A8 of 2003 v Minister for Immigration - [2005] FMCA 1329

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A8 of 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 1329

MIGRATION – Request to reinstate matter earlier set aside – Review of decision of Refugee Review Tribunal – application dismissed.

Judiciary Act 1903 (Cth)

VNAA v Minister for Immigration (2003) FCA 1474

Applicant:

APPLICANT A8 OF 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 978 of 2004

Judgment of:

Hartnett FM

Hearing date:

5 September 2005

Delivered at:

Melbourne

Delivered on:

5 September 2005

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms K. Miller

Solicitors for the Respondent:

Australian Government Solicitor

ORDER

The application filed 17 August 2005 is dismissed.
The applicant pay the respondent's costs fixed in the sum of $880.
Certify for counsel.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 978 of 2004

APPLICANT A8 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application comes before the court on application filed by the applicant 17 August 2005. In that application the applicant sought as follows:
(1) That the decision of Hartnett FM of hearing 9/8/2005 be set aside, requesting the matter be reinstated according to FMC rule 16.05. The reason is, my interpreter was arranged for hearing on 5/8/2005, but I was called to attend court a day before. In that hearing court did not arrange interpreter and I was confused when I found out.
(2) I could not answer the federal magistrate confidently because of my weak English language. I was also mentally depressed and because of that depression and psychologically under mountain heavy pressure, I fell sick later in the week and could not attend the court on my next hearing.
In support of that application was an affidavit filed and sworn by the applicant on 17 August 2005. In that affidavit the applicant deposed to being unable to attend court on the 9th day of August 2005 because:
I was also mentally depressed and because of that depression and psychologically under pressure, I fell sick and could not attend court.
By way of a brief history of this matter, on 28 December 2000 the applicant applied for a protection visa. On 27 March 2001 a delegate of the respondent refused to grant a protection visa to the applicant and on 24 April 2001 the applicant applied to the Refugee Review Tribunal (RRT) for review of the delegate's decision. The RRT affirmed the delegate's decision on 20 December 2002. On 3 January 2003 the applicant applied to the High Court of Australia for judicial review of the tribunal's decision and on 7 February 2003 Hayne J ordered the application for judicial review be remitted to the Federal Court of Australia.
On 14 November 2003 the applicant filed an amended application for review pursuant to section 39B of the Judiciary Act 1903 (Cth), and on 30 January 2004 Weinberg J ordered that the matter be transferred to this court.
The matter was initially listed for hearing on 15 December 2004 before being finally listed for hearing on 5 August 2005. On 31 May 2005 the applicant sought an adjournment of the hearing date which was refused on 2 June 2004.
The matter proceeded to final hearing on 4 August 2005 but was again adjourned until 9 August 2005, as the applicant did not have an interpreter. He had not arranged one independent of the court and nor had he made a request of the court for an interpreter on that day. Nevertheless, he sought an adjournment in the absence of an interpreter and that adjournment was granted to him.
The applicant was aware of the matter proceeding to final hearing on 9 August 2005 and was also informed by the court on 4 August 2005 that an interpreter would be present to assist him on that day. On 9 August 2005 and pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 the application filed 18 November 2003 was dismissed. There was an order that the applicant pay the costs of the respondent fixed in the sum of $7500.
The applicant failed to attend the hearing on 9 August 2005 albeit that an interpreter had been arranged by the court and was present to assist the applicant. The applicant then made the application which is before this court.
The applicant was unable this day to demonstrate to the court sufficiently the reason for his failure to appear on 9 August 2005 and that he had an arguable case.
In the application for reinstatement filed 17 August 2005 the applicant claimed to feel sick, due to depression and psychological pressure. Such claim was unsupported by any medical evidence, including medical evidence which would explain the nature of the applicant's illness and that that illness prevented him from participating effectively in the hearing listed for 9 August 2005. In submissions, the applicant asserted that he had attended upon a chemist on 9 August 2005 to obtain some medication. No evidence of that was before the Court.
The court is unwilling to accept an unsupported claim of illness, in the face of this application for reinstatement following dismissal for non‑appearance. Further, in the application for reinstatement the applicant has not articulated any argument that he has an arguable case.
The respondent provided submissions on the hearing of this matter. It is timely to include those submissions in these reasons, because they set out concisely the history of the matter before the tribunal which affords to this court a conclusion that the applicant has not demonstrated an arguable case.
Section 425 of the Migration Act 1958 required the tribunal to invite the applicant to appear and give evidence. On 18 September 2002 the tribunal invited the applicant to appear and give evidence at a hearing. The section 425 letter stated that the tribunal had considered the material before it in relation to the applicant's application but was "unable to make a decision in your favour on this information alone". The letter then indicated that the applicant was now invited to a hearing to give evidence and present arguments in support of his claims.
The section 425 letter then confirmed that the tribunal hearing was to take place on Wednesday, 4 December 2002, at 10 am. The address at which the hearing was to take place was also provided. Significantly, under the emboldened heading "Important Information About Your Hearing", the letter stated:
"The tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the tribunal immediately. If you do not attend the hearing and the tribunal does not postpone the hearing, it can make a decision on your case without further notice.”
Relevantly, the section 425 letter included a 'Response to Hearing Invitation' form, which the applicant was requested to read and complete confirming, among other things, whether or not he would be attending the scheduled hearing.
In his application for review to the tribunal, the applicant nominated an authorised recipient, Mr Tefuru M. Habib, for the purposes of section 441G of the Act. The tribunal was therefore obliged to give the notice of invitation to the authorised recipient instead of the applicant. It was also open to the tribunal to send a copy of the section 425 letter to the applicant.
The tribunal sent the section 425 letter to Mr Habib at the address previously provided in the form 929 - change of address. The tribunal also sent the section 425 letter to the applicant at his adviser's address, and the residential address previously provided in the form 929. The letters were dated 18 September 2002 and dispatched on 18 September 2002. Accordingly the applicant's adviser was taken to have received the invitation for the purposes of subsection 441C(4) of the Act.
Moreover, by operation of subsection 441G(2), the applicant was deemed to have received the section 425 letter and was deemed to be invited to the hearing. Whether the applicant did or did not become aware of the section 425 letter does not displace the effect of section 441C and 441G(2) (VNAA v Minister for Immigration (2003) FCA 1474 per Ryan J at 15, and on appeal per Full Court at (14) to (15)).
Once the applicant was invited under section 425, if the applicant did not appear at the scheduled time the tribunal was empowered by operation of section 426A to 'make a decision without taking any further action to allow or enable the applicant to appear before it'.
In any event, the section 425 letter was also addressed and dispatched to the applicant at the last residential address he had provided on the completed form 929. There is no evidence to suggest that the applicant's adviser and the applicant did not receive the section 425 letter and the accompanying response to hearing form. On the contrary, the completed response to hearing form, duly signed by the applicant, indicates that the section 425 letter was received and that the applicant and his adviser were aware of its contents.
Moreover, the completed response to hearing form signed and dated by the applicant clearly indicated that the applicant did not want to come to a hearing. It cannot be said that the tribunal was required to ignore that information or proceed on the basis that it was incorrect.
Furthermore, at no stage did the tribunal receive any further communication from the applicant, his adviser or anyone else on the applicant's behalf. There was therefore no evidence of any kind before the tribunal to suggest that the applicant would be attending or wanted to attend the hearing, and the applicant did not attend the hearing at the scheduled time.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Tracey Jones

Date: 13 September 2005