MZZZJ v Minister for Immigration
[2014] FCCA 1792
•3 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZZJ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1792 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – whether the applicant received notice of the Tribunal hearing – application dismissed. |
| Legislation: Migration Act 1958 ss.425, 425A, 441A |
| SZIGQ & Anor v Minister for Immigration & Citizenship& Anor [2007] FCA 328 |
| First Applicant: | MZZZJ |
| Second Applicant: | MZZZK |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 91 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 3 July 2014 |
| Date of Last Submission: | 3 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 3 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Ms Ngo |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application filed on 17 January 2014 be dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 91 of 2014
| MZZZJ |
First Applicant
| MZZZK |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal.
The applicant and his spouse have sought a protection visa in Australia. The applicant’s protection visa application had been refused by a delegate of the Minister on 17 July 2013. The applicant sought a review in the Refugee Review Tribunal which was decided against him on 19 December 2013. The applicant lodged an application for review on 17 January 2014. That application came on for hearing today.
The application’s grounds are in the following terms:
I applied for the protection visa to Department of Immigration which was refused. Then I applied to MRT for review of that decision. I think MRT Tribunal and Department of Immigration did not look at my situation.
The decision was by the Refugee Review Tribunal, not the Migration Review Tribunal. However, I read his reference to the MRT in his document as meaning the RRT.
Before me the applicant raises two matters for argument. First, the applicant asks for an opportunity to put evidence before the Court or the Tribunal as to his circumstances, although none of that evidence is available even today, and he says he would need to get it from India. This is not a proper basis for judicial review.
The second basis for his application, as explained by him today, was a claim that he did not get the letter inviting him to appear before the Tribunal. The Tribunal must provide the applicant with an opportunity to appear before it and give evidence and make submissions. This is set out in s. 425 of the Act. The Act then goes on to tell the Tribunal exactly how it is to give notice to an applicant to give them an opportunity to appear before the Tribunal. Section 425A says what has to be in the notice. Section 441A explains the ways in which the notice can be delivered to an applicant. One of those ways is by prepaid post.
In this case a letter setting out the information required by the Act was sent by registered post to the applicant. That letter, with the registered post receipt number, appears at pages 122 to 123 of the court book. It appears clear that the Tribunal have complied with the sections of the Act.
The applicant has not filed any affidavit evidence, nor even clearly raised this point in any amended application or written submissions despite directions by a registrar that he file and serve an amended application and any supplementary court book or submissions by 6 June 2014.
In any event, the non-receipt of a letter is not a basis for judicial review. This has been decided by the Federal Court of Australia in a number of appeal decisions. A summary of these cases appears in SZIGQ, a decision of Downes J where his Honour said (at [5]):
In the Federal Magistrates Court, the appellants gave evidence that they did not open the post box where the invitation was sent until after the hearing date. Emmett FM did not accept that the letter was late in arriving. However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. See NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184, NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121, VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134, NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162, Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 and Others [2005] FCAFC 73, Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73, SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110 and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. In several of these cases the invitation was allegedly never received by the applicant. See VNAA v MIMIA, MIMIA v SZFHC and SZDPB v MIMIA.
I therefore find that this is not a basis for overturning the decision of the Tribunal.
I have turned my mind to whether or not the address in the letter was the correct address for the applicant. I note that the letter from the delegate saying that he was not granted a visa was sent to him at the same address on 17 July 2013. This letter was also sent by registered post. He must have received this earlier letter as he lodged an appeal to the Refugee Review Tribunal. However, it seems that he ignored a letter from the delegate inviting him to appear and give evidence before the delegate. This appears at page 5 of the delegate’s decision which is at page 101 of the court book.
The applicant continued to use the same address when he made his application to the Refugee Review Tribunal, as appears in his application form at page 108 of the court book. It is also clear that the applicant received a copy of the Refugee Review Tribunal’s decision at the same address. The notice of decision letter appears at page 129 of the court book.
It is, therefore, clear that the letter was sent to the correct address for the applicant and, therefore, the Tribunal have complied with the sections of the Act. Whilst, remarkably, the applicant appears to receive some correspondence at this address but never his invitations to appear at hearings, this is not a ground for review.
The second applicant’s case is as a spouse of the first applicant and rises or falls with his case. In the circumstances, I have no choice but to refuse his application for review.
[Further argument ensued]
The Minister asks for an order that he pay the Minister’s legal expenses in the sum of $6646 for the court case.
The applicant has been entirely unsuccessful in the case. Costs orders are ordinarily made in favour of the person who wins a case like this. The amount sought by the Minister is the amount set out in the court scale fees.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 13 August 2014
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