Applicant A98/2002 v Minister for Immigration and Multicultural
[2003] FCA 713
•9 JULY 2003
FEDERAL COURT OF AUSTRALIA
Applicant A98/2002 v Minister for Immigration & Multicultural
& Indigenous Affairs [2003] FCA 713APPLICANT A98/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, JACK HOYSTED, MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL
S86 OF 2003
FINN J
9 JULY 2003
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S86 OF 2003
BETWEEN:
APPLICANT A98/2002
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTJACK HOYSTED, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTPRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENTJUDGE:
FINN J
DATE OF ORDER:
9 JULY 2003
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The question 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
S86 OF 2003
BETWEEN:
APPLICANT A98/2002
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTJACK HOYSTED, MEMBER REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTPRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
JUDGE:
FINN J
DATE:
9 JULY 2003
PLACE:
ADELAIDE
REASONS FOR JUDGMENT (EX TEMPORE)
The originating proceeding in this matter was begun in the High Court of Australia on 3 July 2002. It sought judicial review of a decision of the Refugee Review Tribunal made on 8 May 2002 in which the Tribunal affirmed the decision not to grant the applicant a protection visa. That proceeding was subsequently remitted to this court.
An amended application was filed in the matter though not, I would note, with a supporting affidavit as required by O 4 r 6 of the Federal Court Rules. The principal ground advanced was that there had been a denial of procedural fairness in that there had been a breach of what is described as the hearing rule. Challenge was made to the Tribunal’s making a decision which affected the applicant's interests without hearing him.
On 3 June 2003 the respondent Minister filed a notice of motion for summary dismissal of the amended application under O 20 r 2(1)(a) of the Federal Court Rules, on the basis that no reasonable cause of action was disclosed. As it is presently understood, that notice of motion is directed at the alleged breach of the audi alteram partem rule.
On 6 June 2003, a judge of this court adjourned consideration both of the application and the notice of motion until today's date, and gave the applicant liberty to file further affidavit material to lay a factual foundation for the allegations made in the amended application. That liberty was not availed of.
The matter having come on for hearing, the first respondent moved on its notice of motion. It is clear that the application was heard in the absence of the applicant. A short history of the matter leading up to the hearing is that on 5 March 2002 the tribunal wrote to the applicant, informing him of the time and date of the tribunal's hearing. He was invited to attend at that hearing. The applicant responded that he wished to attend and that he was being helped by a migration agent. Two days before the date set for the hearing, a request was sent via the migration agent to the department requesting another hearing date on the basis that the applicant was suffering specified ill health. A medical certificate was enclosed. The following day the Tribunal by letter granted that request. It did indicate that no further medical postponement would be granted unless the applicant could produce evidence from his doctor which identified what the condition he had was, and explain how that condition prevented him from attending a one‑hour hearing and giving evidence. In bold letters on that communication was the warning:
“If you do not attend the hearing and a postponement has not been granted, the tribunal may make a decision on your case without further notice.”
As the Tribunal noted in its reasons, the applicant did not attend on the new hearing date. The Tribunal then proceeded to deal with the matter, as it had power to do, under section 426A of the Migration Act 1958 (Cth). The application was dismissed largely on the grounds that, on the very limited evidence that was available to the tribunal, it was not satisfied that the matters complained of by the applicant would cause him harm of a character which could properly be described as persecution within the meaning of the Refugees Convention.
The case law has made it quite plain that denial of procedural fairness is a matter of practical justice. There is no explanation provided at all in the material before the court to explain how the tribunal may be said to have failed to accord natural justice to the applicant in the circumstances. Rather, it would appear that the applicant is the author of his own harm.
In the circumstances, other than the bare fact of proceeding to hear the matter without the applicant being present (a course, as I have indicated, that was open to the tribunal under the statute), there is no evidence to support the allegation made. In the circumstances, the application should be dismissed. I reserve the question of costs to a later date as a personal costs order has been sought by the respondent Minister against the applicant’s counsel.
I certify that the preceding eight (8) 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
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