MZYYT and Minister for Immigration and Anor - [2012] FMCA 1238

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYYT & MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1238

MIGRATION – Judicial review – requirements of natural justice – failure to attend hearing before the Tribunal – Tribunal proceeded to determine the matter – discretion to postpone the hearing.

Federal Magistrates Court Rules 2001, r.13.03C(1)(e).
Migration Act 1958 (Cth), ss.363(1)(b), 426A, 474.

Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 1022
Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383
Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
NBMB v Minister for Immigration & Citizenship (2008) 100 ALD 118
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295
SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277

Applicant:

MZYYT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 758 of 2012

Judgment of:

Turner FM

Hearing date:

11 December 2012

Date of Last Submission:

11 December 2012

Delivered at:

Melbourne

Delivered on:

11 December 2012

REPRESENTATION

The Applicant did not appear at the hearing

Counsel for the Respondent:

Mr Mosley

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application for judicial review filed on 22 June 2012 is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 758 of 2012

MZYYT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal)” dated 22 May 2012. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant did not appear at the hearing before the Court on 11 December 2012. Pursuant to r.13.03C(1)(e) of the Federal Magistrates Court Rules 2001, the Court decided to proceed with the hearing generally. Mr Mosley of Counsel appeared for the first respondent.
The applicant arrived in Australia on 20 July 2007 as a holder of a student visa (Court Book “CB” p.3). On 8 September 2011, the applicant applied for a Protection (Class XA) visa (CB p.1). On 18 October 2011, the Department notified the applicant that his application for a Protection visa had been refused (CB p.68).
On 22 November 2011 the applicant applied to the Tribunal for review of the decision of the delegate. The Tribunal sent a letter to the applicant, inviting him to attend a hearing on 27 April 2012 (CB p.101). The applicant then sought that the hearing be postponed until 27 May 2012 (CB p.109). The Tribunal postponed the hearing until 4 May 2012 and sent the applicant an invitation to attend that hearing, and refusing the postponement until 27 May 2012 (CB p.110).
The applicant applied on 3 May 2012 that the hearing on 4 May 2012 be postponed (CB p.115). The Tribunal agreed to a further postponement to 18 May 2012, and advised the applicant of that date and invited him to attend (CB p.115). The invitation advised the applicant that if he failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it (CB p.115.10).
The power to grant an adjournment is discretionary. The Court refers to the decision in NBMB v Minister for Immigration & Citizenship (2008) 100 ALD 118.
The power in s.363(1)(b) of the Migration Act 1958 (the “Act”) is couched in permissive and not mandatory terms. In NBMB (supra) his Honour Flick J observed that:
“The tribunal unquestionably has a discretionary power to adjourn proceedings….Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision-makers. Relevant to the exercise of that discretion by the Tribunal in the present context is the legislative direction that it must conduct its review in a manner which "is fair, just, economical, informal and quick." Procedural decisions of tribunals… should not be lightly disturbed (at [14]).
Flick J went on to say at [22]:
“The opportunity was extended to the appellants to “give evidence and present arguments relating to the issues arising in relation to the decision under review” within the meaning of s 425(1). That section confers upon an applicant an opportunity to “appear before the tribunal to give evidence and present arguments”; the section does not confer upon an applicant a unilateral right to secure an adjournment of proceedings so that some particular evidence of a witness is in fact available. So long as an applicant has been given a meaningful opportunity to “give evidence and present arguments”, even if it is not the particular evidence which an applicant may prefer, there has been no breach of s 425.”
The Tribunal is generally under no duty to use its permissive statutory powers: see WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [21], [24]-[25]. The MRT is also not required to give reasons for its exercise of discretion: SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295. But in any event, the first respondent contends that the MRT did in fact provide reasons as to why it decided to not adjourn. In the Full Federal Court decision in Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383, which upheld a decision of Conti J in Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617, the applicant complained that the MRT should have waited for a related decision. Conti J concluded at [31]:
“The Tribunal was entitled in the exercise of its discretion to withhold from awaiting the Tribunal's decision on the JNZ application… there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled”. (emphasis added)
Similarly, in Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 1022 at [26], Marshall J found that there was no error in the MRT offering a three week adjournment when the applicant requested a 6-8 week adjournment “having regard to the statutory command in s420(1) of the Act for the MRT to provide a “quick” review”.
The above principles apply to the Tribunal. No error in the Tribunal’s exercise of discretion is manifest.
The applicant did not appear at the hearing before the Tribunal on 18 May 2012 (CB p.117). The Tribunal proceeded to determine the matter, pursuant to s.426A of the Act which provides:
Failure of applicant to appear before Tribunal
(1)If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: SZIGQ (ante) per Downes J at [5].
By proceeding to a decision without hearing from the applicant, the Tribunal acted in accordance with the statutory scheme: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48]. Further, there is no obligation on the Tribunal to make inquiry as to the failure on the part of an applicant to appear: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].

The Grounds

The grounds in the application for judicial review are:
(1)I have asked for extensions of time from Tribunal as I was waiting
(2)For documents to arrive from India supporting my case but RRT
(3)Didn’t give me an extension and gave the decision.
The Tribunal responded to the applicant’s request on 3 May 2011 to postpone the matter, and postponed the hearing until 18 May 2012. The applicant was advised of that hearing and invited to attend. The Tribunal proceeded in accordance with advice in that invitation, if the applicant failed to attend, the Tribunal would make a decision without taking any further action to allow or enable the applicant to appear before it (CB p.115.10).
The Court finds no error of law in what the Tribunal did, and refers to the decisions in SZIGQ, SZFDE and SZFHC (supra).
Section 422B of the Act provides that:
Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
The applicant complains that he was waiting for documents to arrive from India to support his case. There is no obligation to adjourn or postpone the hearing for that or any other reason. A breach of Division 4 of Part 7 has not been established.
The Tribunal considered whether, but was not satisfied that, the applicant comes within the complementary protection provisions. That consideration is at CB p.130.2.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application for judicial review is dismissed.

I certify that the preceding twenty–one (21) paragraphs are a true copy of the reasons for judgment of F. Turner FM

Date: 21 December 2012