MZWSD v Minister for Immigration - [2005] FMCA 1167

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWSD v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1167

MIGRATION – Protection visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Whether Applicant aware of hearing date – non-appearance – correspondence forwarded by Respondent – duty of Applicant to advise Court of current address where proceedings pending.

Federal Magistrates Court Rules 2001, Rule 13.03A(d)

VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant:

MZWSD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1349 of 2004

Judgment of:

McInnis FM

Hearing date:

9 August 2005

Delivered at:

Melbourne

Delivered on:

9 August 2005

REPRESENTATION

Applicant:

No appearance

Counsel for the Respondents:

Ms H.M. Riley

Solicitors for the Respondents:

Clayton Utz

ORDERS

The applicant be granted leave to add as a second respondent the Refugee Review Tribunal nunc pro tunc.
The second respondent be granted leave to file in court this day a notice of appearance.
The application be dismissed.
The applicant pay the first respondent's costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1349 of 2004

MZWSD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application seeking review of a decision of the Refugee Review Tribunal (the Tribunal) dated 31 August 2004. The tribunal had affirmed the decision of a delegate to refuse to grant a protection visa to the applicant.
The application was listed on this day for hearing and a notice of listing had been forwarded to the applicant's then solicitors. The notice forwarded to the applicant's then solicitors was dated 23 December 2004. Since that date, however, the solicitors on record for the applicant have filed a notice of withdrawal of practitioner dated 1 June 2005. In that notice reference is made to what is believed to be the last known address for service of the applicant. For present purposes it is sufficient to refer to it as the Carlton address. As it happens, the Carlton address appears to be an address of a firm of solicitors who

I am told often act in migration matters. Hence, the court had some concern as to whether or not the applicant had indeed received notice of the hearing this day, even though it is prepared to assume that would normally be the case in circumstances where solicitors on record in December 2004 had received the appropriate notice from the court.
Nevertheless, any concerns the court had in relation to the non‑appearance of the applicant this day and concerns otherwise in relation to whether or not the applicant has been made aware of these proceedings has to a large extent been removed by the helpful conduct of the respondent solicitors who had forwarded by letter dated 10 March 2005 the respondent's contentions of fact and law to the Carlton address. When that letter was returned with a "with compliments" slip from the firm of solicitors at the Carlton address the respondent’s solicitors then subsequently forwarded a further letter, this time addressed to the applicant at an address then known to the department, which I shall refer to as the Cranbourne West address.
The Cranbourne West address appears to be the same address used by the applicant in material in the court book and by way of example appears at page 78 of the court book. Hence, the attempt has been made to bring the hearing date to the notice of the applicant by reference to the last known address according to the former solicitor's notice of withdrawal of practitioner and by reference to the last known address which appears in the court book and which I am told was the address currently in the possession of the respondent.
On the basis of that material, I am satisfied that the applicant ought reasonably to have been made aware of the hearing date. In any event, in my view it is the responsibility of applicants to ensure that a current and up-to-date address is provided both to the department and to this court where there are proceedings pending.
In the circumstances I am satisfied that it is appropriate to proceed to deal with the application generally pursuant to rule 13.03A(d) of the Federal Magistrates Court Rules 2001 (the Rules).
The application, as I have indicated, seeks review of a decision of the Tribunal which had affirmed a delegate's decision to refuse a protection visa. The application before this court had originally claimed in the grounds that the respondent had failed to observe proper procedures with regard to the applicant to act in accordance with substantial justice, and in the alternative, it was claimed that the respondent exceeded its jurisdiction.
Contentions of fact and law filed 10 March 2005 sets out more details in relation to the matters sought to be relied upon by the applicant in this matter. I shall deal with those issues presently.
The background to the application is adequately set out in the respondent's contentions of fact and law dated 10 March 2005. The applicant is a citizen of India who was born on 15 August 1973. He arrived in Australia on 7 August 2003 on a business short-stay visa. On 5 September 2003 the applicant made an application for a protection visa. On 25 November 2003 a delegate of the minister refused the application and, as indicated earlier, that decision was affirmed by the tribunal.
The claims and evidence of the applicant are set out in the tribunal decision. Reference is made to the fact that the applicant gave oral evidence to the tribunal on 5 August 2004 and the tribunal had before it the application together with the delegate's decision record and other material available to it. The claims made by the applicant are set out in some detail in the court book page 7 and have been accurately summarised by the respondent in the respondent's contentions in paragraph 2, parts A to J.
The tribunal hearing resulted in other claims being made by the applicant which appear in the court book at page 83 and again are accurately summarised in paragraph 4 of the contentions of the respondent which I will incorporate in this decision. I otherwise accept that in making its decision the tribunal has properly considered the claim before it. For convenience I shall incorporate in this decision the summary, again of the tribunal's decision, which appears in paragraphs 5 and 6 of the respondent's contentions:
“5.The Tribunal noted that the applicant travelled to Australia on a valid Indian passport. The Tribunal accepted that there was a period of violence in the Punjab between 1984 and 1993, but that normality had returned by 1998: CB85-6. The Tribunal noted that the applicant first claimed to have been in hiding from 1995 to 2003 at the hearing. The Tribunal did not accept that the applicant would not have mentioned such an important matter to his adviser for inclusion in his initial protection visa application.
6.The Tribunal noted that the applicant was in continuous employment using his own name from 1995 to 2003, and allegedly living in hiding at his employer’s factory. However, it was during this time that the applicant claimed to have continued to receive visits from both the armed groups and the police and claimed to have been detained, in 2001, by the police. The Tribunal also noted that the applicant, on his own evidence, was released after a few hours. In these circumstances, the Tribunal found in implausible that the applicant had been detained in 2001 on suspicion of involvement with terrorists or that he was aware of adverse interest to the authorities.”
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
Whilst the contentions seek to argue that the tribunal was acting on behalf of the minister, it is clear to me that in this case, as indeed in others, that cannot be a correct assessment of the true situation. The tribunal is and remains an independent review body. There is nothing in this case which would suggest anything to the contrary.
The other contentions relied upon by the applicant and indeed the application itself, in my view, contain what could only be described as vague assertions in relation to the findings which were clearly adverse to the applicant. It is not necessary for me to consider each and every one of those contentions seriatim, but sufficient to note for the present purposes that the fact-finding mission of the tribunal is one that in this instance it has embarked upon without, in my view, any basis to suggest jurisdictional error. It has considered the issues and drawn conclusions, albeit challenged by the applicant, which were then reasonably open to the tribunal free of jurisdictional error. In my view, having regard to that conclusion, it would follow that the application should be dismissed with costs.
I direct the reasons I have just given be transcribed and upon review shall constitute my reasons for judgment. I further direct that a sealed copy of the order, together with the judgment, be forwarded to the applicant care of the Cranbourne West address. I shall otherwise direct that copies of the correspondence from the respondent's solicitors to the applicant dated 10 March 2005 and 25 July 2005 be placed on the court file.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 9 August 2005