NANJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 270

FEDERAL COURT OF AUSTRALIA

NANJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 270 NANJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No N795 of 2003 SACKVILLE, SELWAY AND LANDER JJ SYDNEY 26 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 795 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NANJ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: SACKVILLE, SELWAY AND LANDER JJ

DATE OF ORDER: 26 NOVEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. 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

NEW SOUTH WALES DISTRICT REGISTRY N 795 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NANJ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: SACKVILLE, SELWAY AND LANDER JJ

DATE: 26 NOVEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT 1 This is an appeal from a decision of a Judge of this Court in which he dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("RRT") which had in turn affirmed a decision of the Minister's delegate not to grant the appellant a protection visa. 2 The appellant is a Bangladeshi national who entered Australia on 16 December 2000 on a visitor's visa which was valid for one month. 3 On 12 January 2001, the appellant lodged an application for a protection visa (Class XA) (dated 8 January 2001). He gave as his address 3/23 Kennyon Street, Fairfield, NSW 2195. He claimed a well-founded fear of persecution in Bangladesh on the basis of his political opinion arising from his activities as a member of the Jatiya Party. In his application he appointed as his agent Mr Sirajul Haque of 4/16A Maroubra Road, Pagewood, NSW. The application was lodged with the Department of Immigration and Multicultural Affairs by Mr Haque and a receipt issued to him. 4 On 15 January 2001 the Department of Immigration and Multicultural Affairs wrote to the applicant at 2/23 Kennyon Street, Fairfield, and sent a copy of that letter to the applicant's agent at his address shown on the application. The letter stated as follows: 'The address given in your application has been recorded as the place to which all correspondence relating to your application will be sent. You can nominate one other person to receive letters and notifications about your application. You will need to tell the Department this person's address. If the person you nominate charges you for advice, he/she must be a registered migration agent. If you change your address for more than 14 days, you must tell the Department your new address and how long you intend to be there. You should use Form 929, Client Change of Address, available from any office of the Department. If you do not inform the Department when you change your address, you will be taken to have received letters and notifications about your application sent to the last address you have given the Department.' 5 On 10 April 2001, the Department wrote to the appellant, again at 2/23 Kennyon Street, Fairfield, with a copy to his agent, advising the appellant that his application for the grant of a protection visa had been refused. Reasons were enclosed. 6 It can be seen in each of these cases that the letter to the appellant was sent to the incorrect address. However, as will become apparent, nothing turns on this as subsequent correspondence was sent to the appellant's new address. 7 On 28 April 2001, the appellant applied to the RRT for a review of the decision of the delegate of the Minister. In that application the appellant gave as his home address 142 Carcoola Street, Canley Vale, NSW 2166. He nominated as his adviser Sirajul Haque of M.S. Haque & Associates, 4/16A Maroubra Road, Pagewood, NSW. He gave telephone numbers for Mr Haque. 8 On 4 May 2001, the Deputy Registrar of the RRT wrote to the appellant at 142 Carcoola Street, Canley Vale, sending a copy of the letter to MS Haque & Co, advising that it had received the application for review on 3 May 2001. The letter continued: 'It is very important to tell the Tribunal in writing if you change your telephone number, home address or your address for service (the address where you want letters from the Tribunal sent). The Tribunal will acknowledge any change of address information you provide. If we are unable to contact you, or if you do not respond to our letters, you may lose your opportunity to appear before the Tribunal and give evidence on your case.' 9 On 22 November 2002, the RRT wrote to the appellant at the same address advising that it was unable to make a decision in his favour on the information presently before it. It invited him to a hearing of the Tribunal on Wednesday, 18 December 2002 at 10.00 am to give oral evidence and present arguments in support of his claims. It is not clear whether a copy of this letter was sent to MS Haque & Co but nothing turns on that. 10 On 29 November 2002, a further letter was sent to the appellant, at the same address, advising him that the commencing time for the hearing had been changed to 12.30 pm on the same day. A copy of that letter was sent to MS Haque & Co. 11 On 7 December 2002 the RRT was provided with a response to the invitation which indicated that the appellant would attend and that he would need an interpreter. He gave the same address in that response as the address provided in his application to the RRT (that is, 142 Carcoola Street, Canley Vale). Again he advised that his adviser was Mr Sirajul Haque of MS Haque & Associates. 12 On 17 December 2002, Mr Haque wrote to the Deputy Registrar providing a history of the circumstances which surrounded the appellant's claims of persecution. 13 On 18 December 2002, Mr Haque wrote to the Deputy Registrar advising that the appellant had become sick and would be unable to attend the hearing that day and seeking to have the hearing postponed. A medical certificate was provided which showed that in the opinion of the author the appellant was suffering from "sunburn, blister on the back, and tiredness" and would be unfit for "work/study up to and including: 17/12/02 to 20/12/02". 14 In both letters Mr Haque gave as his address as 14 Miles St, Mascot, NSW 2020. 15 On 18 December 2002, the RRT wrote to the appellant at his Canley Vale address noting that his adviser had forwarded a medical certificate showing that he was unfit to attend the hearing and advising that the RRT had agreed to postpone the hearing which had been re-scheduled for 11.30 am on Monday, 6 January 2003. A copy of that letter was sent to Mr Haque at 14 Miles Street, Mascot NSW 2020. 16 The appellant did not appear at the adjourned hearing. 17 On 7 January 2003, Mr Haque rang the RRT and informed the relevant officer that the appellant had not received the letter informing him of the new date. Mr Haque told the RRT that he had received the RRT's letter, but did not say whether he had brought the letter to the appellant's attention, or if not, why not. 18 The RRT made its own enquiries and ascertained that the appellant had collected the RRT's letter of 18 December 2002 from the Canley Vale Post Office on 10 January 2003. At the same time the appellant advised the Canley Vale Post Office that he had recently moved. 19 The RRT did not make its decision for a further period of six weeks. During this time neither the appellant nor his agent approached the RRT seeking to be heard in relation to the appellant's application for review. 20 On 12 March 2003, the RRT handed down its decision affirming the decision of the delegate to refuse a protection visa. 21 The appellant applied to the Court under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) ("the Act") seeking a judicial review of the RRT decision upon the following grounds: "(1) That the decision involved a jurisdictional error of law, being an error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the Tribunal; (2) The Tribunal failed to take a relevant consideration into account in exercising its power to determine the applicant as a refugee; (3) The Tribunal member refused to accept that the applicant has a well-founded fear of persecution on Convention reasons; (4) The Tribunal's decision was unjust and was made without taking into account the full gravity of the applicant's circumstances and the consequences of the claim; (5) The decision by the Tribunal is not justifiable [sic] by the evidences used in the decision. The Tribunal documents have indicated clear violation of human rights which is tantamount to persecution. The Tribunal ignored this fact; (6) The Tribunal failed to consider the real problems surrounded to a member of the Jatiya Party; and (7) The applicant was deprived of natural justice." 22 The appellant did not provide any particulars of any of the grounds. He was unrepresented before the Judge. The application was dismissed and it is from that dismissal that this appeal is brought. 23 His Honour's reasons show that at the hearing before him the appellant raised two main issues. First he complained that he had not been made aware of the date of the adjourned hearing. He said that if he had known of the date of the adjourned hearing he would have attended, made submissions and persuaded the RRT of the justice of his case. Secondly, he complained to the Judge that he did have a genuine fear of persecution if returned to Bangladesh by reason of his political opinions. He told the Judge that if he were returned to Bangladesh he would be killed. 24 The Judge found that the RRT had complied with the relevant requirements of the Act and was entitled to proceed in the way in which it did. It had sent the appropriate notice of the adjourned hearing to the appellant at the address which he had nominated for service and had sent a copy of that notice to his agent. He found that the RRT was entitled to proceed under s 426A of the Act. His Honour observed that the appellant had not offered any explanation as to the failure by the appellant and the adviser to communicate with each other in relation to the adjourned hearing. 25 The second matter the Judge considered was no more than an attempt to seek review of the RRT's decision on the merits. The trial Judge dismissed that part of the application on that ground. 26 The reasons of the primary Judge show that the appellant raised two other matters. He contended that the RRT was guilty of actual bias. That bias, so it was said, was established by reference to the RRT's decision itself. His Honour rejected that suggestion. He said that the RRT's reasons merely gave reasons for rejecting the appellant's claims. 27 The appellant also suggested that the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 was relevant to the circumstances of the case. However, he gave no particulars as to how the decision was relevant. His Honour rejected the contention because it lacked any factual foundation. 28 The appellant has appealed to this Court on the following grounds: '2. The Single judge of the Federal Court in his Honors [sic] Judgment delivered on the 17 June 2003 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act, 1903. 3. The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 148(3), 424(1). I will provide more ground later. 4. Recent High Court judgement: Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003). 5. Recent Federal Court of Australia judgement: SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003).' 29 Contrary to the assertion in ground 3, no further particulars or grounds have been given. The appellant has filed no written submissions. 30 In our view, the appeal is devoid of merit. 31 The RRT gave appropriate notice to the appellant and his adviser of the hearing date and, when that hearing date became unsuitable to the appellant, appropriate notice to the appellant and his adviser of the adjourned hearing date. After being advised that the appellant had not received notice of the adjourned hearing date it waited a further six weeks upon the appellant and his adviser for any application that the appellant might initiate. No explanation was given to the RRT for the failure by the appellant's adviser to notify the appellant of the adjourned hearing date, if indeed that occurred. No explanation was given to the Court below for any such failure, or for the appellant's failure to initiate further action before the RRT to obtain a further hearing date. 32 In those circumstances the Judge was correct to conclude that the RRT was entitled to proceed under s 426A of the Migration Act. 33 The second complaint before the Judge concerned only the merits of the decision by the RRT. His Honour was right to reject that complaint. 34 In respect to the two further matters which were raised in this Court, the complaint of bias was not particularised and is without foundation. The complaint founded on Muin lacks any factual basis to support it. 35 This appeal should be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Selway and Lander.