SZAQN v Minister for Immigration
[2004] FMCA 406
•28 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAQN v MINISTER FOR IMMIGRATION | [2004] FMCA 406 |
| 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 hearing but is unable to produce a medical certificate. |
Migration Act 1958 (Cth), ss.425, 426A
| Applicant: | SZAQN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 889 of 2003 |
| Delivered on: | 28 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 26 May 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Counsel for the Respondent: | Mr Bromwich |
| 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 $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 889 of 2003
| SZAQN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The application before the court is an application for review of a decision of the Refugee Tribunal, affirming the decision of a delegate of the Minister, to refuse the grant of a protection visa to the applicant. That decision was handed down on 30 April 2003. The applicant is a citizen of Bangladesh, he entered Australia on 15 August 1999. He left Australia on 17 February 2001 and returned on 28 March of the year. On 17 July, he lodged an application for a protection visa, with the assistance of a migration agent.
He claimed that he was forced to leave Bangladesh to avoid persecution and harassment, for political reasons. The application for the grant of a protection visa was refused by a delegate of the respondent on 31 August 2001. On 12 September of that year, the applicant applied for a review of that decision by the Refugee Review Tribunal. The Tribunal listed the matter for hearing on 7 April 2003, and on 10 January of that year, invited him to attend the hearing.
On 16 January, the applicant informed the Tribunal that he wished to attend the hearing. Regrettably, he did not attend the hearing. The Tribunal, according to its records, had no record of any communication from the applicant to explain why he was unable to attend. In the proceedings before me, however, the applicant informed me that he was unwell that day, so unwell that he had had to obtain medical advice and that he had telephoned the Tribunal that day, indicating that he was sick and he obtained a medical certificate.
Despite that, the Tribunal, and I note there is no record of the telephone call, proceeded to decide the case in his absence, pursuant to the provisions of section 426A of the Migration Act. The decision was made to affirm the decision of the delegate to refuse the grant of a protection visa to the applicant on 8 April 2003, and that decision was handed down on 30 April of that year.
The applicant lodged an application for a review of the decision and that was filed on 21 May 2003, in this Court. The matter came before the court and directions were made to list the matter for hearing. The matter was, in fact, before this Court on 30 April 2004, coincidentally exactly a year to the day that the Refugee Review Tribunal decision was handed down. On that day, the applicant was accompanied by a friend, who acted as McKenzie friend for him. He indicated that he had a reasonable command of English. An interpreter had been ordered but, unfortunately, an interpreter was unable to attend.
It soon became clear that the applicant was having difficulty dealing with the substance of the language being used, which, of course, is somewhat different from ordinary conversational English and it was conceded by Mr Bromwich of counsel, who appeared for the respondent that it was unfair to the applicant to expect him to continue unrepresented, with considerable difficulties as far as English was concerned. The matter was adjourned until 26 May and an interpreter was available. The matter proceeded to final hearing on that day and was adjourned to today for decision.
The applicant set out five grounds for his application in the space required for particulars of fraud or bad faith, etcetera. In the first ground, he indicated that the decision of the RRT put him in jeopardy with being forced to return to Bangladesh where he would be persecuted and even killed. He alleges that the Tribunal ignored the merits of his claim and did not act in good faith in regards to his claim. Second, he said he was deprived of natural justice.
Third, he said that the Tribunal had failed to consider the claim in the light of the current social political situation in Bangladesh and, therefore, had not acted in accordance with the Refugees Convention. Fourth, he said that the procedures that were required by the Act and Regulations had not been observed by the Tribunal. And fifth he said that the Tribunal's decision involved an error of law, involving the incorrect interpretation of either the applicable law itself or an incorrect application of the law to the facts as found. Those were the five grounds.
Another issue was raised at the hearing where the applicant, as I said, indicated that he had wished to attend the hearing, but had been ill, telephoned to say that he was ill and obtained a medical certificate from a doctor whom he saw that day. He set out a situation which was certainly a cause of some concern, notwithstanding the fact that the Refugee Review Tribunal, in its decision, made no reference to any telephone call, nor did the application lodged by the applicant, make any reference to illness on the day, causing an inability to attend the hearing and the fact that the applicant had seen a medical practitioner and had obtained a medical certificate.
The applicant explained that he had telephoned the Tribunal, once he had obtained the medical certificate from the doctor, and he says that he was told that the decision had already been made and that there was no point in forwarding the medical certificate. On the day of the hearing, the applicant indicated that he had not brought the medical certificate with him, a somewhat surprising situation in the light of the importance of a medical certificate to provide a good reason why a person was not able to attend a hearing. He had indicated that the medical certificate was readily available at home, but did not see the relevance of it; again, surprising.
I stood the proceedings in the list and noted that the applicant resided in a nearby suburb of Sydney and allowed him a period of just under two hours to return home, obtain the certificate that he had apparently overlooked and return to the Court and produce it. Shortly after 1 pm, the matter came back before me and the applicant indicated that, regretfully, despite a thorough search that he had made, he had not been able to locate the medical certificate. Accordingly, that matter can be taken no further.
I look now at the matters addressed by the applicant in his submission. He told the Court on Wednesday the 26th that he had been a supporter of certain politicians. The situation in Bangladesh, he said, was very difficult and he pointed out that a member of Parliament had been assassinated and the Government was unable to provide security for that person. It would appear however that the member of Parliament had only been killed four weeks prior to the hearing. And he also pointed out the British High Commissioner had been subject to some attack, fortunately without serious consequences. This had occurred in the previous week.
Of course the immediate comment that I would make is that whilst those matters may be a graphic reflection of a violent activity in Bangladesh, they related to activity in the first part of the year 2004 and quite clearly the Refugee Review Tribunal would have been unable to have considered either of those matters when it decided the matter in April 2003.
Of the five claims made by the applicant, I questioned him in respect of each matter. First of all, as to the lack of good faith that he alleged, he submitted that all of the members of the Refugee Review Tribunal do not believe that anyone in Bangladesh has a case. He criticised the Refugee Review Tribunal for not investigating the case properly. I am not satisfied that a general attack on every member of the Refugee Review Tribunal for discriminating against citizens of Bangladesh on a general basis is one that I could sustain without any specific proof.
I would also comment that it is the applicant who must present evidence to the Refugee Review Tribunal and that the Refugee Review Tribunal has no independent investigatory function. Section 425 of the Migration Act makes it clear that the Tribunal will hold a hearing when it is not satisfied on the documents that it can make a decision in favour of the applicant and so it therefore invites the applicant to attend the hearing to give evidence and present evidence as to why the decision of the delegate should not be firmed.
The second ground is that the applicant claimed that he was deprived of natural justice. The applicant submitted that the evidence for this is that the Refugee Review Tribunal had made the wrong decision and they made the wrong decision because they had not investigated the matter thoroughly. The fact that the Tribunal comes out with the decision that is not favourable to an applicant, especially the situation where the applicant does not attend the hearing, is not of itself a ground that would establish a deprivation of natural justice. I have already covered the issue relating to the medical certificate.
As far as the third ground is concerned, that the Tribunal failed to consider the applicant's claim, the applicant referred me to the attack on the British High Commissioner in Bangladesh which had occurred quite recently and, again, referred to a failure, as he said, by the Tribunal to carry out a thorough investigation. As I have said, that is not part of the function of the Tribunal, to carry out independent investigations of a claim.
The fourth ground was that the Refugee Review Tribunal did not observe the appropriate procedures required by the Act and regulations. The applicant says that he applied to save his life because he feared persecution and from that it would follow that there is a high onus on the Tribunal to see that the procedures are strictly followed. No evidence was presented to show that the Tribunal had failed in that regard.
The fifth and final contention was that there had been an error of law either in interpreting the applicable law or applying the applicable law to the facts. The applicant submitted that the law had not been applied correctly because if the Tribunal had applied the law then there would have been a decision in his favour. That is a somewhat circular argument and it is akin to the old adage, "the proof of the pudding is in the eating". It is not appropriate to begin from the premise that the only correct decision is one in favour of an applicant and that finding against the applicant must therefore be proof of a failure to either interpret the law correctly or apply the law correctly.
In short, I am not satisfied that any of the grounds alleged by the applicant have been made out. There is no reviewable error. The application is dismissed.
It is a matter where I consider it appropriate to make an order for costs. I note that counsel was briefed. I would certify it was appropriate for counsel to appear on the hearing. I am mindful of the costs set out in the schedule 1 of the Federal Magistrates Court Rules. It is my view that it is more appropriate for costs to be set in a fixed sum rather than to be assessed or agreed or taxed. I make the following orders: (1) the application is dismissed; (2) the applicant is to pay the respondent's costs of these proceedings in the sum of $3000. I require a transcript of my reasons for this decision.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 7 July 2004
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