Azafb v Minister for Immigration
[2015] FCCA 1349
•18 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZAFB v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1349 |
| Catchwords: PRACTICE AND PROCEDURE – Application dismissed. |
| Legislation: Migration Act 1958, ss.426A, 476 |
| Kaur v The Minister for Immigration and Border Protection [2014] FCA 915 Minister for Immigration and Multicultural Affairs v Mohammed (2000) 101 FCR 434 Ponugoti v The Minister for Immigration and Border Protection [2015] FCA 67 |
| Applicant: | AZAFB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 212 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 18 May 2015 |
| Date of Last Submission: | 18 May 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 18 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Ower |
| Solicitors for the Respondent: | Ms C. Stokes Australian Government Solicitor |
ORDERS
Leave is granted to the applicant to file a further Amended Application.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 212 of 2014
| AZAFB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 19 May 2014 affirming a decision not to grant the applicant a Protection (class XA visa).
There are two grounds in the further amended application that are advanced by the applicant and the second ground has been abandoned by counsel for the applicant:
1. That the RRT failed to exercise its jurisdiction in that it failed to properly review the decision of the delegate as required by section 414 of the Migration Act
Particulars
1.1 The Tribunal hearing is inquisitorial in nature and therefore notwithstanding the applicant’s failure to attend at the hearing the Tribunal was required to consider the claims made and the relevant information and make findings regarding those claims.
1.2 It is clear from the limited reasons produced by the Tribunal that it failed to make any findings about the applicant’s claims
3. The Tribunal’s exercise of power under s.426(1) of the Migration Act 1958 (Cth) was legally unreasonable and therefore exceeded its jurisdiction.
Particulars
3.1 On 19 August 2013, the applicant attended an interview with the delegate.
3.2 On 2 October 2013, the applicant applied for review with the Tribunal. The application for review stated (a) a residential address at Klemzig South Australia, (b) a mobile telephone and (c) an email address.
3.3 At the time the application was lodged, the applicant resided at the Klemzig address.
3.4 On 6 December 2013, the applicant filed a submission with the Tribunal. The submission was stated to be drafted with the assistance of “Mary Philippa Symonds”, who was described as a Commissioner for taking affidavits in the Supreme Court of South Australia, and gave her mobile telephone number.
3.5 In early April 2014, the applicant moved from the Klemzig address to an address at AberfoylePark, South Australia.
3.6 The applicant notified the Department of Immigration & Border Protection of the change of address.
3.7 On the advice of his Red Cross case worker, the applicant did not notify the Tribunal.
3.8 On 9 April 2014, pursuant to s.425A, the Tribunal notified the applicant of a hearing to be held on 19 May 2014.
3.9 The applicant did not receive the letter dated 9 April 2014 and did not attend the hearing on 19 May 2014.
3.10 The Tribunal made no attempt to contact the applicant or Ms Symonds on their mobile phones, or contact the applicant by email. The Tribunal made no attempt to contact the Department.
3.11 On 19 May 2014, the Tribunal determined to make a decision on the application on the review pursuant to s. 426A and affirmed the application under review.
3.12 On 22 May 2014, the Department wrote to the applicant at the Aberfoyle Park address and advised that, as his application for review had been dismissed, he was no longer eligible for Income Support payments.
3.13 On 30 May 2014, the applicant wrote to the Tribunal and advised of his new address and the fact that he did not receive the latter dated 9 April 2014.
3.14 In the premises, the Tribunal’s decision to determine the application for review without attempting to contact either the applicant or Ms Symonds was legally unreasonable.
In relation to the first ground it was argued that it should be inferred that the Tribunal has drawn an adverse inference against the applicant by reason of the failure to appear. It was argued that this amounted to the type of error identified in Minister for Immigration and Multicultural Affairs v Mohammed (2000) 101 FCR 434 at [55]-[57].
There was no substance in relation to ground 1. The letter dated 9 April 2014 clearly identified in the Court Book:
The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.
The passages in the Tribunal decision in relation to the absence of the applicant to which counsel for the applicant referred are to be read in light of that communication. There is nothing in paras.44 to 47 or in paras.50 to 57 that warrant the inference being drawn that the Tribunal drew some adverse inference against the applicant. There is no substance in relation to ground 1.
In relation to ground 3, counsel for the applicant identified that the reasons for the Tribunal noted the invitation sent to the applicant on 9 April 2014 to attend the hearing on 19 May 2014 to provide evidence and address any reservations the Tribunal had in regard to his claims.
It was suggested by counsel for the applicant that there were no reasons provided for the Tribunal proceeding to determine the matter in the circumstances where the applicant did not appear on 19 May 2014 to give evidence and present arguments and where the Tribunal noted that the applicant did not contact the Tribunal prior to the close of business on that date.
It is clear in this case, that the reasons of the Tribunal for deciding to proceed to make a decision on the review are disclosed in the reasons when paras.3 to 7 are read with paras.44 to 57. The Tribunal’s decision must be read as a whole. It is clear that the Tribunal turned its mind to whether it should proceed with the review and determined to do so in the circumstances where it had notified the applicant consistently with the statutory regime in respect of the authorised address identified in the application for review to the Tribunal.
Counsel for the applicant pointed out that the address also included an email address and that there was no evidence to suggest the Tribunal had taken steps to communicate with the applicant by email. It is not a jurisdictional error for the Tribunal to decide in the circumstances of this case to proceed with its decision-making in respect of the review where notification in accordance the authorised address has been provided. It is not necessary for the Tribunal to provide additional email notification and it is not a jurisdictional error for the Tribunal to decide to proceed with the review. In my opinion the decision of the Tribunal to proceed to determine the review cannot be said to lack an evident and intelligible justification.
Counsel for the applicant referred to correspondence that had been before the Tribunal which included a submission in which a reference was given by a Ms Simmons opining as to the credibility of the applicant. Ms Simmons’ reference in that regard included a mobile telephone number. There is nothing in that communication to indicate that Ms Simmons had adopted the role of acting for or on behalf of the applicant. Nor did the applicant’s affidavit suggest that such was in fact the position.
The applicant’s affidavit asserted a notification to the Department of Immigration of the change of address. It is clear on the evidence in the Court Book that the Tribunal was not informed of any change of address and, to the extent relevant, the letter notifying the applicant of the decision sent on 20 April 2014 was sent to the applicant’s identified address in the application for review. The bald assertion by the applicant of a notification of change of address to the Department of Immigration is unsupported by any means of notification.
Counsel for the applicant identifies that on 22 May 2015 an officer of the Department sent a communication to what in fact was the applicant’s now correct address. That is not a sufficient basis upon which the inference should be drawn that that address was notified by the applicant to the Tribunal. The applicant was in a position to give evidence as to that method of notification, how it occurred and when and has not done so. In any event even if it had been the case that the applicant had notified the department, the obligation on the applicant to exercise a level of responsible diligence identified by Barker J in Ponugoti v The Minister for Immigration and Border Protection [2015] FCA 67 at [56]-[57] means that it was still proportionate for the Tribunal to decide to proceed in the circumstances of the present case even if there had been some communication to the department as alleged by the applicant. In any event notification to the department is not notification to the Tribunal.
Further, even if the communication by the applicant were accepted to have occurred in relation to the department, I find that it cannot be said that the decision by the Tribunal to proceed to determine the review lacks an evident and intelligible justification. The facts in this case are clearly distinguishable from the decision in Kaur v The Minister for Immigration and Border Protection [2014] FCA 915. It cannot be said that the discretion under s.426A was exercised unreasonably. I find there was no jurisdictional error as alleged in ground 1 or ground 3. The application is dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 3 June 2015
8
3
2