Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 708

FEDERAL COURT OF AUSTRALIA

Applicant A135/2002 v Minister for Immigration & Multicultural
& Indigenous Affairs [2003] FCA 708

APPLICANT A135/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S116 OF 2003

FINN J
9 JULY 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY		S116 OF 2003

BETWEEN:

APPLICANT A135/2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

9 JULY 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The consideration of costs be adjourned to a date to be fixed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY		S116 OF 2003

BETWEEN:

APPLICANT A135/2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	FINN J
DATE:	9 JULY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is one of four matters that relate to denial of natural justice founded upon the fact of the hearing taking place without the particular individual applicant being heard. 

2. The originating proceedings were filed in the High Court of Australia on 24 July 2002.  Judicial review was sought of a decision of the Refugee Review Tribunal of 7 June 2002, in which the Tribunal affirmed a decision not to grant a protection visa to the applicant.  The ground upon which the application for judicial review was based, though cast in general terms in the High Court application, has been clarified in the proceedings in this Court.  The matter was remitted to this Court by the High Court.

3. An amended application and outline of submissions were filed on 21 May 2003.  There was, however, no accompanying affidavit revealing the factual foundation for the application notwithstanding the requirement of O 4 r 6 of the Federal Court Rules.  The outline of submissions, like the amended application itself, is singularly bereft of factual material, though it did make plain that the proceeding in this court was founded on an allegation of breach of the audi alteram partem rule (or “hearing rule”) in that a denial of procedural fairness is alleged in the Tribunal proceeding to a hearing of the matter without hearing the applicant concerning it.

4. The respondent Minister on 11 June 2003 filed a notice of motion seeking summary dismissal of the application under O 20 r 2(1)(a) of the Federal Court Rules, on the grounds that no reasonable cause of action was disclosed, in that there was no breach of the rules of natural justice, as alleged in the amended application.

5. On 13 June 2003 a judge of this court adjourned further consideration of the notice of motion until 11 July 2003 and gave the applicant liberty to file further affidavit material in support of its application.  No such material has been filed in this matter. 

6. In the circumstances there is no factual substratum for the claim made. The Tribunal was authorised by s 426A of the Migration Act 1958 (Cth) to proceed to determine the matter, the applicant having been invited to attend but having failed to do so. There is no factual basis for any suggestion it acted improperly in so doing. Accordingly the minister's motion must succeed.

7. I will dismiss the application.  As the respondent Minister has sought a personal costs order against the applicant’s legal adviser, I will adjourn consideration of costs to a date to be fixed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:            11 July 2003

Counsel for the Applicant:	Mr W Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	Mr J Harris QC, Mr L Leerdam
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 July 2003
Date of Judgment:	9 July 2003