SJMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 67 (4 February 2004)

Last Updated: 26 February 2004

FEDERAL COURT OF AUSTRALIA

SJMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 67

SJMB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
S 440 OF 2003




















SELWAY J
4 FEBRUARY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 440 OF 2003

BETWEEN:	SJMB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	4 FEBRUARY 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The proceedings be struck out for failure to comply with the orders made by Mansfield J on 29 September 2003.

2. The applicant to pay the costs of the respondent of and in respect of the proceedings, save only for any costs occasioned by or arising in respect of the notice of objection to competency filed by the respondent on 19 November 2003.

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 440 OF 2003

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

JUDGE:	SELWAY J
DATE:	4 FEBRUARY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is an application for prohibition, certiorari, mandamus and an injunction against the respondents in relation to a decision made by the Refugee Review Tribunal (‘the Tribunal’) on 2 May 2002 to refuse a protection visa to the applicant. On 29 September 2003, Mansfield J made various orders requiring the applicant to take various steps to bring these proceedings into compliance with the rules of this Court by 24 October 2003 and to provide further information and particulars in relation to his claim. That order was not complied with in any way until 20 November 2003. In the result I have two applications before me.

2 First, I have an application on behalf of the applicant for an order varying the orders previously made by Mansfield J so as to extend the time for compliance with it to 20 November 2003. I also have an application by notice of motion by the respondent, seeking to strike out the proceedings on the basis of failure to comply with the orders made by Mansfield J. Both parties are in agreement that it is a relevant - indeed critical – issue in relation to both applications as to whether the proceedings have any prospect of success.

3 In that regard, the amended application raises one issue only, and only one issue has been put to me by Mr Clisby, counsel for the applicant. That issue concerns a particular aspect of the claim for a protection visa. In his claim the applicant gave as one of the reasons why he needed protection that it would be inappropriate to place his wife at risk if she returned with him to his country of nationality.

4 On the day of the hearing before the Tribunal, the applicant was handed a letter dated 8 April 2002 from the Tribunal. That letter appears to comply with the statutory requirements of s 424A of the Migration Act 1958 (Cth). The letter provides:

‘The Tribunal has information that would, subject to any comments you make, be the reason, or a part of the reason, for deciding that you are not entitled to a Protection Visa.

The information is as follows: the Department of Immigration and Multicultural Affairs received a letter from your wife’s migration agent on 21 November 2001, stating your wife’s instructions that your marriage broke down in October 2000 and that she is no longer a sponsor of your migration application.

This information is relevant because it concerns the credibility of the statements made by you in your application for a protection visa. In that application you state that "My wife who is a permanent resident here is not aware of all these serious issues so I don’t want to risk her life by taking her there where I alone don’t have any security". Further on in your application you state "Not only these, I have responsibilities towards my wife and my parents. I don’t want them to lead this life constantly with fear and mental pressures..."

You are invited to comment on this information. Your comments are to be given in writing by 26 April 2002.

The Tribunal will not change the above date unless there are very good reasons for doing so.’

5 The issue was also dealt with in the Tribunal’s reasons. Those provide:

‘The applicant was advised that there was a letter from his wife’s migration agent on the Department’s file which notified the Department that the marriage which had taken place in January 2000 had ended in October 2000 and his wife was withdrawing her sponsorship and was intending to divorce the husband. A letter pursuant to section 424A of the Migration Act was handed to the applicant and he was advised that he could give an explanation of the conflict in the evidence either at the hearing or he could present written submissions by 26 April 2002. He did not seek to explain the conflict at the hearing. Nor did he did not [sic] seek to lodge written submissions in response within the requisite period of time provided for such a response. In any event, the failure to provide an explanation does not form the reason or part of the reason for the decision set out below.’

6 The applicant argues that raising this matter by a letter delivered at the start of the hearing involved some breach of the obligations of the Tribunal to afford a fair hearing to the applicant. In my view, there are three answers to that submission. First, the Tribunal did afford a reasonable period for the applicant to respond. Indeed, he was given some three weeks to do so. He did not avail himself of that opportunity. Secondly, the Tribunal has expressly stated that it did not take the issue into account in its reasons. Certainly the Tribunal made credibility findings against the applicant, but there is no suggestion in those credibility findings that this was an issue that it took into account. Thirdly, the applicant has failed to place any material before this Court to suggest that, if he had received an opportunity to respond, he could have done so by showing that the information referred to by the Tribunal was false.

7 In circumstances where the applicant was afforded a reasonable opportunity to respond, he has not put anything before this Court to suggest that there was anything he could have put before the Tribunal in any event and where the Tribunal didn’t take it into account, it is perfectly plain that the applicant has no prospects of success in relation to this issue. This being the only issue that has been identified, the application for an extension of time should be dismissed, and an order should be made striking out the proceedings.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:


Dated: 13 February 2004

Counsel for the Applicant:	MW Clisby
Solicitor for the Applicant:	MW Clisby
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	4 February 2004
Date of Judgment:	4 February 2004