Case: Appellant S395/2002 v Minister of Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 
Outcome: cited
His Honour held that the appellant had proved the Tribunal had committed a jurisdictional error in 1998 in that it had acted on an erroneous view of the law exposed only much later by the High Court's decision on 9 December 2003 in Appellant S395/2002 v Minister of Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. The Minister did not pursue a notice of contention to challenge that finding of his Honour. Ultimately his Honour refused to grant relief, notwithstanding the jurisdictional error he had found. The basis upon which his Honour did so is expressed in his reasons ( SZGLK v Minister for Immigration [2006] FCA 673 at [37] ). He said: 'On the question of delay, both sides acknowledge that there have been periods when the applicant has been pursuing action to secure his refugee protection status. However, none of which focused on review of the Tribunal's decision. Part of those attempts occurred on acceptance that the Tribunal's decision was in fact correct. The actions were commenced by the applicant while represented by a legal practitioner specialising in migration law. Putting that to one side, there still remains significant unexplained delays. As the applicant has had the benefit of legal advice on how he should be pursuing his protection claim he cannot sustain the argument that the delays were due to his ignorance of the system. The documentation accompanying the original Tribunal decision contained a warning that judicial review must be sought within 28 days of notification of that decision. In the circumstances I believe it is appropriate to exercise my discretion and refuse relief.' 23 When his Honour referred, in the critical part of his reasoning, to part of the attempts of the appellant having occurred on acceptance that the Tribunal decision was in fact correct, I infer that he did so, meaning to refer to the submission of the Minister that the letter under s 417 had been written with that in mind. It is therefore important to turn to that letter. It put forward three grounds which were as follows: 1. The appellant had been integrated into the Australian community generally. It argued that he, as a gay or homosexual man, would, at the very least, suffer significant discrimination. Even if it were not sufficient to make out Convention grounds to satisfy the Minister, this should elicit sympathy. The appellant had an infrastructure, within this country, of friendships and the like that had been formed in the intervening period of his residence. The ground noted that the catalyst for the appellant's departure was that he had been harassed in Malaysia and ostracised by his family. It recorded that the tribunal had assessed his claims and that they were not sufficient for invoking Convention grounds. However, Mr Joel asked that the reader could understand the pressure that was applied in that country which obviously remained a concern with respect to the appellant. 2. The second ground was the fact that '... the law appeared significantly to have changed in a fashion which might benefit the appellant by reason of the High Court's decision ...' in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. The letter drew the Minister's attention to the consequence of that case holding that it was not correct to place on gay men an onus to live a discreet life (and hence avoid discrimination). It said that the decision had amplified the attachment to the social group of gay men which the appellant was part. 3. The third ground was that the appellant's concern continued as to his treatment were he returned to Malaysia. 24 The Minister argued that the reference in the letter to the decision of the High Court did not suggest that the decision of the tribunal was anything other than correct. In my view, it clearly challenged a fundamental premise of the reasoning of the tribunal, namely that it regarded the appellant as being a discreet person and that his likely treatment and fear of persecution were he to return to Malaysia had to be assessed on that basis. It said in express terms, that, the appellant's 'discretion seems by now to be germane to him', as in effect adopting the erroneous approach exposed by the majority of the High Court, some nearly six years after the tribunal's decision was given. 25 What the tribunal failed to do, was to ask why it was necessary for the appellant to be or why he had become discreet. That is, as I understand it, the basis upon which his Honour was entitled to find, which is not now challenged, that there had been a jurisdictional error (see, for example, 216 CLR at 493 [53] per McHugh and Kirby JJ and 503 [90] per Gummow and Hayne JJ). I am of opinion that his Honour erred in concluding that the letter under s 417 amounted to or could be read as an acceptance of the correctness of the tribunal's decision.