Hossain v Minister for Immigration & Multicultural Affairs [2001] FCA 42

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [2001] FCA 42 A.S.M. MAHTAB HOSSAIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 836 OF 2000 EMMETT J 1 FEBRUARY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 836 OF 2000

BETWEEN: A.S.M. MAHTAB HOSSAIN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 1 FEBRUARY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The hearing fixed for today be vacated. 2. The proceeding be fixed for hearing on Thursday 22 February 2001. 3. The Costs of today be reserved. 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 836 OF 2000

BETWEEN: A.S.M. MAHTAB HOSSAIN

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 1 FEBRUARY 2001

PLACE: SYDNEY

REASONS FOR ADJOURNMENT 1 The applicant is a citizen of Bangladesh. He arrived in Australia on 16 October 1998 and lodged an application for a protection visa on 11 November 1998. On 1 December 1998 a delegate of the Minister refused to grant protection visa and the applicant applied for review of that decision. On 9 June 2000 the Tribunal affirmed the decision not to grant the protection visa. On 3 August 2000 the applicant filed an application to this Court for an order of review of that decision. 2 The ground specified in the application is unhelpful. It is in the following terms: "The officer from the Tribunal 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. 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." 3 Part of the language of that ground is of course reminiscent of s 476(1)(e) of the Migration Act. No particulars of the error of law, however, are specified in the application. In his claim for relief in the application, the applicant says as follows: "I genuinely believe I have the substantial grounds and have 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. I therefore request the honourable Federal Court to sympathetically assess my application for review under section 476(1)(e) of the Migration Act." 4 Again, no particulars are specified of a ground that would fall within s 476(1)(e). Rather the prayer for relief suggests an invitation to the court to review the decision on the merits. 5 When the matter came before me on 17 November 2000, I directed the Minister to file a bundle of relevant documents by 24 November 2000. That direction was made by consent. However, for reasons that have not been explained, the relevant documents were not in fact filed until 18 December 2000. The applicant says that he did not receive them until 20 December 2000. 6 In a statement made today from the bar table, the applicant said that he has been receiving assistance from a member of the Bangladesh community who left Australia to return to Bangladesh on vacation prior to receipt of the relevant documents. While that adviser was expected to return by 25 January 2001 the adviser has not in fact returned, apparently through illness. For that reason, the applicant sought an adjournment of the proceeding. There was no challenge to that assertions made from the bar table and counsel for the Minister indicated that whether or not an adjournment should be granted was a matter for the Court. A matter that gives rise to some degree of concern relates to the sequence of events prior to the making of the decision by the Minister's delegate. The application for protection visa was lodged on 11 November 1998. In Part C of the application, the applicant wrote in answer to questions 36, 37, 38, 39 and 40: "Please see my statutory declaration". However, no statutory declaration was attached to the application at that time. On 18 November 1998 the Department wrote to the applicant advising him that his wife and child were to be taken to be applicants for protection visas. Six days later, on 24 November 1998, the applicant's adviser wrote to the Department enclosing a statutory declaration by the applicant. That letter bears a Departmental receipt stamp dated 27 November 1998. 7 The delegate's decision refusing the visa is dated 30 November 1998 and the letter notifying the applicants of the decision is dated 1 December 1998. In a document recording the decision the following appears: "The applicant states that he left Bangladesh to avoid persecution and indicates that he had problems in Bangladesh. The applicant refers to his claim being presented in a statutory declaration. However, no such statutory declaration has been submitted." 8 The delegate's decision thus states that no claims were before her at the time the decision was made. It now appears that that was an erroneous assumption made by the delegate for reasons that are not apparent from the papers before me. The delegate failed to take into account the applicant's statutory declaration notwithstanding it had been received by the Department prior to the making of the decision. In that regard there appears to have been a non-compliance or failure to comply with ss 54 and 55 of the Act. Section 54(1) provides that the Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. Under s 54(2)"Information is in an application if the information is given under section 55." 9 Section 55(1) provides as follows: "Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision." 10 Sections 54 and 55 are contained in Sub-division AB of Part 2 of the Act. Section 69(1) of the Act, however, provides that non-compliance by the Minister with Sub-division AA or AB in relation to a visa application does not mean that the decision to grant or refuse to grant the visa is not a valid decision, but only means that the decision might have been the wrong one and might be set aside if reviewed. Thus, while there has been an apparent failure to comply with the provisions to which I have referred, it may be that the consequences are insignificant so far as the application before this court is concerned. There is no suggestion that there was any failure by the Tribunal to comply with any of the procedural requirements of the Act such as might have given rise to a ground under s 476(1)(a) of the Act. I have considered the reasons of the Tribunal given after a hearing on the merits. I do not at the moment perceive a specific ground from the application. The Tribunal considered various claims by the applicant that he fears prosecution for reasons of his membership of a political party namely the Bangladesh Freedom Party. The Tribunal, after considering on the merits all of the claims made on behalf of the applicant, concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. 11 At present it is not clear to me what significance is to be attached to the relevant documents and the late filing of those documents, having regard to the limited ground specified in the application. There is no suggestion that the applicant did not have available to him the reasons of the Tribunal from the time when he was first notified of the Tribunal's decision. 12 However, having regard to the fact that the applicant is unrepresented and having regard to the unexplained failure to comply with the direction that I gave on 17 November 2000, it appears to me to be appropriate to grant the application to vacate the hearing fixed for today. I will fix the matter for hearing on Thursday, 22 February 2001. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.