MZWTD v Minister for Immigration
[2005] FMCA 1429
•5 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWTD v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1429 |
| MIGRATION – Protection Visa – Refugee Review Tribunal – judicial review – whether jurisdictional error – whether error from failure to adjourn hearing – s.425 Migration Act. |
| Migration Act 1958, ss.414, 422B, 425, 426A |
| NAHF v Minster for Immigration and Multicultural and Indigenous Affairs (2003) FCA 140 WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 140 NALQ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 121 Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 |
| Applicant: | MZWTD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1480 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 15 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 5 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr. R. Deckker |
| Solicitors for the Applicant: | Australian Legal Advisory Centre |
| Counsel for the Respondents: | Mr. S. Donaghue |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 17 November 2004 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1480 of 2004
| MZWTD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application filed 17 November 2004 the Applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated
14 October 2004. The Tribunal had affirmed a decision of a delegate of the First Respondent not to grant to the Applicant a protection visa.
It should be noted that the Applicant had previously sought judicial review of a constituted Tribunal decision which had affirmed the delegate's decision refusing to grant a protection visa.
The first Tribunal decision made was on 25 November 2003, by consent that decision was set aside in the Federal Magistrates Court on 20 May 2004.
The matter was then remitted for reconsideration and a decision made by a differently constituted Tribunal whereby it affirmed the delegate's decision to refuse a protection visa. In a decision dated 14 October 2004, the second Tribunal decision is the subject of the application for judicial review before this Court.
Background
The Applicant is a citizen of China. She arrived in Australia on 9 December 2002 and applied for a protection visa on 22 January 2003. In brief terms, to the extent that it may be relevant, it is noted that in her protection visa application the Applicant claimed she was born in September 1971 and that she speaks, reads and writes Chinese. Her ethnic group is described as the "Catholic Church in Quingdao”, her religion ‘Catholic’ and she is single. In China she worked as an accountant and she was a Chinese citizen who had lived in China before coming to Australia, travelling on a Chinese passport issued in November 2000.
It was claimed she left China because she was a "Catholic member". She said she practised it at home and claimed that police suspected her of practising Falon Gong. In May 2002 she claimed they caught her and tried to put her in gaol. She claimed that if she returned she would be "thrown into gaol". She had claimed that the police tried to find her several times and that she could not go back to China.
Other details concerning the Applicant's claim are fully set out in the Tribunal decision, which I note also relied upon material which had been provided to the Tribunal which made the first Tribunal decision.
The Application
The ground of judicial review in the present case has been confined to what might be described as jurisdictional error arising from a denial by the Tribunal to adjourn the hearing of this matter. That denial is claimed to be sufficient to constitute jurisdictional error to the extent that it constitutes a breach of relevant provisions of the Migration Act 1958 (“the Act”). In particular, it is claimed that in this instance the Tribunal failed to give to the Applicant sufficient notice of an adjourned hearing date and as I understand the submissions made, it would appear that the Applicant seeks to rely upon a breach of s.425 of the Act.
Further as I understand it, some reliance is placed upon what has been described as the inadequacy of the time period allowed between the date of a notice of rescheduled hearing and the date on which the Applicant received that notice. Otherwise, it is sought to be argued that there has been a denial of procedural fairness is based upon the argument that s.422B of the Act does not apply and that the Court should have regard to the time period given to the Applicant to attend the rescheduled hearing. In the circumstances, it appears to be submitted that in this instance the refusal of the Tribunal to grant an adjournment contravened s.425 and the rescheduling of the hearing could not be regarded as a concession overcoming the lack of what has been described as a real and meaningful invitation to attend the hearing pursuant to s.425 of the Act.
To understand the submissions made for and on behalf of the Act, it is necessary to set out briefly the chronology of events. On 7 September 2004 the Tribunal wrote to the Applicant advising that a hearing would be conducted on 8 October 2004. In the letter which appears at Court Book page 66, the Tribunal states the following:
“ …
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
Hearing of the Tribunal
We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.”
In the same letter after referring to the scheduled date of hearing, a further notation appears in the following form:
“ …
· The tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.”
By letter dated 29 September 2004 the Applicant's legal representative advised the Tribunal in the following terms:
“ …
We advise that (the applicant) has suffered a severe depression and anxiety due to the incident of miscarriage at early of this year and family violence in September 2004. We are instructed to request the tribunal member to vacate the proposed interview and adjourn the matter until (the applicant) is fit for interview and preparing her submission.” [sic]
Annexed to that letter from the Applicant's solicitors was a medical certificate dated 22 September 2004 where the following appears:
“ Assessed (the applicant) today.
She is unfit for work for about a month due to her medical situation.”
Perhaps not surprisingly, the Tribunal by letter dated 4 October 2004 addressed to the Applicant states the following:
“ …
On 29 September 2004 your adviser asked the Tribunal to postpone your hearing on medical grounds.
The member reviewing your case has decided not to postpone your hearing. Your doctor's certificate says that you are unfit for work but does not verify or detail precisely what your condition is or why it prevents you from being able to give evidence at a hearing, nor does it include a prognosis relevant to the postponement request.
The member will only reconsider the postponement request if you are able to provide more detailed information from your doctor along those lines. Otherwise, the hearing will proceed on Friday, 8 October 2004 at 10.15 AM as scheduled.
...”
That letter from the Tribunal generated a response dated 7 September 2004 from the Applicant's solicitors. Although the letter is dated 7 September 2004, it is common ground that its correct date is 7 October 2004. In any event, the letter states in part the following:
“ …
We are instructed to advise that (the applicant) is unable to attend hearing as scheduled on 8 October 2004 due to her current medical status. We seek your permission to vacate the said hearing and reschedule date upon (the applicant's) medical situation. We enclose Psychologist's clinic report for your kind and urgent attention.
We further advise that, our client's instruction is to provide further information in relation to her fear of being persecuted on her return to P.R. China once she is becoming fitful.” [sic]
The letter from the Applicant's solicitors included a psychologist's report from Mr Edwin ("Eddie") Kleynhans who appears to be a registered psychologist. The psychologist's report is dated 7 October 2004. It appears to be based upon a consultation which occurred on 6 October 2004, though refers to the Applicant having been assessed on "three occasions". No other dates are given in relation to the other occasions. In the report under the heading ‘Recommendation’, the following appears:
“I am of the opinion, based on her history that she is suffering from chronic depression and GAD (Generalised Anxiety Disorder). I expect her to have ongoing problems with anxiety attacks. This current mental state forms the foundation for compelling circumstances.Based on these circumstances, I would strongly suggest that she is not capable of facing tribunals or court hearings as her anxiety levels are paralysing and overwhelming in such situations.”
There are a number of obvious matters of concern which arise from that report, apart from the lack of detail as to the dates of consultations and indeed, the lack of any reference to treatment which may be given to the Applicant. A more significant factor is that the report does not provide anything other than an indication that the condition may be indefinite. For reasons which become apparent, that conclusion is important.
Not surprisingly, the Tribunal again corresponded to the Applicant by letter dated 8 October 2004 (court book page 74). In that letter, after reciting the chronology of events in relation to the earlier hearing and the requested postponement of that hearing, the Tribunal states the following:
“ ...
The Tribunal has indicated that it is unable to make a decision in your favour based on the material before it. The Tribunal is therefore required to invite you to give further evidence at a hearing. The Tribunal is not persuaded that the conditions referred to in the psychologist's report prevent you from giving evidence at a hearing. Furthermore, the material does not assist the Tribunal in deciding precisely when the hearing should be held. The Tribunal will, however, will allow one final opportunity for you to present evidence.”
In that letter, the Tribunal sets out the rescheduled date of 14 October 2004. It is noted that the letter itself dated 8 October 2004, in all the circumstances given that it appears to be a Friday and would not have been received by the Applicant until the following business day, namely Monday, 11 October 2004. For the present purposes, the Court accepts that effectively the Applicant was given a few days' notice of the rescheduled hearing. However, it is significant to note that in the letter the same warning or information that appeared in the first notification of hearing also appears, that is, that if the Applicant thinks that she might be unable to attend the hearing she should contact the Tribunal immediately and that if she did not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision in her case without further notice.
The letter dated 8 October 2004 to the Applicant from the Tribunal generated contact with the Tribunal which is set out in a memorandum dated 12 October 2004 (court book page 76) which states in part:
“ …
Adviser informed me that applicant will not be attending hearing scheduled for Thursday 14 October 2004; she stated that (the applicant) is willing to come but her psychologist has advised her not to attend because of her current condition.
Informed Ms Dai that she must informed the Tribunal in writing and ASAP.” [sic]
A further letter, again incorrectly dated, was forwarded by the lawyers for the Applicant to the Tribunal. On this occasion the incorrect date of 13 September 2004 appears in the correspondence when clearly it should be 13 October 2004 (court book page 77). In that letter the following appears:
“ …
We acknowledge receipt of your letter in relation to rescheduled hearing date.
We advise that our client's instruction is that she is willing to but unable to attend hearing due to her current psychological status which was certified by her clinic psychologist whose report was submitted to your office previously. We further contacted her psychologists for his opinion and he confirmed the same.
We further advise that (the applicant's) psychologist has advised us that (the applicant's) condition may improved by recommended treatments in two months. However, further assessment is required.
We request you to consider (the applicant's) situation and adjourn the hearing in two months accordingly.” [sic]
In its decision, the Tribunal made it clear that it had decided to proceed with the hearing. Relevantly it states the following (court book page 93):
“Notwithstanding the psychologist's report, the Tribunal is not satisfied that the applicant's psychological difficulties are such as to prevent her from attending a hearing and giving evidence. She has been excused from work, but that is not the same as a Tribunal hearing. The doctor providing her with that certificate did not say what her medical condition was. The adviser asserted it was anxiety and depression. But there is no evidence that the applicant was actually being treated for those conditions. There is still no information on what treatment has been recommended.”
The Tribunal then proceeds under the heading ‘Findings and Reasons’ to deal with the Applicant's claim and ultimately reach a conclusion that it was not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the convention.
In further considering the material on review, the Tribunal notes the deficiencies referred to earlier in this decision in relation to the report from the psychologist, namely that no reference is made to treatment and indeed further noting that no reference is made in that report to a miscarriage or other issues, including domestic violence and/or infidelity.
The Applicant claims that by refusing to further adjourn the matter for the period suggested of two months, that the Tribunal has committed a jurisdictional error. Essentially as indicated earlier, that appears to be based on what is perceived to be a breach of the statutory obligations to invite the Applicant to appear (s.425) and/or as I understand it, to give proper notice of the invitation to appear pursuant to s.425A of the Act.
The First Respondent has indicated that in fact on this occasion given the history of events, what has occurred is that after providing the original notice of the first hearing date, the Tribunal then effectively rescheduled the hearing and provide a further invitation to appear and proceeded pursuant to the powers under s.426A to then make a decision without taking any further action to provide another rescheduled hearing date. It is clear and I accept that s.426A provides the opportunity to the Tribunal to reschedule the Applicant's appearance before it or to delay its decision on the review in order to enable the Applicant's appearance before it as rescheduled. It does not mean however, that there is an automatic obligation on the Tribunal either to reschedule the hearing or once having rescheduled the hearing to then refuse to proceed to consider the application.
In my view, there does not appear to be any breach of any statutory duty upon the Tribunal either to invite the Applicant to appear or to give notice of invitation to appear. So much is clear from the correspondence referred to earlier in this judgment.
It remains to consider whether or not there has been any jurisdictional error which might otherwise arise from the failure of the Tribunal to further adjourn the matter and whether or not the refusal of the adjournment involves a denial of procedural fairness.
Reference was made by both parties to s.422B of the Act which provides as follows:
“[S.422B] Exhaustive statement of natural justice hearing rule
422B (1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416 , 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.”
The Applicant had relied upon a decision of the Federal Court in the matter of NAHF v Minster for Immigration and Multicultural and Indigenous Affairs (2003) FCA 140 where it was claimed that in that case the Court found that a refusal of a Tribunal to grant an adjournment was illegal.
Both parties also relied upon a decision of the Federal Court in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 where the Court states the following:
“[58] Section 425 requires the tribunal to invite an applicant to give evidence and to present arguments relating to the issues arising in relation to the decision under review. On one view, the genuineness of the appellant's documentary evidence was an issue raised by the tribunal itself and of which the appellant was given no prior notice nor an opportunity to comment before the tribunal made its decision. If that characterisation be correct, then the tribunal's failure to invite the appellant to make submissions on whether the letters relied upon were genuine, or forgeries, or concoctions, was a failure to comply with s 425. A failure to conduct a hearing of the kind contemplated by s 425 in my opinion would amount to a failure to comply with the obligation imposed by that section upon the tribunal to invite an applicant to participate in such a hearing. That obligation is so central to the conduct of the tribunal process that it necessarily conditions the power to make an adverse decision on review. A failure to comply with s 425 will therefore amount to jurisdictional error and be amenable to the issue of constitutional or prerogative writs on the principles set out in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. [59] If it be the case that s 425 has no application to the issue raised in this appeal — that is the question whether the tribunal was obliged to invite comment on an adverse conclusion not implicitly or explicitly an issue in the hearing, then s 425 does not deal with that matter and the requirements of procedural fairness are not excluded in respect of it by s 422B. This may appear to apply a narrow construction to s 422B. However that construction takes as its point of departure the ordinary meaning of the words used in the section and their evident purpose. That purpose is that, so far as Div 4 deals with matters of procedural fairness relating to the conduct of an application for review, its prescriptions are to be treated as exhaustive in relation to those matters. In so construing s 422B, I have also borne in mind the principle that:
… when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment. [Annetts v McCann (1990) 170 CLR 596 at 598 ; 97 ALR 177 at 178 ; 21 ALD 651 at 652]
Section 422B contains words of limitation which indicate that it is not intended to confine the requirements of procedural fairness in respect of tribunal hearings by limiting their application to the matters dealt with in the provisions of Div 4 in the way that they are dealt with there. It follows that if s 425 does not apply in this case, there was a breach of procedural fairness on the part of the tribunal which amounts to jurisdictional error.”
Relying upon that authority, the Applicant sought to argue that in considering s.422B a Court needs to have regard to the reference by the Federal Court to the principles set out in paragraph 59 of its decision and in particular, the reliance upon the principles in the Annetts v McCann case.
The legislature provides for statutory obligations which otherwise may be consistent with common law principles of procedural fairness, including the invitation to appear and notice of invitation to appear and to that extent, if those obligations are complied with and as I understand the submissions of the Respondent, the new provision 422B would apply to preclude the application of any other principles of procedural fairness in relation to those issues.
The Respondent has submitted that the power of the Tribunal to consider the issue of an adjournment is a matter for the Tribunal and the general principles applied in relation to adjournments. Those general principles are referred to in a number of authorities and it is clear that whilst a refusal to an adjournment may in some circumstances amount to a denial of procedural fairness, a decision of whether or not to grant an adjournment is usually a matter within the discretion of the relevant Tribunal or Court.
I accept and apply the decision of Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 140 where the Court states the following:
“36. To invite the wife to a hearing which she is unable to attend because of ill health would be an empty gesture, and a denial of procedural fairness. Refusal of an adjournment can amount to a denial of procedural fairness, although whether or not to grant an adjournment of proceedings is a matter which is ordinarily within the discretion of the person charged with the conduct of the proceedings.”
I further accept and apply the principles set out in the Full Court of the Federal Court decision in NALQ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 121 and in particular the following paragraphs:
“35. In the present case the learned federal magistrate found as a fact that the Tribunal had informed the appellant’s representative, Mr Haque, that a medical certificate would be required if the request for an adjournment was to be granted. No medical certificate was forthcoming. That finding of fact was not controverted on appeal. The Tribunal, having made the reasonable requirement that some evidence be produced to support the request for an adjournment, did not render the s 425 invitation illusory by proceeding to the hearing on the appointed day in the absence of the appellant. It also had regard to the fact that the appellant had known of the date of the proposed surgery at the time that he had accepted the invitation to attend the hearing. Nothing in the Tribunal’s approach reflected a failure to provide a real opportunity to the appellant to be heard. There was nothing in its approach to this matter therefore that was in breach of s 425, however construed. Nor was there any procedural unfairness on the part of the Tribunal.
36. There remains the question whether, unknown to the Tribunal, the appellant was in truth unfit to participate in the hearing. If, as a matter of fact, the appellant had been unfit to participate in the hearing, the Tribunal’s lack of awareness of that fact flowed from the appellant’s failure to respond to its reasonable request for further support for the adjournment. Such protection as is offered by s 425 and by the requirements of procedural fairness was not thereby vitiated. The situation which arose, assuming the appellant to have in fact been unfit to attend the hearing, arose from the appellant’s failure to respond to the Tribunal’s request. On the facts found by the learned federal magistrate that failure was followed or accompanied by a considered decision to furnish a written submission to the Tribunal.”
The chronology of events and the correspondence that I have referred to indicate that the Tribunal has properly taken into account the material relied upon by the Applicant in support of what can only be described as a vague application for an adjournment, perhaps of a period of ‘two months’. Although not supported by appropriate material on a proper reading, the Applicant may in any event, lead to a conclusion that the adjournment was indefinite. In any event, the Tribunal has rescheduled the hearing date and although a somewhat brief period was allowed for attendance at the rescheduled hearing date, it is my view that the brevity of that notice should not be a matter which necessarily persuades this Court that there has been any error committed by the Tribunal, having regard to the chronology of events leading up to the first scheduled hearing and the reschedule hearing.
I am satisfied that on the material before me, the Tribunal has not made any error in relation to the consideration of the adjournment and has otherwise fairly and properly analysed the material provided by the Applicant. On that basis alone, I am satisfied that the ground now sought to be relied upon concerning the refusal to grant adjournment should fail and in particular, it is my view there has not been a breach of any of the statutory obligations and in particular, not been a breach of s.425 of the Act.
I further accept as submitted for and on behalf of the Respondent, that in any event there is an obligation on the part of the Tribunal to carry out a hearing even if an Applicant is not fit to attend or adequately give evidence at the hearing. Pursuant to s.414 of the Act, a duty is imposed upon the Tribunal to review the decision. It is not appropriate for that review process to be deferred indefinitely in circumstances where an Applicant is unwell or otherwise unable to attend.
I note and apply the principles set out by Gleeson CJ in the High Court decision in Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 where the Court states the following:
“[19] Many people who appear before administrative tribunals, and many litigants in courts, including some litigants in this court, suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell. In the present case, the tribunal, apprehending that the respondent might be disadvantaged by “memory or other difficulties”, of its own motion, and with the respondent’s agreement, obtained a psychological assessment. That assessment was for a limited and reasonably specific purpose. The tribunal was not then obliged to embark upon an open-ended investigation of the respondent’s psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage. It was not suggested in the letter of 30 July that anything the respondent said at the hearing of 26 June, or in his later affidavit, was unreliable. Two things were suggested. The first was that, if the respondent was suffering from PTSD, that would explain the inconsistencies in his earlier information. The tribunal was willing to accept that, and not hold those inconsistencies against him. The second, which was rejected, and is not now pursued, is that a further assessment might have provided evidence that he had in fact been seriously harmed before he came to Australia.”
The same issue was developed in that case in the joint judgment of Gummow and Hayne JJ where they state:
“[45] The third alleged error presupposes that there is some competency requirement as to the satisfaction of which the tribunal must be convinced before an applicant can take part or continue to take part in proceedings before the tribunal. This assumption is without foundation. The Act does not provide for any such competency requirement, analogous, for example, to that of fitness to plead. Section 420(2)(a) of the Act expressly provides that the tribunal is not bound by the rules of evidence. The phrase “the rules of evidence” is taken to include both the common law rules of evidence and the Evidence Act 1995 (Cth). The only requirements that could be described as competency requirements are that an application for review by the tribunal can only be made by a non-citizen who is the subject of the primary decision (by the minister’s delegate) and who is physically present in the migration zone when the application for review is made. The Act permits an application for a protection visa to be made by any person who is in Australia and who is not a citizen of Australia. That is not to deny that the rules of procedural fairness may, in particular circumstances arising in individual cases before the tribunal, require some special steps or procedure to be followed. But there was no denial of procedural fairness in the present case.”
I find that even if the Tribunal had been minded to accept the conclusion of the psychologist in the report, vague though it appeared, it does not follow that an adjournment should be granted, particularly where there was no evidence provided in relation to the likely duration of the illness. There was merely an assertion that a two-month adjournment would be sought without there being any medical evidence at all to support the proposition that upon the expiration of that period of time, the Applicant would be able to attend a hearing. Whilst that period of time has been referred to in the correspondence by the Applicant's representative, it is equally clear that a reference is made to treatment, even though there is no medical evidence which indicates the nature of the treatment or its duration and likely prognosis.
The statutory obligations of the Tribunal have been complied with and I can see no error of law in the manner in which the Tribunal has considered the request for an adjournment and nor is there any error in the Tribunal then proceeding to hear and determine the matter in the absence of the Applicant.
It follows therefore that the application should be dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 5 October 2005
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