NBIX v Minister for Immigration
[2004] FMCA 1041
•23 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBIX v MINISTER FOR IMMIGRATION | [2004] FMCA 1041 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa to the Applicant – Applicant claims to be a citizen of Sri Lanka – evidence that the Applicant is a citizen of India. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A
| Applicant: | NBIX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3238 of 2004 |
| Delivered on: | 23 December 2004 |
| Delivered at: | Sydney |
| Hearing date: | 23 December 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Nair |
| Counsel for the Respondent: | Ms Hartstein |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $4,000.00.
The Application is not competent pursuant to s.477 of the Migration Act.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3238 of 2004
| NBIX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The Application before the court today is an Application for review of a decision by the Refugee Review Tribunal made on 28 February 2003 and handed down on 20 March 2003. That decision affirmed a decision of a delegate of the Minister not to grant a protection visa to the Applicant.
Background
The background to this matter is that the Applicant lodged an application for a protection visa in which he said that he was a Tamil from Sri Lanka. He originally said that he had left Colombo in Sri Lanka on 27 January 2001 and had arrived in Australia that same day. He said that he had travelled to Australia on a false Australian passport.
The history that he gave was that he had lived on a farm owned by his father in Batticaloa in the eastern province of Sri Lanka. It is an area that had been subject to a lot of violence as a result of the insurgent action by an organisation known as the LTTE. He said that in June of 1997 he had been arrested with three other Tamil youths and he had been detained for some 21 days by the army, having been accused of supporting the LTTE. He said that he was released but he was arrested and later tortured. He said on a later occasion the army had come to his home, he had been assaulted, his father had been stabbed in the hand, losing not only the use of the hand but the hand itself in due course and that in November 2000 a friend of his had been shot dead by Sri Lankan soldiers. He said that he had hidden in his uncle's house and had left Sri Lanka and was able to return because the army would torture him and kill him. Thus he claimed a fear of persecution for Convention reasons.
He was originally interviewed by the Department on 28 May 2001. What happened however, is that a member of Federal Parliament Mr Laurie Ferguson MP wrote to the Department about the Applicant. In that letter the Federal Member of Parliament said that the Applicant was not a Sri Lankan Tamil at all, he was in fact Indian, according to the letter and the Member of Parliament produced certain documents, including photographs, wedding invitations and a letter from the wife of the Indian person whom the Member of Parliament accused the Applicant of being.
The Applicant's migration agent produced a statement from a Sri Lankan resident of Australia saying that he knew that the Applicant was from Batticaloa although I note that the statement that is contained in the court book, indicates that the Sri Lankan person only knew the Applicant from Australia. The Department continued its investigations and the Applicant was interviewed again, on 18 June 2001, this time he was interviewed with the aid of an interpreter.
The Department obtained an analysis of the Applicant's dialect, that is set out on page 71 of the court book, it is a language analysis dated 19 July 2001 by a Swedish company called Skandinavisk Sprakanalys AB. The language analysis was damning as far as the Applicant's case was concerned. The expert opinion was and I quote:
The speech on the tape is Tamil, the person’s dialect is obviously the one spoken in India
In the explanation, the analysis begins:
The person speaks Tamil with an Indian accent.
It gives explanations of various points as to why the speaker on the tape, being the Applicant, was of an Indian background. It does refer to the fact the Applicant had good knowledge of the city of Batticaloa and its surroundings, he names places and temples, suburbs that he names exist and he gives the right explanation of their locations. The conclusion was strong:
It is obvious that the person does not have his language background in Sri Lanka.
The statement indicated that the analyst who has performed this analysis originates from Sri Lanka. There had also been supplied a photograph said to be of the Applicant in what is said to be his real guise as an Indian person who had applied for an entertainment visa to enter Australia. That document was submitted to a document examiner who expressed an opinion that the photograph on the visa application and the photograph of the Applicant might be of the same person.
The Department wrote to the Applicant on 27 August 2001. In that letter in the third paragraph a reference is made to the linguistic analysis:
A linguistic analysis of your taped interview was conducted by Skandinavisk Sprakanalys AB, language analysis service based in Sweden. The analyst's opinion is that you spoke Tamil with an Indian accent and you used words that are typically used by Indian Tamils, the analyst says that it is obvious that you do not have your language background in Sri Lanka.
This is, of course, a summary of what was set out in the language analysis, in fairness it is a fair summary of what is contained. The letter went on to say:
I also enclose a photocopy of a photo obtained from a visa application lodged in India, this visa application was from a person of Indian citizenship who I believed to be you.
The letter goes on to point out that these matters were regarded by the Department of Immigration and Multicultural Affairs as important. The letter said:
This information will be taken into account in determining the credibility and well foundness of your claims and is significant in determining whether you meet the criteria for a protection visa.
The Applicant was then invited to comment on this material. The Applicant through his migration adviser did comment. The migration adviser from the Refugee Advice and Casework Service replied on 27 September 2001. The letter indicated that the Applicant admitted that he had spent some time in India, he was there from 1992 to 1995 and for a couple of months from December 2000 to January 2001. The letter goes on to say that
This would account for the presence of an Indian accent in his language however, without access to the linguistic analysis report it is not possible for us to provide an informed or comprehensive response to the opinion offered. We note the Department's refusal to provide us with access to the report and again, request a copy of the report in the interests of procedural fairness to our client.
As far as the Indian passport is concerned an explanation is given and I quote:
Whilst in India in December 200 an agent obtained an Indian passport for our client with out client's photo but in a different name, the agent also obtained a visa for our client to come to Australia. Our client instructs that the photo from the visa application lodged in India provided by the department is a photo of himself.
Documents were forwarded, including a further statement from the applicant, copies of four pages of the false Indian passport and a document purporting to be a letter from the Applicant's mother with an English translation. The explanation that was given was that the applicant was instructed by his adviser not to tell the Department about his time in India and out of fear the Applicant followed the adviser’s instructions. It is conceded that that was bad advice.
The delegate of the Minister refused to grant the Applicant a protection visa. What then happened was that the Applicant again, with the advice of Melissa McAdam of the Refugee Advice and Casework Service lodged an application for review with the Refugee Review Tribunal. That application was lodged on 24 October 2001. At the same time from the evidence provided, Ms McAdam again, sought a copy of the language analysis report obtained by the Department, she says in her affidavit that:
On 17 December 2001 I faxed a request to the Refugee Review Tribunal under the Freedom of Information Act for a copy of the language analysis report obtained by the department.
The Refugee Review Tribunal replied on 19 December that her request for a copy of the report was being directed to the Department; on
14 February 2002 a letter was sent by the Department directly to the Applicant care of Ms McAdam that the document would not be provided, it was exempt from release under section 40(1)(d) of the FOI Act on the basis that:Disclosure of this document would have a substantial affect on the proper and efficient conduct of the operations of an agency.
I will return to that issue shortly. What then happened was that the Refugee Review Tribunal listed the application for review for hearing, the date was set on 20 January 2003. The Applicant's adviser, Ms McAdam, had previously been in touch with the Refugee Review Tribunal on a number of occasions since the application for a review had been lodged. In the court book at pages 112, 113, 114 and 115 a copy of faxed messages from Ms McAdam to the Tribunal advising of her instructions to act for the Applicant and advising of Ms McAdam's unavailability between or projected unavailability between various dates and requesting that the Refugee Review Tribunal would not schedule a hearing for the Applicant during the period when Ms McAdam would be unavailable. That was quite clearly an appropriate action by Ms McAdam to take, to advise of her unavailability.
The most recent of those faxed messages was dated 14 October 2002 and referred to her unavailability between 26 November and
4 December 2002. The hearing date set for the Applicant's review and the information about this was set out in a letter dated 7 November 2002 was Monday 20 January 2003, a copy of that letter was forwarded to the Applicant's address or the address the parties had for the Applicant and a copy was set to Ms McAdam.The letter to the Applicant was returned unclaimed. The Department contacted Ms McAdam to ask if she had a more up-to-date address than the address that the Department or the Refugee Review Tribunal had for the Applicant. She advised that the latest address that she had was the address in Northumberland Road, Auburn, that the Refugee Review Tribunal had and was not able to assist with any more up-to-date address.
The hearing took place, as I said, on 20 January. In the decision I note that on page 131 of the court book, the Applicant was represented by Ms Melissa McAdam of the Refugee Advice and Casework Service Australia Incorporated. The Applicant did not attend the hearing. The decision of the Tribunal was to affirm the decision not to grant a protection visa. On page 132 there was a reference to the analysis of the Applicant's dialect obtained by the Department.
In the findings and reasons for decision page 133 the Tribunal said:
A particular benefit claimed by an applicant will not be granted or will be cancelled if the decision maker is not persuaded the particular facts exist, see McDonald v Director-General of Social Security (1984) 1 FCR 354 per Woodward J 357, Jenkinson J at 369.
On page 134 the Tribunal goes on to say:
In the context of Refugee decision making the High Court has emphasised the Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Guo which is Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, that the law requires that the Minister and this Tribunal standing in the shoes of the Minister on review must be satisfied that a person is a refugee.
The Tribunal went on to quote from the decision of Kirby J the Minister v Guo 596:
The mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is well founded or that it is for reasons of political opinion. It remains for the Minister in the first place to be satisfied and when that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision maker that all of the statutory elements are made out.
The Tribunal went on to refer to the evidence permitting of two possibilities, either that the Applicant was an Indian national who had spent some time in Batticaloa or that he was a Sri Lankan Tamil who had spent some time in India, as he claimed. The Tribunal went on to say:
I am simply unable on the basis of the evidence before me to be satisfied as to the identity or nationality of the applicant, it follows that I am unable to be satisfied on the evidence before me that the applicant has a well founded fear of being persecuted for a Convention reasons if he returns to his country of nationality.
In this matter I have had the benefit of submissions from Mr Nair of counsel and Ms Hartstein of counsel, who appears for the Respondent. In his submissions on behalf of the Applicant Mr Nair refers the court to section 414 of the Migration Act and the requirement of the Tribunal to review the decision, he criticises the Tribunal for accepting that there were two possibilities ie, that the Applicant was a Sri Lankan Tamil or the Applicant was an Indian national and said:
It is clear that the Tribunal did not satisfy itself as to which he was.
The Tribunal states it was simply unable to be satisfied. He referred then to the Tribunal's failure to determine whether the Applicant was an Indian or a Sri Lankan and to then not consider the possibility that he was, as he said, a Sri Lankan and to consider his claims on this basis was constructive failure to exercise the jurisdiction vested in the Tribunal. I am referred to the decision in the Minister for Immigration and Multicultural Affairs v Rajalingam (1999) FCA 719 and the ratio of that is that
Where the Tribunal is uncertain as to an issue that is significant, being satisfied or not satisfied as to whether the Applicant is a refugee or whether the Tribunal has concluded that it could not resolve this issue, the Tribunal is bound to take into account the possibility that the issue is as claimed by the Applicant.
For the Applicant, Mr Nair also goes on to refer to a denial of natural justice and procedural fairness in not providing particulars of the language analysis, he refers the court to section 424A of the Migration Act. The language analysis was also described as an irrelevant consideration as being of no probative value and the submission was that the Respondent took into account an irrelevant consideration.
I heard today evidence from the Applicant in person who gave evidence-in-chief and was cross-examined. The Applicant said that he had not seen this language analysis on a previous occasion, he had not attended the hearing before the Refugee Review Tribunal because he had shifted residence without notifying the Department. He did not learn of the decision of the Refugee Review Tribunal until after he had entered the Villawood Immigration Detention Centre back on 23 April this year. He said that an officer from the Department told him that the Refugee Review Tribunal had made a decision against him.
He rang up RACS again and spoke to Melissa McAdam, she advised an appeal to the Minister for Immigration and Multicultural and Indigenous Affairs under presumably, section 417 of the Migration Act and she also took steps to see that the matter could be re-opened and that the Applicant was not deported. The Applicant's application for review in this court was not lodged until 7 September 2004 and of course on the face of it is out of time. In cross-examination the Applicant admitted that he had changed his address in November 2001 roundabout the same time as the application had been lodged in the Refugee Review Tribunal. He indicated that he had given two addresses to his migration adviser, the most recent one being the Northumberland Avenue address. After that he said he stopped briefing her and he's changed his residence.
After November he did not contact Ms McAdam and he was not aware whether she had attended the hearing on his behalf at all. He said he had not instructed her to attend the hearing on his behalf. If he had access to the language analysis he would have explained certain points that were set out in the full text of the analysis and not in the summarised version that he was given. In an oral submission Mr Nair for the Applicant made the point that the Applicant's nationality was a crucial fact and indeed a core fact. He submitted there was a failure to exercise jurisdiction. He submitted the Applicant was not given the substance of the allegations. He was not of the view that the decision of NARX v The Minister for Immigration and Multicultural and Indigenous Affairs referred to by the counsel for the Respondent was of assistance.
Ms Hartstein of counsel for the Respondent submitted written submissions and then a set of supplementary submissions. In her original written submissions she referred to the application for review filed on 7 September 2004 in respect of the decision handed down on 20 March 2003. As to the first ground of the Applicant's grounds for review, that being an error of jurisdiction by failing to satisfy itself or not be satisfied whether the Applicant met the criteria in that the Tribunal should have found that the Applicant was a Sri Lankan or an Indian, Ms Hartstein submitted that the Tribunal did decide whether it was or it was not satisfied. It was not satisfied.
On the evidence it was unable to be satisfied as to the identity or the nationality of the Applicant. She points out that there was no obligation on the Tribunal to make a finding one way or another on the nationality of the Applicant when it could not do so. The fact that it could not do so was enough to end the matter. As to that point my comment would be that it is sufficient for the Tribunal not to be satisfied that the Applicant was from Sri Lanka without it being necessary to find that the Applicant was from another country.
Dealing with the second ground which was the denial of natural justice and procedure fairness by not providing a copy of the linguistic analysis, Ms Hartstein agreed that the linguistic analysis was part of the reason for the Refugee Review Tribunal's decision and that that report was not supplied to the Applicant. She said that this did not amount to jurisdictional error in these circumstances where there was no unfairness and no failure to exercise jurisdiction or an exceeding of jurisdiction. She gave a number of reasons as to why there was no unfairness because first the result was provided to the Applicant by way of a letter back in August 2001 and that he had replied.
Second, that he was invited to attend the RRT hearing but he did not do so. Third, that even if he had attended before the Tribunal with the contents of the evidence which he gave today the Tribunal would still have been left with a conflict of evidence. Fourth, that the language analysis report was only one of the pieces of evidence to be waived by the Tribunal. Fifth, that the Tribunal could not in any event be satisfied that he was telling the truth about his fear of persecution because of the history of the lies that he had told in his earlier application. Sixth, in the interviews with the delegate where the delegate expressed concern the Applicant had not provided any identity documents that said the question of identity was a problem the Applicant had not revealed that he had entered the country on an Indian passport to which on his evidence he was not entitled.
In her submissions Ms Hartstein dealt with the third ground which was taking into account an irrelevant consideration being the linguistic analysis report because there was no evidence establishing the authenticity of the report she said there was no question as to the authenticity of the language analysis in the mind of the delegate or the RRT and this was not raised by the Applicant. She also submitted that if the Applicant had any doubts about the authenticity of the report he could have given his copy of the tape of the interview that had been used for the analysis to his own expert or even to an interpreter for a report.
She also submitted there was no obligation on the Refugee Review Tribunal to investigate the source or authorship or the expertise of the report particularly in the light of the failure of the Applicant to challenge the report either by attending the hearing before the Tribunal or by letter. In a supplementary submission in respect of the first ground Ms Hartstein referred the court to section 65 of the Migration Act which provides that after considering a valid application for a visa the Minister if satisfied that the criteria have been satisfied is to grant the visa and if not so satisfied is to refuse to grant the visa. She referred to the decision of the High Court in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 where it is said:
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she in that case wishes to advance in support of her contention that she has a well founded fear of persecution for a Convention reason. The Tribunal must then decide whether her claim is made out.
The submission is that there was evidence that was contrary to what the Applicant said about his nationality and circumstances and the Refugee Review Tribunal found that he was unable to be satisfied because of that.
Turning to the question of the linguistic analysis from Sweden, Ms Hartstein points out that a summary of that analysis was forwarded to the Applicant who responded by saying that contrary to earlier information yes he had spent some time in India. He did reply to it but the Tribunal did not have an opportunity to put further details to the Applicant at the hearing because the letter written to the Applicant was returned unclaimed and the Applicant did not attend although he was represented by his adviser. Reference was made to the decision in NARX v The Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 41 which was a case where the Applicant had failed to attend a hearing and the Refugee Review Tribunal had said it was unable to be satisfied which of two political parties the applicant belonged to and the Full Court held:
The appellant was afforded the opportunity to attend the Tribunal hearing and said he intended to. That was the occasion for him to be asked to resolve the membership question. The Tribunal made clear to him in his letter that it was unable to determine the application in his favour on the material before it. It was therefore plain that it wanted further information from the appellant. He has only himself to blame for not attending or not contacting the Tribunal to obtain an adjourned date.
Looking at the material before me I am mindful of course that this is an application which is out of time insofar as section 477(1)(a) of the Act is concerned. Section 477(1)(a) provides:
An application to the Federal Magistrates Court under section 483(a) for a writ of mandamus, prohibition or certiorari or (b) an injunction or declaration in respect of the privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.
The court does not have the power to allow an Applicant to lodge an application outside the period of 28 days. Now, of course the catch in this is that the court must look at the substance of the application in order to decide whether it is or is not an application in respect of a privative clause decision in relation to which the jurisdiction of the court is not excluded by section 476.
I look at the particular points raised by the Applicant. As to the question of whether or not the Tribunal could be satisfied the finding of the Tribunal was that there was a conflict of evidence. There was the Applicant's assertion in documents that he had provided saying that he was from Sri Lanka. There was the material from the Department including the visa application and the photographs and the language analysis that said that he was from India and the Tribunal found that it was just not in a position to be satisfied. The Tribunal said:
I am simply unable on the basis of the evidence before me to be satisfied as to the identity or nationality of the applicant. It follows that I am unable to be satisfied on the evidence before me that the applicant has a well founded fear of being persecuted for a Convention reason if he returns to his country of nationality.
Whilst one does not use the phrase the onus of proof to my mind it is made clear in cases such as the Minister for Immigration v Wu Shan Liang and Guo that the Minister or the Refugee Review Tribunal must be satisfied that the person is a refugee and it is for the Applicant to satisfy the decision-maker or the Tribunal. True it is that an Applicant may be given, in fact should be given the benefit of the doubt but to get to that situation the Applicant must satisfy the decision-maker and the Tribunal was unable to be satisfied. It is not incumbent on the Tribunal to have made a definitive finding one way or another as to what nationality the Applicant was. It was up to the Applicant to satisfy the Tribunal that he was from Sri Lanka.
I turn now to the question of the supplying of the particulars in respect of the language analysis. Section 424A provides in subsection (1):
Subject to subsection (3) the Tribunal must (a) give to the applicant in the way that the Tribunal considers appropriate in the circumstances particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review and (b) ensure as far as is reasonably practicable that the applicant understands why it is relevant to the review and (c) invite the applicant to comment on it.
Subsection (3) says:
This section does not apply to information (a) that is not specifically about the applicant or another person. It is just about a class of persons of which the applicant or other person is a member or (b) that the applicant gave for the purpose of the application or (c) that is non‑disclosable information.
To my mind it is quite clear that this information was specifically about the Applicant. It is information that the Applicant should have been provided with and to my mind it is not sufficient for him to have been provided with a summary without the detail that was provided. Why the Department made the decision that the Applicant should not be provided with a copy of that documentation is something that has not been explained to me.
As Mr Nair of counsel quite accurately pointed out, it is in the court book anyway, but it has now come to light; it has not remained a secret. There is no reason why it should have remained a secret. It has been published in full in the court book and it is clear that the Tribunal member had reference to it. That is set out at page 132. Why then was a decision taken that a copy of the document that appears to be only a one page document from page 71 of the court book, why that could not have been provided to the Applicant's migration adviser before the hearing is something that I cannot understand and does not seem to me to be a practice that the court can sanction whatsoever.
Where then does this leave the Applicant? The Applicant did not attend the hearing. His migration adviser did although unfortunately she was bereft of instructions. It is well known that under section 425 of the Migration Act an Applicant is entitled to a hearing. An Applicant gets invited to the hearing and under subsection (2)(a) of section 425, if the Tribunal considers that it should decide the review in the Applicant's favour on the basis of the material before it, or the Applicant consents to the Tribunal deciding the review without the Applicant appearing before it, or subsections 424C(1) or (2) apply, then they do not have to invite the applicant to appear at a hearing.
The Tribunal can decide the review in the Applicant's favour without inviting the Applicant to appear before it. This was not the case here. This was something that the Applicant's migration adviser would well and truly have been aware of in her experience in the field. The Tribunal, on looking at the papers, was not satisfied that it could decide the application in the Applicant's favour.
It scheduled a hearing at a time that appeared to the Refugee Review Tribunal to be suitable to the Applicant's adviser. It invited the Applicant to attend the hearing but he did not. He did not because he had put himself out of contact. He had moved from the address given to the Refugee Review Tribunal. He did not give a new address to that Tribunal. He had not given a new address to his migration adviser so she was in no better position than the Refugee Review Tribunal was.
The Tribunal went to the trouble of telephoning the migration adviser asking if she had a more recent address and she said that she did not. It is hard to see what further steps the Tribunal could have taken to conduct the hearing. Of course, the Applicant's migration adviser who at least as far as she believed still had instructions to appear did appear. That is set out at page 131 of the court book. The Applicant was represented by Ms Melissa McAdam of the Refugee Advice and Casework Service Australia Incorporated.
If the Applicant himself had attended with Ms McAdam the Tribunal could have complied with section 424A by releasing a copy of the linguistic report in full there and then. What then could have happened is either the applicant could have given oral evidence to explain why the report could not be relied on or explain his side of the story, or, which may have been more prudent, the Applicant's adviser could have requested an adjournment so that evidence to counter this quite damning report could have been procured.
In my view, in those circumstances, if the Tribunal had refused that application for an adjournment, then, on a judicial review, the court would have taken a very serious view of that matter, but of course the Applicant was not there. His representative, knowing at least a few days beforehand that she could not get in touch with him, she did not know where he was, she did not seek an adjournment of the hearing.
This is a migration adviser who had quite properly been sending fax messages from time to time saying, “Please do not schedule a hearing between certain dates, I am appearing for this Applicant and I will not be available to attend on those dates.” When the Tribunal did schedule a hearing at a time that appeared to be suitable for the Applicant's migration adviser she did not seek an adjournment because she was temporarily out of touch and of course the Applicant presumably had not been contacting her and saying, “What is going on, when is my hearing going to be?” and leaving even a phone number for her to contact him. She did not seek an adjournment so that she could get instructions from her client.
When she did attend the hearing, aware of the fact that she had been seeking copies of the linguistic report in full on several occasions, she did not object to the report being considered by the Tribunal. She does not appear to have raised any submissions about the report at all. In order that I should not appear to be too critical, I should make it clear that the unfortunate migration adviser did not have the Applicant present, did not know where he was, did not have any idea if she was ever going to hear from him again, and one could well argue that she may well have thought that there was very little point in even making an issue about the language analysis at that stage in the absence of her client.
Whilst I am of the view that the language analysis should have been provided, there was an opportunity for it to have been provided at the hearing. The fact that the Applicant did not attend made that situation pointless and as I said, there was then no objection raised. In my view, therefore, there was not an error of jurisdiction in taking into account the linguistic analysis because at the hearing where there was an opportunity even to make submissions about the weight that should be given to it or its authenticity, no such submissions appear to have been made. In my view the Tribunal was then entitled to have regard to it.
It is certainly quite clear that if the Applicant had attended the hearing of the Refugee Review Tribunal or had sought to attend or had instructed his adviser to seek an adjournment so that he could attend, the outcome of this case may be very different, but that did not happen and I am obliged to deal with the case as it stands.
The application is dismissed and I require a transcript of my reasons for this decision.
Costs follow the event. The amount of costs that is sought of $4000 is to my mind within the range that the Federal Magistrates Court would award in matters of this nature. In my view it is an appropriate figure. It is the practice of this court to make costs orders in a fixed sum and I believe that it is better for litigants to do so.
The Applicant is to pay the Respondent's costs of this application in the sum of $4000.
In my view section 477 does apply that the application also is not competent in that this is not an application in respect of a privative clause decision to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476.
I propose to remove the application from the list of cases awaiting finalisation.
I have made a finding in the judgment that the application is not competent but I will specifically include that in the orders. Application not competent pursuant to section 477 of the Act, for more abundant caution.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 13 January 2005
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