NBHR v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBHR v MINISTER FOR IMMIGRATION

[2005] FMCA 477

MIGRATION – Review of Refugee Review Tribunal decision – applicant declines invitation to a hearing – applicant changes her mind before date proposed for hearing, after decision signed but before decision handed down – failure by Tribunal to give applicant hearing – new matters might be raised at hearing – set aside Federal Magistrate Court orders – Tribunal decision set aside – matter remitted to the Tribunal.

Migration Act 1958 (Cth), ss.426A, 425, 430B
Federal Magistrates Court Rules 2001, rr.13.10(a), 16.05

SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 972

Applicant:

NBHR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2173 of 2004

Judgment of:

Mowbray FM

Hearing date:

9 March 2005

Date of Last Submission:

9 March 2005

Delivered at:

Sydney

Delivered on:

9 March 2005

REPRESENTATION

Advocate for the Applicant:

In person

Advocate for the Respondent:

M Allatt

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

The orders of the Court made on 9 February 2005 dismissing the application under Rule 13.10(a) and awarding costs against the applicant be set aside.
The decision of the Refugee Review Tribunal dated 30 April 2004 and made on 23 May 2004 be set aside.
The Refugee Review Tribunal hear and determine the matter according to law.
The respondent pay the applicant the cost of translating the amended application on production of:
(a)a receipt that is properly certified by the translator;
(b)a certificate that proves the translator is an accredited NAATI translator/ interpreter.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2173 of 2004

NBHR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an ex tempore decision which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) handed down on 25 May 2004.
The respondent filed an interlocutory application in this matter on

16 November 2004. She requested that the application be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action. On 9 February 2005 I heard submissions from both parties on this application. At that hearing I made orders as sought that the application be dismissed and the applicant pay the respondent’s costs.
However, after further reflection on the matter I relisted it for

9 March 2005 with a view to considering whether I should set aside the orders made on 9 February 2005 pursuant to r.16.05.
The applicant was sent an invitation to a hearing by the Tribunal on

27 April 2004. The hearing was set down for 27 May 2004. On

29 April 2004 the Tribunal received the “Response to Hearing Invitation Form” on which the applicant indicated that she did not want to attend the hearing. On 30 April 2004 the Tribunal made a decision affirming the decision of the Minister’s delegate not to grant a protection visa. The decision was handed down on 25 May 2004.
At the hearing in this Court on 9 March 2005 I heard evidence on affirmation from the applicant that on 4 May 2004 she attended the Tribunal to seek to resile from her response of 29 April 2004 in which she had indicated she did not wish to attend a hearing. She was told by a Tribunal Officer, whom she said was a male, that a decision had been made and that it was too late.
Although the decision is dated 30 April 2004, it was not handed down until 25 May 2004. By virtue of s.430B(4) of the Migration Act 1958 (Cth) (the Act) 25 May 2004 is “the date of the decision”. But the hearing date that had been originally proposed was 27 May 2004.
It is clear, in my view, that the Tribunal was not functus officio until the date on which the decision was handed down, that is 25 May 2004.
On the evidence before me the applicant had advised the Tribunal through a Tribunal officer before this date that she wished to attend a hearing, notwithstanding her earlier rejection of such an offer. In my view, even if that message was not conveyed to the Tribunal member, he had constructive notice of that request.
Consequently, the Tribunal was not entitled to proceed to make a decision without allowing the applicant to appear at the hearing. This follows from s.426A(1) of the Act which provides:
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.
Clearly, this provision can have no application. The day proposed for the hearing had not passed at the date the decision was handed down and the applicant had indicated that she wished to avail herself of a hearing.
In accordance with the authorities cited by Smith FM in SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 972 the Tribunal has not accorded the applicant a proper hearing as required by s.425 of the Act. This constitutes a significant legal error.
In addition, in oral evidence given to the Court, the applicant has indicated a number of areas in which she would have given further evidence at a Tribunal hearing. Notwithstanding that some of her evidence was rather vague and not very persuasive, it seems to me that this is not a case where the Court should decline to exercise its discretion to set aside the decision.
The appropriate forum for the applicant to present this evidence is in the Tribunal which is given the task of fact finding in these matters. Mr Allatt, for the respondent, has agreed with me that if I were to reach the view that this matter is one that should go back to the Tribunal, it would be inappropriate merely to set aside the orders that I made on

9 February 2005 and have the matter returned to this Court for the usual hearing. His concession is well taken. The only sensible course is to remit the matter directly to the Tribunal.
I therefore set aside the orders made on 9 February 2005. Further I set aside the decision of the Tribunal handed down on 25 May 2004 and remit this matter to the Tribunal for determination according to law.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: Kelisiana Thynne

Date: 29 April 2005

The applicant, NBHR, filed an application for judicial review of a decision made by the Refugee Review Tribunal. The dispute involved the applicant's refugee status and the legality of the Tribunal's decision. The case was heard in the Federal Court of Australia. The applicant sought to challenge the Tribunal's decision, which had dismissed their application for a protection visa. The Minister for Immigration opposed the application for review.

The central legal issues before the court were whether the Tribunal had acted unlawfully in its consideration of the applicant's case and whether the application for review was properly dismissed. Specifically, the court had to determine if the Tribunal had failed to consider relevant information or had erred in its interpretation of the evidence presented. Additionally, the court needed to assess if the orders made by the primary judge were appropriate in light of the application for review.

The court found that the Tribunal had indeed acted unlawfully in its consideration of the applicant's case. The Tribunal had failed to properly consider crucial evidence and had made errors in its interpretation of the applicant's circumstances. The court held that the Tribunal's decision was therefore flawed and needed to be set aside. Furthermore, the court determined that the primary judge's orders dismissing the application for review were also improper. As a result, the decision of the Refugee Review Tribunal was quashed, and the matter was remitted back to the Tribunal for reconsideration according to law. The respondent was also ordered to pay the applicant's costs associated with translating the amended application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established