SZDBG v Minister for Immigration - [2005] FMCA 333

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDBG & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 333

MIGRATION – RRT decision – Tribunal refused to postpone hearing – applicant failed to provide medical certificate – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 425(1), 426A, 426A(1), 483A, Part 8

Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

Applicants:

SZDBG & SZDBH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 789 of 2004

Judgment of:

Smith FM

Hearing date:

2 March 2005

Delivered at:

Sydney

Delivered on:

30 March 2005

REPRESENTATION

Counsel for the Applicants:

The applicants in person

Counsel for the Respondent:

Ms N McLaughlin

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicants to pay the Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 789 of 2004

SZDBG & SZDBH

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) seeking to set aside a decision of the Refugee Review Tribunal (“the Tribunal) dated 29 January 2004 and handed down on 19 February 2004. The Tribunal affirmed a decision of a delegate which refused to grant protection visas to the applicants, who are a husband and wife with Bangladesh nationality. Since the wife’s entitlement depended upon acceptance of her husband’s claims, I shall refer to him as “the applicant”.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In relation to the present matter, the relevant jurisdiction of the Federal Court is its judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476, these limitations prevent me setting aside the Tribunal decision and remitting the matter for further hearing unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error.
The applicant entered Australia on a transit visa in August 2003. On 2 October 2003 he lodged an application for a protection visa with the assistance of a migration agent. The application was not accompanied by any supporting evidence, and baldly stated:
I am a political activist of Bangladesh Awami League. I was tortured and persecuted in Bangladesh for my political opinion.

I will provide more details shortly.
He said that he feared that he would be killed “by present BNP coalition government or I will be detained without trial”, without providing anything to give credibility to this claim.
On 9 October 2003 a delegate refused the application.
On 6 November 2003 the applicant, assisted by the same migration agent, Mr Md. Zahirul Hoq Mollah, lodged an application for review by the Tribunal. The application asserted that the applicant “was persecuted in my previous country of residence because of my political opinion and my secular belief”, but gave no further details or evidence. It said, “I am going to making statement to support my review application shortly”.
On 7 November 2003 the Tribunal wrote to the applicant at his home address, and told him that the Tribunal might “invite you to attend a hearing of the Tribunal”. It informed him that the hearing would be “your opportunity to give the Tribunal evidence to support your application”.
On 17 December 2003 the Tribunal wrote to the applicant at his home address, with a copy to his agent, Mr Mollah, informing him that the Tribunal was “unable to make a decision in your favour on (the material before it) alone”. It invited him to attend a hearing at 10.30 am on Wednesday, 28 January 2004 at the Pacific Power Building, Elizabeth St, Sydney. It told him clearly that “if you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice”.
On 13 January 2004 the Tribunal received a “Response to Hearing Invitation” form, signed by the applicant personally on 12 January 2004. It indicated that he wanted to come to the hearing, and answered “yes” to the question “does any family member want a separate hearing?” This suggests to me that the applicant was aware that he could attend the hearing without his wife, and then seek a further opportunity for her to give evidence. The form also indicated that the applicant wanted to bring Mr Mollah with him to the hearing. No suggestion was made at this stage that the applicant wife’s pregnancy might prevent her, or her husband or Mr Mollah from attending.
On the day before the hearing, 27 January 2004 at 12.19 pm, the Tribunal received a 7 page facsimile from Mr Mollah’s facsimile number. The first page was a letter dated the same day and signed by the applicant. It said:
I discussed my wife’s physical condition with my adviser that my wife AA is pregnant.
I instructed to my adviser that my wife is not physically fit to attend the hearing dated 28^th January 2004. In the RRT hearing my wife’s oral evidence is very important to establish my persecution and support my review application. I have no money and Medicare card to visit physician and collect the medical certificate.
Due to my wife’s physical sickness she is unable to attend the fixed hearing session.
For the ends of justice I request you that please adjourned the fixed hearing date and fix any day after one month from this for hearing.
I also like to mention that some of my supporting documents from Bangladesh will be within one month. The supporting documents are very important for my review application.
Pages 2 to 5 of the facsimile was a four page statement signed by the applicant and dated 15 December 2003. In it, some very vague statements are made. These included:
I am a political activist and known to every household of the country (Bangladesh)….
2. … I am an established business man and popular political leader in Bangladesh and I am also an activist of main opposition Bangladesh. I received threats from these vested groups that they would kill me if would continue my involvement with such progressive group of Bangladesh.
4. I was also involved with Awami League politics since my boyhood. My family is also involved with Awami politics for the long time. I also became the Join secretary of a branch of this party and with this, I became a target of BNP terrorists. I was threatened many times and beaten, some of BNP thugs and goons tried to kill me.
5. Because of my Progressive political believe, I was likewise falsely accused of anti‑government/state crimes and charges were laid against me in a local Court.
6. As a result of my popularity and because of my reputation as being anti‑fundamentalism, the Mullahs, backed by Jamaat, sentenced me lashes Fatwa and were then ordered to leave BB. The present government was unable or unwilling to protect us.
… (claiming involvement by his family, and by himself as a student, in organisations opposed by fundamentalists).
13. The Jamaat based student organization, Shibir, confronted me several times when I was doing my political meeting in my area. They attack us with axes. These Mullahs tried to kill us in several occasions. Facing this situation, I saw no other way but to flee for my life. The people who killed our freedom fighters had become so organised and powerful in a matter of decades, that instead of seeking justice for their death we had to flee for our own lives. This thought of injustice put me under terrible stress. Facing this threat. They attack me with hand made bombs. In fact, these fundamentalists are more powerful in BB and other cities than district and village areas. These Jamaat based Mullahs tried to kill me wherever I went and in this situation, I had no place to hide and so I decided to leave the country.
14. Facing certain death risk, I left Bangladesh. As I had not changed my position, the BNP thugs were furious with me. In one stage, they also threatened that if I do not leave my occupation they would surely kill me this time.
The last two pages of the facsimile was an undated statement by the applicant containing different claims, but with a similar lack of specificity. These included claims that he had been “taken hostage in several occasions and was forced to pay big amount of money to the BNP activists”, and that when he complained to the police they sought a bribe and “failed to get money from me, they started torturing me”. He claimed to have been arrested “several times while I was participating in demonstration against the government”, and “every time, I was arrested, I was tortured by the policeman”.
On the same day, 27 January 2004 at 1.29 pm, the Tribunal received a facsimile from “VISION-COPY & EMBROIDERY” which consisted of copies of three documents: an undated medical prescription by Dr Karim in the name of the wife for an antibiotic and iron pills; a referral dated 13 January 2004 by that doctor of the wife for ultrasound in relation to “17/40 preg”; and a referral with the same date for blood tests in relation to the same condition. Plainly, these did not establish an unfitness to attend a Tribunal hearing by either the husband or the wife.
A print-out of electronic file notes kept by the Tribunal records (see Exhibit 1):
27/1/04: Rec’d submission and request to postpone hearing due to wife’s sickness from applicant via fax. Faxed to CO.
27/1/04: Rec’d medical certificates from applicant re: medical examination. Informed CO and Faxed copy.
27.1.04: After consulting with Member, I spoke to the advisor to inform that the Member have sighted the copy of the test report and could not find any reason which prevents the applicant’s wife to attend the hearing and I requested him to send a proper medical certificate by COB today, from a doctor explaining her illness.
There is no evidence before me of any other communications with the Tribunal by or on behalf of the applicant. I shall below refer to the applicant’s oral evidence as to his actions on the day before the hearing, but at this point I note that he does not claim that he attempted to put before the Tribunal any additional evidence as to his or his wife’s fitness to attend a hearing. Nor does he claim that he or his agent attempted again to contact the Tribunal to request postponement of the hearing or for any other purpose prior to its handing down of its decision.
The Tribunal’s decision is dated 29 January 2004 and was handed down on 19 February 2004. In its decision, the Tribunal refers to the history of the matter:
On 27 January the principal Applicant requested a postponement of the hearing on the grounds that the Applicant wife was pregnant and unable to attend. He stated that her evidence was essential to their case. He provided a test report which indicated that she was seventeen weeks pregnant. He was advised that a postponement would only be granted if there were medical evidence that either one or both of the Applicants had a medical condition which prevented them from attending a hearing and giving evidence. The Applicant sent a letter stating that his wife is pregnant and due to physical sickness is unable to attend. He states that he has no money and no Medicare card and is unable to attend a doctor to collect a medical certificate.
The application for a postponement was rejected. There was no satisfactory explanation as to why the Applicant wife’s pregnancy prevented her from attending a hearing and giving evidence. There was no medical support for such an assertion. There was no explanation as to why this request for a postponement was not made immediately the Applicants were notified of the hearing date. There was no suggestion that the Applicant husband, the principal applicant, was prevented from attending for any reason.
Neither the Applicant husband or wife attended the hearing arranged for them. There was no explanation at all for the Applicant husband’s non‑attendance.
Although the Tribunal does not precisely set out its reasoning in relation to its decision to proceed to make a decision without taking further action to allow or enable the applicant to appear before it, I consider that the above discussion should be understood as explaining why it exercised its discretion to do this given by s.426A(1). That discretion is available if the applicant “(a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear”. In the present case, these preconditions were satisfied.
In my opinion, the valid exercise of the discretion to proceed under s.426A in circumstances such as the present can be tested against the requirements of procedural fairness in relation to granting adjournments. This test may either be seen to arise from the nature and purpose of the discretion to proceed summarily under s.426A(1), or as an implication that a “real opportunity to appear” is intended to be conferred by the duty to invite to a hearing under s.425(1). The Full Court in NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 (“NALQ”) at [30-37] seems to have proceeded under the latter of these analyses.
I consider that there is no evidence before me that the present Tribunal misconceived its discretion to proceed without making further invitations to a hearing. Rather, its above narration (which does not purport to be a full statement of reasons for its procedural decision under s.426A), suggests that it properly weighed up the circumstances known to it relevant to the request for postponement which it had received on the day before the hearing. I consider that it was reasonable, and certainly open to the Tribunal as a matter of law, for it to have rejected the application for the reasons to which it refers.
Authorities on procedural fairness hold that, on some occasions, a failure to adjourn can give rise to a failure of procedural fairness based on circumstances not known to the Tribunal (c.f. Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [30]-[35]). There may be some doubt whether there is room for establishing such an “objective” breach of procedural fairness in relation to a failure by the present Tribunal to adjourn a proceeding, where the Act expressly allows the Tribunal to proceed summarily in the circumstances set out in s.426A, and where “the requirements of the natural justice hearing rule in relation to the matters” dealt with in s.426A are excluded by s.422B. However, there are authorities binding on me which leave this open, and I do not need to explore them closely in the present matter (see the cases discussed in NALQ (supra)).
This is because I do not consider that the applicant has put forward to me evidence which establishes that, unknown to the Tribunal, both he and his wife were in fact unfit to attend, nor that in all the circumstances shown in the material now before me the decision of the Tribunal to proceed without making a further invitation should be regarded as producing unfairness.
In an affidavit the applicant said, “I did not attend the RRT interview because my wife was sick”, and referred to a letter written by Dr R Karim at the Mayne Health Medicentre, Westpoint Blacktown which is dated 15 February 2005. It states:
I have seen Mrs AA lst on 13/1/04 she was ¹⁵/₄₀ preg. at that time, as she was primy, she was quite sick, was having morning sickness, lower back pain, gum abscesses, unable to eat and was vomiting. I advised her – small meals frequent interval, mouth wash, antibiotic and advised her husband to look after her. As far as I could recollect she was unwell for ¾ weeks. Then gradually she felt better, and able to manage household work etc.
I do not consider that this letter properly addresses and establishes the wife’s unfitness to attend a short Tribunal hearing on 28 January 2004. Indeed, it seems to me that the doctor would have had difficulty giving such a retrospective opinion in the circumstances described by him. Certainly, the doctor does not provide evidence that the wife was incapable of being left briefly by her husband so that he could attend a hearing.
I allowed the applicant an opportunity to give oral evidence to supplement his affidavit. This became protracted and unsatisfactory due to significant translation difficulties and the applicant’s evasive loquaciousness. I do not consider it necessary to recite all that he said. However, as I understood his evidence the following occurred on 27 January 2004:
·He had a telephone conversation with Mr Mollah in the morning, in which they discussed the hearing and he told Mr Mollah that his wife was too sick to go. Mr Mollah said that he would prepare a request for postponement and a statement to send to the Tribunal, and that he would visit the applicant for him to sign it.
·Mr Mollah came to the applicant’s home, where the letter and statement were signed, and Mr Mollah took these away and sent them to the Tribunal.
·Mr Mollah at least once on that day (probably several times) told the applicant that “a medical certificate is a must” or “is a necessity”, and told him to provide one to the Tribunal on the Tribunal’s fax number which he was given. I have no doubt that the applicant understood what a medical certificate of unfitness was, and that it was more than the documents which he in fact sent to the Tribunal.
·The applicant and his wife went to Westpoint Blacktown to obtain and send a medical certificate. She was not too ill to go, but asked to go because she wanted an outing. He said he was helping her all the way and they went by taxi.
·At Westpoint they went to the Mayne Health Medicentre, but were told that Dr Karim was not available. They did not try to obtain a certificate from another doctor, and the applicant gave me an elaborate explanation for this, claiming that he thought that the treating doctor’s certificate would be preferable.
·Instead of attempting to obtain a medical certificate from another doctor, he decided to fax his wife’s prescription and referrals obtained at her consultation on 13 January 2004, and they did this from a shop at Westpoint. I am satisfied that he was aware that the documents he sent did not amount to a medical certificate showing unfitness to attend the hearing, but that he hoped that they might be sufficient to obtain an adjournment.
·He telephoned Mr Mollah from Westpoint after sending the documents and told him what he had done.
·The applicant did not deny that he had further conversations with Mr Mollah on that day, and says that they spoke again the following morning, before the appointed hearing time. When pressed to say whether Mr Mollah told him of a phone call from the Tribunal asking for a medical certificate, the applicant repeatedly said that he did not recall this. I was left with an impression in all the circumstances that it was likely that he was told this, but do not need to make a finding on this. I am certainly not persuaded that Mr Mollah did not tell him, and note that Mr Mollah was not called to give evidence on this.
In short, on his own evidence both the applicant and his migration agent, Mr Mollah, were fully aware that he was taking a risk by not putting forward a proper medical certificate, and he deliberately took that risk. They were both well aware that on the material submitted an adjournment might not be given and that the Tribunal might proceed without giving any further opportunity to appear at a hearing. The applicant made no attempt to attend the hearing, either in person, or by sending his agent to press for an adjournment. No attempt was made in the subsequent period before the Tribunal delivered its decision to present proper medical evidence of unfitness, or to request a further hearing appointment. Viewing all the circumstances shown in the evidence now before me, I cannot see any unfairness affecting the Tribunal’s decision to proceed in the manner permitted by s.426A(1).

The Tribunal’s statement of reasons, after referring to its refusal to postpone the hearing, identifies the applicant’s claims made in the faxed statements which I have referred to above. I do not consider that it overlooked any significant claim.
It then sets out an extensive discussion of the situation in Bangladesh, before stating its findings and reasons in relation to the applicant’s claims. It conclusions were unsurprising:
I am satisfied that the Applicants are Bangladeshi citizens who arrived in Australia in August 2003.
The Applicant husband’s other claims are not supported by any evidence. They are not even supported by evidence which the Applicant husband himself could give. In the circumstances I do not accept that the Applicant husband’s claims are true.
On the evidence available, I do not accept that the Applicant husband was a political activist or that he was threatened or at risk of harm or that he has a genuine fear of persecution. I do not accept that he was charged with serious offences or arrested, or taken to a military camp or tortured, or held without charge, or attacked with axes.
I do not accept that there is a real chance that the Applicant husband will be killed by political opponents or harassed or arrested if he should return to Bangladesh. I do not accept that there is a real chance that the Applicant husband will be persecuted should he return to Bangladesh.
I am not satisfied that the Applicant husband has a well founded fear of persecution. I am not satisfied that he is a refugee.
I can find no error of reasoning or fact‑finding in this passage which could amount to jurisdictional error.
The applicant has appeared unrepresented in this court, but has been provided with assistance by someone in formulating grounds for review. Most of these are unhelpfully general, and are incapable of being meaningfully addressed. They are found in the applicant’s application filed on 18 March 2004, an amended application filed on 1 November 2004, an outline of applicant’s submissions dated 16 February 2005, and a further “written argument by applicant” handed up at the hearing on 2 March 2005.
I reject claims that the Tribunal did not address the applicant’s claims or his evidence, such as it had been presented to the Tribunal. There is no foundation whatsoever for suggestions of bias and bad faith and these claims should not have been put forward in their unsubstantiated form.
A submission made by the applicant starting with the proposition that “the grounds and relief is very much similar … with Muin v Refugee Review Tribunal” has no application to the present case. The applicant has presented no evidence that he was misled as to what country information would be considered by the Tribunal, nor disadvantaged by the Tribunal’s consideration of country material. In any event, the Tribunal’s conclusion was based upon its failure to be satisfied on the manifestly inadequate statements put forward by the applicant.
I reject the plea made by the applicant that I should take into account a large amount of fresh material bearing on the applicant’s refugee status. The material tendered by the applicant does not establish jurisdictional error by the Tribunal, and does not provide me with a permissible reason for remitting the matter.
In relation to the Tribunal’s rejection of the applicant’s request for postponement of the hearing, I reject the claim that his request was ignored and that his evidence in support was ignored. The Tribunal considered that request and material and, in my opinion, properly concluded that it was insufficient. For the reasons given above, I do not accept that there was any denial of procedural fairness, or a failure to follow a procedure required by the Migration Act, when the Tribunal declined to postpone the hearing.
For all the above reasons, I dismiss the application with costs.

I certify that the preceding thirty‑three (33) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 30 March 2005