SZBPY v Minister for Immigration
[2005] FMCA 1103
•28 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBPY v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1103 |
| MIGRATION – Review of decision of RRT – where the applicant provided medical evidence to the Tribunal claiming he was unable to attend the Tribunal on the appointed date for hearing – where the medical certificate did not cover the date of the hearing – whether the Tribunal committed jurisdictional error by reviewing the delegate’s decision in the absence of the applicant. |
| Migration Act 1958, s.426A, s.425 Federal Magistrates Court Rules 2001, Part 21 Rule 21.2(a) |
| Hussein v Minister for Immigration [2000] FCA 842 NALQ v Minister for Immigration [2004] FCAFC 121 |
| Applicant: | SZBPY |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2139 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 28 July 2005 |
| Date of Last Submission: | 28 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr K Ginges |
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4250 pursuant to Part 21 Rule 21.2(a) of the Federal Magistrate Court Rules.
Leave is granted to the applicant to join in these proceedings as second respondent the Refugee Review Tribunal.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2139 of 2003
| SZBPY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
These proceedings revolve around the point of whether the Tribunal feel into jurisdictional error by making a decision on the applicant's request for review of a decision of the delegate in his absence when he had previously provided certain medical evidence to the Tribunal and at a time when he claims he was sick and unable to attend the Tribunal on the appointed day for the hearing. The applicant, in his amended application, says that the Tribunal fell into jurisdictional error by reason of either or both of the following:
1. By proceeding to determine the applicant's application in the absence of the applicant (and without proceeding to a hearing) in circumstances where:
(i) The applicant had provided two medical certificates evidencing his ill health; and
(ii) The Tribunal had adjourned the hearing date by only three days,
The Tribunal's conduct was both subjectively and objectively unfair and failed to comply with section 425 of the Migration Act 195 (CTH).
(iii) By proceeding to determine the applicant's application in the absence of the applicant (and without proceeding to a hearing). In circumstances where the applicant was absent because he was sick the RRTs decision was objectively unfair and failed to comply with section 425 of the Act.
The factual matrix within which these grounds occur is as follows: the applicant, who was represented by a migration agent, completed a response to hearing invitation on 31 July 2003, indicating that he wished to come to a hearing that had been scheduled for 18 August 2003. The applicant confirmed in the witness box that it was his signature on that form. On 14 August 2003, a letter was sent, which the applicant says was typed by his migration agent but signed by him, indicating that he was sick and he wished for an adjournment because he had the flu. He submitted a medical certificate. The medical certificate was dated 14 August 2003 and indicated that the applicant was not fit for work from 14 August until 15 August inclusive. The Tribunal declined to grant the application for an adjournment and so advised the migration agent. It has been assumed by those before me, and by myself, that the reason for this was that the medical certificate did not cover the date of the hearing. The applicant says that he was still sick on 17 August 2003. He travelled from his home in Redfern to his doctor in Kingsford. He obtained another medical certificate, this time indicating that he had physical fatigue and exhaustion and was not fit for work between 17 August 2003 and 18 August 2003. Once again, through his migration agent, a request was made for an adjournment. Adjournment was granted until Thursday 21 August 2003. Notice of the adjourned date was sent to both the applicant and his migration agent. The applicant did not attend.
On 1 September 2003 a letter was sent to the applicant advising him that a decision of the Tribunal had been made and would be handed down on 16 September 2003. At no time between 21 August 2003, and the date of the handing down of the decision was any contact made by the applicant with the Tribunal to inform it that he had still been sick on 21 August and requesting a hearing. It would have been well known to the applicant's migration agent that such applications could be made to the Tribunal and in appropriate cases would be dealt with sympathetically. The provision of a medical report, giving some details of the applicant's sickness and the extent to which it prevented him from attending on 21 August 2003, might have been of assistance.
The applicant was cross-examined at length about events on 17 August. He said that his friend has bought him medicine. But this was inconsistent with paragraph 4 of his affidavit of 22 July 2005. He then tried to change his evidence when that inconsistency was pointed out. He then said that he went to the doctor two or three times, which he did not dispose to in his affidavit where he refers to two visits only.
All in all, I was not impressed by his evidence and, in particular, I did not understand why, when he was clearly in contact with his migration agent and he wrote to the Tribunal with a medical certificate 17 August, he did not know that the hearing had been adjourned to 21 August when notice was given to him and to the agent. He provided no satisfactory explanation of why he did not contact the Tribunal again, if he had been so sick on 21 August. He did, however, indicate that he had received a letter from the Tribunal, although he was not sure when, and he had spoken to his agent about an adjournment but could not recall what was said. As a result of hearing the evidence of the applicant I am not satisfied that he was, indeed, sick on 21 August at all.
Mr Ginges submits that the Tribunal was wrong and acted unfairly in only providing a short adjournment from 19 August to the 21st, but I do not agree with him. An applicant provides medical certificates. The Tribunal was asked to act on the basis of these certificates. Sometimes, as in this case, the certificates are brief to the point of obscurity. They do, however, do one thing, and that is to give a temporal limit to the applicant's illness. Why should the Tribunal not accept this temporal limit? In this case it did not just accept the temporal limit, it extended it by a further three days. What was unfair about that?
In a case which had a number of similarities to this one Hussein v Minister for Immigration [2000] FCA 842, Mansfield J, considered the submission of medical certificates, also suggesting that the applicant was unfit for work. Where the Tribunal had declined to grant an adjournment after discussing the applicant's alleged illness with him and with his doctor. Mansfield J did not cavil with the suggestion by the Tribunal that unfitness for work is not the same as unfitness to appear at a hearing. He says at [22]:
“In my judgment, it then becomes a matter of considering the circumstances in which the tribunal determined to proceed to assess whether the Tribunal complied with 425(1) of the Act and 426A(1) of the Act. As the Tribunal's reasons record, the medical certificate did not indicate that the applicant was unfit to attend the Tribunal on 9 November 1999. It was limited to him being unfit for work.”
In this case, the Tribunal did give an adjournment until after a date notified to it that the applicant was indisposed.
This case bears some similarity with that of NALQ v Minister for Immigration [2004] FCAFC 121 where the Tribunal's decision not to provide the applicant with a hearing pursuant to s.426A of the Migration Act (the “Act”) was his failure to comply with the Tribunal's reasonable request to provide it with a medical certificate. In the instant case the reason that the Tribunal did not provide the applicant with a hearing was because he did not attend and did not provide it with the information that it had requested in its letter found at CB [53] that “he should contact the Tribunal immediately if he thought he might be unable to attend the hearing”. This applicant knew how to do that because he had done it before and he had a migration agent who had assisted him in his endeavours.
I am satisfied that in all the circumstances the Tribunal did provide the applicant with a meaningful invitation to attend a hearing pursuant to the provisions of s.425 of the Act and that when the applicant did not attend there was no unfairness in the Tribunal then proceeding pursuant to s.426A to make a decision in his absence.
For these reasons the application must fail. I dismiss it. I order that the applicant pay the respondent's costs which I assess in the sum of $4250 pursuant to Part 21 Rule 21.2(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
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