Chopra, Dilip v Minister for Immigration and Multicultural Affairs

[1997] FCA 1533

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 920 of 1996

BETWEEN:	DILIP CHOPRA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LOCKHART J
DATE:	5 DECEMBER 1996
PLACE:	SYDNEY

REASONS FOR JUDGMENT

There has been listed today for hearing the substantive application for review by Mr Chopra of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 November 1996 which affirmed the decision of the Minister's delegate refusing the grant of a Protection Visa to Mr Chopra.  Also listed for hearing today is a motion by Mr Chopra, who appears in person, seeking to vacate the hearing date for the substantive application and seeking a fresh date.  The motion must, therefore, be taken first.

The motion is based upon the assertion by Mr Chopra that the Tribunal as constituted by Mr Jonathan Duignan was improperly constituted because of a failure to comply with s 422 of the Migration Act 1958 (Cth). What Mr Chopra says is that he has obtained material under the Freedom of Information Act 1982 (Cth) from the Tribunal relevant to the question of the correctness of the appointment of Mr Duignan to constitute the Tribunal that heard his case. The material which has been produced to Mr Chopra by the Tribunal in response to his Freedom of Information request consists of two folios from the Tribunal's files numbered 179 and 180 in the relevant file, which is file number N94/03970.

The point which Mr Chopra makes is that although that material has been provided to him it does not reveal a valid appointment of Mr Duignan as the member of the Tribunal entitled to hear his case. His argument is based on s 422 of the Migration Act which provides in essence that if the member who constitutes the Tribunal for the purposes of a particular review stops being a member or for any reason is not available for the purpose of the review at the place where the review is being conducted then the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

The facts show that the Tribunal did conduct a hearing of Mr Chopra's matter before a Ms Christine Hayward who commenced the hearing on 8 November 1994.  The Tribunal later informed Mr Chopra that Ms Hayward was no longer available to complete the review but that he could have a further hearing.  That hearing was fixed for 8 July 1996.  It was postponed to 15 August 1996 to allow time for Mr Chopra to properly prepare his case.  That was indeed changed later because of a medical problem of Mr Chopra.  Then, on 14 August 1996 the Tribunal hearing before Mr Duignan took place and that Tribunal as so constituted affirmed that Mr Chopra was not a refugee; that was the decision of 7 November 1996.

The assertion is that folio 180, which consists of a document of the Tribunal directing, pursuant to s 422(1) of the Migration Act, that the Members, whose name appear in the schedule beside each case, constitute the Tribunal for the purpose of finishing the review of the particular case, does not establish a valid appointment of Mr Duignan.  Folio 180 itself is in the following terms:

“Being satisfied

(1) that Member Christine Hayward, the Member to whom the matters listed in the attached schedule are presently constituted, is not available for the purpose of the review of those matters at the place where the reviews are being conducted; and

(2) that the matters require urgent attention,

I direct, pursuant to section 422(1) of the Migration Act 1958, that the Members whose names appear in the schedule beside each case constitute the Tribunal for the purpose of finishing the review of the particular case.”

There then appears to be a signature over the name:

“Shun Chetty,
Principal Member
14 March 1996”

The attached sheet, folio 179 is headed "RRT Deconstitution Schedule, Member: C. Hayward".  Under that there appear seven columns and so far as relevant there appears, referable to Mr Chopra's case, his name and under the column "Reconstitute to Member?" the word "Duignan".  The following column, that is the fifth column, is headed "Deconstitution Principal Member's Signature" and there then appears a signature which is completely indecipherable.  But the second last column is headed "Date of Deconstitution" and it appears that the relevant date there asserted is 14.3.96 which corresponds with the date of the document at folio 180.

In my opinion the relevant document is the document at folio 180 which is the actual document to which I first referred, purporting to bear the signature of Shun Chetty. The attachment of folio 179 forms part of the instrument and reading the two together, in my view, it is clear that the Principal Member, Shun Chetty, has directed pursuant to s 422(1) of the Migration Act that Mr Duignan is to constitute the Tribunal for the purpose of finishing Mr Chopra's review. 

The fact that the signature under the fifth column is indecipherable is not, to my mind, to the point. In my opinion there is no case established to suggest that Mr Duignan has not been validly appointed pursuant to s 422 of the Migration Act as the Member to finish the review of Mr Chopra's case.  Accordingly, I refuse the application for adjournment.  The case will therefore proceed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lockhart

Associate:
Dated:            5 December 1996

Appellant appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 1997
Date of Judgment:	5 December 1997