AZAES v Minister for Immigration

[2014] FCCA 2326

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAES v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2326

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal – applicant fails to appear – purported certificate from doctor left at Court’s Registry on the day of the hearing – applicant advised by letter from first respondent, sent well prior to the date for hearing, that first respondent unlikely to consent to an adjournment of the matter in the event that the applicant merely sent a doctor’s certificate to the Court prior to the hearing – MZZGY v Minister for Immigration & Border Protection referred to.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), ss.425A, 426A & 441A

MZZGY & Minister for Immigration and Border Protection (2014) FCA 488

Applicant: AZAES

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 125 of 2014

Judgment of: Judge Simpson

Hearing date: 3 September 2014

Date of Last Submission: 3 September 2014

Delivered at: Adelaide

Delivered on: 3 September 2014

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application for an adjournment is refused.

2. The application filed 15 April 2014 for judicial review is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 125 of 2014

AZAES

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons from transcript)

1. I have before me an application for judicial review of a decision of the Refugee Review Tribunal (“RRT”).  The application was filed on 15 April 2014. 

2. The matter came before Registrar Bochner on 23 May 2014 at which time the learned Registrar made orders.  I note that the applicant was present for the making of those orders.  The application was listed for hearing before me on 3 September 2014 at 2.15pm.  The applicant was to file and serve an Outline of Submissions 10 business days prior to the hearing.  I note also that the orders were explained to the applicant, and that the applicant confirmed that he understood the orders that were being made.

3. The applicant has not filed an Outline of Case.  That is not unusual, it is fair to say, in relation to applicants in these matters. 

4. Earlier today the Court was provided with a document that purported to be a certificate of sickness from a Dr Stuart Parnham concerning the applicant in which the doctor says:

   “In my opinion, he will be unfit for his normal work/studies from 3 September 2014 to 5 September 2014, inclusive.”

   That document was, as I understand it, left at the Registry counter of the Federal Court.  The applicant failed to provide a copy of the document to the first respondent. 

5. The certificate does not indicate that the applicant had any illness.  It does not provide any information about whether there was any medication that was provided.  It does not say whether or not he would be able to attend Court by telephone, or even whether he was fit enough to come to the Court.  Simply attending Court is quite a different matter to attending to work or undertaking studies.

6. The applicant’s name has been called three times, but he does not appear. 

7. Attempts have been made to contact the applicant on his mobile phone, being the phone number contained on the Application filed on 15 April 2014, the phone number being 0452 546 306.  On the first occasion that the call was made, the call was answered but the person who accepted the call remained silent.  A further telephone call was made soon afterwards to the same number.  On that occasion the phone went through to Message Bank. 

8. Counsel for the first respondent has provided me with a copy of a letter that was sent by the Australian Government Solicitor to the applicant to his address at Unit 6, 5 Hope Avenue, Holden Hill.  In that letter, the writer says:

   “This matter is listed for a final hearing on 3 September 2014 at 2.15 pm.  You are expected to attend this hearing.  If you fail to attend we may apply to have the matter dismissed, in your absence.  If you are not able to attend the hearing, you should apply to the Court for an adjournment.  The Court would usually require you to justify why you cannot attend the hearing. 

   Please note that our client is unlikely to consent to an adjournment if a medical certificate, without more, is sent to the Court around the time of the hearing.  Please contact me if you wish to discuss this matter.”

   A phone number is given.

9. Mr d’Assumpcao, counsel for the first respondent, has indicated that he has received no such telephone call from the applicant, or anybody else on his behalf.  Mr d’Assumpcao requests that the application be dismissed.  For reasons that follow, I am inclined to make such an order. 

10. Mr d’Assumpcao has very helpfully provided the Court with a copy of a decision of Davies J, of the Federal Court, the case being MZZGY & Minister for Immigration and Border Protection (2014) FCA 488. That case dealt with situations such as the one that I am presently confronted with. His Honour in that case had this to say:

    “The appellant did not attend the hearing but had notified the Court the previous day by email, at 5.40pm, that he would be unable to attend Court because of bad health, and requesting an adjournment.  He later emailed a medical certificate and a copy of a prescription, both dated 12 May 2014, to the Court, at 10.25pm.  The medical certificate simply stated, “This is to certify that [the appellant] attended this clinic on Monday 12 May 2014.  In my opinion, he is unfit for work from Tuesday 13 May 2014 to Tuesday 3 May 2014 (sic) (inclusive).  That was signed by the medical practitioner.”

11. His Honour went on to say, at paragraph 13:

    “These documents were 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, and 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.  It is reasonable to infer that the late notice was deliberate, and intended to bring about the outcome of an adjournment by the short notice.  I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.”

    What His Honour had to say in paragraph 13 is highly relevant to the course I should adopt in relation to the application for an adjournment (if I can call it that) that is currently before me. 

12. I note that the medical certificate in the present case was given by a Dr Parnham, who has a surgery at Hindmarsh Square in Adelaide.  The surgery is in close proximity to this Court.  I notice that the applicant lives at Holden Hill, which is many kilometres from the part of the city where the doctor has his practice.  I think it is reasonable to assume that the applicant attended the doctor at Hindmarsh Square this morning, the certificate provided having today’s date.  I also think it reasonable to conclude that after obtaining the sickness certificate, the applicant took the certificate to the Court’s Registry, left it there, and then left to go about his business.

13. It seems to me that if that is what has happened, as seems highly likely that it would not have been difficult for the applicant to have attended Court this afternoon, so that he could explain to the Court why he was unable to embark on the hearing of the application, or alternatively, to have actually put submissions as to why the application should be successful.  If he could travel to the doctor and the Court in the morning, I see no reason why he could not travel to the Court in the afternoon.

14. He did neither of those things, and in the circumstances, I consider it appropriate to refuse the adjournment.

15. I propose, therefore, to go ahead and deal with the merits of this application.  In doing so, I indicate that I have been assisted by the helpful submissions of the first respondent. 

Merits of the application

1. As mentioned previously, this is an application for a judicial review of the decision of the RRT.  The RRT affirmed a decision of the delegate of the first respondent – that is, the Minister – not to grant him a Protection (Class XA) visa.

2. In order to succeed on an application for judicial review, the applicant must establish that the RRT decision is affected by jurisdictional error.  The Minister submits that the applicant has not identified any jurisdictional error affecting the decision of the RRT, and that, accordingly, the proceedings should be dismissed.

3. Of course, we have not had the benefit of anything from the applicant.  There is no Outline of Case that has been filed by the applicant and no affidavit.

4. The background of this matter is that the applicant is a 25 year old male who is an Indian national.  He entered Australia lawfully on 15 July 2009, as the holder of a Vocational Education and Training Sector Visa, which ceased on 10 November 2011.  On 9 November 2011 he applied for a further Vocational Education and Training Sector Visa, which was refused on 14 December 2011. 

5. On 30 December 2011 the applicant applied to the Migration Review Tribunal (“MRT”) for review of that decision and on 15 May 2012 it advised the applicant it did not have jurisdiction to determine the application.

6. On 19 June 2012 the applicant sought judicial review of the MRT’s decision in the Federal Magistrates Court, as it was then known.  On 17 October 2012 the Court dismissed the application for review. 

7. On 13 November 2012 the applicant sought ministerial intervention and the following day, the Minister’s Delegate advised the applicant that he would not take any action in his case.

8. On 21 November 2012, the applicant lodged the protection visa application.  In it, he claimed to be an active member of Dera Sacha Sauda (“DSS”) religion, and that he was responsible for maintaining the youth wing in his local area.  He claimed to fear for his safety, as extremist Sikhs, Hindus, and the local government wanted to kill him due to his membership of the religion that I mentioned previously.

9. He further claimed that there was a plot to kill him. He had been threatened, and in March 2011 when visiting India, he was attacked by extremist people. 

10. On 23 September 2012, the Delegate refused the application and found the applicant’s claim was vague, unsubstantiated, implausible and inconsistent.

11. On 22 October 2012, the applicant applied for a review by the RRT.  By letter dated 18 November 2013 he was invited to appear at a hearing before the RRT on 11 December 2013.  On the day of the hearing the applicant failed to appear at the scheduled time, but provided a “certificate of sickness” which stated he was “unfit for work” from 11 December 2013 to 13 December 2013.

12. On 12 December 2013, the RRT sent the applicant a second invitation to appear at a hearing on 20 March 2014.  The applicant telephoned the RRT on 14 January 2014 and told the officer that he had not received the second hearing invitation.  The officer confirmed that his address had not changed, offered to resend the invitation, and confirmed the hearing date and time.

13. On 20 March 2014, the applicant failed to appear before the RRT.  That The RRT gave reasons for its decision, affirming the Delegate’s decision.

14. I will deal now with the RRT’s decision. 

15. The RRT noted the circumstances regarding the scheduled hearing, as described earlier. In those circumstances, and pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”), the RRT decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

16. The RRT found that the applicant was an Indian citizen.  It therefore addressed his claims as against that country of reference. 

17. It summarised the applicant’s claims.  It noted that the Delegate had regarded the applicant’s claims as “vague and unsubstantiated”, “inconsistent”, and “implausible”.  The RRT similarly found the applicant’s claims to be vague, inconsistent and lacking in credibility, and noted the limited amount of detail and the inconsistencies in evidence.  It did not accept that the applicant was a follower, or member, of the DSS – the religion that I spoke of earlier – and therefore did not accept that the applicant was targeted or harmed by extremists, the local government, or by any other person, because of his actual or imputed religious beliefs. 

18. Accordingly the RRT was not satisfied that the applicant faced a real chance of persecution.  In particular, it said:

    “In summary, the Tribunal does not accept that the applicant’s claims of persecution by the extremist Sikhs, Hindus and the local government as credible, for the following reasons. 

    Firstly, the vague and unsubstantiated nature of the evidence.  Secondly, inconsistencies in material aspects of the applicant’s evidence and the delegate’s decision.  Thirdly, the fact that he did not make any claim for asylum when he first arrived in Australia in July 2009, or after returning from India in March 2011.  Fourthly, the fact that he waited about four and a half years, as the holder of a temporary student visa in Australia, and only applied for a protection visa once he exhausted all options of remaining in Australia.  And fifthly, the fact that he chose to voluntarily return to India for seven weeks, despite his claims of fleeing India due to persecution he experienced in that country.

    The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded view of persecution, within the meaning of the convention.”

19. Likewise, the RRT found that the “complementary protection” criteria were not met. 

20. The RRT concluded by affirming the decision under review. 

21. The grounds set out in the applicant’s application to this Court of 15 April 2014 is as follows, and I read them verbatim:

    “Tribunal made a decision stating that I do not satisfy section 36(2)(a) and stated many reasons in the decision to conclude this point.  Tribunal failed to give me fair chance to appear for hearing and present my views.  In paragraph 9 to 12 of decision record it clearly states that I called Tribunal to confirm the timings and date of my hearing.  I had lost my response letter and that’s the reason I called to confirm date and time.  The lady over the phone told me the date 28 March (name of officer: Venisa Jackson).  I even confirmed once again with the office that it’s 28 March, and she said yes.  I do not know if she didn’t understand my accent or what, as hearing was scheduled on 20 March. 

    I request Court to go through phone records where I have twice confirmed that it’s 28 March 2014.  I did not know it was 20^th, not 28^th.  I request Court to check record of 14 February 2014 of my conversation with the officer, and then it will come in light that I was not given fair chance for appearing in Tribunal.  Tribunal failed to contact me, even over the phone. 

    This is an important hearing in my life and member should have made attempt to contact me over the phone at least.  I request that you quash Tribunal’s decision and ask them to give me chance for hearing.  Here is error in decision, as it failed to give me fair chance.  Also in paragraph 33, Tribunal notes that I have not provided explanation.  “How and why he would be known as extremist people on his return to India.”  There was not such column in the form, so I had not provided.  I provided the information which was asked to me in form.  In RRT they failed to give me hearing so I can tell everything.”

22. In his application, the applicant has not identified a clear jurisdictional error.  He seems to be complaining that the RRT failed to give him the opportunity to appear and to present his case.  In my view, there is absolutely no merit in that allegation. 

23. On 12 December 2013 the applicant was sent an invitation to appear before the RRT, pursuant to s.425A of the Act. The invitation provided notice of the date, time and place of the rescheduled hearing, as was required pursuant to s.425A(1). The date and time of the hearing was 9.30am on 20 March 2014. As is required, pursuant to s.425A(4), the letter included a statement of the effect of s.426A, namely:

    “If you do not attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.”

24. The letter also advised the applicant of the possibility of granting an adjournment.  It said:

    “If you are not able to attend the hearing, you should advise the Tribunal as soon as possible.  Please note the Tribunal will only change the date if satisfied that you have a very good reason for being granted an adjournment. 

    … the Tribunal notes that on 11 December 2013 you failed to attend an earlier hearing which was scheduled in this matter.  You provided a medical certificate, dated 10 December 2013, which states that you had a muscle strain and were not fit for work for the period 11 December 2013 to 13 December 2013.

    Please note that if you do not attend the hearing, the Tribunal will require a detailed medical report confirming whether or not you are able to attend the Tribunal hearing in person, or over the telephone.  The Tribunal may also contact the treating doctor to verify the report.”

25. The RRT also said:

    “The applicant telephoned the Tribunal on 14 January 2014 and the Tribunal confirmed that his address had not changed, and confirmed with him the new hearing date.  The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear for the second hearing.  At the time of this decision, the Tribunal’s letter dated 12 December 2013 was not returned to the sender, and no response or further submissions have been received by the Tribunal.”

26. Consistently with the method specified in s.441A(4) of the Act, the letter was sent by prepaid registered post to the address for service of documents mentioned in the Application for Review. Accordingly, there is nothing to suggest that the applicant was not properly notified of the hearing, in accordance with statutory requirements. In fact, the applicant concedes in his application that he received the notice, as he states, “I had lost my response letter.”

27. Even if the applicant, as he asserts, was told a different hearing date by a RRT officer on the telephone, which, I should say, the first respondent denies happened, it does not alter the fact that he was given sufficient notice of the hearing date in accordance with the statutory requirements. 

28. The RRT completed the review of the information available.  Clearly the reason for its decision was based on adverse credibility findings in relation to the applicant’s evidence.  It is well established that credibility findings are matters which fall squarely within the RRT’s jurisdiction.  Even if the findings as to the applicant’s credit are wrong, this does not generally constitute a jurisdictional error.  Further, it would not be a jurisdictional error for the RRT to reach a conclusion which, on the material was open to it, but with which conclusion of other reasonable minds might differ.

29. In the circumstances, the appropriate course is to dismiss the application on the basis that the application fails to identify a jurisdictional error.

1. I make the orders to be found at the beginning of these reasons.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  13 October 2014