Case: SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
Outcome: distinguished
The Minister responded by arguing that in SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [7] - [8] Bennett J had explained why a failure to comply strictly with a 14 day notification period when a rescheduling or adjournment occurred before an appellant had actually given evidence at a hearing was the exercise of power under s 427(1)(b) of the Act. Her Honour applied a remark of the Federal Magistrate in that case that it was clear that the Tribunal had seen itself as exercising its adjournment power in rescheduling when video conferencing facilities were not available due to technical difficulties on the day and at the time appointed for the hearing. 50 I think that the present facts are different in that the re-schedulings that have occurred in the history of the appellant's notifications all happened well before any hearing had been appointed, apart from the first which was done at his request on the day before the hearing. I am fortified in this view by the fact that the language of ss 425A and 426A use the expression 'scheduled and rescheduling' rather than the word 'adjourned' as in s 427(1)(b). 51 Bennett J did not, of course, have this argument before her when deciding the case to which I have just referred. In my opinion there is some substance in the argument, but I do not propose to decide it as I think it is appropriate to decide this matter on a different ground. I have already referred to the substantial delays which this matter has had in its progress. The appellant, for whatever reason, sought an adjournment without appearing before the Tribunal on 29 April 2003. I understand the argument that that occurred because his migration agent asked for an adjournment, it was refused and the appellant was not able to attend, whether because he was not told of the adjournment having been refused, or was unable to make it to the hearing that day for other reasons. 52 Then, when the matter first came before this Court, the appellant put forward material to Stone J seeking an adjournment which gave no basis in the medical certificate on which the Court could exercise its discretion and he left it to the Court to do as it might. Thereafter, the appellant delayed a period of over 10 months before filing an application seeking leave to appeal. No explanation is before the Court for that delay. 53 Once again it appears from the material accepted by his Honour in evidence, that an application was made to Emmett J on medical grounds that an adjournment should be had of that application. Once again that was refused. Then almost 3 months later, on 4 February 2005, an application for special leave to appeal was filed in the High Court and after that was refused another 2 months delay occurred before an application was filed before the Federal Magistrates Court. 54 Although the appellant asserts that he wants to give evidence to the Tribunal and did in fact accept its invitation to do so on two occasions by the responses sent in by Mr Jivani, there is nothing in the material before me to suggest any reason for the unexplained delays and the failure of the appellant to look after his own interests, particularly after the first unfortunate experience before the Tribunal of not having someone present when the hearing was set down. To then treat this Court, on two occasions, as not requiring him to attend, even when he had, accepting that he did have, some kind of medical problems, is, in my opinion, a substantial factor to be weighed in considering whether the time of the Court should be taken up by further applications or appeals. 55 I have taken into account that this is the first occasion on which the appellant has been legally represented and competently so, but the delays that had occurred up to the time at which the matter was heard by his Honour below were such that I can see no reason why, in the exercise of the discretion to grant prerogative relief under s 39B of the Judiciary Act 1903 (Cth), I should do so. The period of delay was not explained before his Honour beyond what was in the appeal papers. His Honour's independent reason for refusing to grant relief, albeit on the assumption contrary to what I have found, at least on the s 424A point, that there was a jurisdictional error, seems to me to be perfectly well warranted.