MZWPK v Minister for Immigration

[2005] FMCA 696

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWPK v MINISTER FOR IMMIGRATION [2005] FMCA 696

MIGRATION – Protection visa – Refugee Review Tribunal – no error – failure to attend hearing – consequences.

PRACTICE AND PROCEDURE – Non-appearance by Applicant – medical certificate inadequate – Application decided on substantive merit rather than dismiss for want of appearance.

Tran v Minister for Immigration and Multicultural Affairs [2002] FCA 1522

Applicant: MZWPK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 1043 of 2004

Judgment of: McInnis FM

Hearing date: 12 May 2005

Delivered at: Melbourne

Delivered on: 12 May 2005

REPRESENTATION

Applicant: No appearance

Solicitors for the Applicant:

Counsel for the Respondent: Ms J.K. Macdonnell

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application as amended be dismissed.

2. The applicant shall pay the respondent's costs fixed in the sum of $6500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1043 of 2004

MZWPK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application whereby the applicant seeks review of a decision of the Refugee Review Tribunal (the RRT) which had affirmed a decision of the respondent's delegate not to grant a protection visa under the Migration Act 1958 (the Act).  The application filed 10 August 2004 appears to be filed by the applicant on his own behalf and he has not appeared to be represented in these proceedings.  The application was the subject of directions made by the court on 19 November 2004 which included an order that the applicant should file an amended application and otherwise file a supplementary court book and contentions of fact and law within certain periods of time.  Perhaps more importantly, the application was listed for hearing this day and I am told that although it is not evident from the face of the order, that the applicant did in fact appear on 19 November 2004.  That would appear to be the case as in any event an amended application was filed on 7 December 2004 and on the same date the applicant has filed contentions of fact and law.

2. Just prior to this hearing today the court received a facsimile message dated 12 May 2005 purportedly from the applicant.  The document contains a signature above the name of the applicant and I am satisfied that by comparison with that signature and a signature of the applicant that appears in the court book, that it would at least appear to have been signed by the applicant.  The letter dated 12 May 2005 which was forwarded by facsimile transmission states the following:

   “I am unable to attend the hearing which is due today at 2.15 pm because of my sickness and enclosed is the medical certificate for your attention.”

3. The medical certificate attached is dated 11st May 05 and it simply states in reference to the applicant that he is suffering from "medical condition" and "will be unfit for duty for one day/s from 12/05/05".  The date on the certificate I assume is meant to be 11 May, although of course in the absence of the original document that is not necessarily clear.  But in any event what is clear is that the covering letter, whilst indicating an inability to attend due to sickness, provides no further details as to the nature of the illness, provides no indication as to whether that illness is an illness of a kind which would prevent attendance at all, and the medical certificate itself simply refers to a "medical condition" which, whilst certifying the applicant being unfit for duty for one day, provides no further detail.

4. In my view, material of this kind, which I take to be in support of an application for adjournment, should at the very least provide in an appropriate form, usually affidavit, further detail as to the nature and extent of the medical condition, the extent to which the medical condition prevents, if it be the case, a person from attending court and/or at least making submissions to the court, and any medical evidence in support ought to be in a form which at least provides to the court some basis upon which it can be properly concluded that there is indeed a genuine medical condition preventing an applicant from attending court and presenting the case.  In my view, given the inadequacy of the material, it would be inappropriate for the court not to proceed to determine this matter.

5. One option available to the court is to simply dismiss the application for non‑appearance pursuant to rule 13.03A(c) of the FederalMagistrates Court Rules 2001 (the Rules).  That rule, however, also provides the court in the absence of a party to proceed with the hearing generally.  In my view, it is appropriate for the court in considering applications of this kind and having read the material filed and served by the parties, that in this application the more appropriate course is to finally determine the matter and to do so on the basis of the material before the court, albeit in the absence of the applicant.

6. In this application the claim made by the applicant was that he was entitled to a protection visa.  He had arrived in Australia on a visitors visa on 27 February 1997 and did so on what was then a visitors visa valid for two months.  On 17 April 2003 the applicant lodged an application for a protection visa.  In a statement dated 17 March 2002 attached to the application he made no claims of being a refugee.  He said that his student visa had been cancelled for noncompliance with the conditions on it and that he would be ashamed for his family and community back in India if he returned without completing the education.  He further stated he did not realise that this was not a relating to the convention reason for applying refugee visa.  On 22 May 2003 a delegate refused to grant the protection visa.

7. On 20 June 2003 applied to the RRT for review of the delegate's decision.  In the application for review, the applicant claimed that a submission would be sent to the RRT's office at a later time.  On 23 April 2004 the RRT advised the applicant that it was unable to make a decision in his favour on the material before it and invited him to a hearing.  The applicant responded that he would attend the hearing with his lawyer.  On 9 June 2004 the applicant sent a statement to the RRT.  By letter dated 11 June 2004 the applicant advised the RRT that he would not attend the hearing on 15 June 2004 and requested the RRT to decide the case on the papers.  Specifically, the letter which appears at court book page 68 includes the following:

   “I write to inform you that I request the tribunal to make the decision on papers.  I am not attending the hearing on 15 June 2004.  I apologise for the inconvenience caused to you.”

8. On 16 June 2004 the RRT affirmed the decision of the delegate not to grant a protection visa.  The applicant was notified of that decision by letter dated 9 July 2004.  As indicated earlier, the applicant then filed an application in this court on 10 August 2004.  It is not necessary to set out in detail the findings made by the RRT in its decision save to say that in general terms it found the evidence unsatisfactory.  It specifically found that the evidence was so general and inconsistent that it was unable to establish those facts which otherwise would need to be established in order for the application to succeed.

9. A number of issues were raised in relation to the deficiency of the material.  All of those issues raised were issues which could and perhaps would have been agitated if the applicant had attended the hearing.  Nevertheless, they were all issues of concern which pointed to the inadequacy of the material and which in turn led the tribunal to do what in my view it was entitled to do, that is, to make an adverse finding to the extent that it ultimately affirmed the delegate's decision to refuse a protection visa.  The RRT was not satisfied on the evidence before it that the applicant had a well‑founded fear of persecution within the meaning of the convention.

10. In the amended application that is relied upon by the applicant, it seems to me that essentially the applicant, whilst referring to what could be claimed to be a jurisdictional error, effectively in the particulars subjoined to the grounds of that amended application seeks to argue that he disagrees with the decision and seeks to further explain that he perhaps had made an error in not attending the tribunal and presenting other material to it at the time of the decision.  He otherwise seeks to criticise the tribunal by reference to what might be described as relevant questions left unanswered.  He seeks to argue that there was an obligation on the tribunal to forward a letter with the relevant questions which he should have then answered.  He otherwise claims that, "The tribunal should have provided reasons as to why it rejected my story."  The contentions of fact and law tend to repeat those assertions and principally, in my view, seek to reagitate the facts or at least express the view that the applicant disagrees with the decision.

11. In my view, the respondent's submissions that in this case there is no jurisdictional error are clearly correct.  I do not see any jurisdictional error in the manner in which the RRT has embarked upon its fact‑finding mission.  The conclusions reached by the RRT on the material then available are conclusions reasonably open to it and I do not detect any jurisdictional error.  I do not regard the tribunal as having a duty to engage in an exchange of correspondence in relation to the questions raised, but rather see those questions raised as highlighting appropriately the deficiencies in the material then available to the tribunal.  Where an applicant chooses, as he has clearly done in this case, to allow the decision‑maker to rely upon the papers and to not attend the hearing, in my view the applicant in those circumstances, having made that choice, cannot be seen to complain about the lack of any further procedure or hearing time then made available to him to put other material to the tribunal which might be identified as deficiencies.

12. It seems to me in this case that the RRT has made a decision on the material before it unaffected by jurisdictional error and accordingly, in my view, this is not a case where it could be claimed that there has been any failure on the part of the RRT to act according to law. 

    
    

    I note in particular and apply the further authority referred to by the respondents in the submissions of Tran v Minister for Immigration and Multicultural Affairs [2002] FCA 1522 where Kenny J states at paragraphs 25 and 26 the following:

    “25 Generally, it is for an applicant to provide the decision-maker with whatever information or material he or she may have that tends to support his or her case: cf Abebe v The Commonwealth (1999) 197 CLR 510, at 576 per Gummow and Hayne JJ. The law imposes no obligation on the Tribunal to request the review applicant to meet a deficiency in the case that the applicant chooses to advance to the Tribunal.

    26 Section 359A of the Act, which requires the Tribunal to give an applicant particulars of information that it considers would be the reason (or part of the reason) for affirming the decision under review, has no application where the basis for the Tribunal's decision is the absence of information or other material: see V340 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536, at [55] per Ryan J (concerning the Refugee Review Tribunal’s equivalent obligation under s 424A(1)); Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, at [95] per Allsop J (with whom Heerey J agreed); Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109, at [54] per Sackville J; and Malik v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 291, at 294-5 per Wilcox J.”

13. I accept the submission for and on behalf of the respondent that in this case there is nothing further required of the RRT in order to properly discharge the obligations it had to the applicant and, as indicated earlier, I am satisfied there is no jurisdictional error.  It follows for those reasons that the application should be dismissed with costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  12 May 2005