Minister for Immigration & Multicultural Affairs v Mohammad

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FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275

MIGRATION           )
REFUGEES              ) – whether reg 5.03 is valid in its application to a notice under s 425A of the Migration Act – whether, if valid, on its true construction the regulation does not apply to such a notice – effect of reg 4.35D – whether “the last address for service provided by the applicant in connection with his or her application for review” under s 441A is the last address given to the RRT or may be an address given to the Court and the Minister in proceedings reviewing a final decision of the Tribunal – meaning of “in connection with” – whether Tribunal, after giving a decision, is functus officio – whether the invitation referred to in s 426 must be a continuing invitation – whether the decision was based on a particular fact which did not exist and of which there was no evidence, that the applicant had ample opportunity to appear – discussion of Curragh Queensland Mining Ltd v Daniel

WORDS AND PHRASES – “in connection with”.

Migration Act 1958 (Cth), ss 417, 425, 425A, 426, 426A, 441A, 476(1)(g), 476(4)(b)
Administrative Decisions (Judicial Review) Act 1977, s 5(3)
Migration Regulations 1994 (Cth), regs 4.35D, 5.03

Minister for Immigration and Multicultural Affairs v Singh (2000) 171 ALR 53 considered
Re V.G.M. Holdings, Ltd [1941] 3 All ER 417 referred to
Mordue v Palmer (1870) 6 Ch App 22 referred to
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 followed
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 referred to
Minister for Immigration and Multicultural Affairs v Semunigus [2000] FCA 240 referred to
Rahman v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 391 referred to
Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584 referred to
Minister for Immigration and Multicultural Affairs v Capitly (1999) 55 ALD 365 applied
Capitly v Minister for Immigration and Multicultural Affairs (Burchett J, unreported, 24 September 1998) referred to
Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 applied
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 applied
Charaev v Minister for Immigration and Multicultural Affairs [2000] FCA 865 referred to
Guden v Minister for Immigration and Multicultural Affairs (2000) 58 ALD 352 referred to
Coventry and Solihull Waste Disposal Co Ltd v Russell (Valuation Officer) [1999] 1 WLR 2093 applied
Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 applied
The Queen v Isaac; Ex parte Transport Workers’ Union of Australia (1985) 159 CLR 323 applied
Claremont Petroleum NL v Cummings (1992) 110 ALR 239 applied
Strachan v Marriott [1995] 3 NZLR 272 applied
Transurban City Link Ltd v Allan (1999) 95 FCR 553, [1999] FCA 1723 applied
Australasian Meat Industry Employees Union v Hamberger [2000] FCA 1197 referred to
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Details
Case
[2000] FCA 1275
Decision Date

CaseChat Overview and Summary

In the case of Minister for Immigration & Multicultural Affairs v Mohammad, the appeal was brought by the Minister against a judgment of the Court which had set aside a decision of the Refugee Review Tribunal (RRT). The primary dispute involved the respondent, Elias Kanchan Mohammad, a citizen of Bangladesh who had entered Australia in 1997 and applied for a protection visa. His application was initially refused by a delegate of the Minister, but he subsequently sought review by the RRT. While his application for judicial review was pending, Mohammad changed his address without notifying the RRT. The RRT sent a notice of a further hearing to his old address, which he did not receive, leading to the affirmation of the delegate’s decision. The Court had previously set aside the RRT's decision and remitted the matter back to the RRT for reconsideration.

The legal issues before the court included whether the RRT had complied with the statutory obligations to notify Mohammad of the hearing and the implications of Mohammad's failure to provide evidence due to lack of notification. The court examined sections 425, 425A, and 441A of the Migration Act 1958 (Cth), which mandate the RRT to invite applicants to appear before it and provide notice of the hearing details. The court also considered whether Mohammad's failure to attend the hearing could be inferred adversely against him, given that he had not been properly notified.

The court found that the RRT had not given Mohammad proper notice as required by the Act and Regulations, leading to the conclusion that the RRT's decision could not stand. The court emphasised that an applicant's failure to give evidence due to lack of proper notification could not lead to an adverse inference. The court also noted that while the RRT's reasons did not clearly indicate an adverse inference was drawn from Mohammad's failure to attend, the lack of notification meant he was not given an opportunity to provide evidence. The court dismissed the appeal and ordered it to be done with costs.

Orders

Orders of the court

The appeal be dismissed with costs.

Background

Background to the litigation

This is an appeal by the Minister for Immigration and Multicultural Affairs (“the Minister”) from the judgment of a single Judge of the Court (“the primary Judge”) given on 12 April 2000. The primary Judge ordered, inter alia, that a decision of the Refugee Review Tribunal (“the RRT”) be set aside. That decision was adverse to the respondent, Elias Kanchan Mohammad.Factual background Mr Mohammad is a citizen of Bangladesh. He entered Australia in February 1997 and applied to the Minister for a protection visa in March 1997. On 8 April 1997, a delegate of the Minister refused the application. On 1 May 1997, Mr Mohammad applied to the RRT for a review of the delegate’s decision. In his application Mr Mohammad provided as his address for service and home address an address in Eastlakes, New South Wales. On 3 November 1998, the RRT affirmed the decision of the delegate. Mr Mohammad sought review by the Court of that decision. While his application for review in the Court was pending, Mr Mohammad changed his address to another location in Eastlakes. Each of the Court and the Minister’s solicitor was aware of the change of address. However, Mr Mohammad did not inform the RRT of his change of address. On 28 April 1999, the Court set aside the decision of the RRT of 3 November 1998 and remitted the matter to the RRT for a further hearing. On 23 June 1999, the RRT sent a letter by registered post to Mr Mohammad’s former address. The letter invited Mr Mohammad to appear before the RRT at the further hearing of his application for a protection visa. The further hearing was scheduled for 23 July 1999. That proposed hearing did not take place because Mr Mohammad did not receive his invitation to attend the hearing. On 25 August 1999, the RRT affirmed the delegate’s decision of 8 April 1997.Legislative context Sections 425, 425A and 441A of the Migration Act 1958 (Cth) (“the Act”) apply to the instant circumstances notwithstanding that their current form post-dated the application to the RRT. See sub-item 20 of Sch 3 to the Migration Legislation Amendment Act (No 1) 1998 (Cth). Section 425 of the Act obliges the RRT, in a case such as this, to invite an applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Section 425A(1) of the Act compels the RRT to “give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear”. If an applicant is not in migration detention, the notice must be given “by one of the methods specified in section 441A”: see s425A(2) of the Act. Section 425A(3) of the Act provides that “(t)he period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period”. The prescribed period for the purposes of s425A(3) of the Act commences on receipt of the notice of invitation to appear before the RRT and concludes at the end of 14 days after the day on which the notice is received: see reg 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”).

Evidence

Evidence Before The Court

The above conclusion compels a finding that the Tribunal did not give Mr Mohammad notice of the day on which, and the time and place at which, he was scheduled to appear as required by s 425A of the Act. For this reason the Minister’s appeal must be dismissed. I consider it appropriate, however, to give brief consideration to the evidentiary significance, if any, which the Tribunal placed on Mr Mohammad’s failure to give evidence before it.EVIDENTIARY SIGNIFICANCE OF FAILURE TO GIVE EVIDENCE It accords both with common sense and legal principle that an unexplained failure by a party to give evidence, to call a witness or to tender documentary evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party’s case (Cross on Evidence, Australian Edition, Butterworths para 1215). Whether the inference does arise in a particular case will depend upon whether, in the circumstances, it is to be inferred that the reason why the party did not give evidence, or call the witness or tender the documentary evidence was because the party feared to do so (Smith v Samuels (1976) 12 SASR 573 (FC)). Plainly, if the reason why a party fails to give evidence is that he or she was not notified of the occasion on which it would have been appropriate for him or her to do so, no inference adverse to the party can be drawn from the failure to give evidence. This will be the case whether or not a statute provides that the party is to be taken to have received notification of the occasion. If the Tribunal in this case drew an inference adverse to Mr Mohammad by reason of his failure to give evidence before it, it would have treated him unfairly. Mr Mohammad was not in fact given an opportunity to give evidence before the Tribunal because he received no notification of the scheduled hearing. If the adverse inference formed an essential link in the Tribunal’s chain of reasoning, the decision of the Tribunal would be open to review on the basis that “there was no evidence or other material to justify the making of the decision” (ss 476(1)(g) and (4)(b) of the Act). However, I do not consider that it is clear that the Tribunal did draw an inference adverse to Mr Mohammad because he failed to attend the scheduled hearing. The written reasons of the Tribunal include a section headed “Findings and Reasons”. Immediately under this heading the Tribunal observes:“As the applicant has not availed himself of the opportunity to attend an oral hearing, the Tribunal has before it only the information contained in the written material from which to make a determination.” The use of the expression “the opportunity to attend an oral hearing” in the above sentence is infelicitous but the conclusion contained in the sentence does not suggest that an adverse inference is to be drawn from Mr Mohammad’s failure to attend the scheduled hearing. The reasons of the Tribunal go on to note, in effect, that it is for an applicant to satisfy the Tribunal of the matters necessary to establish an entitlement to a protection visa but that Mr Mohammad had from the time when he lodged his application for a protection visa “failed to provide any details of his claims to the department or to the Tribunal”. The Tribunal observes that:“In the case of the Tribunal the Applicant had been put on notice, through the delegate’s decision that his failure to make claims was the basis for his decision to refuse to grant a protection visa. Despite this no submission or statement of claims arrived in the period of a year to the date of the Tribunal hearing of 3 November 1998.”

Decision

Reasons for decision

BURCHETT, BRANSON AND MARSHALL JJ (dissent)
As the appeal must be dismissed for another reason, I prefer not to express a concluded view as to whether the Tribunal wrongly attached evidentiary significance to Mr Mohammad’s failure to attend the schedule hearing. However, since the process of reasoning actually adopted by the Tribunal is not made entirely clear by its written reasons, I consider it appropriate to state what I consider the appropriate process to have been. Even though the Tribunal had earlier taken the view that the material before it was not such that it should decide the review in Mr Mohammad’s favour on the basis of that material alone, the failure of Mr Mohammad to attend the scheduled hearing did not compel a finding that the decision of the delegate should be affirmed. The Tribunal, before reaching a decision on the review, was required to reconsider all of the material before it, including any material capable of throwing light on Mr Mohammad’s failure to attend before it, for the purpose of determining first, whether a hearing for Mr Mohammad should be rescheduled and secondly, if no further hearing were to be scheduled, whether on all of the material, including any material that threw light on the reason for Mr Mohammad’s failure to attend before it, it was satisfied that Mr Mohammad is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.CONCLUSION In my view the appeal should be dismissed with costs. This is an appeal by the Minister for Immigration and Multicultural Affairs (“the Minister”) from the judgment of a single Judge of the Court (“the primary Judge”) given on 12 April 2000. The primary Judge ordered, inter alia, that a decision of the Refugee Review Tribunal (“the RRT”) be set aside. That decision was adverse to the respondent, Elias Kanchan Mohammad.Factual background Mr Mohammad is a citizen of Bangladesh. He entered Australia in February 1997 and applied to the Minister for a protection visa in March 1997. On 8 April 1997, a delegate of the Minister refused the application. On 1 May 1997, Mr Mohammad applied to the RRT for a review of the delegate’s decision. In his application Mr Mohammad provided as his address for service and home address an address in Eastlakes, New South Wales. On 3 November 1998, the RRT affirmed the decision of the delegate. Mr Mohammad sought review by the Court of that decision. While his application for review in the Court was pending, Mr Mohammad changed his address to another location in Eastlakes. Each of the Court and the Minister’s solicitor was aware of the change of address. However, Mr Mohammad did not inform the RRT of his change of address. On 28 April 1999, the Court set aside the decision of the RRT of 3 November 1998 and remitted the matter to the RRT for a further hearing. On 23 June 1999, the RRT sent a letter by registered post to Mr Mohammad’s former address. The letter invited Mr Mohammad to appear before the RRT at the further hearing of his application for a protection visa. The further hearing was scheduled for 23 July 1999. That proposed hearing did not take place because Mr Mohammad did not receive his invitation to attend the hearing.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.