Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Outcome: applied
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. 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.) 26 Kirby J agreed that relief should be refused on discretionary grounds but on a narrower basis. His Honour took the view that "issue B" as counsel and I have called it, (the nexus issue in SZBYR 235 ALR 609) was on analysis the only reason for the Tribunal's decision and was sufficient. However, his Honour said at [87]-[89]: Once the foregoing conclusion became clear, it was immaterial ... to examine the extent of the default of the tribunal, if any, under section 424A ... Any such default could not have affected the decision of the tribunal for the reason that it accepted. An application for judicial review of that decision was therefore liable to dismissal on discretionary grounds. Discretionary refusal of judicial review must be exercised with care, particularly where the hypothesis of jurisdictional error is a possibility. However, in some such cases (of which this was one) invocation of the discretion is proper, prudent, economical and just. In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court's time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case. When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case. (Footnotes omitted.) 27 In my opinion those pungent observations of Kirby J are entirely applicable by way of analogy here. 28 Factors relevant to the exercise of discretion in this case are, it seems to me, first, the Tribunal's default was patently one of a mere clerical oversight rather than a studied misapplication of the law. Second, this is not a case where, simply, actual notice had also come to the attention of the appellant personally in his application before the Tribunal but there was no notice to any person authorised by him to be his desired recipient. Third, there was, in fact, notification to someone in whose understanding of the legal and practical implications of his litigious position the appellant had confidence. Fourth, here the appellant acted on that actual notice and in the event there was secured to him every right and opportunity of substance which s 441G envisaged for him. There was adequate and due notice of the hearing and an unmistakably clear and adequate opportunity to attend before the Tribunal and for him to put his case to it, all of which opportunities the appellant took up. 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.