Case: SZDQO v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1026 ; (2005) 144 FCR 251
Outcome: discussed
Nicholls FM referred to the decision of Conti J in SZDQO v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1026 ; (2005) 144 FCR 251 (" SZDQO") which addressed this issue. The learned Federal Magistrate followed SZDQO as authority for the proposition that where the Tribunal reschedules a hearing at the request of an appellant, s 425A(3) does not apply in relation to the notice of the rescheduled hearing. 14 The Federal Magistrate concluded that the appellant was given a reasonable period within the requirements of the law, notwithstanding that it was not the full 14 days required under s 425A. He went on to observe that the Tribunal did not make its decision for some eight days after the rescheduled hearing date, and did not hand down its decision for a month after the rescheduled hearing date. The Magistrate noted that the appellant did nothing to notify the Tribunal of his reason for a failure to attend the rescheduled hearing date, nor to seek any further hearing date. In the circumstances, the Magistrate did not accept the applicant's complaint and found that the ground was not made out. 15 FM Nicholls observed at [15] that even if he had found jurisdictional error, he would have declined to exercise the discretion to grant relief, for two reasons. First, the appellant did not contend that he did not receive the letter notifying him of the rescheduled hearing date and he did not approach the Tribunal to explain his failure to attend. Secondly, there was no evidence put before His Honour to indicate that the appellant wanted to attend the rescheduled hearing, or that the appellant had further evidentiary material he would have wanted to put before the Tribunal. 16 There were six further grounds of review. They were bias, failure to properly conduct a hearing, failure to take into account relevant considerations, failure to apply the correct test, illogicality, and failure to give reasons. 17 The learned Federal Magistrate considered each of these grounds and dismissed them. 22 In SZDQO, Conti J held at [29] that where the Tribunal reschedules a hearing at the request of an applicant, the 14 day notice requirement stipulated in s 425A(3) and Reg 4.35D does not apply to the notice of the rescheduled hearing. His Honour was of the view that, subject to the operation of s 422B of the Act , the requirement of notice of the rescheduled date would be governed by the general law of natural justice. 42 However, there are two difficulties with this approach. First, on the construction of s 425A adopted by Conti J in SZDQO , s 425 would bear the same limitation as s 425A. It would have to be confined to an invitation to attend a hearing and would not extend to a hearing rescheduled at the request of an applicant. 44 In summary, I respectfully agree with the approach to construction of s 425A adopted by Conti J in SZDQO which, for the reasons given above, disposes of the only substantial point in the appeal. At very least, His Honour's decision is not plainly wrong and I would follow it, especially as His Honour was exercising the appellate jurisdiction of the Court. 45 The other grounds of appeal largely refer to the grounds of review in which the appellant failed before the Federal Magistrate. There is no substance in them and they must be dismissed, essentially for the reasons given by the learned Magistrate. There was no apparent error in His Honour's approach. 46 One of the grounds of appeal alleges failure to consider the availability of effective state protection. This ground was not advanced below. I will not give leave to raise it on appeal. 47 Although not raised in the Notice of Appeal, the appellant was not represented and I will consider the question of whether there was jurisdictional error by reason of a contravention of s 424A.