NBIX v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 545

FEDERAL COURT OF AUSTRALIA

NBIX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 545

NBIX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 273 of 2005

ALLSOP J
29 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 273 of 2005

BETWEEN:	NBIX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	29 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time for leave to appeal and the application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs.

THE COURT DIRECTS THAT the solicitors for the respondent Minister send a copy of the settled reasons for today to the respondent via her Department and that the associate to Allsop J be informed when this is done.

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	NSD 273 of 2005

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

JUDGE:	ALLSOP J
DATE:	29 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by the applicant for an extension of time in which to file an application for leave to appeal.  The circumstances that lead to the application are somewhat unfortunate and I will set them out as best I can.

2. The applicant claims to be a citizen of Sri Lanka who in January 2001 entered the country.  After entering the country he made an application for a protection visa.  That application was refused by a delegate of the Minister.  An application was made for review of that decision by the Refugee Review Tribunal (the “Tribunal’).  According to the usual arrangements made under the Migration Act 1958 (Cth) (the Act) and regulations, the applicant had notified an address to the Department as to where he could be contacted. After the application for review was made to the Tribunal the Tribunal became aware of that address.

3. The Tribunal became armed with the relevant papers from the delegate, apparently examined them and came to the view that it was not in a position to give a decision favourable to the applicant without a hearing.  Accordingly, the Tribunal sought to contact the applicant by registered mail to invite him to a hearing.  Unfortunately, the applicant had moved address by the time the Tribunal sought to contact him and neither the Department nor the Tribunal was aware of the whereabouts of the applicant.  The correspondence sent by the Tribunal was returned to the Tribunal undelivered.  The Tribunal, as it was entitled to do, not having any other information as to the whereabouts of the applicant, proceeded to deal with the applicant's review application.

4. One of the issues before the Tribunal was the status of the applicant as a Sri Lankan Tamil.  This had been dealt with by the delegate on the basis of language analysis and the delegate had come to the conclusion that the applicant was a Tamil speaking Indian national rather than a Sri Lankan Tamil based on that language analysis.  The Department and/or the delegate refused to provide the language analysis evidence to the applicant.

5. That was one of the matters which, when this application first came before me, troubled me.

6. When the matter went to the Tribunal, the Tribunal, as I have said, had, amongst other things, the delegate's decision before it.  The task of the Tribunal in what it was doing is set out in various provisions of the Act.  One of the tasks of the Tribunal picked up by various provisions of the Act is to be found in s 65 of the Act.

7. Section 65 requires that the decision-maker, in this case the Tribunal, before it grants a visa, be satisfied of various matters.  One of those matters, in respect of a protection visa, is the requirement in s 36 of the Act, which is that the non-citizen is a person to whom the Tribunal is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

8. Involved in that task of the Tribunal in relation to this person was reaching a state of satisfaction as to the national origin of the person, that is the applicant.  It is important to understand and it is important for the applicant to understand what the Tribunal's task is at this stage.  If the Tribunal is unable on the material before it to reach a state of satisfaction about that matter, it is in a position of not being satisfied of that matter.

9. The Act specifically deals with that circumstance in this way.  If the Tribunal is not satisfied of all relevant matters it is obliged not to grant the visa.  In the communication to the applicant the Tribunal said that it was not in a position to be satisfied of all the matters required in order to grant a visa.  This communication was intended to put the applicant on notice that if he wanted a visa granted he needed to come to the Tribunal to provide information to the Tribunal.  If that further material had been provided to the Tribunal it may or may not have been satisfied as to the applicant's claim.  If, as happened here, the applicant did not attend the hearing the Tribunal was left in the position it was in before sending the invitation letter, that is, not being in a position where it could be satisfied of all the relevant matters to grant a visa. 

10. The complaint made in the submissions before me is that the Tribunal misunderstood its task in effect by not making a finding as to whether the applicant was an Indian national or Sri Lankan Tamil.  With respect, that misunderstands the task of the Tribunal.  If, after inviting the applicant to come to a hearing, on the material before it the Tribunal is not able to reach a state of satisfaction about a central matter there is no obligation on the Tribunal to do otherwise than to finalise the matter on the basis of the lack of satisfaction. As I have said the Act specifically deals with what must happen if the Tribunal does not have the relevant state of satisfaction, that is, it must refuse the visa and affirm the decision below. That is not because the Tribunal has decided that the applicant is an Indian national but because on the material it is not satisfied that the applicant is a Sri Lankan Tamil.  There is no obligation in the Act on the Tribunal to investigate in the absence of the applicant coming to the hearing.  Unfortunately the reason the applicant did not receive the letter appears to be because of his having moved address which on the material may have been because he was, in effect, homeless at least for a period prior to the Tribunal hearing.  If I may be permitted to say, if that is the case, then it is most regrettable, but it does not indicate any error of a relevant kind made by the Tribunal.

11. The learned Federal Magistrate in a long and careful set of reasons dealt with the matters that I have touched upon.  What makes this case most troubling is the fact that the delegate appeared to make a decision unfavourable to the applicant without providing central evidence upon which largely the refusal to grant a visa was based. Without having heard counsel because it is not relevant there would be strong grounds to argue that the applicant was denied procedural fairness by the delegate.  I do not make a finding in that respect but it does appear that a decision was made without providing the applicant with the language analysis material.

12. The Tribunal did not commit a like error.  If I may put it this way, it was not given the opportunity to make that error.  I do not put the matter that way in any way critically of the Tribunal, but the fact is that without the applicant before it, it did not have a request for that material by the applicant.

13. I have carefully examined the Federal Magistrate's reasons as well as the Tribunal's reasons and I do not see the basis for any successful appeal.  Certainly the material identified in the papers filed, in my view, is groundless for the reasons I have given.  Therefore, in my view, the two applications should be dismissed. 

14. However, I cannot leave the matter without saying the following.  In particular, in the light of the fact that the delegate did not provide crucial information to the applicant and in the unfortunate circumstances where the Tribunal was not able to contact the applicant, albeit through no fault of its own, this may be a matter in which some review of the position of the applicant could be made by the Department or the Minister or her delegate in circumstances where serious questions of procedural fairness arguably tainted the original decision.

15. However, for the reasons that I have given which I hope are clear I cannot make an order to that effect. I do not see any proper basis for granting any application for leave to appeal, as it will not advance the applicant's position at all because on the material before me the appeal is bound to fail.  What the applicant might be forgiven for thinking is that he has not yet had is an administrative hearing in which he has all the relevant material, although as I have said the fact that he did not have a hearing before the Tribunal was not the Tribunal's fault.

16. Therefore the orders that I make are:

    1.that the application for an extension of time in which to file an application for leave to appeal and the application for leave to appeal be dismissed

    2.the applicant pay the respondent's costs

17. I would expect, indeed I request, that the solicitors appearing for the Minister forward a copy of my reasons when settled to the Minister via her Department and I direct that those solicitors contact my associate when that is done.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             3 May 2005

The Applicant appeared in person by video link with the assistance of a Tamil interpreter.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	29 April 2005
Date of Judgment:	29 April 2005