AZAAM v Minister for Immigration
[2008] FMCA 1290
•22 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AZAAM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1290 |
| MIGRATION – Application for a change of venue – refused. |
| Migration Act 1958, ss.417, 476 Federal Magistrates Act 1999, s.39 Federal Magistrates Court Rules 2001, r.8 |
| Applicant: | AZAAM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | ADG 170 of 2008 |
| Judgment of: | Lindsay FM |
| Hearing date: | 22 August 2008 |
| Date of last submission: | 22 August 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 22 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Counsel for the Respondent: | Ms Forrester |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
UPON NOTING THAT this matter is listed for a directions hearing before Registrar Christie on 26 August 2008 at 9am,
THE COURT ORDERS THAT:
The application of the applicant made in her Application in a Case filed on 19 August 2008 for a transfer of the venue for the hearing of this matter is refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 170 of 2008
| AZAAM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
There is an application before this Court which is returnable next week, pursuant to s.476 of the Migration Act 1958 (“the Act”), in which the applicant seeks to review a decision of the Refugee Review Tribunal which refused to grant her a protection visa.
The decision of the Refugee Review Tribunal (“the Tribunal”) of 24 April 2008 tells us that the applicant is a citizen of Austria. She entered Australia in October of 2006. In paragraph 49 of the Tribunal’s reasons, it notes that on 27 June 2007 the Refugee Review Tribunal remitted the application by the applicant and her two children from her first marriage for a Partner Sub-Class 309 Visa to the Department.
I can also take note that pursuant to paragraph 65 of the Tribunal’s reasons, the applicant was aware of an opportunity she had under s.417 of the Act to seek the exercise of the Minister’s discretion in her favour.
The Tribunal rejected her application for a protection visa because it was not satisfied that she had met the criteria for the grant of the visa. In other words, the Tribunal was not satisfied that she had a well‑founded fear of persecution for a Convention reason arising from her return to Austria.
I have not formed any view about the matter, because the matter has not been argued, but on the face of Tribunal’s record of decision - which is the only document I have in relation to the matter - there are going to be significant difficulties confronting the applicant in that application. That is, her application for a protection visa.
What the position is with respect to her application for the spouse visa and her application under s.417 of the Act, is a matter upon which I cannot comment. In any event, that is the application that comes before the Court next week.
It will be before the Registrar and what conventionally happens at such hearings is that the matter is listed for hearing, and arrangements are made for the preparation of a Court Book and for the filing of the documents that are going to be necessary to properly determine the application for judicial review of the Tribunal’s decision.
In the meantime, the applicant has brought an application to have the matter transferred from this Registry to the Melbourne Registry and she has filed a very brief affidavit in relation to that application, in which she says that she has lived there - which I take to be in Victoria - since 2 August; that her immigration case manager is in Melbourne; and:
A computer course will be attended by me in Melbourne RMIT University, and my husband had his first part of his operation in Melbourne and will have his second part there, as well - - -
That is the extent of the affidavit material that has been filed. The application itself - the principal application - was filed on 21 July, so it looks as if the applicant has moved to Melbourne within a fortnight of the filing of the application. In her submissions before me today the applicant put, as matters explaining the application for the change in venue, those same matters.
It is said that surgical intervention in respect of an injury sustained by her husband is only available in Victoria, not in South Australia. It is said that she is about to commence a course of study in Victoria.
The application is being assessed upon the basis of there being very scant affidavit material filed in relation to the circumstances which are said to justify the change of venue so soon after the filing of the application.
It is not at all clear why the move that has been made to Melbourne on 2 August, was not one that was contemplated as likely to occur at or about the time that consideration was being given to the filing of the application.
If I were to accede to the application for the transfer in venue, the matter would then need to be listed for directions in Melbourne. As to when that would be is a matter beyond my control, but I think I am entitled to infer there would be a likelihood of the listing of the matter for hearing being delayed.
DISCUSSION & ADJOURNMENT
Just before we adjourned, I was giving my reasons in relation to the application by the applicant in this judicial review application for a change of venue.
I had indicated that the decision of the Tribunal of 24 April indicated - the gravamen of the decision was - that the applicant had not been able to establish a fear or reasonable grounds of persecution for a Convention reason if she were to be returned to Austria.
The application, as I say, is at a nascent stage. It has not yet been before the Court for the usual directions to be made. In the meantime, this application to change the venue has been made and I think I indicated before lunch my understanding of the reasons being advanced were, firstly, the applicant’s husband’s requirement to attend in Melbourne for operative treatment in relation to an injury, which treatment was not reasonably available in South Australia, and the applicant’s intention to enrol in a course at a university in Melbourne.
They are matters that, as I say, indicate in very summary fashion in the affidavit that has been filed and they are matters that the applicant sought to and indeed did tell me a little bit more about this morning.
The Court, of course, has got power to change the venue. It is described in s.39 of the Federal Magistrates Act 1999, and it is also addressed in Rule 8 of the Federal Magistrates Court Rules 2001.
The fact that the Minister, through his legal representative this morning, did not oppose the application, is a significant matter to be taken into account, although I have to bear in mind that the Minister’s views in relation to that have been formed in circumstances where they have not as yet been served with the process by the applicant. Nevertheless, the attitude the Minister adopts of not opposing the applicant is a relevant consideration.
It would be helpful to know whether the proceedings will be heard earlier if they were transferred to Melbourne, but for the reasons I gave earlier this morning, the inference I draw is that it is more likely than not that a transfer of the matter would delay the hearing of the matter.
The convenience of the parties is of course a significant matter and I accept if there is substance in the grounds advanced by the applicant as explaining her departure for Melbourne so soon after the application was filed in the Adelaide registry - if there is indeed substance in those matters - the balance of convenience may well lie with her.
My difficulty at the moment is that the applicant has not given me enough material to enable me to properly evaluate whether the proceedings should be transferred. We have got assertions in relation to the fact that the medical treatment is only available in Melbourne, but we need something to substantiate that in terms of either a medical report or the expression of a medical opinion or something of that nature.
Far more detail would be required in relation to the course that the applicant proposes to attend, and when she proposes to attend it in Melbourne, together with some information explaining what on the face of the material is an odd circumstance of the proceedings being filed here - and at the risk of repeating myself - and being followed up so shortly thereafter with the move to Melbourne.
In all the circumstances, I am not satisfied that enough material has been advanced by the applicant to enable me to make the order for transfer. Accordingly, the application for the transfer of the venue of the matter set forth in the Application in a Case filed on 19 August 2008, is refused.
The matter remains listed before the Registrar of this Court for directions on 26 August 2008.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 11 September 2008
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