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MIGRATION - Applicant did not attend Tribunal hearing - medical reasons not advised to Tribunal - Tribunal made decision pursuant to s.426A of Migration Act - no inviolable pre condition found - no error by Tribunal found.

NAQK v Minister for Immigration [2002] FMCA 287 (21 November 2002)

NAQK v Minister for Immigration [2002] FMCA 287 (21 November 2002)
Last Updated: 25 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAQK v MINISTER FOR IMMIGRATION
[2002] FMCA 287



MIGRATION - Applicant did not attend Tribunal hearing - medical reasons not advised to Tribunal - Tribunal made decision pursuant to s.426A of Migration Act - no inviolable pre condition found - no error by Tribunal found.



Migration Act 1958 (Cth) ss.129, 425, 425A, 426, 474

NAAV v Minister for Immigration [2002] FCAFC 288

SCAZ v Minister for Immigration [2002] FCA 1377

XIAO v Minister for Immigration [2000] FCA 1472

Applicant:
NAQK



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 631 of 2002



Delivered on:


21 November 2002



Delivered at:


Sydney



Hearing Date:


14 November 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr R Nair



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of 3,750.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 631 of 2002

NAQK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is an Indonesian who arrived in Australia on 24 July 2001. On 17 August 2001 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958. On 4 October 2001 a delegate of the Minister refused to grant a protection visa and on 29 October 2001 the applicant applied for a review of that decision.

2. On 12 April 2002 a letter in standard form together with various other documents including a response to hearing invitation form was sent to the applicant. The letter was an invitation of the type required by ss.425 and 425A of the Migration Act. On 24 May 2002 the Tribunal sent a further letter to the applicant noting that the letter previously referred to had been returned unclaimed. The letter of 24 May attached a copy of the first letter. This second letter was obviously received because on 27 May 2002 the applicant completed a response to hearing invitation indicating that she wanted to attend the hearing and that she needed an interpreter. On 13 June 2002, the date fixed for the Tribunal hearing, the applicant did not attend. The interpreter attended. No communication had been received from the applicant indicating that she was unable to attend for any reason. The tribunal therefore proceeded in the absence of the applicant in accordance with s.426A of the Act.

3. On 18 June 2002 the Tribunal wrote to the applicant advising her that a decision had been made and would be handed down on 9 July 2002. This occurred. The Tribunal concluded that it should uphold the decision of the delegate.

4. In her affidavit in support of the present application for review the applicant deposes to the fact that on 11 June 2002 she had experienced dizziness and fainting episodes. She contacted her doctor and made an appointment to see him on 13 June. He provided her with a medical certificate indicating that she had "postural hypotension" and would be unfit until 14 June 2002. The applicant deposed to the fact that she was confused and unable to contact the Tribunal. She was also too ill and confused to contact her migration agent. She deposed to the fact that she contacted the migration agent on 17 June 2002 and asked her to contact the Tribunal. The migration agent later contacted her and told the applicant that the decision had already been made and "it is too late".

5. The applicant argued that s.425 provides an inviolable limitation or restraint on the jurisdiction of the Tribunal and that it is couched in mandatory terms. In the alternative she argues that s.425 imposes an inviolable limitation or restraint on the jurisdiction of the Tribunal under s.426A. It was suggested on her behalf that s.425 operates in the same way as the giving of notice under s.129 in Mr Wang's appeal that was one of the five appeals generically known as NAAV v Minister for Immigration [2002] FCAFC 288. She argues that the power to make a decision is only enlivened if the statutory requirements imposed by s.425 (and underscored by s.426A(1)(a)) are met.

6. The submissions above appear to be based upon a misreading of NAAV which was explained in the context of ss.425 and 425A in SCAZ v Minister for Immigration [2002] FCA 1377. In that case Von Doussa J pointed out that the failure to comply with s.425 is a procedural irregularity that would be validated by s.474 and quoted from [674] his decision in NAAV noting that it was approved by Black CJ and Beaumont J. In this paragraph his Honour indicated that s.474 would validate a breach of s.425 provided there was a still a bona fide attempt to exercise the relevant power.

7. In SCAZ the Tribunal had issued the letter required under s.425A of the Act but had not given the applicant sufficient time. It compounded this error with a refusal to grant an adjournment. In that case Von Doussa J came to the conclusion that the decision was arbitrary and capricious and the decision under review could not be characterised as a bona fide attempt to exercise the review power.

8. None of the circumstances which were evident in SCAZ are evident in this case. Firstly, the conditions set out in ss.425 and 425A are not inviolable pre-conditions as submitted. Secondly, there was no breach of those sections in any event. A valid notice was given. There is no continuing obligation. Once the invitation has been properly delivered the requirements of ss.425 and 425A have been complied with. (Xiao v Minister for Immigration [2000] FCA 1472). Thirdly, it cannot be argued that the Tribunal acted with a lack of bona fides. There is no evidence that the Tribunal had any knowledge whatsoever of the applicant's illness until that fact was deposed to in her affidavit of 12 October 2002. You cannot be said to be acting with a lack of good faith in relation to facts of which you are unaware.

9. No submissions were made to me concerning the decision itself. In these circumstances I must dismiss the application for review. I order that the applicant pay the respondent's costs which I assess pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $3,750.00.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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