SZCIC v Minister for Immigration

[2005] FMCA 1286

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCIC v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1286

MIGRATION – Protection Visa – whether jurisdictional error.

PRACTICE AND PROCEDURE – Adjournment – 18 month delay between order fixing trial date and trial – undesirability of order requiring Respondent to file contentions two days before trial where Applicant not represented and non-English speaking.

Migration Act 1958

VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant: SZCIC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2900 of 2003

Judgment of: McInnis FM

Hearing date: 25 August 2005

Delivered at: Melbourne

Delivered on: 25 August 2005

REPRESENTATION

Applicant: In person (with interpreter)

Counsel for the First and Second Respondents: Ms S.E. Burchell

Solicitors for the First and Second Respondents: Australian Government Solicitor

ORDERS

1. Leave is granted nunc pro tunc for the Applicant to join as a Second Respondent the ‘Refugee Review Tribunal’.

2. The application filed 24 December 2003 is dismissed.

3. The Applicant shall pay the First Respondent's costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2900 of 2003

SZCIC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. In this application filed on 24 December 2003 the applicant seeks judicial review of a decision of the Refugee Review Tribunal (the RRT) dated 24 November 2003.  The RRT had affirmed a decision of the delegate not to grant a protection visa.

2. By way of a preliminary issue it is noted and I accept that it is appropriate in matters of this kind to add as a second respondent the ‘Refugee Review Tribunal’ and I shall make an order in the usual form granting leave to the applicant to add the Refugee Review Tribunal nunc pro tunc.

3. In this application the applicant, who is unrepresented, has had the advantage of a Hindi interpreter.  It is clear at the outset that he has some difficulty comprehending the nature of this review.  So much is evident from both the application and from submissions made to the court this day.

Adjournment application

1. The applicant sought an adjournment of the application.  He had communicated with the court, indicating that he wished to extend the time for two or three months, because he was not prepared for the hearing, due to what he describes as "papers coming from overseas, which proves that I am the true person for refugee status".  I refused the application for adjournment and indicated that I would include in this judgment my reasons for refusing to grant the adjournment. 

2. An application for an adjournment clearly involves an issue of discretion for the court, to be exercised judicially.  In this case the applicant gave evidence in support of his application for an adjournment.  Essentially he argued that he required more time to prepare, but specifically referred to further documentary material which he hoped to obtain.  Some of that material included what

   
   

   I understood to be newspaper articles.  Other material, however, appeared to be a hospital report, a police report, correspondence from a chief minister - which I note was requested one week ago - but all relating to what is alleged to be a fresh attack on the applicant's family which occurred on 5 August 2005.

3. Other material sought to be relied upon included reference to what

   
   

   I indicate is newspaper articles.  In considering the application for adjournment I brought to the attention of the applicant the chronology of events in this application.  The application itself was filed on 24 December 2003.

4. The matter was the subject of orders made when the matter was before a registrar in the Sydney registry of this court on 20 February 2004.  On that occasion consent orders were made, setting out a timetable for the filing and serving of relevant documents by the respondent, which was to occur by 12 March 2004, and significantly orders were made for the applicant to file and serve any affidavit material to be relied upon on or before 7 May 2004.  The application was then listed for hearing on 1 August 2005.  That is some 18 months after the first orders were made.

5. Further orders were made that the applicant file and serve written submissions five working days prior to the hearing date, and the respondent file and serve written submissions two working days prior to the hearing date.

6. Those orders, having been made in February 2004, meant that a timetable was fixed for a number of events to occur in that year, despite the fact that the hearing date was some 18 months after the date of those orders.  It seems clear to me on the evidence that the applicant has taken very few steps to prepare the matter over that 18-month period.  Whilst it is true that he may have sought further material following the alleged fresh attack on his family which occurred on 5 August 2005, that does not explain the lack of preparation for this hearing which should have occurred over the 18-month period.

7. I take into account that he is unrepresented and further accept that he has difficulty with the English language and has required an interpreter this day.  I have in fact, with the assistance of the interpreter, permitted the applicant to make oral submissions in support of his application.

8. Nevertheless, in relation to the issue of the adjournment, whilst I accept the applicant is unrepresented and that he was perhaps unable to obtain the services of a lawyer to assist, the fact remains that there has been a considerable delay between the date when orders were first made in this matter, that is February 2004, and the hearing date.  There is no satisfactory explanation provided to this court to indicate any reason why the matter should be further adjourned.

9. It is noted that the matter was in fact originally scheduled for hearing on 1 August 2005.  That date was then vacated, the matter fixed for 8 August 2005.  Orders were made on 5 July 2005 by consent that the matter be transferred to this registry of the court, and the hearing date of 8 August 2005 was refixed to 25 August 2005.

10. It is clear from that brief chronology that in the circumstances I am satisfied the applicant has had ample opportunity to properly prepare the case in support of this application.  Furthermore, in any event, the applicant identified what he described as further material which he believed would be relevant for the hearing of this matter.  That material, apart from referring to the recent event which allegedly occurred on 5 August 2005, also appears to be further newspaper articles which the applicant seeks to rely upon.

11. It is noted that material was filed by the applicant on 12 July 2005, which includes in part further documents and indeed further newspaper articles which set out background material in part in relation to the applicant and otherwise set out material by way of newspaper reports concerning the situation which no doubt the applicant would wish to agitate before this court.  All of it, however, appears to be material of a factual nature, which in any event would be inappropriate for this court to receive in this application.

12. That material in my view is similar to the material which the applicant has identified as being material he wished to obtain prior to the hearing of this application, including of course the most recent reports arising out of the incident of 5 August 2005.  In my view it is not appropriate for the court to receive that material, and hence it would equally be not appropriate for the court to grant an adjournment to allow that material to be obtained before the next hearing date.  It follows from all those reasons that the application for adjournment is refused.

The application

1. When the matter proceeded before this court the applicant, with the assistance of an interpreter, was permitted to make oral submissions, despite the fact that he has not filed the contentions which he was required to file five days prior to the hearing date.

2. I should add that the type of order made in this matter does present some difficulties, both to the applicant and to the respondent.  The applicant is required to file the written submissions five working days prior to the hearing date and the respondent within two working days prior to the hearing date is required to file and serve the written submissions on behalf of the respondent.  The order does not provide for the respondent to be relieved of that obligation in the absence of submissions from the applicant.  That is perhaps the first difficulty.

3. The second difficulty arising from those orders is that, as in the present case, it would appear the applicant has not filed any submissions.  He has yet received, just two days prior to the final hearing, the respondent's detailed written submissions.

4. It was clear to me and I accept that the applicant has not in the circumstances had time to read those submissions, and hence I directed that the matter be temporarily adjourned so that the interpreting service could be used to read to the applicant the relevant parts of the respondent's contentions, which included the introduction of the material provided under the heading of The Applicant's Claims, to which the tribunal decision references and the contentions of the respondent.  After that short break the applicant confirmed through the interpreter that that material had been translated.

5. That process, however, highlights the inappropriateness in my view of orders being made, albeit by consent, for the filing and service of written submissions, particularly from the respondent to the applicant just two working days prior to the hearing date.

6. In many of these cases the applicant is usually unrepresented, does not speak English as a first language and does not have any legal training.  Hence it is unrealistic to expect that in the circumstances there would not be any further delay of a kind which occurred in this matter, to permit the translation of a document at court.  I recognise that that process itself may provide some difficulties to the applicant.  I am satisfied in this instance that there is no prejudice to the applicant in the matter proceeding this day.

7. The Applicant has then otherwise made oral submissions in support of the application.  The application itself provides very brief grounds.  The grounds in the application are as follows:

   (1)  I strongly believe that the RRT made a wrong decision on my application and involved an error of law.

   (2)  That I produce substantive amount of evidence in support of my claim that neither Department nor RRT considered the fact that I am a fit and proper person to whom protection visa shall be granted.

   (3)  That all the procedures required by law were not followed by the Department and RRT.

8. In his oral submissions before this court the applicant further sought to explain his non-attendance at the RRT hearing.  He claimed from the bar table that he had been given misinformation by a migration agent then acting for and on his behalf.  That misinformation included advice that he did not need or should not attend the RRT hearing.

9. The court for the present purposes is prepared to at least consider that as a factor amongst other factors raised for and on behalf of the applicant but notes at the outset that there is no evidence to support that assertion, either in affidavit form from the applicant, nor indeed is there any other evidence of a corroborative nature which may support a conclusion.  Nevertheless, I will deal with it as part of the submissions of the applicant.

10. By way of background, it is noted that in this instance the applicant did not attend the RRT hearing.  A careful examination of the documentary material provided to the court satisfies me that the RRT have followed the appropriate procedures available to it under the Migration Act 1958 (the Act).  An invitation was extended to the applicant, and he declined, to attend the hearing.

11. It is clear to me that in the circumstances, albeit with an explanation now offered as to the reason for non-attendance, that the applicant had been given every opportunity to attend and provide oral evidence.  Indeed the invitation was extended to the applicant and on 7 November 2003 he advised the tribunal in writing that he did not wish to give oral evidence and consented to the RRT proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.  The conclusion I reach in relation to that issue is that there has been indeed no breach of proper procedures under the legislation.

12. The other grounds relied upon by the applicant include that the RRT made a wrong decision involving an error of law.  On a proper reading of the reasons for decision it seems clear to me that the RRT has considered the claim as put by the applicant.  The claims of the applicant, which apparently were provided with the support at one point of the migration agent, involves a series of assertions.  The claims before the RRT were supported by various documents, some of which included newspaper articles and others included various statements in support of the application.

13. In brief terms, the applicant's claims were set out in the submissions which had been prepared and lodged on his behalf by migration agents.  The applicant had claimed that he is an active political leader of Telugu Desam Party and claimed to be the general secretary of the youth section of the party and from a particular constituency and that he belonged to a politically linked family.  He further claimed that his elder brother was an active political leader who was an area president of the party and had been awarded an election ticket for the party as counsellor of the particular constituency.

14. Further claims were made that during an election in January 2002 members of a Muslim Party, Manjlis Itheadul Muslimin (MIM), a rival political party attacked the applicant's father and brother.  Complaints were made to the police, who it was claimed took no action, and the accused persons were freed.

15. As I indicated, documents were provided in support of these claims.  On a proper reading of the decision it seems to me that the RRT has considered the claims and evidence set out in some detail in its decision and has then proceeded to make findings reasonably open to it, albeit in the absence of the applicant.  That absence certainly made it difficult for the RRT to properly assess issues, including credibility, and otherwise to assess the strength of the claims made by the applicant.

16. However, having followed the appropriate procedures, that difficulty is a difficulty which should not then form the basis of any criticism of the RRT in circumstances where, as I found, proper procedures were followed.

17. However, it is clear from the RRT's own decision that there are many issues it would have liked to have pursued with the applicant in relation to the claims he made.  That alone however does not, as a matter of law, provide any or any proper basis upon which this court can conclude that there is jurisdictional error.  Hence the assertion by the applicant that the RRT simply made a wrong decision involving an error of law is not made out.  That ground should fail.

18. Likewise, the suggestion by the applicant that he could have provided a substantial amount of evidence in support does not, as a matter of law, provide any or any proper basis upon which this court should set aside the decision of the RRT.  It does not provide any basis upon which this court can conclude there has been jurisdictional error.

19. The RRT in its reasons for decision, had difficulty accepting the applicant's claims.  It made specific findings that he was an Indian national.  It also noted that he sought protection for Convention reasons.  It further stated that it had given close consideration to the applicant's claims in his protection visa application, but then significantly it found the following:

    “The applicant's claims of his association are very general and non-specific.  In the absence of the applicant attending a hearing, there is not sufficient, detailed information about his claims for the Tribunal to be satisfied he meets the definition of refugee under the Convention.”

20. It is submitted for and on behalf of the respondent in the circumstances as a matter of law that there is nothing in the reasoning of the RRT to provide any basis upon which this court could conclude that there is an error of law or jurisdictional error. 

21. In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-

    “16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”

22. Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review.  A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).

23. Applying the appropriate principles of law and considering the issue of jurisdictional error, in my view, for the reasons stated, the RRT has properly considered the claims and reached a conclusion in its decision reasonably open to it.  In the circumstances I can detect no error and accordingly the grounds relied upon by the applicant should fail.  It follows that the application filed 24 December 2003 should be dismissed with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  25 August 2005