Govindaswamy v Minister for Immigration and Multicultural Affairs

[2000] FCA 1834

FEDERAL COURT OF AUSTRALIA

Govindaswamy v Minister for Immigration and Multicultural Affairs
[2000] FCA 1834

MIGRATION – Refugee Review Tribunal – whether the Tribunal is required to comply with a request for a hearing after it has made, but before it has handed down, its decision

Migration Act 1958 (Cth) s 425

ILANGOVAN GOVINDASWAMY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 523 of 2000

JUDGE:         MERKEL J
DATE:           30 NOVEMBER 2000
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 523 OF 2000

BETWEEN:	ILANGOVAN GOVINDASWAMY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	30 NOVEMBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 523 OF 2000

BETWEEN:	ILANGOVAN GOVINDASWAMY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	30 NOVEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant did not appear at the hearing of the present matter.  His solicitor sought leave, which I have granted, to cease to act, on the basis that the applicant did not provide the funds necessary to enable counsel to be briefed to appear.  Rather than dismiss the case on the basis of non-appearance, it seems to me appropriate, given that the applicant has filed contentions of law and fact to which the Minister has responded, that I indicate that notwithstanding the non-appearance I am satisfied, for the reasons I will indicate, that it is appropriate to dismiss the application with costs.

2. The applicant applied for a protection visa which was refused by the Minister.  He then applied to the Refugee Review Tribunal (“the Tribunal”) for the review of the decision.  The Tribunal affirmed the Minister’s decision by a decision which was made on 29 May 2000.  The reasons for the decision were handed down at a later date.

3. The Tribunal had, by letter dated 27 April 2000, informed the applicant that it was not prepared to make a favourable decision on the material relating to his application, and invited him to a hearing on 6 June 2000 to give oral evidence and present arguments in support of his claims.  In the letter, the applicant was also asked to inform the Tribunal whether he wished to come to the hearing.  The applicant’s response, through his solicitor on 2 May 2000, was that he did not want to come to the hearing.

4. On 29 May 2000, the Tribunal, as it was then entitled to do under the Migration Act 1958 (Cth) (“the Act”), proceeded to make a decision. The Tribunal then informed the applicant that it proposed to hand down the decision. The applicant, through new solicitors, stated that he now wished to attend the hearing, which had been proposed for 6 June, to give evidence on that date. The Tribunal indicated that the applicant was no longer entitled to that hearing as a result of his earlier response that he did not want to come to the hearing. It also indicated that it had made its decision and had no power to reopen the applicant's application for the purpose of receiving further evidence at the hearing.

5. The basis upon which the Tribunal's decision was sought to be reviewed under Part 8 of the Act is, in substance, that the applicant had an entitlement to a hearing which was denied to him and that that vitiated the decision of the Tribunal. The Minister contended that, under s 425 of the Act, the applicant did not have an entitlement to attend the hearing. Section 425 provides for an invitation to attend a hearing to be given by the Tribunal, but also provides that the applicant is not entitled to appear before the Tribunal if, inter alia, the applicant consents to the Tribunal making a decision without the applicant appearing before it. The Minister contended that is precisely what occurred in the present case.

6. The submissions of the parties indicate that there may be a real question as to when the Tribunal is functus officio.  It seems unnecessary for me to have to venture into that vexed question in the present case as the applicant, by informing the Tribunal that he did not want to come to the hearing, must be taken to have consented to the Tribunal making a decision without him appearing before it.  Thus, the applicant did not have a legal right to make his request to appear before the Tribunal after it had made its decision.

7. Had the applicant proffered material in support of his case which the Tribunal indicated it was refusing to have regard to, or to consider, that may have raised a question as to the Tribunal’s right to refuse to have regard to material which the applicant has submitted to it.  However, in the absence of any such material it cannot be said that the Tribunal has refused to have regard to any particular facts or matters which it might have been required to consider.

8. In the circumstances the applicant has not made out his case.  Accordingly, the application is to be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:             30 November 2000

For the Applicant:	No appearance
Counsel for the Respondent:	Mr C Fairfield
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 November 2000
Date of Judgment:	30 November 2000