Case: SZGZW v Minister of Immigration and Multicultural Affairs [2006] FCA 457
Outcome: discussed
for the appellant advanced the yet further submission that the manner in which the Federal Magistrate 'obtained the explanation for the delay [from the appellant] was not judicial because he took the information from the bar table'. It was submitted in that regard that by obtaining the husband/father's explanation for the relevant delay in that manner, the Federal Magistrate was putting himself 'in the position of an advocate or an inquisitor and...that [that] process [was] not sufficiently judicial...'. In support of that submission, reliance was placed on what appears from the unreported reasons for judgment of Jacobson J in SZGZW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 457 , where at [45], his Honour observed, in relation to a delay of eight years from 1996 to 2005 in applying for review of an adverse Tribunal decision, as follows: It follows from what I have said, that the discretion to refuse relief miscarried within the well known principle stated in House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 504-505. It was not open to the learned Federal Magistrate to find that the appellant's delay was lengthy or unsatisfactory upon the basis of untested statements made from the bar table.' Aside from whatever may have been the content of the 'untested statements made from the bar table' in SZGZW , and irrespective of what the objective circumstances might have evinced in any event, the context of the present case can be distinguished from that addressed by Jacobson J in SZGZW , in that his Honour was there addressing circumstances where the Tribunal had challenged an assertion made by the appellant upon the basis solely of statements made by that appellant from the bar table. Jacobson J observed at [39]-[40] and [41] of SZGZW (so far as is material) as follows: ... the difficulty with the approach which the Federal Magistrate adopted was that he made findings of fact without hearing any evidence from the appellant. He acted solely upon submissions from the bar table and without testing any of the statements which were made to him by an unrepresented applicant. ... as a general rule, the judicial power of the Commonwealth cannot be exercised to deny relief for admitted jurisdictional error, consisting as it does in this case, of a denial of statutory procedural fairness, without evidence tested in the ordinary way. That is especially so in the present case because the learned Federal Magistrate apparently did not believe the explanation proffered from the bar table. The appellant's overall explanation for his delay was that he did not know of the decision until 28 November 2005. The Federal Magistrate cannot have believed this because he proceeded on the basis that the appellant knew of the decision either from 1996 or at least when the unsuccessful request was made under s 417. ' In the decision below, Nicholls FM did rely upon the content of the appellants' application and amended application filed with the Federal Magistrates Court when determining the issue of unwarrantable delay, rather than merely ' relying solely on submissions from the bar table ', and his Honour invited the appellant to address or explain the delay otherwise prima facie objectively evident, yet the appellants declined to provide any such explanation. Nicholls FM stated at [9] of his reasons for decision as follows: the case before me the applicant clearly confirmed having notice of the Tribunal decision complained of on 21 May 2003. This is clearly stated both in the application and amended application. The application to this Court was filed well over 13 &#189; months later on 14 July 2004. At the hearing before me I specifically drew the applicant's attention to the issue of delay in bringing these proceedings to this Court and the possibility of how the discretion to grant or refuse the relief sought may be affected by this. I urged the applicant to address or explain the delay. The applicant's response was: "I won't say anything regarding this long period, like 12 to 13 month's delay, I have nothing to say whatsoever". I pressed the issue he made a reference to "some authority who made the delay". But when I sought an explanation the final response was: "I have nothing to say regarding this matter".' I do not think that the observations of Jacobson J made in SZGZW may be transposed to the context in which this first appellant responded as above as recorded by Nicholls FM. No factors or circumstances have been advanced by the appellants which would in my opinion operate to require the exercise of discretion in their favour upon any basis articulated on the appeal.