DZADV v Minister for Immigration

[2014] FCCA 1565

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZADV v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1565

Catchwords:
MIGRATION – Show cause hearing – non-attendance by applicant at this and previous hearings – no arguable case – costs ordered.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 13.03

Kioa v West (1985) 159 CLR 550

Applicant: DZADV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: DNG 4 of 2014

Judgment of: Judge Harland

Hearing date: 10 July 2014

Date of Last Submission: 10 July 2014

Delivered at: Darwin

Delivered on: 10 July 2014

REPRESENTATION

The Applicant: No Appearance

Counsel for the Respondents: Ms Nanson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed.

2. That the applicant shall pay the respondent’s costs fixed in the sum of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT DARWIN

DNG 4 of 2014

DZADV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is an application on behalf of the Minister for a show cause hearing. The applicant has failed to attend today’s hearing. On that basis alone, I could dismiss the proceedings pursuant to rule 13.03 of the Federal Circuit Court Rules 2001.  But in this instance, it is appropriate to deal with the show cause application because this application should be dismissed not just on the basis of non-appearance and failure of the applicant to prosecute his claim with due diligence, but because pursuant to rule 44.12 of the rules, the applicant has failed to disclose an arguable claim. 

2. It is not the first time that the applicant has failed to appear.  The applicant failed to appear before the delegate and the Tribunal.  The Court Book contains the material relied by the Tribunal.  The delegate refused the applicant’s application for a protection visa and the applicant then appealed that decision.  The Tribunal was not satisfied that the applicant had provided sufficient information to support his claim and invited him to attend the hearing to provide further evidence.  In his application, the applicant nominated a post office box address of PO Box K854 Haymarket, New South Wales as his address for service.  He did not appoint a representative to receive documents on his behalf.

3. At page 27 of the Court Book, there is a copy of the letter that the Tribunal sent to the applicant at the address he gave inviting him to appear before the Tribunal. The letter was dated 9 January 2014 and the date for his appointment was 4 February 2014 at 3.30pm. Attached to the letter is the Tribunal’s information sheet about the Tribunal hearings and process for that hearing.  It also attaches the response to hearing information.

4. The applicant did not complete and return the response to hearing invitation.  The Tribunal records in its decision that on the day of the interview, the Tribunal member waited for an hour.

5. I will note that the applicant in the first instance did not attend the interview with the delegate as he was invited to and, therefore, did not take up the opportunity to provide further information to the delegate to enable the delegate to make the decision.

6. The applicant would have been aware from the letter from the delegate that there was an issue about the adequacy of the information he had provided.  He then chose not to take up the further opportunity to attend the review hearing before the Tribunal member.  It really is inevitable in those circumstances that the Tribunal member confirmed the delegate’s decision and the Tribunal member refers to the porosity of evidence that the applicant had provided. 

7. The fact of the applicant’s non-participation in proceedings and that this is now the third occasion that the applicant has failed to attend, I suggest that his application is not genuinely based. The applicant, in the application that he filed on 11 March 2014, does not provide any particulars for the grounds for review. He refers to the Tribunal breaching the rules of natural justice and procedural fairness, which are one and the same concept. That ground must fail because all the Tribunal is obliged to do in order to accord the applicant with procedural fairness or natural justice is to give the applicant the opportunity to be heard. It is clear from the Court Book that the applicant was given this opportunity both by the delegate and by the Tribunal member.

8. The tribunal member was careful to note in the decision that the address that the applicant provided was the address where the letter was sent.  There was nothing to indicate that the applicant had not received that letter.  I am satisfied that the applicant has had the opportunity on more than one occasion to put his case forward and he has chosen not to do so.  I refer to the High Court decision of Kioa v West (1985) 159 CLR 550 in that regard.

9. The other ground the applicant states is that the decision the Tribunal made involved an error of law.  He does not make any attempt to identify what this alleged error is and there is certainly nothing apparent in the material to indicate that any such error exists.  This is a judicial review and not a review about merits, but in any event, it is really the applicant’s lack of provision of information and involvement in the proceedings, which leads him in the position that he’s in today.

10. Even his affidavit does not give any further information and provides no explanation for his non-participation in the previous proceedings, not that this would have assisted him. In the circumstances, I am satisfied easily that the applicant has not disclosed an arguable case and I will dismiss the proceedings pursuant to rule 44.12 of the Federal Circuit Rules and I will also make an order for costs in favour of the Minister in the sum of $3,326.00 in accordance with the schedule to the rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  18 July 2014