SMTB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 127

FEDERAL COURT OF AUSTRALIA

SMTB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 127 SMTB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 512 of 2003 MANSFIELD J 13 FEBRUARY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 512 OF 2003

BETWEEN: SMTB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 13 FEBRUARY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. Applicant pay to the respondent costs of the application to be taxed. 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 S 512 OF 2003

BETWEEN: SMTB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 13 FEBRUARY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant is a national of Sri Lanka. She arrived in Australia on 14 March 1997. On 16 April 2002 she lodged an application for a protection visa under the Migration Act 1958 (Cth) (the Act). To be eligible to be granted that visa, it was necessary that a delegate of the respondent and, on review, the Refugee Review Tribunal (the Tribunal) be satisfied that she is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol - see s 36(2) of the Act. 2 On 17 June 2002, a delegate of the respondent refused to grant her a protection visa. She sought review of that decision by the Tribunal. On 11 April 2003 the Tribunal affirmed the decision not to grant to the applicant a protection visa. The present application is an application to quash the decision of the Tribunal, and for other prerogative orders. To succeed in such an application, it is necessary that the applicant demonstrate jurisdictional error on the part of the Tribunal, otherwise it is a privative clause decision in accordance with s 474 of the Act, and the Court would not be empowered to review the decision of the Tribunal. 3 The applicant contends that the jurisdictional error committed by the Tribunal was the failure to accord procedural fairness to her. It may be assumed that a failure to accord procedural fairness to the applicant, at least insofar as the Act prescribes a structure for the conduct of review by the Tribunal which involves protections in the nature of procedural fairness obligations, would amount to jurisdictional error on the part of the Tribunal - see Plaintiff S157/2002 v the Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 317. 4 As the complaint is limited to the failure of the Tribunal to accord procedural fairness to the applicant, it is unnecessary to have regard in any detail to the nature of her claim to be a person to whom Australia owes protection obligations under the Convention. It was based upon her imputed political opinion - namely, support of the LTTE in Sri Lanka. That claim was rejected by the Tribunal. 5 In accordance with s 425 of the Act, the Tribunal was obliged to invite the applicant to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review. The Tribunal gave an appropriate invitation to the applicant by letter of 25 February 2003, fixing a hearing date on 2 April 2003. The applicant duly responded, indicating that she did wish to attend the Tribunal hearing. 6 On 1 April 2003, the applicant, by her migration agent, asked that the scheduled hearing be adjourned due to illness of the applicant. A medical certificate was presented in support of that request, indicating that the applicant had a viral illness and was unfit for the Tribunal hearing from 1 to 4 April 2003. The Tribunal acceded to that request. On 1 April 2003, it notified the applicant of the adjournment of the hearing, and fixed a further hearing for 11 April 2003. The applicant did not attend that hearing. Neither she nor her migration agent contacted the Tribunal to explain why she did not attend the hearing, nor did she or her migration agent request any further adjournment of the hearing. 7 On 15 April 2003, following the date fixed for the hearing, the Tribunal informed the applicant that its decision would be given on 1 May 2003. The applicant, therefore, had a further period of some two weeks within which she could have recontacted the Tribunal to explain why she did not attend the hearing, or to seek a further hearing. Again, she took neither of those steps. Consequently, the Tribunal decision was handed down on 1 May 2003, although it was dated 11 April 2003. 8 Counsel for the applicant has contended that the Tribunal failed to accord procedural fairness to the applicant by making a decision without having an explanation as to why the applicant did not attend the hearing on 11 April 2003. It was submitted that the Tribunal should either have granted a lengthier period of adjournment or should have further adjourned the Tribunal hearing. In my view, it was not obliged to do either of those things. 9 It was appropriate for the Tribunal to adjourn the hearing on 1 April 2003 for some time. Given the terms of the medical certificate, the length of the adjournment was not inappropriate. There was no other information before the Tribunal to indicate that it should not then proceed to make a decision in the absence of the applicant and in the light of her failure to attend the Tribunal hearing listed for 11 April 2003. There is nothing put before the Tribunal or, indeed, on this application to explain why the applicant failed to attend that hearing. 10 Section 426A of the Act provides that if an applicant is invited under s 425 to appear before the Tribunal and does not appear before the Tribunal on the day and time at which the hearing is scheduled, the Tribunal may make a decision on review without taking any further action to allow or enable the applicant to appear before it. The Tribunal was, therefore, expressly authorised by s 426A of the Act to proceed in the manner in which it did. In doing so, it did not fail to comply with any provision of the act. In doing so, in my judgment, it also did not fail to accord procedural fairness to the applicant. She was given the opportunity to attend the hearing and to put to the Tribunal by way of evidence and argument that which she wished to put to the Tribunal. She did not take up that opportunity. 11 There is nothing to support any suggestion that the Tribunal acted unfairly by creating an expectation on the part of the applicant that it would not proceed to conduct the hearing on 11 April 2003 or to make a decision in relation to her application after that date if she did not attend - see Re Minister for Immigration and Multicultural Affairs Ex parte Lam [2003] HCA 6. As I have noted, the Tribunal did not otherwise have any request from the applicant for any further adjournment of the hearing, nor have any information conveyed to it by or on behalf of the applicant, either prior to the adjourned hearing or subsequent to the adjourned hearing and before it formally gave its reasons for its decision, which could have put any obligation on the Tribunal not to proceed in accordance with s 426A(1) of the Act: - see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117. 12 In my judgment, there is no basis upon which jurisdictional error on the part of the Tribunal is made out. The application should be dismissed. I so order. I order that the applicant pay to the respondent the costs of the application to be taxed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.