NALZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1049 (19 September 2003)

Last Updated: 2 October 2003

FEDERAL COURT OF AUSTRALIA

NALZ v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1049

NALZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 385 OF 2003

GYLES J

19 SEPTEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 385 OF 2003

BETWEEN:	NALZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	19 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the costs of the respondent.

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 385 OF 2003

BETWEEN:	NALZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	19 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The application filed on 25 March 2003 seeks orders pursuant to section 39B of the Judiciary Act 1903 (Cth) in relation to the decision of the Refugee Review Tribunal (`the Tribunal') made on 28 February 2003 to affirm the decision of the delegate of the respondent Minister to refuse to grant the applicant a protection visa. The grounds of the application are:

`1. The Tribunal erred in law amounting to jurisdictional error in finding that any fear of persecution that the applicant may have is not well founded if the applicant returned to India.

2. Exceeded its jurisdiction in making its decision to affirm the Respondent's decision;

3. Constructively failed to exercise its jurisdiction in arriving at its decision;

4. It is clearly shown that the Tribunal Member had not taken to consideration of the applicant's Adviser's Written Submissions, medical reports and other country reports. If these documents were taken to consideration for making the decision it could have led to a different decision, therefore there is a jurisdictional error.

5. The Applicant is entitled to a Protection Visa, which he has applied;

6. The Applicant have a well founded fear of persecution in the country of his nationality ie India.'

The affidavit in support of the application did not further elucidate those grounds. No submissions were filed on behalf of the applicant prior to the hearing. On 26 June 2003 I refused an application to adjourn the hearing then fixed for 1 August 2003 (NALZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 754).

2 When the matter was called on for hearing on 1 August the applicant appeared in person and did not present any substantive argument in support of his application. I then indicated to counsel for the Minister that I did not need to hear him in relation to grounds 1, 2, 3, 5 and 6 of the application which were not supported by evidence or argument. I did call upon him in relation to ground 4 and, in the course of argument, drew his attention to some aspects which seemed to me to require further consideration. The hearing was then adjourned until later in the day to enable counsel to give further consideration to the matter. In the intervening period he prepared a chronology and a set of supplementary submissions. It seemed to me that the applicant could not succeed on ground 4 without evidence as to what occurred at the hearing before the Tribunal. Unfortunately, that required the adjournment of the hearing until today. The purpose of the adjournment was explained to the applicant.

3 Yesterday, the court received what was described as an outline of the applicant's submissions which acknowledged the receipt of the transcript of the tapes of the hearing by the Tribunal, albeit on 16 September. Apart from brief reference, those submissions do not address the issue which occasioned the adjournment. Indeed, they essentially seek to raise a further ground of attack, namely, failure to accord procedural fairness for not making the applicant aware of and providing access to material adverse to his interests. This document was obviously prepared by somebody other than the applicant although that person is not on the record in any way. No application was made on the hearing by the applicant to amend the grounds of the application. If application had been made I would have rejected it.

4 The matter was adjourned for a particular purpose on my initiative to assist the applicant. The adjournment was not to provide the opportunity for a belated and last minute attempt to raise another issue. Furthermore, as submitted by counsel for the Minister, no evidence was provided in support of the new ground. In addition to that being a breach of the Rules of Court, any such amendment seeking to take advantage of the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 could not succeed without the necessary factual substratum.

5 I have considered the reasons of the Tribunal, together with the transcript of what took place at the hearing by the Tribunal. I have considered the chronology and supplementary written submissions on behalf of the respondent handed up on 1 August 2003 and I have considered the relevant parts of the supplementary submissions handed up today on behalf of the respondent. The applicant has not been able to add anything of substance to the argument today.

6 In my opinion the applicant has not established that the Tribunal failed to take into account material which had been presented to it by and on behalf of the applicant immediately prior to the hearing and shortly after the hearing. It is clear enough that the material provided to the Tribunal on the morning prior to the hearing was present to the mind of the member of the Tribunal at the hearing. It is also clear that the submission which was subsequently provided by the migration agent for the applicant was provided as a result of an express arrangement between the member of the Tribunal and the migration agent at the hearing.

7 Further, the material and submissions in question did not mark any essential change to the basis on which the applicant put his case for a protection visa - indeed, it was all said to be corroborative of that basis. The fact that the Tribunal did not refer to particular pieces of corroborative material in its reasons does not establish any error on its part, let alone jurisdictional error.

8 The application is dismissed. The applicant is to pay the costs of the respondent.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 2 October 2003

The Applicant appeared in person
Counsel for the Respondent:	A McInerney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 August, 19 September 2003
Date of Judgment:	19 September 2003