SZFAF v Minister for Immigration and Multicultural Affairs

[2006] FCA 293

FEDERAL COURT OF AUSTRALIA

SZFAF v Minister for Immigration & Multicultural Affairs [2006] FCA 293

SZFAF v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NSD2402 OF 2005

EMMETT J
6 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2402 OF 2005

On appeal from a Magistrate of the Federal Magistrates Court of Australia

BETWEEN:

SZFAF
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

6 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed. 

2.        The appellant pay the first respondent’s costs of the appeal.

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	NSD2402 OF 2005

On appeal from a Magistrate of the Federal Magistrates Court of Australia

BETWEEN:

SZFAF
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	6 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’), affirming a decision of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), to refuse to grant a protection visa to the appellant. 

2. The appellant is a citizen of India and he arrived in Australia on 15 April 2004.  On 3 May 2004, he lodged an application for protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 7 May 2004, a delegate of the Minister, refused to grant a protection visa. On 7 June 2004, the appellant applied to the Tribunal for review of the delegate’s decision. The Tribunal affirmed the decision not to grant a protection visa on 7 September 2004. It published its reasons for that decision on 30 September 2004.

3. The appellant commenced a proceeding in the Federal Magistrates Court on 29 October 2004, seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision. On 16 November 2005, Smith FM ordered that the proceeding be dismissed and ordered the appellant to pay the Minister’s costs.

4. The appellant filed notice of appeal to this Court on 5 December 2005.  The only grounds stated were as follows:

   ‘The learned Federal Magistrate has dismissed the case without considering the legal and factual error in the decision of the Refugee Review Tribunal.

   The appellant has not been provided with the copy of the judgment of Smith FM, dated 16 November 2005. 

   The appellant seeks permission to file additional grounds when he gets the judgment on hand.’

5. The appellant was directed to file written submissions when the matter came before me for directions. He has not filed any submissions. However, he says that the only basis upon which he wishes to pursue his appeal is that there was a denial of procedural fairness on the part of the Tribunal. That question was dealt with by the primary judge. His Honour was prepared, on the evidence before him, to give the appellant the benefit of some doubt as to whether he had been notified of a proposed hearing by the Tribunal, but considered that, by reason of the operation of the Act and the Regulations, the appellant was deemed to have been given notice of the proposed hearing, even though he may not, in fact, have received it.

6. The Tribunal dealt with the question of a hearing by noting that, on 28 June 2004, it wrote to the appellant at his mailing address, advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.  The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 11 August 2004.  On 7 July 2004, the appellant informed the Tribunal that he wanted to come to a hearing and to give oral evidence.  However, on 11 August 2004, he contacted the Tribunal and said that he was unable to attend because he was ill.

7. A medical certificate was provided, which stated that he was unfit for work up to and including 11 August 2004, but did not specify the nature of his illness or how it prevented him from attending the hearing.  On 12 August 2004, the Tribunal wrote to the appellant at his mailing address, granting an adjournment of the matter until 7 September 2004.  The letter said that no further adjournment would be granted on the basis of the appellant being unfit to attend the hearing unless a medical certificate, which addressed the nature of the appellant’s medical condition and why it prevented him from attending a hearing, was provided before the hearing date.

8. The appellant did not attend the Tribunal on 7 September 2004 or contact the Tribunal to explain his failure to attend or seek a further adjournment.  The Tribunal therefore decided to make its decision on the review without taking any further action to enable the appellant to appear before it.  The primary judge referred to cross-examination of the appellant and his claim that he did not receive the invitation to attend the hearing until he received the invitation to attend the Tribunal for the handing down of its decision and reasons.

9. His Honour referred to affidavit evidence filed on behalf of the Minister, attaching a copy of a card recording the history of a registered post item notifying the appellant of the proposed hearing on 7 September 2004.  His Honour was prepared to give the appellant the benefit of the doubt as to whether or not he had actually received the communication notifying him of the rescheduled date of 7 September 2004.  His Honour then referred to the regime of presumptive receipt where documents are duly sent in accordance with the Regulations. 

10. His Honour found that the letter notifying of the hearing of 7 September 2004 was sent within a time allowing the letter to be described as an invitation, under s 425A of the Act, to appear before the Tribunal. His Honour referred to s 426A(1)(a), which provides that, if an applicant is invited to appear before the Tribunal and does not appear before the Tribunal on the day fixed, the Tribunal may make a decision without any further action to allow or enable the applicant to appear before it.

11. Division 7A Part 7 of the Act provides a scheme whereby a person is taken to have received documents from the Tribunal. Section 441A(4) provides that an officer of the Tribunal may date a document and then dispatch it within three working days of the date of the document by prepaid post to the last address for service provided to the Tribunal by the recipient in connection with the review. Under s 441C(4), if the Tribunal gives a document to a person by that method, the person is taken to have received the document, relevantly, seven working days after the date of the document.

12. His Honour found that s 441A had been complied with and there was no challenge to that finding.  The appellant was, in those circumstances, deemed to have been notified within the relevant time of the proposed rescheduled hearing.  It is, of course, unfortunate that an applicant be denied a hearing by reason of non-receipt of notification of the date for the hearing.  On the other hand, there are policy reasons for ensuring finality of decision-making that may justify provisions such as those referred to.  However, no submissions have been made as to the effect of the provision.

13. It appears to me that there was no error on the part of the primary judge in concluding that the appellant was deemed to have been given notice of the scheduled hearing. He did not attend and the provisions of the Act to which I have referred therefore authorised the Tribunal to proceed to make a decision in his absence. It follows, in my view, that the appeal should be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             23 March 2006

The appellant appeared in person.
Solicitors for the Respondent:	Phillips Fox
Date of Hearing:	6 March 2006
Date of Judgment:	6 March 2006