AZAAZ v Minister for Immigration and Citizenship [2011] FCA 159 (1 March 2011)

Last Updated: 3 March 2011

FEDERAL COURT OF AUSTRALIA

AZAAZ v Minister for Immigration and Citizenship [2011] FCA 159

Citation:		AZAAZ v Minister for Immigration and Citizenship [2011] FCA 159
Appeal from:		AZAAZ v Minister for Immigration & Anor [2010] FMCA 832
Parties:		AZAAZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		SAD 163 of 2010
Judges:		BESANKO J
Date of judgment:		1 March 2011
Date of hearing:	1 March 2011
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	13
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr K Tredrea
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 163 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	AZAAZ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	1 MARCH 2011
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 163 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	AZAAZ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BESANKO J
DATE:	1 MARCH 2011
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an appeal from orders made by the Federal Magistrates Court. On 5 October 2010 a federal magistrate made orders that the appellant’s application for constitutional writs be dismissed and that the appellant pay the first respondent’s costs. The appellant had issued an application in the Federal Magistrates Court seeking constitutional writs directed to the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a Protection (Class XA) visa (‘protection visa’) to the appellant.
2. The Tribunal found that the appellant is a citizen of Indonesia. He arrived in Australia on 5 November 2009 and he applied to the Department of Immigration and Citizenship for a protection visa on 27 November 2009. A delegate of the Minister refused his application on 15 February 2010. He made an application for review to the Tribunal.
3. On 29 March 2010 the Tribunal wrote to the appellant advising him that it had considered all of the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 3 May 2010. In its reasons the Tribunal records the fact that the invitation was sent to the last address provided by the appellant to the Tribunal in accordance with s 425A and s 441A(4) of the Migration Act 1958 (Cth) (‘the Act’). It records that no response was received, that the appellant had no adviser nor had he supplied any telephone number to the Tribunal. There were no other avenues of contacting him.
4. The appellant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In those circumstances, and pursuant to s 426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
5. The Tribunal referred to information provided by the appellant in his application for a protection visa and in particular his answers to questions 41, 42, 43, 44 and 45.
6. In its reasons the Tribunal said that the appellant’s claims were lacking in detail and general. It noted the matters that it was unable to explore with the appellant. It said:

The information that the applicant has submitted does not provide in necessary detail for the Tribunal to be satisfied as to the veracity of his claims or that he has a well founded fear of persecution.

As a result the Tribunal was not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention as qualified by the Act.

7. On the application for review the federal magistrate addressed a number of issues. First, he noted that the appellant had written to the Tribunal saying that he did not attend the hearing on 3 May 2010 because he did not receive the Tribunal’s letter from the post office until 11 May 2010. The federal magistrate said that he was satisfied that the notification by the Tribunal was sent to the applicant at the address given by him in his application and that he was satisfied that the document having been sent by registered post and to that address it was taken to have been received by him by reason of s 441C of the Act. The federal magistrate noted that the matter had not reached the stage of the appellant putting evidence before him or seeking an opportunity to rebut the provisions of s 441C.
8. Secondly, the federal magistrate noted that the appellant had not filed a written outline of submissions and indeed, he had from the date of filing his application for a protection visa been content to rely on the material set out in the original application. The federal magistrate noted the appellant’s answers to questions 41, 42, 43, 44 and 45. He noted the way in which the Tribunal had dealt with the application for review. He noted that the appellant did not take the opportunity to attend the Tribunal to augment his very brief written submissions before the delegate with any oral evidence or any submissions. He said:

The applicant has adopted the same attitude before me today. He is here; but he offers no further submissions.

9. The federal magistrate expressed his conclusions as follows:

There is no attempt by him before me today to identify ways in which he would seek to establish that the Tribunal fell into jurisdictional error in coming to the view that it did, or that it had information of insufficient particularity and detail to be able to be satisfied that the applicant was a person to whom Australia owed obligations under the Refugees Convention. In coming to the view it did, in that regard, I am satisfied that the Tribunal did not fall into error, let alone jurisdictional error. It responded to the paucity of material put before it by the applicant in support of his application in a way that I think was almost inevitable, given the applicant’s decision not to attend at the hearing before the Tribunal.

10. The appellant’s grounds of appeal to this Court are as follows:
    1. Federal Magistrate LINDSAY failed to consider the Second Respondent did not exercise its jurisdiction by not observing procedures which it was required by the Act to observe.
    2. Federal Magistrate LINDSAY failed to consider the appellant was arrested by Indonesian Army.
    3. Federal Magistrate LINDSAY failed to consider the Second Respondent had not fully considered the appellant was very frightened to return to Indonesia.
       
11. Ground 1 appears to raise the service point dealt with by the federal magistrate. It does not seem to me that there is any error in the federal magistrate’s reasons. Grounds 2 and 3 raise factual matters. They do not identify any error in the reasons of the federal magistrate. I have considered carefully the Tribunal’s reasons and I cannot detect any basis for concluding that it committed a jurisdictional error.
12. The appellant appeared before me in person. He had the assistance of an interpreter. He made very brief submissions in support of his appeal. He did not say anything that causes me to doubt the correctness of the federal magistrate’s decision.
13. In the circumstances, the appeal must be dismissed with costs.
    

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 1 March 2011