MZWOD v Minister for Immigration
[2005] FMCA 386
•7 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWOD v MINISTER FOR IMMIGRATION | [2005] FMCA 386 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa. |
| Migration Act 1958 (Cth) |
| Applicant: | MZWOD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 864 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 7 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 7 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Ms Moore |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant’s application filed 30 June 2004 be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 864 of 2004
| MZWOD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter arrived in Australia on 28 August 2002 carrying a Belgian passport. The applicant says that he is a citizen of Albania. The Belgian passport contained a visitor visa valid until
26 November 2002.
On 23 September 2002 the applicant lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (‘the Department’).
At the time of making the application the applicant provided an address in South Australia (23 Bedford Street, West Croydon) on a form which included a declaration that he would advise the Department of any change of address. He also authorised a person in Footscray, Victoria to receive communications on his behalf. Correspondence was sent to this address and to the address of the agent in Footscray.
On 20 January 2003, following a letter from the Department, the agent forwarded the passport, travel itinerary and ticket duplicate of the applicant when he arrived in Australia.
On 2 May 2003 a delegate from the Department declined to issue the applicant with a protection visa.
On 19 May 2003 the applicant lodged an application to review the delegate’s decision with the Refugee Review Tribunal (‘the RRT’). Again the applicant provided the Bedford Street address, but this time provided a mobile telephone number and did not nominate any other person as authorised to receive correspondence from the RRT.
On 29 March 2004 the RRT invited the applicant to attend the hearing to give evidence and present arguments in support of his claims. This letter was sent by registered post to the Bedford Street address. The letter was returned to the RRT marked ‘unknown at address RTS’ and had a ‘Return to Sender’ stamp upon it. The RRT decision records that the RRT attempted to contact the applicant several times on the telephone number that he had provided, without any success. The applicant did not attend at the RRT hearing.
The RRT considered the matter and refused the application. A copy of the decision was then sent to the Bedford Street address by registered post including a letter advising of the strict time limits for application for review by the courts. The applicant lodged an application for review 26 days later. The application for review was filed by a solicitor within the time limits imposed by the Act.
On 12 November 2004 Registrar Wood made orders for the filing and serving of any amended application containing proper particulars and of contentions of fact and law. On 21 January 2005 the applicant’s solicitor, Mr Joseph Belbruno, filed a Notice of Withdrawal of Practitioner and provided the applicant’s last known address as the Bedford Street address.
The applicant’s statement of grounds sets out the following:
1. The Respondent failed to observe the proper procedures with regard to the Applicant and to act in accordance with substantial justice.
2. The Respondent exceeded its jurisdiction.
In the circumstances it appears that it is not reasonably open to the applicant to seek judicial review on the basis of procedural fairness, at least with respect to the conduct of the hearing.
Nowhere has the applicant set out the facts or circumstances necessary to show that the respondent failed to observe any procedures nor the facts or circumstances upon which is relied to show that the respondent exceeded its jurisdiction.
In his visa application the applicant claimed that as a result of a land dispute between himself and his cousin and a man who worked for the Albanian authorities he would face persecution at the hands of the authorities if he returned to that country.
The RRT proceeded on the basis that the applicant was a national of Albania although made no formal finding in this regard as the applicant had not submitted any documents to support his claim of nationality. There were clearly a large number of matters about which the RRT would have sought further information from the applicant. These are outlined in the submissions of the respondent as follows:
29.The Tribunal noted that the applicant had provided few details about the problems he claimed that he had experienced at the hands of the Albanian authorities because of the land dispute and that if he had appeared at the hearing it would have asked him:
(a)to explain why the land dispute had arisen and why it continued for a period of 7 years;
(b)to explain the connection to the authorities of the person with whom his cousin was in dispute, and in particular which government organization this person worked for;
(c)whether the change in government in 1997 to a Socialist Party government affected the position in relation to the land dispute;
(d)to provide details about his claim that he was mistreated and tortured by the Albanian authorities;
(e)when and where he was imprisoned; and
(f)when he applied for a passport and when the request was refused.
The RRT did not accept the claim as it was not satisfied that there was in fact a land dispute nor that persecution had occurred nor that the applicant was discriminated against by reason of his race.
The respondent in its facts and contentions addresses the question of notice with respect to the hearing in the following terms:
43. However it matters not whether the applicant was or was not using the address. Actual notice of the invitation is not required and the onus to advise of changed details rests with the applicant. By virtue of s441C(4) the applicant is taken to have received the document seven working days after the date it bears. The fact that the invitation and notice were returned to the Tribunal does not alter the situation. The fact that an applicant does not become aware of the invitation does not displace the effect of s441 C (see NADK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [14]-[16]).
44. This was confirmed in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1474 which considered a matter almost identical in its facts. Justice Ryan considered an argument by the applicant’s Counsel that the Act draws a distinction between the invitation contemplated by s425(1) and the notice required by s425A to be given of the time and place at which the applicant is scheduled to appear and that it is only the notice that is required to be given by one of the methods specified in s441A. In response, His Honour held, at [17]:
“If the applicants’ argument were right, the Tribunal would be required in each case to be affirmatively satisfied that the invitation under s425 had actually come to the notice of the applicant. To proceed in the absence of such affirmative satisfaction would, on the applicants’ argument, convict the Tribunal of jurisdictional error. That argument flies in the face of the statutory scheme discernible in ss44IA and 441C and must, I consider, be rejected.”
45. On appeal, the Full Court agreed with His Honour’s reasoning (VNAA v Minister for Immigration [2004] FCAFC 134 at [15]) and dismissed the appeal. So, the Tribunal is not required to be satisfied that the invitation has actually come to the notice of the applicant.
46. For completeness, the respondent notes that the applicant cannot complain of not being aware that if he did not advise the Tribunal of changes of address and he did not receive correspondence from it, it may hear the case without him. The content of the declaration in the application for review made that clear [CB 52] as did the Tribunal’s letter of 20 May 2003 [CB 55-56]. The 20 May 2003 letter was not returned to the Tribunal. The obligation on the applicant to advise of change of addresses was also clear from the various Departmental forms completed by the applicant and correspondence it received from the Department which have been quoted above.
I accept these submissions.
With respect to the second ground, that is the allegation that the respondent exceeded its jurisdiction, it appears to me to be misconceived as the respondent declined to accept the claim and declined to exercise any power to issue a visa. It seems more likely that such a claim would have to be in terms that the respondent failed to exercise its jurisdiction. In any event the decision of the RRT does not appear to obtain any matters that would amount to jurisdictional error. The conclusions reached by the RRT were reasonably open to the RRT member on the material before the RRT member.
In the circumstances I dismiss the application.
I find that it is appropriate that the applicant pay the respondent’s costs which I fix at $4,500.00.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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