Tjandra, Musni v Minister for Immigration and Multicultural Affairs
[1998] FCA 1748
•10 NOVEMBER 1998
FEDERAL COURT OF AUSTRALIA
PRACTICE AND PROCEDURE – Appellant’s application for protection visa rejected by Refugee Review Tribunal, notification of that decision forwarded to an address, which the appellant submitted he had advised was no longer current - appeal from decision of primary judge dismissing application for judicial review - no error by primary judge in rejecting appellant’s submission that he had notified the respondent of his change of address.
Migration Act 1958 (Cth) s53
Migration Regulations
Nguyen v Refugee Review Tribunal (1997) 74 FCR 311, cited
MUSNI TJANDRA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
QG 161 OF 1998
DRUMMOND, SUNDBERG & MARSHALL JJ
BRISBANE
10 NOVEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 161 of 1998
BETWEEN:
MUSNI TJANDRA
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGES:
DRUMMOND, SUNDBERG & MARSHALL JJ
DATE OF ORDER:
10 NOVEMBER 1998
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellant pay the 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
QUEENSLAND DISTRICT REGISTRY
QG 161 of 1998
BETWEEN:
MUSNI TJANDRA
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGES:
DRUMMOND, SUNDBERG, & MARSHALL JJ
DATE:
10 NOVEMBER 1998
PLACE:
BRISBANE
REASONS FOR JUDGMENT
MARSHALL J
This matter is an appeal from the judgment of Kiefel J, the primary judge, given on 27 March 1998 in which the primary judge dismissed the application of Mr Musni Tjandra, the appellant, for judicial review of a decision of the Refugee Review Tribunal (the “RRT”). The RRT determined that it had no jurisdiction to hear the appellant’s application to review the decision of the respondent’s delegate declining a protection visa to the appellant.
FACTUAL BACKGROUND
The appellant is a citizen of the Republic of Indonesia. He entered Australia on 4 October 1994 on a temporary visitor visa. On 13 December 1996 he lodged, with the respondent, an application for a protection visa. In the application he specified his address as “…Marrickville, New South Wales”. In late January 1997 the respondent’s Department advised the appellant in writing that his application was being considered and that if he should change his residential address he should supply the Department with a copy of the relevant form (“Form 929”).
On 20 March 1997 a delegate of the respondent determined to refuse the appellant’s application for a protection visa. The notification of the decision was sent to the appellant at his Marrickville address. The appellant claimed, before the primary judge, that on 12 March 1997 he sent a Form 929 in which he advised the Department of a change of address from Marrickville to “PO Box H24 Hurlstone Park NSW 2193”.
In early May 1997 the appellant applied for a review of the delegate’s decision in the RRT. His address for service in that application was his Marrickville address. No mention was made in the application of the appellant having sent a change of address form to the Department on 12 March 1997. In fact in an accompanying letter the appellant claimed that he didn’t know he was required to inform the Department about his change of address. On 2 September 1997 the RRT held that it had no jurisdiction to entertain the appellant’s application as the application was not commenced within the time provided by the Migration Regulations, that is, 28 days from the notification of the decision.
THE PROCEEDING BELOW
The primary judge informed the appellant that there were three factors which supported the view that no Form 929 was sent by him to the respondent. These factors were as follows:
The appellant’s letter to the Department in which he claimed not to know about a requirement to advise it of his change of address.
The fact that the appellant had given a friend some identification to enable him to collect the appellant’s Marrickville mail.
The appellant’s failure to advise the RRT that he sent in a Form 929 in March 1997.
The appellant made no submission in response to the areas of concern identified by the primary judge. When he was cross-examined, by counsel for the respondent, concerning these issues he offered no explanation. Additionally he advised the primary judge, shortly before the conclusion of the hearing, that when he left Marrickville in February or March 1997 he went to stay with friends “just to visit” rather than to live at the new address which was not an address per se but a post office box.
The primary judge did not accept that a Form 929 was sent by the applicant to the respondent in March 1997. She dismissed the application in her reasons for judgment published on 27 March 1998.
DID THE PRIMARY JUDGE ERR?
The primary judge held that the appellant had not lodged his application for review of the decision of the respondent’s delegate, refusing him a protection visa, within the 28 days provided by the Migration Regulations. The primary judge rejected the appellant’s submission that he notified the respondent of the change to his address as required by s53(2) of the Migration Act 1958 (Cth) (“the Act”).
I can find no error on the part of her Honour in rejecting that evidence. That decision was essentially based on her assessment of the appellant’s credibility. In my view her Honour correctly determined that no such change of address was notified to the respondent. It is significant that the appellant advised the RRT on 7 May 1997 that he did not know he was required to inform the respondent’s Department of his change of address. This statement is inconsistent with the proposition that a change was so notified.
As was said in Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 at 333:
“There is a strict time limit of 28 days which reflects the will of the Parliament that the process of review regarding decisions concerning refugee status be carried out with expedition.”
There are two additional reasons for dismissing the appeal. The first is that even if the Form 929 was sent on 12 March 1997 it did not notify a change of address. It merely referred to a post office box number. Section 53(2) of the Act provides that:
“If the applicant proposes to change the address at which he intends to live for at least 14 days, the applicant must tell the Minister the address and the period of proposed residence.”
The post office box was not an address at which the appellant intended to live.
The second additional reason for dismissing the appeal is that even if the post office box can be said to be an address, it was not, on the appellant’s own submission before the primary judge, an address at which he intended to live. He was merely visiting there.
Although the Form 929 allegedly sent in March 1997 was not before the primary judge, the appellant sought to adduce into evidence a copy of what he alleged was sent in March 1997 to the respondent. The fact of the existence of this document does not prove that an original or other copy of it was sent. There was no reasonable explanation as to why the document could not have been produced with due diligence in the proceedings below. In any event the existence of the document would not have been likely to alter the result of the proceedings below. Before the primary judge the appellant sought to adjourn proceedings to enable him to attempt to find the form which he sought to have admitted into evidence before the Full Court. Indeed once the primary judge had the opportunity to hear his evidence and submissions and to form her view as to the appellant’s credibility she declined the adjournment application. For those same reasons the Full Court declined to admit the form into evidence.
ORDER
The order I propose is as follows:
The appeal be dismissed.
The appellant pay the respondent’s costs of the appeal.
DRUMMOND J
I agree.
SUNDBERG J
For the reasons given by Marshall J I would dismiss the appeal.
DRUMMOND J
The order of the Court will be that the appeal is dismissed. The appellant must pay the respondent’s costs of the appeal.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Drummond, Sundberg & Marshall
Associate:
Dated: 10 November 1998
Counsel for the Appellant: Mr Tjandra appeared for himself Counsel for the Respondent: Mr R Derrington Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 November 1998 Date of Judgment: 10 November 1998 (ex tempore as revised from transcript)
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