Careem, Thajudeen Abdul v Minister for Immigration & Multicultural Affairs [1998] FCA 1267

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 350 of 1998

BETWEEN: THAJUDEEN ABDUL CAREEM

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: EMMETT J

DATE: 25 SEPTEMBER 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: I have before me an application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 8 April 1998. Thajudeen Abdul Careem ("the Applicant") is a citizen of Sri Lanka and arrived in Australia on 26 May 1997. On 2 June 1997 he lodged an application for a protection visa. A delegate of the Minister refused the visa and the Tribunal affirmed the delegate's decision on 11 September 1997. The Applicant sought review of that decision by the Federal Court and on 22 January 1998 by consent the Court set aside the original decision and remitted the matter to the Tribunal to be determined according to the law by the Tribunal differently constituted. The decision of the Tribunal of 8 April 1998 was a decision of the Tribunal differently constituted. The Applicant is presently in detention. The matter first came before me on 8 May 1998. On that occasion I gave directions for affidavits to be filed together with written submissions. The matter was listed for hearing on 17 July 1998. On 10 July 1998 the Applicant wrote to the Court and to the Australian Government Solicitor indicating that he had withdrawn instructions from his previous lawyer and wanted to get a different lawyer. He therefore asked for a period of one month to arrange a new lawyer and the money for the case. On 17 July 1998 I gave directions for the Minister to file and serve affidavits and for the Applicant to file and serve any affidavit in reply. I listed the matter for hearing today. I also directed that the Minister notify the Applicant of the orders which I made on that day and to draw to the Applicant's attention that the matter had been listed for hearing today and that liberty had been reserved to the parties to apply. There has been produced to the Court a copy of a facsimile communication addressed to the Applicant at the Villawood Detention Centre which clearly complies with the direction which I gave on 17 July. The Applicant, however, has asserted from the bar table that he did not receive that facsimile communication. He also says that he did not know until yesterday that the matter was fixed for hearing today. That is advanced as the reason why he had made no arrangements for any legal advice. The Minister has made some written submissions and this morning I afforded the Applicant the opportunity of having those submissions translated. While the Applicant appears in person he has been assisted by an interpreter. There does not appear to be any difficulty for the Applicant in understanding what is being said in court with the assistance of the interpreter. Having read the submissions of the Minister, the Applicant sought an adjournment to enable him to make further written submissions with the assistance of legal advice. I am not satisfied at the moment that the Applicant has taken care to look after his own interests. However, rather than embark on an inquiry as to whether or not he did in fact receive the communication from the Australian Government Solicitor concerning the directions I gave on 17 July 1998, I propose to give reasons which have led me to the provisional conclusion that the application should be dismissed. However, before making any order I will give the Applicant the opportunity of making written submissions in support of his application. The application specifies two grounds under section 476 of the Migration Act 1958 (Cth) ("the Act"). The first is that procedures required by the Act to be observed in connection with the making of the decision were not observed. The second is that the decision involved an error of law being either an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. I shall deal with each of those separately but before doing so will say something about the reasons of the Tribunal published on 8 April 1998.