Hossain v Minister for Immigration and Multicultural Affairs

[2000] FCA 1583

FEDERAL COURT OF AUSTRALIA
Hossain v Minister for Immigration & Multicultural Affairs [2000] FCA 1583

MOHAMMAD MONIR HOSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N835 of 2000

WILCOX J
SYDNEY
2 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N835 of 2000

BETWEEN:	MOHAMMAD MONIR HOSSAIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	2 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N835 of 2000

BETWEEN:	MOHAMMAD MONIR HOSSAIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	2 NOVEMBER 2000
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J:  This is an application by Mohammad Monir Hossain to review a decision of the Refugee Review Tribunal upholding a decision by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse him a protection visa.  Mr Hossain is a Bangladeshi national and claims to be a member of the Bihari minority living in that country.  He claims to have suffered persecution on account of his membership of that racial group.

2. The Tribunal forwarded to Mr Hossain a letter inviting him to a hearing fixed for Wednesday, 14 June 2000 at 9am.  The letter was sent to Mr Hossain at an address at Ashfield.  It was returned unclaimed.  This happened after the date appointed for the hearing; indeed, after the decision had been made, although not yet handed down.

3. However, a copy of the letter was sent to Mr Hossain’s solicitor, John Sarroff.  Mr Sarroff informed Mr Hossain of the time and place of the hearing.  According to Mr Hossain, he told Mr Saroff that he was not mentally prepared for the hearing; and also he wanted to obtain more documentation.  According to what Mr Hossain has told me today, he asked Mr Sarroff to obtain an adjournment and he assumed this would happen.  According to Mr Hossain, he first realised no adjournment had been sought when the decision was handed down on 12 July 2000.

4. There is no material that confirms Mr Hossain's claim to have instructed Mr Sarroff to seek an adjournment. 

5. Para 22 of the Tribunal’s reasons refers to contacts between the Tribunal and Mr Sarroff.  The member records that no response was made to the invitation to attend the hearing.  Accordingly, on 7 June 2000, an officer of the Tribunal contacted Mr Sarroff to find out if Mr Hossain intended to attend the hearing.  Mr Sarroff's secretary informed the officer that a copy of the letter of invitation had been sent to Mr Hossain and he had been requested to fill out the acceptance form and send it to the Tribunal.

6. On the following day, 8 June, the officer again contacted Mr Sarroff's office.  On this occasion the officer spoke to Mr Sarroff himself.  The officer asked Mr Sarroff whether Mr Hossain knew about the hearing.  Mr Sarroff said he did and that Mr Hossain would attend the hearing.  Mr Sarroff also asked that an interpreter be provided. 

7. According to the reasons of the Tribunal, the officer requested Mr Sarroff to arrange for the response to the hearing form to be sent to the Tribunal.  Mr Sarroff said it would be faxed on the following day.  It does not appear this happened. 

8. The account of the matter set out in the Tribunal member's reasons is consistent with the Tribunal’s case management section notes about contacts with Mr Sarroff.  I have no reason to doubt the correctness of this account.  However it is important to observe that, even on Mr Hossain's version of the matter, the Tribunal did not fail to consider an application for an adjournment; no adjournment request was made.  On Mr Hossain's version of the matter, he was let down by Mr Sarroff.  Mr Hossain says that, despite his instructions to seek an adjournment, Mr Sarroff did not do so.  This is not a case where a request was made to the Tribunal but ignored.

9. Section 425 of the Migration Act 1958 deals with invitations to applicants to appear at a hearing.  Subsection (1) says as follows:

   “The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

10. I recently considered this provision in Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472. I there noted the change in wording from the previous version of s425, which referred to the obligation of the Tribunal to “give the applicant an opportunity to appear before it to give evidence”. I need not repeat what I said in Xiao; it is sufficient to say that, in the present case, it is clear the Tribunal carried out its obligation to invite Mr Hossain to appear before it. If there was a failure of duty by Mr Sarroff (a matter about which I am not in a position to make a finding) this is a matter of profound regret; however it does not have the effect that the Tribunal has failed to comply with its obligations. Any failure by Mr Sarroff to seek an adjournment does not give rise to a ground of review falling within s476 of the Migration Act.  The Court is entitled to interfere with a decision of the Tribunal only if there is such a ground.

11. The matter to which I have referred is the only ground of review advanced by Mr Hossain. As he is unrepresented, I have considered whether the Tribunal’s decision suggests any error of law or other defect falling within s476. I can find no such error or defect. Accordingly the application for review must be dismissed.

    [There was discussion about costs.]

12. I order that the application be dismissed and the applicant pay the costs of the respondent.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             2 November 2000

The Applicant in person
Solicitor for the Applicant:	D Jordan
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	2 November 2000
Date of Judgment:	2 November 2000