SZAQN v Minister for Immigration - [2006] FMCA 81

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAQN v MINISTER FOR IMMIGRATION

[2006] FMCA 81

MIGRATION – Review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – where the applicant did not attend the Tribunal hearing – no reviewable error.

PRACTICE AND PROCEDURE – Where Applicant claims to have been ill for the RRT hearing – natural justice.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.426A, 474

SZAQN v Minister for Immigration [2004] FMCA 406
SZAQN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1693

Applicant:

SZAQN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 889 of 2003

Delivered on:

19 January 2006

Delivered at:

Sydney

Hearing date:

19 January 2006

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Ms Warner Knight

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $2,000.00.
I allow nine (9) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 889 of 2003

SZAQN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before the Court covers a relatively limited issue. The background to this matter is that the Applicant was invited to attend a hearing of the Refugee Review Tribunal on Monday 7^th April 2003 at 9:30am. He did not attend the hearing. The Tribunal Member noted his non appearance and proceeded to deal with the matter under the provisions of s.426A of the Migration Act.
The Tribunal noted at page 69 of the Court book in its decision that the level of detail provided was insufficient for the Tribunal to make findings in the Applicant's favour, and the Tribunal set out a number of points of relevant information which the Tribunal Member believed should have been provided but were not. In the end, the Tribunal was not satisfied that the Applicant had a well founded fear of persecution for any convention related reason and affirmed the decision not to grant a protection visa.
The Applicant sought judicial review of that decision and on 26^th May 2004 I heard an application and handed down a decision dismissing his application on 28^th May 2004.
The Applicant exercised his right of appeal and on 22^nd December 2004 Allsop J made the following orders:
(i) The appeal be allowed in part;
(ii)The orders of the Federal Magistrates Court made on 28 May 2004 be set aside;
(iii)There be remitted to the Federal Magistrate the issue of ground 2 of the application insofar as it involves an assertion that the Refugee Review Tribunal failed to afford the Applicant procedural fairness in connection with the Applicant's non attendance at the hearing on 7 April 2003;
(iv)There be no order for costs of the appeal;
(v)the question of costs in the Federal Magistrates Court at first instance and on remittal will be a matter for the Federal Magistrate.
The proceedings therefore relate to ground 2 of the Applicant's application which was filed on 21^st May 2003. Ground 2 says:
I was deprived of natural justice.
The proceedings came before me on 9^th August 2005 and I made certain directions relating to filing and serving affidavit evidence and listed the matter for hearing at 10:15am on Monday 12^th December.
Order 2 made by consent required the Applicant to file and serve any affidavit containing additional evidence to be relied upon in respect of ground 2 of the application insofar as it involves an assertion of the Refugee Review Tribunal failed to afford the Applicant procedural fairness in connection with the Applicant's non attendance at the hearing on 7^th April 2003 by 30^th September 2005. No affidavit has been filed or served.
The hearing did not proceed on 12^th December 2005 as the Applicant was not able to attend. He contacted the Court on 8^th December, some four days before the hearing indicating that at the time he was living with one of his friends in Victoria and he himself had no work permit and neither his friend nor he could afford to pay for him to attend to travel to Sydney for the hearing. He indicated one of the charity organisations promised him to buy him a ticket after Christmas. On that basis I adjourned the application until today for hearing.
The Applicant has attended Court as required. Even though he has not been able to file and serve any affidavit setting out the facts upon which he seeks to rely in respect of this issue I have taken the decision that the issue is so narrow and that the facts in dispute are already so well known to the Respondent's legal advisers that the most expeditious way of resolving the matter was to take oral evidence from the Applicant and allow time for cross-examination. There was no objection to this Court and the Applicant gave evidence on oath today.
A summary of his evidence is that he was aware of the fact that he was required to attend a hearing of the Refugee Review Tribunal on the morning of 7^th April. That morning he was really feeling sick and at the time he was still living in a flat in Sydney with his flatmate or with one or more flatmates.
The people with whom he was living at the time took him to a doctor where he had treatment. He was taken to a doctor in Rockdale but could not recall which doctor it was. On his return he rang the Refugee Review Tribunal to say that he was not able to come because of his illness. He said that he spoke to a male person who said that he would have to talk to someone about the matter and said that he himself could not take any decision.
The Applicant then remained at home and later received a copy of the decision from the Refugee Review Tribunal refusing his application.
In cross-examination the Applicant said that he suffered from epilepsy and had done so since he was 14 years of age. He had attended a doctor in Bangladesh when he was living there about epilepsy and had been attempting to make arrangements to produce medical evidence with the assistance of his parents in Bangladesh. He had been diagnosed as an epileptic by a doctor in Bangladesh. Normally he was not able to attend a doctor in Australia because of the cost but he did keep some medication at home.
At the time the Applicant had a Medibank card so it was possible for him to obtain medical treatment and it appears that on the particular morning the surgery may well have bulk billed the particular consultation. Normally he could not afford to go to a doctor because he does not have a permit to work, he does not have any other income.
He confirmed that he had been taken to a doctor in Rockdale, he did not know which one. He also said that he had been given a medical certificate from the doctor but he has since misplaced it. By the time he was brought home from the doctor he was feeling to use his words:
A little bit all right -
and he was certainly well enough to telephone the Tribunal.
His submission is that he was deprived of natural justice by the Tribunal in that he had informed them on the morning of the hearing that he was sick and unable to attend and that he was given some assurance by a male officer of the Tribunal that his message would be passed onto another person.
What happened of course is that the Tribunal Member received no such message and proceeded to hear the matter in his absence.

The Applicant has also said that what he said in evidence was true, he now lives in Victoria and attended Court today by bus by courtesy of funds provided by the Salvation Army. He does not have a place to live in New South Wales and is not able to do so. He has a postal address which is a post office box where he can receive communications which are presumably sent onto him.
For the Respondent Minister it is submitted that the Tribunal is well experienced in dealing with telephone messages from people relating to hearings, particularly people who say that they are ill and unable to attend. It is highly implausible it is submitted that the Tribunal would have made no note of the telephone call and indeed the Applicant knowing the importance of the hearing would or should have made more of an effort, not only to see that his message had got through but to provide some evidence of the fact that he had tried to contact the Tribunal to obtain a postponement of the hearing. That then is the evidence before me.
I have had the opportunity of seeing the Applicant and hearing his evidence in the witness box. He speaks English well and certainly appears to be a mad of at least normal intelligence who is well and truly able to understand the questions put to him by the Court and by the solicitor for the Respondent.
He does not have a medical certificate now and says that he has at some stage misplaced it and he has not made any effort to obtain another one. He pointed out that he lives in the state of Victoria and that it is not as easy for him to obtain information to or make inquiries due to his impecunious state more so because of the fact that he lives in another state.
There is of course the fact that it would be possible to provide evidence first, of his attendance at a doctor and second, of his efforts to inform the Refugee Review Tribunal. It was put in submissions by the solicitor for the Respondent that there is only a limited number of doctors in Rockdale and some telephone calls could well have ascertained which doctor he attended and some record could be available. This has not been done.
The Applicant had a Medibank card at the time and if a claim was made presumably some inquiries could be made through Medibank to find out when that claim took place. I accept the fact that this would not be a particularly easy or obvious step to undertake.
The Applicant said that he has lost contact with the other people with whom he lived in the flat in Sydney at the time. Of course he said that he has now misplaced the medical certificate.
The question of the telephone call to the Refugee Review Tribunal is such that if the Applicant's account is accepted then whoever the Applicant spoke to had behaved in a somewhat careless matter in dealing with what was clearly an important message. There is nothing on the Court book to indicate that any telephone message was received by the Tribunal either on the day of the hearing or subsequently.

The Applicant did not give any evidence of having made further inquiries with the Tribunal to find out when his hearing had been adjourned to, or indeed if his application for an adjournment had been successful. He took no further steps after the one and only phone call that he said he had made.
There is only one issue. Whether or not the Applicant sought an adjournment from the Refugee Review Tribunal of his hearing due to the fact that he had been taken ill. The only evidence that he sought that hearing is his assertions in the witness box today. There is no corroborative evidence at all.
It is not incumbent upon the Respondent to disprove the Applicant's claim. In my view there is insufficient evidence for me to be satisfied that the Applicant made that call to the Tribunal at the time when he said he did to pass on the message. That being the case, there is no evidence that the Tribunal was aware or should have been aware of the Applicant's illness and request for an adjournment.
If the Tribunal was not aware of the situation then the Tribunal did not act improperly or in denial of the rules of natural justice in proceeding to hear the matter without making a further effort to enable the Applicant to attend before it to give evidence as is provided in s.426A of the Migration Act.
That being the case, as this is the only issue to be decided, there is no evidence upon which I can be satisfied that there is any jurisdictional error. The decision therefore is a privative clause decision under the provisions of s.474 of the Migration Act and attracts the protection of that section. The application must therefore be dismissed.
There is an application for costs. The application is directed towards, first of all, the costs of the earlier proceedings which is still a matter for this Court and an application for costs of the proceedings before me today.
The Applicant has told the Court that he has not work permit and has no income and in fact is not able to afford to live in at least the city of Sydney but resides with a friend in Victoria who provides him with board and lodging. I accept the fact that the Applicant has no funds and whilst that is not a factor that I should take into account in respect of whether or not an order for costs should be made, it is certainly a very relevant factor in respect to the Applicant's ability to pay those costs or to pay any order for costs.
In my view, as the Minister has been successful the Minister should be entitled to a costs order. In my view, however, also it would be appropriate to allow time to pay those costs because I accept the fact that at the moment the Applicant does not have the funds to meet any order for costs, whether it were $5,000.00 or $500.00.
I confirm Order 2 made on 26^th May 2004 providing that the Applicant is to pay the Respondent's costs in the sum of $3,000.00. The Applicant is to pay the costs of the First Respondent Minister in respect of these proceedings fixed in the sum of $2,000.00.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 25 January 2006