VDAT v Minister for Immigration (No.1) - [2002] FMCA 318

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VDAT v MINISTER FOR IMMIGRATION (No.1)

[2002] FMCA 318

MIGRATION – Protection visa – whether decision by Tribunal in absence of Applicant sufficient ground for Judicial Review – Application dismissed –finding of proper notice – whether Tribunal has power to proceed in absence of Applicant whether breach of inviolable right.

EVIDENCE – Whether Court should allow fresh evidence – order that documents and translation be subject of verifying affidavits – non-compliance with order – documents in possession of Applicant prior to Tribunal hearing – refusal to allow documents to be adduced in evidence.

Migration Act 1958, ss.425, 426, 474

NAAV v Minister for Immigration and Multicultural Affairs (2002) FCA FC28
NABM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 (18 September 2002)
NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 293
NAAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 300

Applicant:

VDAT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 800 of 2002

Delivered on:

22 November 2002

Delivered at:

Melbourne

Hearing Date:

22 November 2002

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr C. Horan

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application be dismissed.
That the respondent shall file and serve written submissions in relation to the issue of costs and a lump sum amount claimed on or before 29 November 2002.
That the applicant shall file and serve a reply, if any, to the respondent's submissions on costs on or before 6 December 2002.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 800 of 2002

VDAT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for judicial review of a decision of the Refugee Review Tribunal (the RRT) dated 8 April 2002. The applicant claims to be a citizen of China and arrived in Australia on 11 June 2000. On 21 July 2000 he lodged an application for a protection visa with what was then described as the Department of Immigration and Multicultural Affairs under the Migration Act 1958.
The RRT in its reasons for decision sets out by way of background the fact that an applicant for a visa of a particular class is entitled to be considered against the criteria for all of the subclasses within that class. Visa class XA includes two subclasses: 785 (Temporary Protection; and 866, Protection). On 16 March 2001 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa. On 9 April 2001 the applicant applied for review of that decision.
On 11 February 2002 the RRT sent a letter to the applicant inviting him to a hearing scheduled 27 March 2002. That letter appears in the court book at page 122. The letter clearly indicates that if the applicant wishes to attend then he should come to the hearing on Wednesday, 27 March at 10.00 am. That letter dated 11 February 2002 states:
“The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons”.
The correspondence goes on to indicate that the applicant should tell the Tribunal whether or not he wishes to come to the hearing by completing a response to the hearing invitation form and returning it to the Tribunal by 27 February 2002. In upper-case, printed on the same letter, the following words appear:
“IF YOU DO NOT ATTEND THE HEARING AND A POSTPONEMENT HAS NOT BEEN GRANTED, THE TRIBUNAL MAY MAKE A DECISION ON YOUR CASE WITHOUT FURTHER NOTICE”.
The letter to which I have referred was sent to an address provided by the applicant in Doncaster East. Without reciting the full details of that address it is clear to me from that correspondence and other correspondence that that address was the same address notified to the Tribunal on 5 September 2001 which appears at page 118 of the court book.
A letter dated 20 March 2002 was purportedly received by the Respondent by facsimile transmission somewhat unusually on 18 March 2002. I note that there is a reference in the submissions made for and on behalf of the respondent to a date, 17 March 2002. I am unable to determine where that date appears or why that date has been inserted. Looking at the document, it looks to me as if the document has been date-stamped 18 March 2002. That appears at page 124 of the court book. The letter in any event from the applicant and signed by him states a number of matters in response to various issues that were before the delegate and is addressed to the respective members of the tribunal. The letter states at the end:
“As I cannot attend the hearing on 28-03-2002, Would you extend 45 days for me from that date on, And also I need a Cantonese Interpreter. Please let me know by mail or fax …”
A fax number is then given in that correspondence. By a letter dated 18 March 2002, which appears in the court book at page 127, the tribunal indicates to the applicant that the request for a postponement of the hearing for 45 days has been refused. The letter states:
“The Member reviewing your case has considered all the information contained in your request for a postponement and has chosen not to agree to your request. The hearing will therefore proceed on Wednesday, 27 March 2002 at 10 AM as scheduled with a Cantonese interpreter. If you do not come to the hearing, your case may be decided by the tribunal on the evidence it already has.”
Contact numbers are then given to the applicant in relation to contacting the tribunal together with contact numbers for the translating and interpreting service.
It is common ground that the applicant did not attend the scheduled hearing on 27 March 2002. It has not been suggested that the address to which correspondence was sent was not the same address as previously notified by the applicant on 5 September 2001. It seems clear therefore, and in particular having regard to the response that I referred to dated 20 March 2002, that the applicant at least had received an item of correspondence which prompted that reply.
The matter was commenced by way of application filed on 7 June 2002 in the Federal Court of Australia and by order dated

2 August 2002 was transferred to the Federal Magistrates Court for hearing. The matter was listed before this court on 20 September 2002 and the applicant then appeared in person with the assistance of an interpreter, and certain orders were made. I should add, for the sake of completeness, the applicant appears in person, again with the assistance of an interpreter, this day.
Before I deal with the precise orders that were made by the court on 20 September 2002, it is clear that in the present case the applicant, through written submissions filed on 18 November 2002 in support of the application and other correspondence dated 29 July 2002 addressed to the court by the applicant together with his oral submissions, that the applicant was concerned about his inability to attend the hearing of the tribunal and in particular concerned that the tribunal then drew certain conclusions of fact which the applicant now seeks to challenge. In particular, the applicant seeks to challenge a finding by the RRT that he had fabricated a claim that his daughter had been killed as a result of mistreatment by police officers.
It is in the context of that dispute and the other general grievances in relation to inability to attend the hearing that when the matter came before the court on 20 September 2002, I accepted an application that it be adjourned to 22 November 2002 at 10 am. At that hearing, the applicant sought to rely upon two documents which he asserted should have been relied upon by the RRT or at the very least he should have been given an opportunity to make submissions to the RRT in relation to the issue of the death of his daughter. The first of those documents is a document entitled ‘Regular Residence Register’. It is a photocopy of a document in Chinese which is now the subject of what purports to be a translation dated 24 August 2002. The second of the documents sought to be relied upon is a ‘Death Diagnosis Certificate’, again in Chinese, with a purported translation dated 24 August 2002. The Chinese version of the document is also a photocopy.
Both documents were received this day for the purpose of preliminary argument and marked as exhibits for identification, MF A1 and MF A2 respectively. I had been aware of the existence of both documents on the previous occasion when the court heard the matter on

20 September 2002 and as the applicant then sought to rely upon the documents, it was my view that at the very least some endeavour should be made to authenticate both documents. To that end I made orders that:
“3.Any documents which may be the subject of a submission by the applicant to adduce fresh evidence shall be supported by affidavits to be filed and served on or before 15 November 2002 with the affidavits to include
(a)identification of the source of any documents and identification of each of the said documents;
(b)an interpretation of each document by a qualified interpreter, including exhibiting the original and purported translation of each document.”
The matter resumed for hearing this day. As I have indicated, I have received for the purpose of argument and marked for identification the two documents to which I have referred. No affidavit material was produced of the kind which was the subject of the orders made by the court on 20 September 2002.
Counsel for the respondent submitted that I should not receive the documents in those circumstances, given that there has not been an attempt to authenticate the documents in accordance with the order of the court made on 20 September 2002. In the alternative, it is submitted by the respondent that in any event the documents are irrelevant to the present application because in the circumstances, and relying upon both the written and oral submissions of the respondent, it is clear that the material sought to be adduced relates to factual matters which should not be revisited by this court undertaking a task of judicial review and that the complaint of the applicant in relation to non‑attendance at the hearing on 27 March 2002 cannot, having regard to the chronology of events, be substantiated and cannot in any event be regraded as any basis upon which this court should undertake judicial review, particularly having regard to the provisions of sections 425 and 426 of the Migration Act 1958. Section 425 provides that:
“(1)The Tribunal must invite the applicant to appear before the tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if
(athe Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it or subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
My attention has been drawn to section 426A which provides:
“(1)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 on 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.
(2)The section does not prevent the tribunal from rescheduling the applicant's appearance before it or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
The non-attendance of the applicant before the RRT was a matter noted by Merkel J prior to the transfer of this application to this court. It is equally a matter of concern to this court and a matter which in my view is proper for the court to at least explore in order to determine whether there are in fact any grounds upon which the matter can be dealt with by this court by way of judicial review. It should be noted, and I will deal with the authorities in due course, that the respondent, for its part, submits that in any event the provisions to which I have referred in the Migration Act do not provide in the circumstances of this case a right which might be regarded as an inviolable right to the applicant to attend and participate in the tribunal hearing. However, for the present purposes, I am prepared to at least consider the material before me that has been relied upon by the applicant in relation to his non-attendance before the tribunal and which he has related inextricably with the proposition that he now advances that he ought to have been able to rely upon the documents to which I have referred.
It was clear during the course of submissions made to the court that the applicant had not in fact provided to the RRT any reason or basis upon which he was not able to attend the hearing scheduled for 27 March 2002. Although he referred to other commitments which might take him a considerable distance away from his present premises, the court likewise did not receive any further reason why the applicant did not attend the hearing. I am satisfied the correspondence addressed to the address given by the applicant in September has properly been sent and forwarded to the applicant and I am prepared to conclude was indeed received. To that extent therefore, I am satisfied that there has been no transgression in terms of the procedures available to the RRT for either notifying the applicant of the hearing or considering and determining whether it should reschedule, as it is entitled to do, the hearing of the matter.
I also should add that in the present case the documents now said to be relied upon are not the subject of affidavit evidence in accordance with my order. On that ground alone I would be reluctant to receive the material as I do not believe I can place any or any sufficient evidentiary weight on those documents in the absence of affidavit material of the kind referred to. In the alternative, having now heard the applicant, I am satisfied that he received both documents shortly after his arrival in Australia, and in those circumstances I can see no reason why the documents could not have been either forwarded to the tribunal or the subject of interpretation, which would have enabled them to be proffered before the RRT to assist it in its consideration of the facts. For those reasons it is my view that the court should not receive as exhibits absolutely, either of the documents.
In the alternative, even if I were to accept those documents as exhibits tendered absolutely and give the benefit of that tendering to the applicant, notwithstanding the reasons for decision I have just advanced, it is my concluded view that the submission made for and on behalf of the respondent that in any event that those documents are irrelevant to the judicial review process to be considered by this court. That is, I accept those submissions that for a court conducting judicial review of a kind in this case, each of those documents are documents which relate to facts which had been asserted or would have been asserted before the tribunal had the applicant participated fully in those proceedings. In any event I am satisfied that they were facts and at least material which was available to the applicant prior to the hearing of the tribunal, and on the normal principles of allowing parties to adduce fresh evidence at a hearing of this kind they would not be accepted.
In considering an application of this kind, counsel for the respondent has correctly referred me to the recent Full Court decision in NAAV v Minister for Immigration and Multicultural Affairs (2002) FCA FC28 (NAAV). NAAV has been the subject of a number of decisions which deal with the issue, as NAAV did, of the effect of section 474 of the Migration Act and the limitations that that section has, being a privative clause, upon the power of this court to judicially review decisions of the RRT. I have been referred to the decision of the Full Court of the Federal Court in NABM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 (18 September 2002). In particular, I have been referred to paragraph 24 of the decision of that court where the court, in a joint decision, states the following:
“In NAAV v Minister, von Doussa J, (with whom on this point Black CJ and Beaumont J agreed), stated (at [635] that the Migration Act contained a hierarchy of provisions of which, in relation to privative clause decisions, section 474(1) was intended by Parliament to be the leading provision. His Honour held that ‘apparently inconsistent provisions of the Act’ are to be construed as subject to the restrictions in section 474(1). Consequently the effect of 474(1) is to expand the jurisdiction of the relevant decision‑makers, including the Tribunal, so that a decision that is affected by irregularities that would in the absence of section 474(1), amount to jurisdictional error, would be within power, subject to satisfying the so-called Hickman conditions. The Hickman conditions require that the decision:
·    be a bona fide attempt to exercise the power which the Migration Act reposes in the decision‑maker,
·    relate to the subject matter of the Migration Act,
·    be reasonably capable of reference to the power.
In addition it follows from the reasons of the majority in NAAV v Minister that a decision will not be protected from judicial review if it contravenes what is variously described as an inviolable condition, ‘jurisdictional factor’ or ‘structural elements’ found in the legislation: [12], per Black CJ; at [619], per van Doussa J.”
I was further referred to the decision of NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 293, and in particular, paragraph 16 per Keiffel J as follows:
“The failure by the Tribunal to fully consider the independent evidence in relation to the protection available to the applicant from the authorities should he return to Bangladesh indicates the Tribunal adopted a closed mind to the independent evidence such that the decision is affected by actual bias.”
I was further referred to the decision of the Full Court of the Federal Council in the matter of NAAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 300, and in particular, paragraph 23 of the joint decision of the court which provides:
“After the primary Judge handed down his judgment, a five member bench of this Court considered the effect of s 474(1) of the Migration Act in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. The five judgments delivered in that case have been analysed by Sackville J in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108. Broadly speaking, the effect of s 474(1) is to protect a decision of the RRT from challenge under s 39B (1) of the Judiciary Act provided that the three so-called Hickman conditions are satisfied and the RRT has not contravened an ‘inviolable statutory condition.”

It is sufficient for the present purposes, in my view, that the court should have regard to the principles which are now set out in the decision of NAAV. In the present case, having considered the material before me, I am satisfied that none of the Hickman conditions referred to apply. The procedure followed in this case was in accordance with the provisions of the Migration Act to which I referred. I am satisfied proper notice was given and opportunity to be heard was provided. In any event, I am also satisfied that there is in fact sufficient in the Migration Act to provide a discretion in the circumstances of the present case for the RRT to properly determine that it was not going to reschedule the hearing and to proceed. There has not been any breach of any inviolable right.
In considering the application and the submissions made on behalf of the applicant, it is clear to me that he seeks to agitate factual matters and/or matters of principle which he no doubt firmly believes as being a proper base upon which his application should succeed. Having carefully considered the documents to be relied upon however by the applicant, it is my view that none of those submissions could possibly constitute the basis upon which this court could properly review the decision of the RRT. In my view, that would be the case regardless of whether section 474 applied and even if I were to apply normal principles of judicial review, I cannot on the material before me see any error which would justify this court's intervention.
It follows that the application should be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 22 November 2002