MZAQN v Minister for Immigration

[2016] FCCA 1538

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAQN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1538

Catchwords:
MIGRATION – application in a case to reinstate judicial review application – substantive application dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 – application in a case dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C, 16.05

Migration Act 1958 (Cth), s.425, 425A, 426A

Cases cited:

BZACZ v Minister for Immigration and BorderProtection [2013] FCA 1230

Kaur v Minister for Immigration & Anor [2014] FCCA 1926

NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328

Applicant: MZAQN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 44 of 2015

Judgment of: Judge Jones

Hearing date: 9 May 2016

Date of Last Submission: 9 May 2016

Delivered at: Melbourne

Delivered on: 9 May 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Ms Kent

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.

2. The Applicant’s Application in a Case filed on 23 July 2015 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $1,700.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 44 of 2015

MZAQN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. This decision is in relation to an application in a case filed by the Applicant on 23 July 2015, in which he seeks an Order setting aside Orders that I made on 9 July 2015. The Orders made on 9 July 2015 dismiss the application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) filed on 12 January 2015, and Order the Applicant to pay the First Respondent’s costs, which are fixed in the sum of $3,416. The First Respondent opposes the application for reinstatement of the Applicant’s case.

Background

1. The Applicant applied for a judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the First Respondent refusing to grant the Applicant a Protection (Class XA) visa (“the visa”).

2. The matter was listed for a Show Cause hearing on 9 July at 2.15pm before me. Prior to this, on 29 April 2015, there were various Orders made by Registrar Burns for the Applicant and First Respondent to file and serve written submissions. The Applicant did not file and serve written submissions. The First Respondent did. The claims for protection by the Applicant were, in summary, that he is a national of India, and held a fear of persecution in India, on the basis of threats to kill received from his second wife and from the Hindu community, who do not support Christians, and who threatened to kill him when he harmed a Hindu man while protecting his father from an attack.

3. On 9 July 2015, there was no appearance by or on behalf of the Applicant at the hearing. The Court granted the First Respondent’s Application; that is, that the Applicant’s substantive application for judicial review be dismissed, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“the Rules”).

Consideration

1. Pursuant to r.16.05 of the Rules, the Court has the power to set aside or vary a judgment or Order, where an Order was made in the absence of a party. I respectfully agree with her Honour Judge Whelan’s statement in the decision of Kaur v Minister for Immigration & Anor [2014] FCCA 1926, at [11], in which her Honour stated that:

   “In deciding whether to grant the application, the court must be satisfied that:

   ·There is an adequate reason for the non-appearance of the applicant;

   ·There is an arguable case on the merits of the substantive application; and

   ·It is in the interests of justice to allow the application to proceed.”

2. The Applicant is self-represented. Consequently, I explained to the Applicant the matters that the Court considers in deciding whether or not to grant an application to reinstate a case. I also explained to him the Court’s function on judicial review. I emphasised to the Applicant that the Court’s function was not to decide whether he had a genuine case for a Protection visa, as the Court was not permitted to engage in a merits review of his case, rather the Court’s function was limited to deciding whether the Tribunal itself made what is called a jurisdictional error, which I described to the Applicant as a serious legal mistake.

3. Turning first to the Applicant’s explanation for non-appearance. Together with his application in a case, filed on 23 July 2015, the Applicant filed an affidavit, in which he deposed that he had a medical certificate, which he had attached. The certificate is issued by Dr Minh Dien Ton-Nu from the Hampshire Road Medical Centre. The certificate was completed on 7 July 2015.  It states the following:

   “THIS IS TO CERTIFY THAT MZAQN is/was suffering from MEDICAL CONDITION and she/he is/was unable to work from Tuesday, 7 July 2015 TO Monday, 13 July 2015 INCLUSIVE.”

4. The Applicant said to the Court that he was suffering from a tension headache about coming to attend the Court proceedings. He said that he had asked the doctor to specify the medical condition, but the doctor refused.  I must say that I am unable to accept this submission. It is not uncommon for doctors to specify a medical condition. It would be most unusual, in my view, for a general practitioner to refuse to specify a medical condition. There is no affidavit from the doctor in question for the Court, to say that that is what happened. This matter was raised during the course of submissions, and the Applicant did not, in his affidavit, depose to the fact that the doctor had refused to specify the medical condition.

5. The Minister submitted that the medical certificate issued for the applicant by Dr Ton-Nu is inadequate, and referred to a decision by Lindgren J in NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559. This is a decision that I regularly refer to in considering whether medical certificates provided by an Applicant are sufficient to explain the failure of an Applicant to attend Court. In that case, his Honour was considering two medical certificates, which, in fact, specified the medical condition, and stated that the Applicant would be unable to attend Court. His Honour said at [6]:

   “The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the court and participating effectively in a court hearing.”

   He goes on to say at [7]:

   “I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ – apparently each was able to attend upon the medical practitioner.”

   And his Honour then went on to say, at [8]:

   “If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.”

   His Honour took into account the fact that the medical certificates were structured identically and, rather than refer to the Applicants in particular, used the expression “he/she”, were dated the same day and were written only two days before the hearing. His Honour observed at [9]:

   “…The certificates have the appearance of being pro forma certificates which are available for the asking.”

6. I have formed a view that the medical certificate provided by the Applicant suffers from the following defects. Firstly, it does not specify the medical condition that the Applicant was suffering from. Secondly, it does not address the critical question whether, and if so why, the medical condition would prevent the Applicant from travelling to the Court and participating effectively in a Court hearing. Thirdly, the medical certificate has the appearance of a pro forma medical certificate, by reason of the fact that it uses phrases such as “is/was” and “she/he”. It states that the Applicant was unable to work, but does not address why he could not come to Court on that day and participate in the hearing. No doubt, the Applicant may well have suffered a tension headache because of his anxiety about attending Court. In my view, if that was the reason he did not attend, it is simply not a sufficient explanation. Self-represented applicants attend this Court regularly to progress their application for judicial review, and I have no doubt that each of them feels anxious about attending Court. It is an imposing procedure, but nevertheless they manage to do so. Therefore, I find that the explanation given by the Applicant for his non-appearance at Court on 9 July 2015 is not adequate.

7. I now turn to consider whether the Applicant could demonstrate an arguable case. The Minister submits that the substantive application does not demonstrate an arguable case and should not be reinstated. I should note that, in his application for judicial review filed on 12 January 2015, the Applicant specified his grounds of review as follows:

   “I have not been given an opportunity by RRT to project my case.

   I am genuine Refugee and have threats to my life in India.

   My matter at RRT has not been heard.

   The RRT has made a jurisdical (sic) error.

   I should be given an opportunity at federal circuit court to project my case and prove my genuineness as a Refugee.”

   In reference to the last ground specified, I explained to the Applicant that it is not the Court’s function to consider whether he was a genuine refugee; that was a function of the Tribunal. 

8. The Applicant, in his explanation of the grounds, confirmed that he complained of two matters: firstly, he had no opportunity to appear before the Tribunal and, secondly, that his substantive claims were genuine. In relation to his claim that he had no opportunity to appear before the Tribunal, he told the Court that he had feared attending the Tribunal, as he did not know what to say. He did confirm, however, that in relation to the third rescheduled hearing of the Tribunal – and I will come to that shortly – he did not let the Tribunal know that he was not attending, nor did he provide any medical certificates. In relation to the substantive claims, he said his claims were genuine. He referred to an extract from the delegate’s decision, however, I pointed out to him and, he accepted, that the Court’s function is not to review the delegate’s decision but the Tribunal’s decision.

9. Turning first to the Applicant’s claims that he was not given an opportunity to appear before the Tribunal. I am satisfied that the Tribunal complied with all of its obligations pursuant to s.426A of the Migration Act 1958 (“the Act”), in that it was entitled to make its decision without taking any further action to enable the Applicant to appear before it. I am satisfied for the following reasons relating to the procedural background, prior to the third rescheduled Tribunal hearing, and they are as follows.

10. The Applicant, having been invited by the Tribunal to appear before it on 16 October 2014, on the day of the hearing faxed the Tribunal a medical certificate indicating that he had a medical condition and was unfit for work (CB 81-83). Despite the Tribunal not being satisfied with the evidence provided by the Applicant, it gave the Applicant the benefit of the doubt and rescheduled the hearing for 11 December 2014 (CB 92). On 11 December 2014, the Applicant contacted the Tribunal to request a further postponement of the hearing on the basis that he was again unwell.

11. The Applicant provided a medical certificate advising that he was suffering from gastroenteritis and required home rest from 11 to 12 December 2014 (CB 101). The Tribunal agreed to reschedule the Applicant’s hearing and invited him to a hearing on 17 December 2014 (CB 104). It is apparent that the Applicant did not attend the hearing rescheduled for 17 December 2014, nor that he contacted the Tribunal to explain his failure to attend or request an adjournment (CB 118 at [24]). 

12. As I have indicated, the Applicant confirmed today that he did not contact the Tribunal to let the Tribunal know that he would not be attending on the third occasion on 11 December 2014, and that he did not provide a medical certificate. The Minister argues, and does so correctly, that the Tribunal complied with ss.425 and 425A of the Act when inviting the Applicant to a hearing, and in circumstances where the Applicant failed to attend, in this case the third rescheduled hearing, it was entitled to proceed under s.426A of the Act to consider and decide the matter without making further inquiries.

13. The Minister refers to the decision in SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 at [5], and I am satisfied that in each case, in relation to the hearing invitations sent to the Applicant, the Tribunal complied with the relevant provisions under ss.425 and 425A of the Act. In those circumstances I am satisfied that the Tribunal’s decision to proceed, as it was entitled to do under s.426A of the Act, without making further inquiries, was quite reasonable. Before that, the Applicant had already had two opportunities to attend a hearing.

14. The Tribunal had rescheduled the hearing twice following medical certificates provided by the Applicant, and the Applicant simply failed to attend at the third scheduled hearing scheduled on 17 December 2014. The Applicant has told the Court that he was fearful of attending at the Tribunal. This, in my view, is not a sufficient explanation for his failure to attend. Again, there are many hearings before the Tribunal in which Applicants are self-represented. No doubt they may experience a certain level of fear or anxiety in attending, but the Tribunal process is more relaxed than the Court process, and simply saying that one is fearful of attending the Tribunal is an insufficient explanation for a failure to attend.

15. I now turn to consider the substantive claims. I have carefully read the Tribunal’s decision in relation to the Applicant’s claims that he fears harm on return to India. I took the Applicant through the various claims that were dealt with by the Tribunal. The Applicant confirmed to the Court that the Tribunal dealt with his claims. His argument is that his claims were genuine. The fact is that, as the Tribunal pointed out, the Applicant had only provided very basic and vague claims in his Protection visa application (CB 117 at [29]).

16. The Applicant had been put on notice from earlier correspondence that the Tribunal was not able to make a favourable decision upon the evidence before it, and consequently, he was required to attend the Tribunal to give evidence. The Applicant did not attend the third rescheduled Tribunal hearing. Consequently, the Tribunal did not have any more information before it in elaboration of the Applicant’s claims.  The Tribunal dealt with each of the Applicant’s claims in turn. It accepted some claims, such as the claims that the Applicant was from a Christian family, and that the Applicant’s maternal uncle passed away. However, it did not accept any of the other claims, which were critical to the question of whether the Applicant faced a real chance of serious harm for a Convention reason, if he returned to India (CB 118 at [30]-[34]).

17. The Tribunal was, as the Minister has pointed out, entitled to reject the Applicant’s claim. The Tribunal is not obliged to accept uncritically any of the allegations put by an Applicant: BZACZ v Minister for Immigration and BorderProtection [2013] FCA 1230, at [22]. The Tribunal’s consideration, in my view, was reasonable, logical and open to it, given the absence of further evidence from the Applicant. The Tribunal’s findings that it was not satisfied that the Applicant satisfied the complementary protection provisions of the Act, were also, in my view, reasonable and open to the Tribunal.

Conclusion

1. Consequently, that I am not satisfied that the Applicant has an arguable case and that it is in the interests of the administration of justice to allow the application to proceed. My decision, therefore, is that the Applicant’s application in a case filed on 23 July 2015 should be dismissed, with costs.

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

Date: 23 June 2016