NAZN v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 703

FEDERAL COURT OF AUSTRALIA

NAZN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 703

NAZN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 26 OF 2004

GYLES J
18 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 26 OF 2004

BETWEEN:	NAZN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	18 MAY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed. 

2.   The applicant pay the costs of the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 26 OF 2004

BETWEEN:	NAZN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	18 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application purportedly pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 2 December 2003, that affirmed the respondent Minister's decision to refuse to grant the applicant a protection visa.

2. The grounds for relief in the Application are that the Tribunal:

   ‘(a)exceeded jurisdiction in making the decision to affirm the respondent's decision not to grant the applicant a protection visa; and

   (b)erred in law in arriving at the decision to affirm the respondent's decision not to grant the applicant a protection visa.’ 

   The Application does not allege any particulars of those grounds that enable any cause of action to appear.

3. The Application is accompanied by an affidavit of 6 January 2004 that deals with certain procedural aspects of the matter.  It is broadly similar to that which appears from an examination of the Court Book in this matter.  I do not set out all of the material.  Suffice it to indicate that on 29 August 2003 the Tribunal wrote to the applicant and advised him that it had considered the material before it in relation to his application, but that it was unable to make a decision in his favour on that information alone.  The Tribunal invited the applicant to attend the Tribunal hearing and give oral evidence and present arguments in support of his application. 

4. The applicant responded to this notice by indicating that he wanted to come to the Tribunal hearing.  That response was conveyed by his visa and migration consultant, the applicant having signed the response form himself.  The day scheduled for the hearing was 22 October.  On the day before the scheduled day for hearing the applicant's adviser faxed to the Tribunal a letter indicating that the applicant was not fit to attend the hearing the next day, and attaching a medical certificate which indicated that the applicant was ‘unfit for duty’ from 21 October to 24 October.  The applicant's agent sought vacation of the scheduled hearing and the assignment of a new hearing date ‘at the earliest point in time’.  A new hearing date was fixed for 29 October 2003 at 10.30 am and that was conveyed to the agent for the applicant and also copied to the applicant at his address.  By facsimile letter dated 28 October, and marked as received on that date, the agent for the applicant wrote as follows:

   ‘We refer to the above-mentioned review applicant and his hearing scheduled for tomorrow at 10.30 am at the Tribunals Sydney office. 

   The review applicant has now notified our office that he will not be attending tomorrows hearing. 

   As such we are instructed to ask the Refugee Review Tribunal to make a decision on the papers currently before it. 

   If we could be of any further assistance, please do not hesitate in contacting the undersigned.’

5. The Tribunal, not surprisingly in those circumstances, proceeded to decide the matter on the documents.  The affidavit of the applicant simply says this:

   ‘Given that the Tribunal did not afforded me adequate or reasonable time to obtain documents in support of my case or the opportunity to recover from my illness, I instructed my former representative on 28 October 2003 to advise the Tribunal that I would not be attending the hearing scheduled for 29 October 2003 and that the Tribunal should make a decision on the papers before it.

   My decision to provide my former representative with these instructions on 28 October 2003 was the result of my frustration with the unreasonable manner with which the Tribunal and DIMIA had considered my case.  The actions of the Tribunal and DIMIA throughout the carriage of my case caused me to believe that I had no prospects of receiving a fair hearing regarding my case.’

6. The applicant is unrepresented and is unable to advance any legal argument in support of his case.  In rejecting the claim of the applicant to a protection visa the Tribunal gave reasons for its decision.  I do not need to set out those reasons.  The Tribunal had made it perfectly clear to the applicant that it was not prepared to decide in his favour on the papers and nothing changed when he declined to appear.  Nonetheless, as I say, the Tribunal did proceed to reject the application giving written reasons for the conclusion.  The only grounds raised in the affidavit that has been filed in support of the present application go to the process that was involved.

7. Counsel for the respondent submits that first of all s 422B of the Act applies to the review in question, which means that Div 4 is an exhaustive statement of the requirements of natural justice.  He then submits that the terms of ss 425, 425A and 426A were all plainly complied with in the present case and so there can be no attack upon the process.  Furthermore, it is submitted that even if s 422B did not apply, the course of conduct of the Tribunal could not be criticised from the point of view of procedural fairness.  The Tribunal re-scheduled a hearing when requested and did so in a timely fashion, as requested.  The date was subsequent to the date for which the certificate indicated any unfitness on the part of the applicant.  It was his choice not to appear and he cannot now be heard to complain about it.

8. This application is entirely without merit.  I regret the considerable waste of public money and time involved in such a fruitless application.  The application is dismissed.  The applicant is to pay the costs of the respondent.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             2 June 2004

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	M Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 May 2004
Date of Judgment:	18 May 2004