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MIGRATION - Application for review of a decision of the Refugee Review Tribunal - non-receipt of invitation to attend hearing - effect of deeming provisions - no requirement to take further positive steps to invite applicant to appear - no lack of bona fides - recommendation to Minister.

NAJV v Minister for Immigration [2002] FMCA 169 (15 August 2002)

NAJV v Minister for Immigration [2002] FMCA 169 (15 August 2002)
Last Updated: 20 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJV v MINISTER FOR IMMIGRATION
[2002] FMCA 169



MIGRATION - Application for review of a decision of the Refugee Review Tribunal - non-receipt of invitation to attend hearing - effect of deeming provisions - no requirement to take further positive steps to invite applicant to appear - no lack of bona fides - recommendation to Minister.



Migration Act 1958 (Cth) ss. 425, 425A, 441A, 441C, 474

Judiciary Act 1903 (Cth) s.39B

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377

Mohammed v Minister for Immigration & Multicultural Affairs [2002] FCA 466

Xiao v Minister for Immigration & Multicultural Affairs [2002] FCA 1472

Applicant:
NAJV



Respondent:


MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS



File No:


SZ 511 of 2002



Delivered on:


15 August 2002



Delivered at:


Sydney



Hearing Date:


9 August 2002



Judgment of:


Raphael FM



REPRESENTATION

Solicitors for the Applicant:


Silva Solicitors



Counsel for the Respondent:

Solicitors for the Respondent:


Mr D Jordan

Blake Dawson Waldron


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 511 of 2002

NAJV


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter, by way of an amended application dated 16 July 2002 filed in this court, sought an order under s.39B of the Judiciary Act 1903 (Cth) that a writ of certiorari be directed to the Refugee Review Tribunal to quash a decision made by it on 5 April 2002 and handed down on 1 May 2002. The amended application also sought a writ of prohibition directed to the respondent prohibiting him from acting upon the decision and a writ of mandamus requiring him to determine the application for a protection visa according to law.

2. The background of the proceedings is as follows. The applicant who is an Indian citizen arrived in Australia on 15 November 1999 and was immigration cleared. On 14 July 2000 she lodged an application for protection (Class XA) visa and was entitled to be considered for that visa under sub-class 866 (protection). On 3 August 2000 a delegate of the Minister refused to grant a protection visa and on 31 August 2000 she applied for a review of that decision.

3. On 25 February 2002 the Tribunal sent a letter to the applicant which conformed with the requirements of ss 425A(1), (3) and (4) of the Migration Act 1958 (Cth). This letter invited the applicant to a hearing which would take place on 5 April 2002 at 10.00a.m. There is a requirement to invite the applicant to such a hearing by virtue of s.425 of the Migration Act and under s.441A is laid down a procedure for the provision of documents such as a s.425A letter. Section 441C states when a person is taken to have received such a document.

4. There is no dispute that in accordance with s.425A(2)(a) the letter of invitation was sent by the method provided for in s.441A(4). There is no dispute that the letter was dated 25 February 2002 and was dispatched within three working days, in accordance with s.441A(4)(a). There is no dispute that the letter was sent by prepaid registered post, as required by s.441A(4)(b) or that the letter was, in conformance with s.441A(4)(c)(ii), sent to the last residential addressed provided to the Tribunal by the applicant. Finally, there is no dispute that in accordance with s.441A(4)(c)(i) the letter was also sent to the last address for service notified by the applicant, being the premises of her advisor, Tahmina & Associates.

5. The letter sent to the applicant herself was returned to sender by the post office and received by the Refugee Review Tribunal on 28 February 2002 [CB 54]. The letter to her adviser was not returned but on 27 March 2002 the Tribunal, noting that it had not received the reply to the hearing invitation, went through its usual checklist [CB 56] which included a phone call to the adviser. These phone calls were unsuccessful because both services were disconnected.

6. At that stage it was obvious that the applicant had not received her invitation and more than probable that the adviser had not either.

7. There was no attendance by the applicant or anyone on her behalf on 5 April 2002. On that date the Tribunal made its decision. On 11 April 2002 the Tribunal wrote to the applicant advising her that a decision had been made and would be handed down on 1 May 2002. She was invited to attend. She did attend. The unfavourable decision was handed to her. The address to which the letter of 11 April 2002 was written was the same as the address to which the letter of 25 February 2002 was written. There was no explanation provided as to why the first letter was returned to sender although the applicant at paragraph 5 of her affidavit of 16 July 2002 puts forward the suggestion that it may have been mistakenly left in a post box belonging to the property next door which is No.147A whereas hers is No.147. The applicant also deposed in her affidavit to the fact that she only became aware that her migration agent had closed its business in the first week of May 2002.

8. The force of the applicant's submissions were directed to the proposition that the Tribunal, knowing that its invitation had not been received by the applicant and probably not by the applicant's representative, should have taken further steps to bring the invitation to the notice of the applicant. The failure of the Tribunal to act in this manner and deciding the matter in the absence of the applicant constituted a failure to exercise power in a bona fide manner. By putting the submission in this way the applicant brought herself within the Hickman grounds for review (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) and thus enlivened the jurisdiction of this court under s.39B of the Judiciary Act notwithstanding s.474 of the Migration Act.

9. The provisions of Part 7 of the Migration Act set out in very considerable detail the manner in which the Tribunal should conduct its procedures. Mindful of past errors such as those identified in MIMA v Singh [2000] FCA 377 and Mohammed v MIMA [2002] FCA 466 its procedures and regulations have changed. Applicants are now only required to be invited to attend a hearing and there are detailed provisions which have been referred to earlier in these reasons dealing with the service of notices. These "deeming" provisions have an obvious purpose. It is to prevent the continual adjournment of a Tribunal hearing as a result of an applicant making him or herself unavailable. The provisions appear to safeguard the position of an applicant by providing several methods by which service can be effected and in this particular case two of those methods were applied. I cannot see any authority for the suggestion that if the provisions are complied with and the Tribunal discovers that the applicant has not received the document that it should take further steps to ensure that he or she does. As I posited to the applicant's Counsel, what if the applicant had taken herself off to the Kimberley? Is the Tribunal expected to make searches throughout Australia? Obviously not.

10. The respondent supports this view and adds that in this particular case the Tribunal in fact did take the matter further than is required by the Migration Act. Apart from the telephone calls which are referred to in [CB 56] it made what is described as "a movements check" to see whether the applicant had voluntarily left the country. In the light of this information the respondent argues that no finding of lack of bona fides can be made.

11. There are some obvious similarities in this case with that of Xiao v MIMA [2002] FCA 1472 where Wilcox J found there was no continuing obligations in relation to a reasonable opportunity to appear. In that case the applicant had been in hospital at the time of the hearing and had made a request that the hearing be postponed. Wilcox J suggested that the Minister might view the application sympathetically and requested him to intervene [38]. I would make the same recommendation in this case. It certainly does seem that the failure to attend was not due to any fault on the part of the applicant. She was at the address to which the letter was posted and she received the second letter inviting her to attend the handing down of the decision. This is not one of those cases where the letter was delivered but the applicant claims she did not receive it. There is clear evidence that the letter was sent back to the Tribunal and so the applicant could not have received it.

12. The applicant has not otherwise impugned the decision. I am prepared to infer that this is because she felt that as this decision was one made without her input it was not one made having regard to all the facts.

I would not take her decision to mean acceptance of the Tribunal's findings.

13. The applicant has not succeeded in her claim and I must dismiss the application. Consistent with the decision in Xiao I would order that the applicant pay the respondent's costs which I assess in the sum of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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