NBHP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1857

FEDERAL COURT OF AUSTRALIA

NBHP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1857

MIGRATION - procedural fairness – applicant consent to RRT making decision without hearing – alleged attempt to withdraw consent – whether RRT has power to make decision before appointed hearing date

Migration Act 1958 (Cth) - s 425 NBHP v Minister for Immigration, Multicultural and Indigenous Affairs and Refugee Review Tribunal nsd 1446 of 2005 jacobson j 5 december 2005 sydney

IN THE FEDERAL COURT OF AUSTRALIA NSD 1446 of 2005 NEW SOUTH WALES DISTRICT REGISTRY

On appeal from a decision of the Federal Magistrates Court of Australia

BETWEEN: NBHP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

Refugee Review Tribunal

SECOND RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 5 DECEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs in the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA NSD 1446 of 2005

NEW SOUTH WALES DISTRICT REGISTRY

On appeal from a decision of the Federal Magistrates Court of Australia

BETWEEN: NBHP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

Refugee Review Tribunal

SECOND RESPONDENT

JUDGE: JACOBSON J

DATE: 5 DECEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Smith given on 29 July 2005. It is concerned principally with the construction of s 425 of the Migration Act 1958 (Cth). The only substantial issue which arises on the appeal is whether when an appellant consents to the Refugee Review Tribunal ("the RRT") making a decision without holding a hearing, the RRT may make its decision before the appointed hearing date. 2 The appellant is a Chinese national who claims to have a well-founded fear of persecution by his government. By letter dated 19 April 2004, the RRT invited the appellant to attend a hearing to be held on 29 June 2004. 3 The appellant sent a facsimile to the RRT on 29 April 2004 indicating that he did not wish to attend the hearing and consenting to the RRT making a decision without further action. The RRT made a decision affirming an earlier decision of the delegate on 3 May 2004 and it advised the appellant that the decision would be handed down on 27 May 2004. The RRTs decision was handed down on that date. 4 In his application for judicial review the appellant claimed that he attended the RRT's premises on 4 May 2004 and that he attempted to withdraw his consent given on 29 April 2004. He claimed that he requested a further hearing. 5 The appellant gave evidence at the hearing before Federal Magistrate Smith to this effect and he also produced documentation and called a witness to corroborate his claim. According to the appellant, in proceeding to make a decision before the appointed hearing date, the RRT failed to comply with its obligations under a number of sections of the Act including s 425. 6 Federal Magistrate Smith found that the appellant was not a credible witness and his Honour did not accept the appellant's evidence of what was said to have occurred on 4 May 2005. His Honour concluded that the appellant had put together a false account of a request being made for further hearing and he did not accept that at any stage prior to the handing down of the RRT's decision that the appellant communicated to the RRT that he wanted an opportunity to appear at the hearing. 7 Having made this finding the learned Federal Magistrate did not need to consider issues of whether consent pursuant to s 425(2)(b) of the Act could be withdrawn, nor whether the RRT proceeded to hand down its decision without first taking into consideration communications from the appellant indicating a wish to attend a hearing. 8 The sole issue which therefore fell for consideration before Federal Magistrate Smith was whether the RRT had power under s 425 of the Act to make a decision prior to the appointed hearing date having received the appellant's consent to it deciding the review without the appellant appearing before it. 9 Section 425 of the Act provides as follows: "(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or