AZAEO v Minister for Immigration

[2014] FCCA 2458

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAEO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2458

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – applicant failed to appear on hearing – applicant provided medical generic medical certificate day prior to hearing – adequacy of medical certificate considered – no apparent jurisdictional error – application dismissed as a consequence of applicant’s non-appearance.

Legislation:  

Migration Act 1958 (Cth), ss.474; 476
Federal Circuit Court Rules:  r: 13.03C(1)(c)

Plaintiff 157/2002 (2003) 211 CLR 476
MZZGY v the Minister for Immigration and Border Protection [2014] FCA 488

Applicant: AZAEO

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 47 of 2014

Judgment of: Judge Brown

Hearing date: 22 September 2014

Date of Last Submission: 22 September 2014

Delivered at: Adelaide

Delivered on: 22 September 2014

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 13 February 2014 be dismissed pursuant to Rule 13.03C of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent's costs fixed in the sum of six thousand six hundred and forty-six dollars ($6,646.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 47 of 2014

AZAEO

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This afternoon I am dealing with an application made pursuant to section 476 of the Migration Act, which seeks that an order of the second respondent the Refugee Review Tribunal be quashed. The decision in question was that the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa to the applicant.

2. This is a privative clause decision. Accordingly, pursuant to section 474 of the Migration Act, such a decision is not amenable to review by Courts such as this or to an application for any prerogative writ.

3. However, the High Court in the case of Plaintiff S157 of 2002[1] has held the provisions of section 474 do not prevent the review of decisions made by a Tribunal, which are affected by jurisdictional error or have been made in bad faith. Accordingly, the only ground on which I have authority to intervene in this matter is if there has been a jurisdictional error. I am not entitled to conduct a merits re-hearing of the matter.

   [1]  Plaintiff 157/2002 (2003) 211 CLR 476

4. It is the position of the first respondent that a reading of the decision of the Refugee Review Tribunal reveals no jurisdictional error.  Accordingly the Minister seeks the dismissal of the application.  This application is based on two grounds.  Firstly, the applicant has failed to appear at court to prosecute his application.  Secondly, on its face, the application is without any prospects of success.

5. The applicant in the matter filed his application for judicial review on 13 February 2014.  He has prepared his own material and has indicated two grounds for review. 

6. The first ground relates to the failure of the applicant to call his wife to give evidence.  The applicant asserts that the Tribunal failed to give proper weight to the fact that the applicant and his wife are separated from one another and, accordingly, it was unfair for the Tribunal to draw adverse conclusions regarding the failure of the applicant to call the lady in question. 

7. The second complaint of error relates to an allegation that the Tribunal fell into jurisdictional error by making a finding adverse to the applicant that none of his family members in India nor his former wife had made complaints to the police regarding alleged threatening phone calls, which they had received, which it was claimed arose because of the applicant’s conduct and which, in part, form the basis for his claim for protection in this country. 

8. By way of background, the applicant is an Indian national.  He arrived in this country in mid-2009, on a student visa, that was cancelled due to a breach of its condition.  This cancellation led to review proceedings in the Migration Review Tribunal. 

9. Ultimately, after a request for ministerial intervention had been declined this application was finalised, following the unsuccessful process of review.   Thereafter, on 21 November 2012, the applicant first attempted to lodge an application for a Protection visa. 

10. The basis of his claim for refugee status in Australia is that he is married to an Australian citizen, who is a Buddhist.  The applicant, at least by birth, is a Hindu.  The applicant claimed that he feared being killed by fanatical Hindus, if he was to return to India.  He asserted that such fanatics believed in honour killing for religious causes. 

11. Particularly relevant, in the context of this matter, he claimed to have received threatening phone calls from Hindu people in India who threatened to kill him if he returned to India.  In addition, his parents were also said to have received similarly threatening calls. 

12. On 14 October 2013, following the Minister’s delegate refusing his application and following the applicant’s application to the RRT, the applicant was invited to appear before the Tribunal to give arguments and present any evidence, which related to his case. 

13. On 13 December, the applicant wrote to the Tribunal requesting that the hearing be postponed, as he was ill.  The Tribunal acceded to his request, and the hearing was moved until 20 January.  The applicant attended that hearing, and the following day, the Tribunal affirmed the decision under review.  It is this decision which is the subject of the current proceedings.

14. The application in this matter was fixed for hearing today at a quarter past 2.  There can be no doubt that the applicant knew of that date, because he has written to the Court indicating as follows:

    My file – [thereafter he refers to the court file number]:

    My hearing on 22 September 2014 at 2.15 pm, I am suffering from cervical neuralgia.  Doctor give me complete bed rest, so I am unable to attend the hearing.  So please consider my request.  Please give some other date for hearing.  I am very thankful to you of this kindness.  Thanking you.

15. The letter appears to be signed by the applicant.  Attached to the letter is a doctor’s certificate, from a person who appears to be a GP, practicing in Hindley Street, Adelaide.  The date of the certificate is 18 September 2014.  The doctor certifies that he has examined the applicant on that date, and in the doctor’s opinion:

    The applicant was suffering from cervical neuralgia and he/she will be/was unfit for work from 18 September 2014 up to and including 24 September 2014.  He/she should be able to resume work on 25 September 2014. 

16. I read the certificate literally, because the printed options open to correct the form, so it is personalised in terms of sex and whether the infirmity is retrospective or in the future, have not been completed. 

17. In any way, the doctor in question has signed and has indicated his qualifications as a Bachelor of Medicine and a Bachelor of Science.  I have no doubt that the doctor is properly qualified and the certificate is genuine and the applicant attended at the GP in question and presented and, no doubt, gave a history of being unwell and the certificate was provided, but it, in my view is a blunt and generic document.

18. It appears at the last minute and it gives no context as to the condition from which the applicant is said to suffer and, particularly, what impact that condition will have on the applicant in terms of presenting his arguments and case today. 

19. I have been referred to some comments made by Davies J in the case of MZZGY & the Minister for Immigration and Border Protection [2] in which his Honour, under the heading Adjournment Application, made reference to a situation which is broadly analogous to this one, in that a medical certificate was supplied at short notice by the applicant concerned which did not provide any great detail of the medical condition said to pertain to the applicant concerned. 

    [2]  MZZGY v the Minister for Immigration and Border Protection [2014] FCA 488

20. His Honour said of the document provided to him that it was wholly inadequate to support an adjournment application.  The certificate did not state the nature of the appellant’s condition, nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing. 

21. In addition, the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing.  Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment.

22. In these circumstances His Honour concluded that it was reasonable to infer that the late notice was deliberate and intended to bring about the outcome of the adjournment by short notice.  Accordingly, His Honour declined the adjournment application and determined the application on the material available to him.

23. This is a slightly different situation, in that the medical certificate does provide a condition for the applicant, but it provides no information as to why the applicant cannot attend and participate effectively in the Court hearing.  Again, there is no indication whether this infirmity is the result of an illness or is as a result of an accident. 

24. In all the circumstances, particularly the nature of the applicant’s claim, which I will come to in a moment, I think it is reasonable to infer that the late notice was deliberate and was indeed intended to bring about an adjournment of the proceedings by hook or by crook. 

25. Pursuant to rule 13.03(C)(1) of the Federal Circuit Court Rules, if a party to a proceedings is absent from a hearing, the Court has a discretion to do a number of things including, if the absent party concerned is an applicant, dismiss the application. 

26. Mr d’Assumpcao, counsel for the Minister, asks me to dismiss the application.  As with all discretions, particularly a significant discretion such as to dismiss a proceeding, it is a discretion which needs to be exercised judicially. 

27. That is particularly so in cases which relate to persons who seek this country’s protection pursuant to the Refugee Convention.  I acknowledge that very often such persons do not speak English well and may be intimidated by authority.  Although it is trite, it is true nonetheless, that potentially claims for refugee status may have life and death implications for the applicant concerned. 

28. However, in this matter, as I have outlined it, the applicant came to this country on a student visa.  He has pursued a process of review in respect of that visa in a separate Tribunal, going as far as to seek the Minister’s intervention. 

29. It is also the case that after that process had reached its end, he made this application for protection.  The case is also unusual in the sense that he seeks protection as a result of threats which have been allegedly made to him from India, whilst he has been in Australia, because of his relationship with a person who is a Buddhist, but also an Australian citizen. 

30. It is the applicant's case that about six months after he married, he began getting phone calls from India telling him that he would be killed if he returned to the country of India.  He also said his parents had received calls threatening them.  He said he had also received anonymous calls from people in Australia. 

31. The Tribunal was concerned that no reports had been made to the relevant authorities in respect of what were potentially serious matters and, in particular, as a consequence of that, no steps had been taken to trace the calls.  The implication being that such actions would have added probity to the applicant's claims.

32. The Tribunal was particularly concerned that the applicant's wife, who was a witness to the phone calls and also the applicant's alleged attendance at a Buddhist temple in Adelaide, had not attended Court. 

33. In this context, the applicant conceded that his wife was aware of the hearing but he suspected that she was busy and he did not want to push her.  The Tribunal found that curious.  In any event, the Tribunal, of its own volition, attempted to contact the person in question, left a message on her voicemail and invited her to respond.  She did not do so.

34. The Tribunal also had country information relating to India, which indicated that the Indian Constitution permits mixed nationality and mixed caste marriages.  As such, it was put to the applicant that religious freedom was respected by the political authorities in India.  The Tribunal also put to the applicant, for his comment, the possibility that he could move within India to avoid any localised threats to his wellbeing. 

35. In any event, the Tribunal found the applicant's claims to be lacking in credibility.  The Tribunal found that there were a number of inconsistencies in his account and they increased over the course of both his application and his evidence to the Court.  Clearly findings regarding credibility fall within the sole domain of the fact finder rather than in this court on judicial review.

36. I am unable to disclose or find any jurisdictional error on the grounds which the applicant has put forward.  The Minister, through his counsel, would categorise ground 1 as being a failure to consider a relevant consideration, that consideration being that the applicant indicated that he and his wife are separated and therefore it is hardly surprising that the applicant was not able to secure her attendance to give evidence.

37. I do not think it can be said that the Tribunal did not consider this.  Clearly the Tribunal was aware of what the applicant said in respect of his relationship with the person concerned but, in my view, the finding that, notwithstanding the alleged estrangement between the applicant and his wife, it was open to the Tribunal to find that her absence significantly weakened the credibility of the applicant's claim in all the circumstances of the case.

38. In terms of the second ground, in my view, the finding that the Tribunal reached was one which followed from its own finding in respect to fact, and it is not permissible to this court to review the merits of the case. 

39. So, firstly, in my view, the applicant has provided an inadequate medical certificate, which is insufficient to found his application for adjournment, which is refused. Secondly, as it stands now, there is no disclosed discernable error on the record. 

40. For those reasons, I am of a view that it is appropriate that I make the order sought by the first respondent pursuant to the power invested in the Court, by rule 13.03(c)(1).  So for those reasons the application is dismissed.  Costs should follow the event.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:     22 September 2014