Applicant A82/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 831

FEDERAL COURT OF AUSTRALIA

Applicant A82/2002 v Minister for Immigration & Multicultural

& Indigenous Affairs [2003] FCA 831 APPLICANT A82/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, NORMA FORD MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL S72 of 2003 FINN J 21 JULY 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S72 OF 2003

BETWEEN: APPLICANT A82/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

NORMA FORD MEMBER REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 21 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 S72 OF 2003

BETWEEN: APPLICANT A82/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

NORMA FORD MEMBER REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: FINN J

DATE: 21 JULY 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This matter relates to denial of natural justice founded upon the fact of the hearing taking place without the particular individual applicant being heard. 2 The originating proceedings were filed in the High Court of Australia on 24 June 2002. Judicial review was sought of a decision of the Refugee Review Tribunal of 12 December 2001, 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 11 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 26 June 2003 filed a notice of motion seeking summary dismissal of the application under O 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 27 June 2003 a judge of this court adjourned further consideration of the notice of motion until 22 July 2003 and gave the applicant liberty to file further affidavit material in support of its application. 6 On 10 July what purported to be an affidavit of the applicant was filed in this matter. It was in the standard form of a Muin affidavit and dealt with Part B documents and adverse country information. Astonishingly given the nature of the claim made in this proceeding, the affidavit asserts (seemingly) that the applicant appeared before the Refugee Tribunal. 7 This document, which was witnessed by the applicant's migration agent, Tuferu Habib, can only be said to illustrate the ritual farce that is occurring in the group of proceedings before me of which this case is one. 8 So far as the allegation of there being some contravention of the audi alteram partem rule, the Tribunal in is reasons explained the efforts to which it went to make contact with the applicant because the notice of hearing sent to the applicant was returned unclaimed. Significantly, the tribunal made contact with the applicant's adviser, and I quote from the reasons: "An office spoke to the adviser, who informed him that he had not heard from the applicant for two or three months, and that the applicant was unlikely to attend the proceeding. The applicant did not appear and so s 426A was invoked." 9 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. 10 I will dismiss the application. 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 ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.