MZYZE v Minister for Immigration & Anor
[2013] FCCA 569
•30 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZYZE v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 569 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – conduct of review – non-appearance by applicant – evidence – matter remitted. |
| Legislation: Migration Act 1958 |
| Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 SZOES v Minister for Immigration & Anor [2010] FMCA 686 SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 Minister for Immigration and Citizenship v Li [2012] FCAFC 74 MZXQD v Minister for Immigration & Anor [2007] FMCA 1258 SZNRO v Minister for Immigration and Citizenship [2010] FCA 137 NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 |
| Applicant: | MZYZE |
| First Respondent: | MINISTER FOR IMMGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 836 of 2012 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 24 May 2013 |
| Date of Last Submission: | 24 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 30 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The decision of the second respondent made on 15 June 2012 be set aside.
The matter be remitted to the second respondent for reconsideration according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
MLG 836 of 2012
| MZYZE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of Pakistan who applied for a protection visa on 16 March 2011. On 31 October 2011, a delegate of the Minister refused to grant the Applicant such a visa.
The Applicant then applied to the Refugee Review Tribunal for a review of that decision. On 15 June 2012, the Tribunal refused the Applicant’s application for review. Significantly, the Applicant did not attend at the hearing before the Tribunal, and as a result, the Tribunal had only the departmental file to consider when considering the review application.
The Tribunal recorded at paragraph 25:
25. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 14 June 2012. On 7 June 2012, the applicant advised the Tribunal that he wanted to give oral evidence. However, the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Applicant’s ground for review set out in his Application of 12 July 2012 was expressed in his own words as follows:
Medical grounds: NOT GIVEN A CHANCE TO APPear Before RRT and i was not given a chance to clarify myself (sic).
At the hearing before me, the Applicant also pursued grounds which, in substance, amounted to applications for merits for review, and therefore provided no real basis for the application. The real issue in the case is the effect of the Applicant’s failure to attend and the reasons for that failure.
The Applicant represented himself before this Court and, not surprisingly, did not present, initially, a proper evidentiary foundation to show the reasons for his failure to attend before the Tribunal. His case is to the effect that he was too ill to attend on the date scheduled for the hearing on 14 June. There is no doubt that by 18 June, the Tribunal had received a request from the applicant to adjourn the hearing. However, by that time, the Tribunal had already completed its decision. The hearing was scheduled for 14 June and the Tribunal completed its decision on the 15th and then received a request for an adjournment on the 18th from the Applicant.
Evidence as to illness
The Applicant was unrepresented both at the time that he lodged his material and throughout the hearing in this Court. The Applicant ultimately filed an affidavit on 14 February 2013 attesting to his illness and annexing certificates from his doctor, a Dr Mian of Coburg Medical Centre. Those certificates set out that he suffered acute pharyngitis at the relevant time and that a medical certificate of incapacity to attend for an interview on 14 June was issued. Whether the doctor, when issuing the certificate, was aware that it was with respect to a hearing before the Refugee Review Tribunal, or some other form of interview, such as a social security interview or a job interview, is not apparent from the face of the documents.
The doctor was not called to give evidence. In circumstances where there is no affidavit from the doctor and the doctor was not called, the doctor’s certificates are hearsay and are not admissible.
The Applicant gave evidence that he was too ill to attend, and also provided evidence from his friend “AI”, who confirmed his version of events.
The Applicant was cross-examined by Counsel for the Minister as to the details of the events during the relevant period. The Applicant said that he was uncomfortable in his throat the day before the hearing and feeling very out of energy on the day. He said he felt faint and his head was spinning and that he had black shadows in front of his eyes and a fever. He said he woke around 9.00 a.m. or 9.30 a.m. on the day. He said that he could sit on his bed that day but couldn’t stand, although he did manage to get out of bed later in the day. He said that he had a similar fever around a month before, for which he took a sick day from work.
The Applicant said he went next door to see if a neighbour was there, but that the nearest telephone was two to three kilometres away, around 10 minutes walk, and that it was too far (given his condition) to walk to the telephone. His own mobile phone was out of credit, although he did have a very modest amount of money in his bank account. He agreed he had an email account and he had used an internet café near to the local railway station before, though again this was some walk from where he was living. He agreed that he had declined an offer from his friend to telephone the Tribunal the next day, saying that he thought he should wait until he had a doctor’s certificate. He said he didn’t think he should go to hospital as it wasn’t such an emergency situation, although his friend arranged for a taxi for him to go to the doctor’s the next day, where he received a prescription. He later prepared a request for an adjournment to the Tribunal, which he took on a USB memory stick to the internet café to send to the Tribunal.
It was put to the Applicant that his illness did not prevent him from notifying the Tribunal, which he agreed with, although he stated that he did not have credit on his telephone. It was not put to him that he was not so ill as to prevent him attending before the Tribunal on the day.
The evidence given by his friend corroborated the Applicant’s account.
On the material before me, I accept that on the balance of probabilities, the Applicant was unable to attend at the hearing on the date provided by the Tribunal due to illness. I also accept that he could have notified the Tribunal sooner than he did.
The Law
Counsel for the Minister submitted that in accordance with the legislative scheme, the Applicant had received an opportunity to attend for a hearing and that the reason for non-attendance of the hearing did not matter. The Minister drew attention to the decision of Justice Downes in SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 to that effect: see paragraph 5, where a number of cases are listed ending with Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142.
Importantly, however, the decision in SZFDE has been appealed to the High Court. The High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, approved the dissenting judgment of French J (as his Honour then was) and said:
53. The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.
In the Full Court decision, French J said:
92. In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 a Full Court of the Federal Court unanimously dismissed an appeal from the primary judge who had granted relief by way of certiorari quashing a decision of the Refugee Review Tribunal for want of procedural fairness. The unfairness arose on account of the respondent’s extreme distress and the effect upon him of medication at the time of the hearing which followed shortly after his father’s death. These circumstances were not known to the Tribunal. The Full Court had regard to the conditional obligation imposed on the Tribunal by s 425 to invite an applicant for review to attend a hearing. Their Honours said of the invitation that it (at [33]):
‘…must not be a hollow shell or an empty gesture.’
And further (at [37]):
‘The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation.’
Their Honours did not refer to Al-Mehadawi. They cited Ex parte A as an example of the extension by English Courts of judicial review beyond jurisdictional error in the light of Anisminic Limited v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147.
102. The application of the general principles emerging from the authorities discussed above, establishes that procedural unfairness affecting a person’s right to a hearing before an administrative tribunal can be a ground for judicial review without any fault on the part of the tribunal. Whether there has been a reviewable failure of procedural unfairness will depend upon the circumstances. On the basis of the cases discussed above, it may arise where:
1. By reason of psychiatric or other medical condition a party has a significantly diminished capacity to participate in the oral hearing.
2. The party does not attend at an oral hearing for reasons beyond his or her control and of which the tribunal is unaware. This circumstance is likely to be of practical significance where the tribunal makes its decision at the hearing or before any explanation for non-attendance could reasonably have been proffered by the applicant. Example of its application might arise where a person is involved in a traffic accident on the way to the hearing or is taken suddenly ill and is unable to appear or notify the tribunal of his or her pending non-appearance.
3. As a result of the conduct of a third party, the tribunal is misled on a question which is of significance to the outcome of the hearing.
4. A third party fails to provide to the tribunal and the person to be affected by the decision with documents in its possession or power which would be favourable to that person. There may be a question whether this is a case of procedural unfairness or, in the case of the Tribunal, one better considered under the heading of failure to comply with statutory procedures.
This view of the law is in accordance with the decision of Hely J in Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140, where his Honour said:
35. The RRT is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31]. Failure to give the applicant wife an opportunity to attend such a hearing will give rise to a breach of the rules of natural justice, even if the procedural requirements of s 425 have been complied with.
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.
The decision of Hely J has been applied in SZOES v Minister for Immigration & Anor [2010] FMCA 686 by Lloyd-Jones FM (as his Honour then was).
Similarly, the issue was considered by Katzmann J in SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at paragraph 19, where his Honour said:
19. In some circumstances, the illness of an applicant at the time of a tribunal hearing may give rise to jurisdictional error by depriving him or her of a meaningful opportunity to give evidence and present arguments as s 425 of the Migration Act requires: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [37], so as to stultify or frustrate the tribunal’s review function (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [87] applying SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189). In SCAR the Full Court referred to Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140; (2003) 128 FCR 359 where s 425 was found to have been breached when the applicant was unable to attend the hearing because of ill health. But there may well be circumstances in which the opportunity is lost though the applicant is present in person, for example where the applicant is genuinely distracted by intractable pain or heavily sedated or confused so that he or she is not in a fit state to give evidence or present arguments. Indeed, SCAR was a case of that kind. But this is not. The applicant said he was affected by the medication. There is, however, no evidence to support his statement. Indeed, what material there is points in the opposite direction. Further, unlike in SCAR, the tribunal in this case was aware of the applicant’s situation. The tribunal recorded in its reasons:
The applicant submitted…police and medical reports relating to a car accident in May 2011 in which [he] was seriously injured. The applicant was clearly in discomfort during the Tribunal hearing and said that he had taken pain killing medication. However, he insisted that he was capable of giving evidence and that he wanted the hearing to proceed; he said that the medication did not make him drowsy. I am satisfied that the applicant was capable of giving evidence, and the manner in which he did so gave rise to no concerns on my part that his evidence was affected by his medical condition or the medication he had taken.
Most recently in Minister for Immigration and Citizenship v Li [2012] FCAFC 74, the Full Court of the Federal Court dismissed an appeal by the Minister against a decision of the Federal Magistrates Court, setting aside a review decision where an adjournment was refused as the person was ill.
It would be a remarkable thing if one’s illness was not so significant as to prevent (in a practical way) one from seeking an adjournment, that the Tribunal is bound to provide an adjournment to enable a real opportunity to be heard, but that if the illness is so great as to prevent even an application for an adjournment, that the person would have no recourse to set aside the decision of the Tribunal in order to have a real opportunity to be heard. The example identified by French J of a traffic accident highlights the difficulties with respect to the position of the Minister.
There is no question that on occasion events will occur which, through no lack of foresight and absolutely no fault on the part of the Tribunal, a person may nonetheless be denied procedural fairness. Where a person falls ill, or suffers an injury, preventing them from attending the Tribunal hearing at a time so close to the hearing that the Tribunal is unaware of the circumstances, the person has been denied procedural fairness. The fact that this has not flowed from any conduct of the Tribunal that could be described as in any way inappropriate or unprofessional does not alter the fundamental outcome that the person did not receive a real opportunity to be heard.
Of course, it will be a rare case where a person is so ill as to prevent their attendance at a Tribunal hearing. Illness sufficient merely to make a person unfit for normal duties in a workplace would not be necessarily sufficient to show illness that prevented attendance, as is apparent from the cases on adjournment: see MZXQD v Minister for Immigration & Anor [2007] FMCA 1258; SZNRO v Minister for Immigration and Citizenship [2010] FCA 137; NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17; and NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559.
Whether such lesser degree of illness justifies an adjournment would ordinarily be assessed by the Tribunal on the day.
On my findings in this case, illness prevented the applicant’s attendance at the hearing.
In the circumstances, therefore, I allow the application of the Applicant and make the usual orders. I make no costs order as the Applicant is representing himself.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 25 July 2013
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