Applicant A175/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 829 (21 July 2003)

Last Updated: 13 August 2003

FEDERAL COURT OF AUSTRALIA

Applicant A175/2002 v Minister for Immigration & Multicultural

& Indigenous Affairs [2003] FCA 829

APPLICANT A175/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, G M M HOEBEN MEMBER REFUGEE REVIEW TRIBUNAL, PRINCIPAL MEMBER REFUGEE REVIEW TRIBUNAL

S152 of 2003

FINN J

21 JULY 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S152 OF 2003

BETWEEN:	APPLICANT A175/2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT G M M HOEBEN, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	21 JULY 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The consideration of costs be adjourned to a date to be fixed.

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	S152 OF 2003

BETWEEN:	APPLICANT A175/2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT G M M HOEBEN, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGE:	FINN J
DATE:	21 JULY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This matter relates to denial of natural justice founded upon the fact of the hearing taking place without the particular individual applicant being heard.

2 The originating proceedings were filed in the High Court of Australia on 19 August 2002. Judicial review was sought of a decision of the Refugee Review Tribunal of 1 July 2002, in which the Tribunal affirmed a decision not to grant a protection visa to the applicant. The ground upon which the application for judicial review was based, though cast in general terms in the High Court application, has been clarified in the proceedings in this Court. The matter was remitted to this Court by the High Court.

3 An amended application and outline of submissions were filed on 21 May 2003. There was, however, no accompanying affidavit revealing the factual foundation for the application notwithstanding the requirement of O 4 r 6 of the Federal Court Rules. The outline of submissions, like the amended application itself, is singularly bereft of factual material, though it did make plain that the proceeding in this court was founded on an allegation of breach of the audi alteram partem rule (or "hearing rule") in that a denial of procedural fairness is alleged in the Tribunal proceeding to a hearing of the matter without hearing the applicant concerning it.

4 The respondent Minister on 19 June 2003 filed a notice of motion seeking summary dismissal of the application under O 20 r 2(1)(a) of the Federal Court Rules, on the grounds that no reasonable cause of action was disclosed, in that there was no breach of the rules of natural justice, as alleged in the amended application.

5 On 20 June 2003 a judge of this court adjourned further consideration of the notice of motion until 22 July 2003 and gave the applicant liberty to file further affidavit material in support of its application. No such material has been filed in this matter, although a Notice of Discontinuance was filed on 10 July 2003.

6 In the circumstances there is no factual substratum for the claim made. In its reasons the Tribunal explained why it acted as it did in the following terms:

"The applicant was due to give oral evidence to the Tribunal on Wednesday, 1 May 2002. He did not appear. No contract was made with the Tribunal nor an explanation provided to explain the applicant's absence either before or on the hearing date.

On 2 May 2002 the applicant's adviser faxed a letter to the Tribunal with an accompanying medical certificate from a Doctor A Bala which stated that the applicant consulted the doctor on 2 May 2002, the day after the hearing and was `unable to attend work' from 1 May to 2 May 2002. As a result, the adviser requested a postponement of the hearing to another date. The certificate did not indicate the nature of the illness. Given the vagueness of the certificate the Tribunal contacted the doctor on 6 May 2002. The doctor indicated that the certificate related only to `generally not feeling well' in the context of manual work conditions. The doctor stated he had not been informed that the certificate was to be used for any other purpose. After explaining the hearing procedure to the doctor, he said that there was no reason why the applicant could not have attended the Tribunal on 1^st or 2^nd May to give oral evidence. He was not prepared to support the applicant in his postponement application.

The Tribunal considered that this information would form the basis for not granting a postponement retrospectively. Accordingly, the Tribunal wrote to the applicant on 6 May 2002 giving particulars of the information provided by the doctor inviting him to comment upon it in writing. A duplicate of the letter was also sent to the applicant's adviser. The Tribunal's letter explained that the information was relevant because the doctor's oral response to the Tribunal's enquiries indicated that the applicant had no illness incapacitating him from attending the hearing of 1 May 2002 and, therefore, no postponement was granted. The letter advised that if the applicant did not give comments on the new information provided by the doctor by 29 May 2002, the Tribunal could make a decision on the review without further notice.

On 16 May 2002 the Tribunal received a letter from the applicant which was not responsive to the Tribunal's letter of 6 May but reiterated only that the applicant `was not feeling well' on the day of the hearing and requested again a postponement. As a result, on 23 May 2002 the Tribunal replied indicating that the applicant's letter provided no additional information for the Tribunal to consider and, as a result, the request for a postponement was denied.

Accordingly, on 3 June 2002 the Tribunal wrote to the applicant which indicated, inter alia, that as no further submissions had been received by the Tribunal by 29 May 2002, it would proceed to write the decision on the review and that the applicant would be advised in writing of its handing down date."

7 The Tribunal was authorised by s 426A of the Migration Act 1958 (Cth) to proceed to determine the matter, the applicant having been invited to attend but having failed to do so. There is no factual basis for any suggestion it acted improperly in so doing. Accordingly the minister's motion must succeed.

8 I will dismiss the application. As the respondent Minister has sought a personal costs order against the applicant's legal adviser, I will adjourn consideration of costs to a date to be fixed.

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

Associate:

Dated: 7 August 2003

Counsel for the Applicant:	Mr W Clisby
Solicitor for the Applicant:	Mr W Clisby
Counsel for the Respondent:	Mr L Leerdam
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	21 July 2003
Date of Judgment:	21 July 2003