MZYXY v Minister for Immigration
[2012] FMCA 1185
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYXY v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1185 |
| MIGRATION – Refugee Review Tribunal – s.425 – s.426A - whether permission to determine case without giving applicant a further opportunity to appear overrides obligation to alert the applicant to the determinative issues. |
| Migration Act 1958 ss.424A(1)(a), 424C, 425, 426A. |
| Minister for Immigration and Citizenship v Li (2012) 202 FCR 387; (2012) 127 ALD 238; (2012) 289 ALR 210; [2012] FCAFC 74 SAAP vMinister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; (2005) 83 ALD 545; (2005) 79 ALJR 1009; (2005) 215 ALR 162; [2005] HCA 24 Stead v State Government Insurance Commission (1986) 161 CLR 141; (1986) 60 ALJR 662; (1986) 11 ALN N80; (1986) 67 ALR 21; (1986) 4 MVR 542; (1986) Aust Torts Reports 80-054; [1986] HCA 54 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 81 ALJR 515; (2006) 231 ALR 592; [2006] HCA 63 SZIAO v Minister for Immigration and Citizenship [2007] FCA 848. |
| Applicant: | MZYXY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 598 of 2012 |
| Judgment of: | Riley FM |
| Hearing date: | 22 November 2012 |
| Date of last submission: | 11 December 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant was not represented |
| Advocate for the First Respondent: | Ms Randall-Smith |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 23 May 2012 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 598 of 2012
| MZYXY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal. The applicant is a citizen of Sri Lanka. He applied for a protection visa on 25 March 2011. A delegate refused the visa on 11 October 2011. The applicant applied to the tribunal for review on 3 November 2011.
The applicant’s claims
The applicant said that:
a)he was 23 years old;
b)his father supported the UNP in their home area of Galle;
c)the applicant assisted his father at the 2003 election;
d)the PA won the 2003 election;
e)he and his father were threatened and harassed by PA supporters after the 2003 election;
f)the applicant campaigned in the 2005 Presidential elections;
g)he and his family were subjected to further threats and harassment;
h)the applicant moved to Colombo to study in 2006;
i)he was actively involved in supporting the UNP in Colombo;
j)he received death threats;
k)consequently, he decided to come to Australia;
l)he applied for a student visa in December 2008;
m)he went back to Galle and campaigned for the 2009 elections but suffered more harassment; and
n)he left Sri Lanka and came to Australia on 14 February 2009 on a student visa.
The procedure in the tribunal
By letter dated 26 March 2012, the tribunal invited the applicant to attend a hearing on 27 April 2012. The letter stated that the tribunal had considered all the material then before it but was unable to make a decision favourable to the applicant on the basis of that information alone. On 23 April 2012, the applicant provided to the tribunal a response indicating that he would attend the hearing with a legal representative.
However, at 12.54pm on 27 April 2012, six minutes before the scheduled hearing was to take place, the tribunal received a facsimile from the applicant saying that he was unable to attend the hearing. The applicant enclosed a medical certificate which said:
This is to certify that [the applicant] had surgery in March 2012. He required re-surgery and has suffered complications and as a result this has limited his mobility.
The tribunal advised the applicant's representative later the same day that the request for an adjournment had been refused but that the tribunal would consider any further evidence provided by the applicant.
On 4 May 2012, the applicant sent medical records to the tribunal indicating that the applicant had had elective surgery in November 2011 and advised the tribunal that the applicant’s doctor would be unavailable for the next few days.
Also on 4 May 2012, the tribunal made its decision in this matter under s.426A of the Migration Act 1958. That section provides as follows:
(1) If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
The Tribunal’s decision
The tribunal was not satisfied that the applicant had engaged in the political activities that he claimed. The reasons given by the tribunal were:
a)the applicant had provided limited information about his and his father’s involvement in campaigning for the UNP; and
b)the applicant’s evidence in certain respects was inconsistent with independent country information.
The inconsistencies were that the applicant claimed in the statement in support of his initial application for a protection visa that general elections were held in Sri Lanka in 2003 and 2010 and country information indicated that elections were held on 2 April 2004 and in 2009.
For the same reasons, the tribunal was not satisfied that the applicant or his family had been harassed or threatened. Consequently, the tribunal was not satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention or under the complementary protection regime.
Grounds of review in the application
The applicant was not represented before this court. The grounds of review in the application filed on 23 May 2012 are:
1.The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
2.The decision is a denial of natural justice.
3.The decision is a denial of procedural fairness.
PARTICULARS
(a)The applicant had provided a detailed submission with his application for a Protection Visa and had also provided an analysis of his claims and responded to the decision of the delegate, which clearly showed his bona fides and his intention to press ahead with his application. The applicant had a pre existing medical condition and that condition surfaced on the date of the hearing, namely 27 April 2012. The applicant consulted his medical practitioner and he provided the applicant with a letter. The applicant was unaware as to what criteria was needed to fulfill the requirement for an adjournment and was dependent upon the doctor to provide a medical certificate which would satisfy the governing authority. The tribunal would be well aware that because of privacy laws, medical practitioners are very reluctant to divulge the exact medical condition of the patient and will often state that he or she is suffering from a medical condition. The applicant was unfortunately unable to make contact with his medical practitioner, however he did the next best thing and provided all of the medical records in his possession to substantiate that he did have a pre existing medical condition and that it was likely that he might have had a relapse. That given the historical nature of those documents, there was obviously nothing in the medical evidence to suggest why he was unable to attend on 27 April 2012. The tribunal has therefore erred by not granting the applicant an adjournment.
(b)There was clearly evidence available that as a UNP supporter with strong family connections to the UNP, there was a real chance of persecution, should the applicant be forced to return to Sri Lanka.
The grounds of review essentially challenge:
a)the tribunal’s refusal to grant an adjournment; and
b)the tribunal’s refusal to give determinative weight to the applicant’s statement that he supported the UNP and had been threatened for that reason.
a. The refusal of an adjournment
The applicant did not articulate the nature of the alleged error in the tribunal’s refusal of an adjournment until he filed post-hearing written submissions. In those submissions, the applicant relied on Minister for Immigration and Citizenship v Li (2012) 202 FCR 387; (2012) 127 ALD 238; (2012) 289 ALR 210; [2012] FCAFC 74. The applicant did not squarely state his argument, but I understand it to be that the tribunal did not properly consider the request for an adjournment, the tribunal refused the adjournment unreasonably and the tribunal’s discretion somehow miscarried.
The medical certificate provided to the tribunal simply said that surgery had limited the applicant’s mobility. The medical certificate did not say that the applicant would be unable to attend, or effectively participate in, a hearing before the tribunal. In these circumstances, there was no error in the tribunal refusing an adjournment.
Moreover, the tribunal gave the applicant an opportunity to provide further information. The applicant was represented by a solicitor at that time. The applicant provided further medical evidence but it was of an historical nature. It indicated that the applicant had undergone elective surgery in the past. It did not indicate that the applicant had been unable to attend, or effectively participate in, the hearing on
27 April 2012.
In these circumstances, the refusal of the request for an adjournment, on the evidence provided, was not unreasonable. Additionally, there is no reason to suppose that the tribunal did not properly consider the request for an adjournment. It is true that the tribunal decided the case on the same day that the further medical evidence was provided. That suggests that the tribunal’s reasons for decision were substantially drafted before the further medical evidence arrived. However, that does not mean that the tribunal would not have changed its mind, and redrafted the reasons as appropriate, if the applicant had provided material that justified an adjournment. I am unable to discern any basis on which the tribunal’s discretion miscarried.
This ground is not made out.
b. The weight given to the applicant’s evidence
The applicant argued that there was evidence before the tribunal that the applicant was a UNP supporter with strong family connections to the UNP. However, the weight to be given to particular aspects of the evidence is a matter for the tribunal. The applicant, in this ground, is essentially seeking merits review. The tribunal addressed the claims made by the applicant in considerable detail. However, the tribunal was simply not persuaded by the limited information that the applicant provided. The tribunal’s handling of this issue was not so irrational that no rational decision maker could have reached the same conclusion on the same evidence.
This ground is not made out.
Additional ground advanced orally
At the hearing before this court, the applicant also said:
… the tribunal used country information to decide my case, but the tribunal did not give me the copies of those statements to comment or by written comment.
The delegate did not decide the case adversely to the applicant on the basis that country information about the dates of elections was inconsistent with the applicant’s oral evidence. Rather, the delegate decided the case on the basis that the harassment that the applicant had experienced in the past, and might experience in the future, was not so serious as to constitute persecution.
The delegate referred in his decision to some country information about the dates of elections. However, it was not the same as the information relied on by the tribunal. The delegate did not rely on country information about election dates to refuse the applicant’s application. The applicant’s claims about the dates of elections were in the written statement that was before the delegate.
Because the tribunal decided the case partly on the basis of country information about the dates of elections, the dates of the elections were an issue about which the tribunal was required to alert the applicant: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 81 ALJR 515; (2006) 231 ALR 592; [2006] HCA 63. That obligation arises from s.425 of the Act. Section 425 provides as follows:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Subsection 424C has no application in the present case. As stated above, the tribunal did invite the applicant to a hearing but the applicant did not attend. The tribunal proceeded to determine the case under s.426A of the Act, without alerting the applicant to the issue about elections dates.
Section 426A of the Act provides that:
(1) If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
During the hearing before this court, it seemed to me that this case may have exposed a gap between the obligations under s.425 of the Act and the liberties under s.426A of the Act. That is, it seemed to me that the obligation to alert the applicant to the issues on which the decision would turn might not be absolved by the permission to determine the case, when an applicant did not attend a scheduled hearing, without giving the applicant a further opportunity to appear. Clearly, the tribunal could alert an applicant to an issue in writing and invite a response in writing, without allowing the applicant to appear before it.
For that reason, I invited the parties to file written submissions on the apparent gap.
The first respondent filed a further written submission. He argued that the sole reason for the tribunal’s decision was the lack of detailed information in support of the applicant’s claims. The first respondent argued that the inconsistency between the applicant’s evidence and the country information was not part of the tribunal’s reason for affirming the delegate’s decision.
That argument is completely untenable. The tribunal said at [31] of its reasons:
Based on the limited evidence provided by the applicant regarding his alleged activities during this election campaign and the inconsistency in the applicant’s evidence with independent information regarding when the election was held, the Tribunal is unable to be satisfied that the applicant was an active supporter of the UNP and engaged in the activities he claimed.
Similarly, the tribunal said at [35] of its reasons:
Given the limited information provided by the applicant in relation to his alleged support of the UNP during preparations for general elections in 2009 and the inconsistency in his evidence and that of the independent information as to when the general elections were actually held, the Tribunal is unable to be satisfied that the applicant engaged in any activities in support of the UNP in 2009 or that as a result he was harassed or his life was made difficult by opposition PA supporters.
The inconsistency between the applicant’s evidence and the country information was an express part of the tribunal’s reasons for affirming the delegate’s decision.
The first respondent then submitted that the inconsistencies were not information within the meaning of s.424A(1)(a) of the Act. That may be so, but that submission does not address the s.425 point. Similarly, the fact that the tribunal relied on country information to ascertain the correct election dates election has no impact on the s.425 point.
The first respondent also relied on SAAP vMinister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; (2005) 83 ALD 545; (2005) 79 ALJR 1009; (2005) 215 ALR 162; [2005] HCA 24 at [56]. That paragraph is as follows:
In addition, s 424A "is enlivened only at the point at which the RRT has information and has determined that the information would be the reason or part of the reason for affirming the decision" under review (29). The Tribunal may not realise that information it has obtained from a third person will form the reason or part of the reason for affirming the decision until after the applicant has appeared before it. Information obtained before the hearing may become the reason or part of the reason for affirming the decision only after an applicant has responded to questions at the hearing. It would seem to be contrary to the requirements of procedural fairness if the Tribunal were not required to invite the applicant to comment on such information (that is found to be adverse to the applicant) simply because the Tribunal has already invited the applicant to appear before it. (emphasis added) (citation omitted)
In that passage, the High Court was rejecting an argument that s.424A is exhausted when an invitation is issued under s.425. The highlighted part of paragraph 56 emphasises the obvious point that inviting an appearance at a hearing is distinct from inviting a written response. Consequently, the fact that s.426A absolves the tribunal from inviting the applicant to appear before it does not necessarily absolve the tribunal from alerting an applicant to the issues on which the decision will turn.
The first respondent also argued that, if there had been a denial of procedural fairness in this case, it could not have made a difference to the decision: Stead v State Government Insurance Commission (1986) 161 CLR 141; (1986) 60 ALJR 662; (1986) 11 ALN N80; (1986) 67 ALR 21; (1986) 4 MVR 542; (1986) Aust Torts Reports 80-054; [1986] HCA 54. Therefore, the first respondent implicitly argued, the residual discretion should be exercised against the applicant. The first respondent did not explain how a denial of procedural fairness could not have made a difference to the decision.
The same argument was put by the first respondent in SAAP. The High Court rejected it in that case. For example, McHugh J said at [84]:
If the decision of the Tribunal is invalid for want of procedural fairness, there is no reason to withhold discretionary relief. There is nothing to suggest that the conduct of the appellants warrants the refusal to exercise the discretion. There is no suggestion of delay, waiver, acquiescence or unclean hands.
For the same reasons, I do not accept the first respondent’s contention in the present case.
After the hearing, the applicant filed written submissions that appeared to have been drafted by a lawyer, although there was no lawyer on the record for the applicant. The applicant referred to well-known passages from paragraphs 35 and 36 of SZBEL as follows:
35.… And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
36.… But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
The applicant noted that the delegate decided the case on a different basis to the basis relied upon by the tribunal. Indeed, the delegate found the applicant to be generally credible. The delegate was satisfied that the applicant and his family are active UNP members as claimed.
The applicant also relied upon s.424A of the Act. However, the information about the election dates falls within the exception in s.424A(3) of the Act.
The interrelationship between s.425 and s.426A of the Act was considered in SZIAO v Minister for Immigration and Citizenship [2007] FCA 848. In that case, the applicant failed to attend a hearing and the tribunal determined the matter under s.426A of the Act. The tribunal based its decision, in part, on information that it had obtained from the applicant’s medical practitioner. The tribunal did not alert the applicant to the nature of that information. In these circumstances, Dowsett J concluded at [20] that there was no denial of procedural fairness.
SZIAO was an ex tempore judgment. An application for special leave to appeal against the decision in SZIAO was refused on 6 March 2008. SZIAO was decided after SZBEL but did not refer to it.
SZIAO is indistinguishable from the present case. SZIAO is binding upon me. Consequently, I must find that there was no denial of procedural fairness in this case. That is, the ground advanced by the applicant orally at the hearing is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 21 December 2012
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