FEDERAL COURT OF AUSTRALIA

Alwar v Minister for Immigration & Multicultural Affairs[1999] FCA 1111

MIGRATION – circumstances where discretion under s 481 of Migration Act was exercised against applicant – reference to principles relating to costs in respect of Migration Act 1958, application under Refugees Convention.

Migration Act 1958 (Cwth), ss 426, 481

Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584; 161 ALR 612 referred to

Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305 referred to

Shelton v Repatriation Commission (1999) 85 FCR 587 referred to

SABAPATHY ALWAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 414 of 1999

Burchett J

4 August 1999

Sydney

EX TEMPORE REASONS FOR JUDGMENT

1                     In this matter, an application for a protection visa was made by the applicant on the ground that he had a well founded fear of being persecuted for reasons of political opinion in India.  That application was refused, and his further application to the Refugee Review Tribunal was also refused.  The applicant then lodged an application to this Court for the limited form of judicial review available in respect of such a decision.

2                     No attack is made on the way in which the matters that were required to be considered by the Tribunal were considered.  I have read the reasons for decision and can find no basis for any such attack.  One ground only was raised by Mr Newman who, in the early stages of the proceeding, acted as solicitor for the applicant, and, at the hearing, very properly continued to appear, notwithstanding that the conditions of his retainer had not been fulfilled and that the applicant did not attend.  I should add that there was no explanation for the applicant's non-attendance before me, nor, apart from the point I am about to mention, was there any explanation of his failure to appear before the Tribunal, a failure which is central to the present application. 

3                     The point raised was that the Tribunal, having come to the conclusion under s 424 of the Migration Act 1958 (Cwth) that it was not prepared to make the decision most favourable to the applicant without taking oral evidence, had sent a letter purporting to give the necessary notice under s 426 to an address which was not the address for service, with the result that this letter was returned undelivered.  Mr Newman said there was no proof that any copy of this letter was sent to the correct address.  But the Tribunal made a finding on this subject in the following terms:

“On 9 March 1999 the Tribunal wrote to the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone.  The applicant was advised that he was entitled to come to a hearing of the Tribunal to give oral evidence in support of his claims and was asked to tell the Tribunal within 21 days whether or not he wishes to do so.  The applicant was advised that if he did not contact the Tribunal within that 21 day period, it would be assumed that he did not wish to come to a hearing and that a decision could then be made without further notice.  The letter was sent to the applicant at the nominated address, his adviser's address, in accordance with the regulations, and to the applicant's home address as given in the review application.  No response has been received, and the letter sent to the applicant's home address was returned to the Tribunal marked, ‘Unknown at this Address’.  In these circumstances the Tribunal is satisfied that it has discharged its obligation to provide the applicant with the opportunity to give oral evidence before it and that the applicant has effectively declined that opportunity.  This matter has therefore been determined on the evidence before the Tribunal.”

It should be noted that this finding refers clearly to the sending of two copies of the letter in question to two different addresses, and refers to one copy only as having been returned through the post.  The other address, from which the letter was not returned, was in fact the address for service shown in the application.

4                     In that situation, subject to what follows, it seems to me there was no error of law in the view taken by the Tribunal that it was satisfied in respect of the notification of the applicant under s 426, nor was there any error in the conclusion that the applicant had declined to present himself before the Tribunal to give evidence in pursuit of his claims.

5                     There is one problem which I raised with the solicitors who appeared for the parties.  That problem relates to the contents of the letter sent, not to the matter of its receipt.  In Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584; 161 ALR 612, a number of issues stemming from the terms of s 426 came before a Full Court.  On some of these issues, the Court was unanimous; on others individual views were expressed by members of the Court.  In my judgment, a corrigendum to which unfortunately is not reflected in the report in the Australian Law Reports, although it is in the Federal Court Reports, I discussed, among other things, the requirement to give notice and the manner in which this requirement must be discharged; but I also discussed the question of the contents of the notice, as did Moore J.  Katz J, at 629, noted that he took me to be essentially agreeing with Moore J, while adding some further comments about two aspects of  the matter.  For himself, Katz J confined his agreement with the reasons of Moore J, and with my reasons, to a separate issue relating to the use made of an interpreter.  However, it seems clear that a majority of the Court, consisting of Moore J and myself, did regard a defective compliance with the requirements of s 426 in respect of the contents of a notice as a matter which could give rise to an error of law warranting the setting aside of a decision of the Tribunal.

6                     In the present case, I think it is fair to say the notice comes much closer to compliance with s 426 than did the notice in Sook Rye Son.  Nevertheless, I think it complied only defectively, and that in more than one detail.  For reasons which I have stated in Sook Rye Son and need not repeat now, compliance with the strict requirements laid down by the legislature cannot be treated as unimportant - in a given case, it may quite literally be a matter of life or death.  However, no affidavit has been filed by the applicant suggesting any explanation for his failure to appear before the Tribunal, and no substantive argument has been raised upon his application to the Court.  He is not here, and his case has only been presented by virtue of the public spiritedness of the solicitor to whom he had initially given instructions.  In those circumstances, the conclusion of the Tribunal, which I have already held not to be open to criticism, that he had declined to avail himself of the opportunity of pursuing his application orally, receives added confirmation.

7                     Section 481, in dealing with the powers of the Federal Court, makes it plain that an order setting aside the decision would be one made in my discretion.  In all ordinary circumstances, the demonstration of an error of law affecting a decision would inevitably lead to the exercise of that discretion in favour of the applicant; but in the peculiar circumstances of the present case, I do not think it would be appropriate to make any order other than one dismissing this application.  It is therefore dismissed.

8                     An order for costs has been sought by the solicitor for the respondent.  Such an order is not automatic, particularly in administrative law cases, and particularly in cases involving bona fide resort to fundamental rights of the kind with which the Convention relating to the Status of Refugees is concerned.  Recently, the Privy Council made that clear when speaking of rights conferred by a Constitution:  Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305 at 1315.  The Full Court of this Court has also made it clear that the discretion conferred on this Court will not automatically be exercised in favour of the successful party in such cases:  Shelton v Repatriation Commission (1999) 85 FCR 587 at 590.  However, I can see no reason not to exercise my discretion in the present case so as to order that costs follow the event, and I order that the application be dismissed with costs.

Associate:

Dated:              13 August 1999