FEDERAL COURT OF AUSTRALIA Applicant A120/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 714 APPLICANT A120/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, PETER GACS MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL S106 OF 2003 FINN J 9 JULY 2003 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S106 OF 2003 BETWEEN: APPLICANT A120/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT PETER GACS, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE OF ORDER: 9 JULY 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The consideration of costs be adjourned to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S106 OF 2003 BETWEEN: APPLICANT A120/2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT PETER GACS, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: FINN J DATE: 9 JULY 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT (EX TEMPORE) 1 This is one of four matters that relate to denial of natural justice founded upon the fact of the hearing taking place without the particular individual applicant being heard. The others are Applicant A98/2002, Applicant A35/2002 and Applicant A162/2002. 2 The originating proceedings were filed in the High Court of Australia on 17 July 2002. Judicial review was sought of a decision of the Refugee Review Tribunal of 31 May 2002, in which the Tribunal affirmed a decision not to grant a protection visa to the applicant. The ground upon which the application for judicial review was based, though cast in general terms in the High Court application, has been clarified in the proceedings in this Court. The matter was remitted to this Court by the High Court. 3 An amended application and outline of submissions were filed on 9 May 2003. There was, however, no accompanying affidavit revealing the factual foundation for the application notwithstanding the requirement of O 4 r 6 of the Federal Court Rules. The outline of submissions, like the amended application itself, is singularly bereft of factual material, though it did make plain that the proceeding in this court was founded on an allegation of breach of the audi alteram partem rule (or "hearing rule") in that a denial of procedural fairness is alleged in the Tribunal proceeding to a hearing of the matter without hearing the applicant concerning it. 4 The respondent Minister on 11 June 2003 filed a notice of motion seeking summary dismissal of the application under order 20 r 2(1)(a) of the Federal Court Rules, on the grounds that no reasonable cause of action was disclosed, in that there was no breach of the rules of natural justice as alleged in the amended application. 5 On 13 June 2003 a judge of this Court adjourned further consideration of the notice of motion until Friday, 11 July 2003 and gave the applicant liberty to file further affidavit material in support of his application. No such material has been filed in this matter. 6 In the circumstances there is no factual substratum for the claim made. The Tribunal was authorised by s 426A of the Migration Act 1958 (Cth) to proceed to determine the matter, the applicant having been invited to attend but having failed to do so. There is no factual basis for any suggestion it acted improperly in so doing. Accordingly the minister's motion must succeed. 7 I should in fairness to the Tribunal indicate that when the applicant made his application to it to review the delegate's decision, he indicated that a statement would be supplied to the Tribunal in due course. Such did not occur. 8 The Tribunal in its reasons indicated the material it had before it, and the steps that were taken before the Tribunal member decided to act pursuant to section 426A. 9 In dealing with the merits of the application, the Tribunal acknowledged explicitly the effect of absence of information from the applicant upon its consideration of this matter. It noted: "The presentation of [the applicant's] claims is vague and lacking in detail in certain important respects, such that I am unable to establish all the relevant facts. As I did not have the opportunity to seek further information from him at a hearing, a number of questions about his circumstances are left unanswered." 10 The Tribunal then went on to indicate the types of questions it would have asked, and did indicate that on the basis of the lack of evidence before it, it was unable to be satisfied that the applicant had a well‑founded fear of persecution for a convention reason. 11 I have referred to these matters at a little length as I consider that the member acted appropriately in the difficult circumstances in which he was placed. There is no foundation for any alleged lack of procedural fairness being accorded the applicant by the tribunal. I will dismiss the application. 12 As the respondent Minister has sought a personal costs order against the applicant's legal adviser, I will adjourn consideration of costs to a date to be fixed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 11 July 2003 Counsel for the Applicant: Mr W Clisby Solicitor for the Applicant: M W Clisby Counsel for the Respondent: Mr J Harris QC, Mr L Leerdam Solicitor for the Respondent: Sparke Helmore Date of Hearing: 9 July 2003 Date of Judgment: 9 July 2003