MZAHI v Minister for Immigration

[2015] FCCA 2708

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAHI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2708

Catchwords:
MIGRATION – Refugee Review Tribunal – application for protection visa – citizen of India – failure to attend two tribunal hearings – whether tribunal should have adjourned for further hearing – whether medical certificate adequate.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 426A

Cases cited:
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, (2013) 87 ALJR 618, (2013) 138 ALD 181, [2013] ALMD 2702, [2013] ALMD 2707, [2013] HCA 18, [2013] 297 ALR 225

Applicant: MZAHI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1307 of 2014

Judgment of: Judge Riley

Hearing date: 3 September 2015

Date of last submission: 3 September 2015

Delivered at: Melbourne

Delivered on: 3 September 2015

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Advocate for the first respondent: Melissa Gangemi

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The application filed on 30 June 2014 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1307 of 2014

MZAHI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the tribunal”).  The applicant filed an application to this court without the benefit of legal assistance.  He attended court today without the benefit of legal assistance. 

2. The applicant is a citizen of India.  He arrived in Australia on
   18 July 2008 as the holder of a student visa.  A further student visa was granted to him on 24 November 2010.  The second student visa expired on 1 September 2011.  On 26 August 2011, the applicant applied for a skilled graduate visa.  A delegate of the Minister refused that application.  The applicant sought review by the Migration Review Tribunal. However, on 24 June 2013 the Migration Review Tribunal determined that the application had been lodged too late and the Migration Review Tribunal did not have jurisdiction. 

3. On 12 July 2013 the applicant applied for a protection visa.  A delegate of the Minister refused that application on 18 October 2013. 
   The applicant then applied to the Refugee Review Tribunal. 

4. The matter was listed for the hearing before the tribunal on
   22 January 2014.  However, the matter had to be rescheduled due to the unavailability of a tribunal member.  The applicant was sent a letter on 14 March 2014 relisting the hearing for 17 April 2014 at 1:00pm. 
   The applicant replied to the hearing invitation stating that he intended to participate in the hearing scheduled for 17 April 2014 and he indicated that he required a Tamil interpreter.

5. The applicant did not attend the hearing on 17 April 2014.  A case note of the tribunal on 22 April 2014 indicates that the applicant telephoned the tribunal on that day and advised that he had misread the hearing invitation.  The officer of the tribunal advised the applicant that he should send a letter explaining his non-attendance.  The applicant wrote to the tribunal saying that he had been confused about the hearing date.  He said that despite sending back the response to hearing invitation, which indicated that the hearing was scheduled for 17 April 2014, he thought it had been scheduled for 27 April 2014.  He apologised for his carelessness and asked for another hearing date. 

6. The tribunal sent the applicant another hearing invitation on
   2 May 2014.  The rescheduled hearing was set down for 27 May 2014 at 1:00pm.  The applicant responded to that hearing invitation in writing saying that he would attend the hearing scheduled on
   27 May 2014.  However, on that date, at 10.41am, the applicant telephoned the tribunal and advised that he would not be attending as he was unwell.  He said that he would send a copy of a medical certificate when it was issued. 

7. Two days later, on 29 May 2014, the records of the tribunal indicate that a tribunal officer attempted to call the applicant at 9.35am and 10.48am.  The note also indicates that the tribunal contacted the applicant successfully at 13.23pm on 29 May 2014.  The note records that the tribunal officer advised the applicant that the tribunal requested the medical certificate by Friday, which was the following day.

8. The applicant appears to have sent a letter on 29 May 2014 which was received by the tribunal on 30 May 2014.  The letter contained an apology from the applicant for failing to attend the hearing and asking for a rescheduled hearing.  The letter also enclosed a medical certificate which stated the applicant’s name and address and then said:

   In my opinion, he/she will be unfit for his/her normal work from 27/5/14 to 28/5/14 inclusive. ( medical condition)

9. The medical certificate indicated that it was signed by a doctor on
   27 May 2014. The letter and medical certificate appear to have been received by the tribunal on 30 May 2014. The tribunal did not reschedule the hearing. It decided, pursuant to s.426A of the
   Migration Act 1958 (Cth) (“the Act”), to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

10. The tribunal noted in its reasons that the applicant had been invited to appear before the tribunal on 17 April 2014, but had failed to appear on that date due to misreading the tribunal’s hearing invitation. 
    The tribunal noted that it had been unconvinced by the applicant’s excuse, but gave the applicant another opportunity to appear at
    a hearing.  The tribunal noted that the applicant failed to attend the second hearing. 

11. The tribunal noted that the medical certificate provided on
    30 May 2014 simply stated that the applicant was unfit for
    normal work.  The tribunal said that the medical certificate was wholly inadequate to support a further adjournment.  The tribunal noted, in accordance with Federal Court authority, that the medical certificate did not indicate that the applicant would be unable to meaningfully participate in a tribunal hearing of several hours to give evidence and present arguments. 

12. The tribunal then noted the applicant’s claims.  They were that:

    a.the applicant was from Tamil Nadu in India; 

    b.his parents had been involved in politics as strong supporters of the DMK; 

    c.the applicant joined the DMK in 2004; 

    d.he often handed out leaflets, put up posters, and tried to raise money for the DMK;  

    e.there were often clashes with the AIADMK; 

    f.he was harassed and pestered; 

    g.sometimes, there were threats that DMK posters would be pulled down or defaced and on some occasions he was attacked
    with sticks; 

    h.the AIADMK prevented his family from selling its farmland by damaging the gate and by preventing his family from getting to its land; and

    i.the AIADMK spread rumours to potential buyers to the effect that they would suffer consequences if they bought the land. 

13. The tribunal noted that, while the applicant was in Australia to study, he returned to Tamil Nadu for one month in 2009 and for seven
    weeks in 2012.  He said that, in 2012, he was prevented from accessing his land and received death threats.  He said his house was stoned. 
    He said the family complained to the police but they took no action.  He said that the AIADMK was now in government and he understood that they had used false documents to take possession of his family’s land. 

14. The tribunal found that the applicant’s claims were vague and lacked detail.  The tribunal noted that the applicant did not raise concerns about his safety in India despite having first arrived in Australia in 2008 as a student.  The tribunal noted that the applicant did not explain why he had returned to his home region twice after claiming to have fled the prospect of harm.  The tribunal considered that, on the material before it, it was not satisfied that the applicant or his family had been involved in politics in Tamil Nadu or India or that they had been involved in a dispute over land.

15. The tribunal was not satisfied that the applicant had suffered harm in India in the past or faced a real risk of harm in the foreseeable future. The tribunal consequently concluded that the applicant did not face a real risk of serious or significant harm under s.36(2)(a) or s.36(2)(aa) of the Act. The tribunal affirmed the decision not to grant a protection visa.

16. The application to this court has one ground which is as follows:

    The Tribunal erred jurisdictionally by not allowing the applicant to appear and present arguments before the Tribunal on his application for [a] protection visa.

17. The applicant was not represented and did not develop this ground today.  I assume that his argument was that it was not reasonable for the tribunal to not schedule a third hearing.  I note the High Court’s decision in the Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, (2013) 87 ALJR 618, (2013) 138 ALD 181, [2013] ALMD 2702, [2013] ALMD 2707, [2013] HCA 18, [2013] 297 ALR 225 at 76. However, it seems to me that the tribunal’s refusal to schedule a third hearing was not unreasonable in the necessary sense.

18. The hearing had already been rescheduled once to accommodate the applicant’s claimed confusion about the hearing date. The authority of the Federal Court indicates that a medical certificate of the type provided by the applicant would not, in the Federal Court, be an adequate justification for an adjournment. I am not persuaded that there was any jurisdictional error in the tribunal not scheduling a further hearing. Section 426A of the Act permits the tribunal to proceed as it did.

19. The applicant, in court today, raised some other issues.  He referred to his two trips to India after he claimed to have fled India for reasons of persecution.  However, the tribunal was entitled to assess this matter as it did.  The merits of the application are a matter for the tribunal. 

20. The applicant also told the court today that he could provide all documents if he was given a further hearing before the tribunal.  However, it was not open to the court to receive any documents that were not before the tribunal going to the merits of the case.  The fact that the applicant might be able to provide additional documents does not mean that the tribunal has made a jurisdictional error. 

21. The applicant also emphasised his financial circumstances in Australia.  He asked the court to give him work rights and said that he is dependent on friends for food and other basic necessities. 
    However, this court has no power to grant the applicant work rights.

22. All in all, the applicant has not pointed to any jurisdictional error on the tribunal’s part.  I have been unable to detect any jurisdictional error in the tribunal’s reasons for decision or in the tribunal’s processes leading up to that decision.  In the circumstances, the application must be dismissed.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  6 October 2015