Mzajl v Minister for Immigration & Anor (No.2)

[2015] FCCA 2680

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAJL v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 2680

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – whether applicant properly notified of Tribunal hearing – invitation posted to applicant at his nominated address – applicant also directly notified by telephone and email of hearing date and time – no absence of natural justice – no jurisdictional error demonstrated – application dismissed.

Legislation:  

Migration Act 1958, ss.441A, 441C

VNAA v Minister for Immigration and Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: MZAJL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1575 of 2014

Judgment of: Judge Burchardt

Hearing date: 12 August 2015

Date of Last Submission: 12 August 2015

Delivered at: Melbourne

Delivered on: 6 October 2015

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Brown

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.

2. The Application filed 4 August 2014 is dismissed.

3. The Applicant is to pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1575 of 2014

MZAJL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed 4 August 2014 the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 29 June 2014.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa. 

   
   

   The grounds of application are:

   “Tribunal took irrelevant facts into consideration and decided not to grant visa.  The Tribunal failed to notify the date of hearing.”

2. The application also seeks:

   “To set aside the decision of RRT file no:

   To look into the facts indetail (sic) and to follow the principle

   
   

   of natural justice.” 

3. The applicant filed an affidavit contemporaneously with his application, which relevantly asserts:

   “Tribunal has refused without giving an opportunity in my application.  There was no principle of natural justice followed.”

4. Although Registrar Allaway made orders on 5 November 2014 for the filing of any amended application and written submissions,

   
   

   the applicant has not filed any such materials.  That is not a matter

   
   

   of criticism, given his self-representation, but it means that the Court has but little before it.  The written submissions of the first respondent, in my view, correctly characterise the applicant’s grounds

   
   

   of application as being first, the Tribunal fell into jurisdictional error

   
   

   by relying upon irrelevant facts, and second, the question of procedural fairness. 

5. On 10 August 2015, the applicant appeared before the Court and sought an adjournment.  I gave reasons at the time as to why I did not grant that adjournment.  They will be prepared separately and forwarded when judgment is handed down in this matter.  I gave the applicant until 12 August 2015, to marshal his thoughts and present his arguments. 

6. When the matter was called on the day the applicant explained that

   
   

   he had applied for a protection visa.  He said he was not sure he could go back to India on his own, his family being in England.  He said

   
   

   he went to an interview and did receive a letter, but it transpired,

   
   

   I think, as matters went on, that that interview was with the delegate, and the letter was the invitation to meet the delegate.  Nothing was said by the applicant in support of his first ground of application, and the second ground was simply put in terms that he did not know there was another hearing. 

7. Counsel for the first respondent noted that the ground concerning irrelevant facts had not been articulated or pressed in any way, and

   
   

   I accept that that is so. 

8. I have myself studied the reasons of the Tribunal.  It is sufficient to say for these purposes that there is nothing to suggest the Tribunal fell into jurisdictional error by relying upon any facts that were irrelevant. 

   
   

   To the contrary, the Tribunal in large part was beneficent to the applicant, making a number of presumptions in his favour.

9. This leaves the second ground of application, the natural justice point. It is clear from Court Book (“CB”) 119 that the applicant’s application to the Tribunal for a review of the delegate’s decision gave his postal address as 37 Arrino Crescent, Hallam. It is equally clear that the invitation was forwarded by the Tribunal to that address (see CB158-159). The first respondent submits that this being so, service is deemed to have taken place, pursuant to s.441A and 441C of the Migration Act 1958 (“the Act”).  I accept that the Full Court of the Federal Court

   
   

   in VNAA v Minister for Immigration and Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [15] made it clear that this is so.

10. Although the applicant denied having a conversation with an officer

    
    

    of the Tribunal on the day of the first posited hearing, it seems clear from CB167 that on 20 June 2014 an officer of the Tribunal spoke directly with the applicant, who advised that he had not received

    
    

    the hearing invitation posted on 8 April 2014.  In fact, it emerged that the applicant had lodged a change of contact details form, CB165, which Tribunal had just received on 11 April 2014. 

11. Again on that day the officer of the Tribunal sent the applicant at what he acknowledged before the Court is in fact still his email address

    
    

    a notification of the further hearing to be held on 26 June 2014 together with a copy of the notification itself.  In addition to having been emailed, it would appear that the invitation to appear was also posted

    
    

    to the new address given by the applicant, namely 42 Ingrid Street, Dandenong. 

12. In these circumstances, while the applicant may have been in some confusion for whatever reason, there can be no doubt not only that the terms of s.441A were satisfied, but there is simply no proper reason

    
    

    to suggest that the Tribunal acted unreasonably in proceeding to hear and determine the matter in the applicant’s absence in these circumstances. 

13. In all the circumstances, therefore, neither of the applicant’s grounds

    
    

    of application are made out, and it follows that the application must

    
    

    be dismissed with costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  6 October 2015