NBCB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 561

FEDERAL COURT OF AUSTRALIA

NBCB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 561

NBCB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 210 of 2004

SACKVILLE J
SYDNEY
5 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N210 OF 2004

BETWEEN:	NBCB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	5 MAY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

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	N210 OF 2004

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

JUDGE:	SACKVILLE
DATE:	5 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth) challenging a decision of the Refugee Review Tribunal (“RRT”) handed down on 15 January 2004. The RRT affirmed a decision of the delegate of the respondent (“Minister”) not to grant the applicant a protection visa.

2. The matter was set down for hearing today at 9.15 am at a directions hearing that took place on 25 March 2004.  The applicant appeared at that directions hearing and was assisted by an interpreter.  The directions that were made at that hearing were as follows: 

   1.The respondent file and serve a bundle of relevant documents on or before 2 April 2004.

   2.The applicant file and serve an amended application and any evidence by 14 April 2004.

   3.The respondent file and serve any evidence in reply by 23 April 2004.

   4.The matter be listed for hearing at 9.15 am on 5 May 2004 before Sackville J.

   5.The applicant file and serve written submissions by 28 April 2004.

   6.The respondent file and serve written submissions by 12 noon 3 May 2004.

   7.Liberty to apply on 3 days’ notice. 

3. Following that directions hearing, the Australian Government Solicitor sent a letter to the applicant setting out the terms of the orders.  The letter also recorded that I had raised with the applicant at the directions hearing the fact that he had not attended the hearing of the RRT.  The letter also pointed out that I had informed the applicant that he would need to put on evidence as to his illness and unfitness to attend the RRT hearing if he wished to rely upon that ground in these proceedings. 

4. The letter went on to suggest to the applicant that he seek legal advice and, in any event, informed him that he should serve an amended application and any evidence upon which he proposed to rely.  In fact, the applicant has not filed any amended application nor any evidence.  Nor has he filed any submissions.  When the matter was called for hearing, the applicant did not appear. 

5. In these circumstances it seems to me to be appropriate that the application should be dismissed and that the applicant should pay the Minister's costs. 

6. I should add that I have examined the materials before the Court.  There appears to be no basis for any challenge to the decision of the RRT. 

7. An examination of the green book reveals that the RRT complied with the requirement in s 425(1) of the Migration Act 1958 (Cth) (‘Migration Act’), that it invite the applicant to appear before it to give evidence and present arguments in relation to the decision under review.  There is no question that the applicant received that invitation. 

8. There is nothing in the materials to suggest that the RRT either failed to comply with the requirements of the Migration Act or denied him procedural fairness.  As the RRT found, he received the required notification of the hearing, which was to be held on 9 December 2003.  Although the applicant sent the RRT a medical certificate, it appears from that certificate that he had been suffering from the condition for a week prior to the date of the hearing.  Nonetheless, the applicant took no steps to notify the RRT that he might require an adjournment.  He simply did not attend at the hearing.  It was only when the RRT informed his agent that a medical certificate would be required that such a certificate was obtained. 

9. The RRT then made inquiries of the certifying doctor in order to establish whether the medical condition was such as to prevent the applicant from attending the hearing.  Those inquiries indicated that the applicant in fact was physically able to attend the hearing.  In these circumstances, the facts do not appear to support any contention that the applicant was denied procedural fairness by the RRT.  He was afforded every opportunity to present his case in person but simply chose not to do so. 

10. Given that the applicant did not appear before the RRT, it seems that the RRT had little alternative but to reach the conclusion that it did.  Accordingly, there seems to be no basis whatsoever for concluding that the RRT committed any jurisdictional error in the course of determining that the applicant should not be granted a protection visa. 

11. I have added these comments in the event that an application is subsequently made to set aside the orders that I make today. 

12. The orders that I make are that the application be dismissed and the applicant pay the respondent costs of the application. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:            13 May 2004

The Applicant did not appear
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 May 2004
Date of Judgment:	5 May 2004