SZAOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 103

FEDERAL COURT OF AUSTRALIA

SZAOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 103 SZAOZ v Minister for Immigration and Multicultural and Indigenous Affairs N 1604 of 2004 JACOBSON J 14 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1604 OF 2004

BETWEEN: SZAOZ

APPLICANT

AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 14 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for leave to appeal is refused. 2. The applicant is to pay the respondent's costs of and incidental to the application, fixed in the amount of $3000.00.

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 1604 OF 2004

BETWEEN: SZDWE

APPLICANT

AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 14 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1. On 4 November 2004, the applicant filed a notice of appeal from a judgment of Federal Magistrate Driver given on 15 October 2004. The Federal Magistrate dismissed as incompetent an application for review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 17 October 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The Federal Magistrate found that the decision of the RRT was free from jurisdictional error and that the application for review was filed outside the time limit set by section 477(1A) of the Migration Act 1958 (Cth) ("the Act"). 2. Accordingly, the decision of the Federal Magistrate was interlocutory and leave to appeal is required. On 2 December 2004 I ordered that the matter be listed for hearing today and that the notice of appeal was to be treated as an application for leave to appeal. 3. The applicant is a citizen of Bangladesh, he claimed to have a well founded fear of persecution on political grounds. The applicant claimed that he feared that if he returned to Bangladesh he would be persecuted by the Awami League because his father was a well known leader of an opposing political party. It is unnecessary to set out the grounds of the claimed fear in detail. 4. The notice of appeal seeks to argue the same grounds on which the applicant was unsuccessful before the Federal Magistrate, three of the grounds involved the application of the decision of the High Court in Muin v The Refugee Review Tribunal (2002) 76 ALJR 966. The Federal Magistrate found that these grounds were hopeless because there was no evidence to support the matters required to be established and there were no agreed facts. There was plainly no error in this and the applicant has no prospects of success on these grounds on appeal. He did not address me on those grounds this morning. 5. The applicant appeared in person and he raised a further ground of appeal which was a matter that was pursued before the Federal Magistrate and which does seem to me to be the subject of the notice of appeal. The ground is that the applicant was denied procedural fairness because he was not notified of the hearing before the RRT. The Federal Magistrate observed that the hearing invitation was sent by registered post to the applicant at his last named residential address but that the hearing invitation was returned unclaimed. Following this an officer of the RRT contacted the applicant's then migration agent who told the officer that he had lost contact with the applicant. 6. The learned Federal Magistrate proceeded upon the basis that the RRT was aware that the hearing invitation had not come to the attention of the applicant personally because it had been returned unclaimed. The Federal Magistrate also proceeded upon the basis that the applicant's migration agent had been advised that he had lost contact with the applicant. Thus, the Federal Magistrate posed the question whether in the circumstances it was procedurally fair for the RRT to make a decision in the absence of any appearance by the applicant. The Federal Magistrate was satisfied that it was. 7. The substance of the Federal Magistrate's reasons are set out at [7] and in particular at [8] he found that the RRT did all that could reasonably be expected of it in order to contact the applicant. Reference was made to s 425 of the Act and his Honour found that the RRT complied with its statutory obligation under that section. He found that the hearing invitation was sent by a method prescribed under s 441A of the Act and that the applicant was taken to have received it by reason of the operation of s 441C. 8. Mr Lloyd, who appears for the Minister today, submits that the statutory scheme empowered the RRT to proceed even though it was aware that the applicant had not received notice of the hearing to which the applicant was invited under s 425 of the Act. 9. In addition to the provisions of ss 441A and 441C to which the Magistrate referred, Mr Lloyd points to s 426A of the Act which he says is part of the statutory scheme. That section provides that if an applicant is invited under s 425 and does not appear on the appointed day, the RRT may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 10. Mr Lloyd submits that even if I were to accept that the principle known as Wednesbury unreasonableness could apply to an exercise of the discretion of the RRT to proceed under s 426A, and even if Wednesbury unreasonableness constitutes jurisdictional error, there is nothing to suggest any unreasonableness in the present case because what was done must be so unreasonable that no Tribunal acting reasonably could have proceeded to hear the application. 11. I should observe that Mr Lloyd's argument rested only upon the issue of the prospects of success on appeal and did not focus upon questions of delay on the part of the applicant. In the course of argument this morning I referred Mr Lloyd to the decision of French J in Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416 (French J) ("Osborne"). That case was concerned with the application of a different statutory provision, namely, the exercise of the power to cancel a visa under s 501 of the Act. 12. There is no express provision in the Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister's power to cancel a visa under s 501. However, his Honour was of the view that there was an implied condition of notification but that the implied condition is not absolute. It requires only that reasonable steps be taken to notify the visa holder. The decision of French J in Osborne has been followed by a full court in Minister for Immigration and Multicultural and Indigenous Affairs v Ball, [2004] FCAFC 91. 13. Although the Federal Magistrate did not refer to the decision in Osborne, the finding by the Magistrate at [8] that the RRT did all that could reasonably be expected of it in order to contact the applicant seems to me to be an application of the same test as was applied by French J. 14. In my opinion there is nothing in the circumstances of the present case to suggest that there is any possibility of the application of the Wednesbury test to the decision made by the RRT, in accordance with the statutory scheme, to proceed to hear and determine the application in the absence of the applicant. Here, the RRT, although it was not obliged to take any further action to allow or enable the applicant to appear, did take the step of contacting the migration agent. It seems to me to be clear that the statutory scheme to which Mr Lloyd referred, and which the Federal Magistrate had in mind, applied, so there is no room for the argument that Wednesbury unreasonableness may give grounds for any possible basis of review. 15. Accordingly, in my opinion, the decision of the Magistrate is not attended by sufficient doubt to warrant the grant of leave to appeal. I note, as was observed by the learned Federal Magistrate that this may not seem a fair outcome to the applicant. He pointed out to me today and placed some stress upon the fact that he was denied a hearing. However, the learned Federal Magistrate pointed out that any unfairness to the applicant was not the fault of the RRT, which followed the statutory scheme. Accordingly, I do not see that there is any injustice involved in the denial of leave to appeal. The order I will make this morning is that leave to appeal be refused. 16. I order the applicant to pay the Minister's costs of and incidental to the application for leave to appeal which I will fix in the sum of $3000.