR 235 ALR 609. I should add, however, that all the cases on exercise of discretion have to be closely examined in the light of their own facts. It is very easy to make remarks able to be read as nostrums for general application when really what the court is doing is seeking to explain the considerations which have weighed with it in the instant case. I have probably been guilty of the same thing here myself. I do not suggest that I would necessarily have decided Lee 159 FCR 181 or SZFOH 159 FCR 199 differently, even after SZBYR 235 ALR 609. Their facts are not these facts.