SZCHS v Minister for Immigration - [2005] FMCA 1070

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCHS v MINISTER FOR IMMIGRATION

[2005] FMCA 1070

MIGRATION – Application to review decision of Refugee Review Tribunal – applicant did not attend Tribunal hearing which had been postponed at his request – whether breach of procedures or lack of procedural fairness.

Migration Act 1958, ss.425,425A & 426A
Migration Regulations, 4.35D

SZBAZ vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 790

Applicant:

SZCHS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2890 of 2003

Judgment of:

Barnes FM

Hearing date:

20 July 2005

Delivered at:

Sydney

Delivered on:

20 July 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $4600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2890 of 2003

SZCHS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 9 December 2003, affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant is a citizen of India. He arrived in Australia in March 2003, and applied for a protection visa. The application was refused and he sought review by the Tribunal. On 5 August 2003 the Tribunal wrote to the applicant at the only address provided in his review application advising that it had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing on 30 October 2003. The letter asked him to read and complete an enclosed response to hearing application form and to send any new documents or written arguments he wanted the Tribunal to consider. Such material and the form were to be returned by 21 August 2003.
It is apparent from the material before the court that there was no reply to the hearing invitation form returned to the Tribunal and that the applicant did not attend the hearing at the place and time scheduled on 30 October 2003. However on 30 October 2003 the applicant notified the Tribunal in writing that he was suffering from acute flu and muscular pains, had visited a doctor on 29 October 2003, and that, “The doctor advised me to take a complete bed rest for, at least, one week”. The applicant requested a postponement of the hearing to a later date. He attached a medical certificate which was dated 29 October 2003 and stated that he was “suffering from viral infection with high fever and is unable to attend court on 30.10.03”.
On 3 November 2003 the Tribunal wrote to the applicant agreeing to his request for a postponement and stating that the new hearing was to be on 12 November 2003. Included in the letter was a notification that the Tribunal would only change the hearing date for good reasons and that if the applicant thought he might be unable to attend the hearing he must contact the Tribunal immediately. If he did not attend the hearing and the Tribunal did not postpone the hearing it could make a decision on his case without further notice. I note also that on 4 November 2003 the Tribunal sent to the applicant at the same address as the prior correspondence (and also by registered mail) country information that may be used by it and on which the applicant would be given an opportunity to comment at the hearing.
It is apparent from the Tribunal reasons for decision that the applicant did not attend the hearing on 12 November 2003. Nor did he contact the Tribunal to explain his failure to attend. In those circumstances, pursuant to section 426A of the Migration Act 1958, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The applicant had claimed in his protection visa application to fear persecution in India for reasons of his political opinion, in particular, his support for and membership of the political party, the Naxalites, which was opposed to the ruling party in his area in India. He claimed that he had experienced death threats and that in mid-2002 during a meeting the police had ambushed them, detained and beaten him, causing his hospitalisation for treatment of a bone fracture. He also claimed that in January 2003 after a meeting for the ruling party was destroyed some thugs had raided his village in search of him. He escaped but they picked up his father. He claimed that thereafter the persecution intensified and the police started troubling him by taking him to the police station on occasions.
The Tribunal stated that the applicant's claims were so vague and general that it was unable to establish the relevant facts. It indicated that if he had attended the hearing it would have asked him to give further details concerning all aspects of his claims and set out particular matters about which it would have asked him during the hearing.
On the face of the evidence before it the Tribunal did not accept as plausible that the applicant would have been able to leave India legally if the authorities were interested in him and that they would have issued him a passport soon before his departure without any difficulties. Nor did it accept as plausible that if he was detained in mid-2002 and feared persecution he would have waited until March 2003 before leaving India, as he had a passport as of November 2002. It found this long wait consistent with the view that at the time of his arrival in Australia the applicant did not have a subjective fear of persecution and so found. The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant sought review by application filed in this court. He now relies on an amended application filed on 12 August 2004. The application contains a number of paragraphs. The first ground is that the Tribunal failed to analyse the matter with an open mind and approached the applicant's problem ‘in a closed and predetermined state of mind’. The application states that the applicant was ill on the day of the postponed Tribunal hearing. Subsequent paragraphs take issue with the Tribunal findings in relation to the factual situation in India, and address that situation (for example, stating that thugs could travel to any part of the nation so the applicant could not relocate and claiming that in India passports could be obtained without difficulty and checks at the airport were not difficult).
Insofar as these claims seek merits review, merits review is not available. The applicant also provides an explanation as to why he waited in India. However, it is not for the court to determine whether or not the applicant is a refugee. These claims do not establish jurisdictional error. The applicant's claim that the Tribunal failed to analyse the matter with an open mind or was in some way biased is not established. No bias or lack of procedural fairness or other jurisdictional error is apparent from the manner in which the Tribunal analysed the matter before it. It is the case that prior to the hearing the Tribunal wrote to the applicant (initially in the letter of 5 August 2003) advising him that on the material before it it was unable to make a decision in his favour and that it subsequently made an adverse decision. However I accept that, as submitted by the respondent, in the circumstances of this case the proper inference is that the letter of

5 August was an indication that the applicant was to be given the requisite opportunity under s.425 of the Migration Act 1958 to attend a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. That letter and the subsequent Tribunal decision do not indicate any bias or lack of procedural fairness on the part of the Tribunal in the manner in which it analysed the applicant's claims. The Tribunal did not simply refer to the vagueness and generality of the applicant's claims being such that it was unable to establish the relevant facts. It also indicated that it had questions that it would have put to the applicant had he attended the hearing and sent to the applicant relevant country information on which he was to be given an opportunity to comment at the hearing. This reveals that the Tribunal had questions for the applicant that may, in light of his answers or discussion of country information if it emerged as relevant, have led the Tribunal to come to a different decision to that which it ultimately reached. There is nothing in the material before me to indicate that the Tribunal had in any way made its mind up in a way not open to change or that it had prejudged the matter or, indeed, that it would be perceived in that way by a reasonable observer.
The other ground in the amended application relates to the fact that the applicant did not attend the postponed hearing on 12 November 2003. He claims in effect that he was denied procedural fairness because he was still sick on 12 November 2003 and so could not attend the hearing. However he has not established the necessary factual basis for a claim that he was too ill on 12 November 2003. The evidence before the Court is that he was properly invited to a hearing by an invitation of 5 August 2003 which complied with s.425A of the Migration Act 1958, that there was no response to that invitation as requested in the letter, that the applicant did not attend the hearing scheduled on 30 October 2003 but that on that day he wrote to the Tribunal. He indicated that he was ill and provided medical evidence. The Tribunal granted him a postponement.
Section 426A(2) does not prevent the Tribunal from rescheduling the applicant's appearance before it, or delaying a decision in order to enable his appearance before it as rescheduled. The Tribunal rescheduled the hearing. It advised the applicant by letter of

3 November 2003. I raised with counsel for the respondent the question of whether it was necessary for such letter to comply with the requirements of s.425A in particular the prescribed period of notice in s.425A(3) (see Regulation 4.35D of the Migration Regulations). However, while s.425A was applicable to the initial invitation of

5 August 2003 I agree with the respondent’s contention that the provisions of s.425A(3) are not applicable to the situation where a Tribunal postpones a hearing (in relating to which proper notice has been given) at the request of an applicant for the reasons that I gave in SZBAZ vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 790. Section 425A does not restrict the power under s.426A(2) to reschedule an appearance.
The obligation to give the invitation to a hearing under s.425A was enlivened, but was fulfilled by the Tribunal by its letter of 5 August 2003 which gave the necessary period of notice. It was open to the Tribunal in its discretion to reschedule the hearing for a period that did not require the prescribed period of notice applicable to the initial invitation.
The applicant did not provide any evidence to the Tribunal as to his fitness or otherwise to attend the rescheduled hearing on 12 November 2003 (apart from to the letter and medical certificate that he had provided on 30 October 2003). His letter indicated that the doctor had advised complete bedrest for at least one week. The period allowed for the postponement was certainly longer than that and the medical certificate itself merely said that he was unable to attend Court on

30 October 2003.
In these circumstances the applicant has not established the factual basis for a claim that he was unwell on the 12 November 2003 or that he advised the Tribunal of that or sought a further postponement of the hearing. No failure to comply with s.425 or any other provision of the Migration Act 1958 or indeed any lack of procedural fairness has been established in the manner in which the Tribunal proceeded.
The other paragraphs of the applicant's amended application seek a further Tribunal hearing. He claims that he was in mental shock after coming here and could not give full particulars of his claims initially. As discussed above, he takes issue with the Tribunal view of the circumstances in India and why he waited after obtaining a passport. Those matters do not establish any jurisdictional error in the decision or procedures of the Tribunal.
As no jurisdictional error has been established the application must be dismissed. I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The respondent seeks costs in the sum of $4,600. I consider that the unsuccessful applicant should meet the costs of the respondent and the amount sought is appropriate having regard to the nature of this and other similar matters.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 9 August 2005