Case: SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152
Outcome: discussed
SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152, Lander J (with whom Moore and Marshall JJ agreed) stated in relation to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294 the following (at [97]): It should be only in exceptional circumstances that a Court should refuse to issue the constitutional writs once the Court has determined that the Tribunal had failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted. The appellant contended that on this approach relief would not be refused in the present case on the basis of inutility. Although the issue does not need to be determined I accept the first respondent's submission that the present case does not involve imperative statutory obligations within the meaning of that judgment. Further, I agree with the Federal Magistrate that there is a strong discretionary reason in favour of refusing relief. The inquiry which the appellant contended that the Tribunal should have conducted had to be undertaken by the Federal Magistrate in the context of the challenge to the Tribunal's decision. It would be odd, to say the least, if the Federal Magistrate had concluded that the appellant had not instructed the agent to include the political claim and yet remitted the matter to the Tribunal to determine that very same question. This is the more so when it is appreciated that both parties subpoenaed the agent to give evidence before the Federal Magistrate but neither side called on the subpoena. The agent answered the subpoena by filing an affidavit in which he set out his version of events. The appellant sought to tender the affidavit without calling the agent and intended to invite the Federal Magistrate to find that the contents of the affidavit were false. The Federal Magistrate upheld the first respondent's objection to such a course. Following discussion with the Court the appellant's counsel applied to amend the second ground of appeal. The application was refused as the proposed ground had no hope of success. It asserted that the Tribunal had failed to consider the appellant's risk of future persecution in Bangladesh when the reasons of the Tribunal on their face clearly showed that the Tribunal had given consideration to the very issue. Further reasons for dismissing the ground were given orally by the Court during the hearing. The original form of the ground alleged errors which on their face did not amount to jurisdictional errors. The written submissions similarly failed to identify any arguable jurisdictional errors. It is desirable that the first respondent move the Court prior to the hearing in such circumstances to have such groundless allegations rejected before written submissions are required.