Zaman v Minister for Immigration & Multicultural Affairs

[1999] FCA 1856

FEDERAL COURT OF AUSTRALIA

Zaman v Minister For Immigration & Multicultural Affairs [1999] FCA 1856

MD SHER-E-ZAMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1184 of 1999

LINDGREN J
16 DECEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1184 OF 1999

BETWEEN:	MD SHER-E-ZAMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	16 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The motion brought by notice of motion filed 10 December 1999 be dismissed.

2.The applicant pay the respondent’s costs of the motion.

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	N 1184 OF 1999

BETWEEN:	MD SHER-E-ZAMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	16 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

1. The applicant moves by notice of motion filed on 10 December 1999 for an order that an order which I made on 4 November 1999 dismissing his substantive application be set aside.  In order to deal with the motion, it is necessary to review the history of the matter. 

   The substantive application

2. On 14 October 1999 the applicant filed an application for an order of review of a decision of the Refugee Review Tribunal, dated 16 September 1999 affirming a decision of a delegate of the respondent Minister not to grant the applicant a protection visa.

3. The grounds of review set out in the application were as follows:

   “1.That the Respondent exercised power under s 431 of the Migration Act 1958 and decided that I am not a person to whom Australia has protection obligations under the Refugee Convention.

   2.I certainly believe that the Department of Immigration as well as the Refugee Review Tribunal, has certainly made an error of law being an error involving an incorrect interpretation of the application of the law to the facts as found by the person who made the decision.”

4. These grounds are an inadequate statement of grounds but the applicant appears in person and has not had the benefit of professional legal advice although he has apparently had the advice of a friend.  Section 431 does not give a power to the respondent Minister but imposes an obligation on the Tribunal.  In fact, the ground intended to be referred to was almost certainly s 430(1) rather than s 431, although s 430(1) also imposes obligations on the Tribunal and does not confer a power on the Minister.

5. A ground that has often been relied on in this Court in applications for review of the present kind is that the Tribunal did not comply with the requirements of s 430(1) (cf s 476(1)(a) of the Act).  The application does not indicate any respect in which it is said that the Tribunal did not comply with 430(1). 

6. The second ground set out above has no doubt been formulated by reference to s 476(1)(e) of the Act but, again, there is no attempt to identify the error of law in question.

7. Importantly for present purposes, the application continued as follows:

   “1.I genuinely believe that I have the substantial grounds and presented an enormous amount of evidence to the Department of Immigration and Multicultural Affairs as well as the Refugee Review Tribunal, which has incorrectly assessed my application.

   2.I therefore request the Honourable Federal Court to sympathetically assess my application for a review under s 476(1)(e) of the Migration Act.”

8. On the hearing of the motion this morning, the applicant said that what he really is after is a total review of his application for a protection visa.  This is consistent with paragraph 1 which I have just set out.  So far as I can see to date, the references to ss 431 (or s 430(1)) and s 476(1)(e) are references made, perhaps at the suggestion of the applicant’s friend, in a formalistic attempt to bring the case somehow within the jurisdiction of the Court.

   Procedural history

9. The substantive application was returnable on 4 November 1999.  The applicant did not appear.  On that day I ordered

   ·     that the application be dismissed;

   ·     that the applicant pay the respondent’s costs of the directions hearing;

   ·     that the order of dismissal not be entered prior to 19 November 1999;

   ·     that leave be granted to the applicant to file a notice of motion returnable on 18 November 1999 at 9.30 am seeking to have the order of dismissal set aside; and

   ·     that the respondent notify the applicant in writing of the making of those orders.

10. On 4 November 1999 the Australian Government Solicitor sent to the applicant at his address for service stated in his application, 10 Wangee Road, Lakemba NSW 2195, a letter advising him of the making of the orders.  On 18 November, inadvertently the proceeding was listed for the return of a notice of motion, but in fact, although there was an appearance on behalf of the respondent Minister on that day, the applicant understandably did not appear, not having filed a notice of motion pursuant to the leave granted.  On 18 November, I ordered simply that the orders made on 4 November 1999 stand.

11. There having been no motion to set aside the order of dismissal, on 19 November 1999 the Australian Government Solicitor forwarded to the Court copies of draft orders for entry under Order 36.  The orders were entered on 22 November 1999, including orders that the substantive application be dismissed and that the applicant pay the respondent’s costs of the directions hearing.

12. On 24 November 1999, the Australian Government Solicitor’s letter dated 4 November 1999 to the applicant was returned to the office of the Australian Government Solicitor.

13. On 29 November 1999 someone claiming to be a friend of the applicant telephoned the Australian Government Solicitor’s office.  According to an affidavit, the caller said that the applicant had come to the Court “for the directions hearing” but “he got lost”.  The caller also said that the applicant’s new address was 3 Mawson Street, Punchbowl NSW 2196.  In fact, an affidavit by the applicant in support of his present motion states that his address had been 10 Wangee Road, Lakemba NSW 2195 at the time of the filing of his substantive application but that immediately afterwards he moved to 3 Mawson Street, Punchbowl NSW 2196.  He did not notify the Court or the other side of the change of address.

14. On 29 November 1999, the Australian Government Solicitor forwarded to the applicant, at the new address at 3 Mawson Street, Punchbowl NSW 2196, a letter which enclosed a copy of the sealed orders. 

15. No doubt, it was the receipt of this letter which prompted the applicant to file the present notice of motion on 10 December 1999.

    Reasoning

16. The respondent opposes the making of an order setting aside the order of dismissal.  Ordinarily, where the applicant is without legal advice, one would be sympathetic to an application of the present kind, since it is important that a case should be heard on its merits.  There are several considerations, however, that make me think that the order sought should not be made in this case. 

17. First, it must be remembered that the applicant did not appear on the original return date.  I questioned him about that this morning and his explanation was that he was relying upon a friend and that the friend had gone away.  This is somewhat difficult to reconcile with the telephone advice from the friend that the applicant had come to the Court for the directions hearing but had become lost.  Be this as it may, the point is that the case is not simply one of a subsequent change of address without notification.

18. Second, I have referred to the form of the substantive application and, on the basis of it and the discussion this morning, it seems clear that the applicant is really seeking a total review of his application on the merits and on the basis of all the material that was before the Tribunal.  But this is a kind of review which this Court is not empowered to give.  The applicant has said that he cannot afford legal advice and accordingly, if the substantive application were to proceed to a final hearing the applicant would again simply seek a review on the merits.

19. Third, although the application and its reference to two provisions of the Act give me no guidance, I have read the Reasons for Decision of the Tribunal.  There is no obvious error of law in them that occurs to me.  Of course, it is conceivable that if the applicant had legal representation, close scrutiny of the Reasons for Decision would give some substance to an application for an order of review but I would not make the orders sought in the notice of motion merely on the basis that someone might think up something to say in support of a substantive application for review. 

20. In the result, even if the applicant had brought his present motion for setting aside within the time allowed by my orders of 4 November, the motion would still have failed.

    Conclusion

21. For all the above reasons the orders of the Court are as follows:

    (1)That the motion brought by notice of motion filed 10 December 1999 be dismissed.

    (2)That the applicant pay the respondent’s costs of the motion.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:            24 December 1999

The Applicant appeared in person
Solicitor for the Respondent:	Ms S Fraser of the Australian Government Solicitor’s Office
Date of Hearing:	16 December 1999
Date of Judgment:	16 December 1999