SZDBG v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1075

FEDERAL COURT OF AUSTRALIA

SZDBG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1075

SZDBG AND SZDBH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 600 of 2005

MADGWICK J
29 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 600 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZDBG AND SZDBH APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	29 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs, assessed in the sum of $4,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 600 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZDBG AND SZDBH APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	29 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. This is yet another case of an appellant from Bangladesh who seeks to have his case re-considered by the Refugee Review Tribunal (the ‘Tribunal’).  The appellant informs the Court that he is 35 years of age.  He is well spoken, well dressed, and of pleasant appearance.  He has a young wife and small child.  The evidence before the Tribunal indicates that Bangladesh is a poor country and, by comparison with his blessed land, a horrid place.  In human terms, I am unable to feel any criticism of the appellant for the course that he has followed.  However, I am unable to assist him.

2. The only matter that might conceivably have grounded the application for judicial review by the Federal Magistrates Court of the Tribunal’s decision, by which the appellant is aggrieved, concerned the Tribunal’s treatment of his application for an adjournment.  Of this, the Tribunal said, on 17 December 2003, the appellant and his wife, who had sought a separate hearing of her application to the Tribunal, were advised that the Tribunal had looked at all the material before it in relation to their application but was unable to make a favourable decision on that information alone.  The appellants were invited to attend a hearing on 28 January 2004 and to give evidence or make submissions.  The appellants were advised that the Tribunal would only change this date for good reasons.  They were advised that if they could not attend the hearing, they must contact the Tribunal immediately.  They were further advised that if they did not attend the hearing and the Tribunal did not postpone the hearing, the Tribunal might make a decision without further notice. 

3. On 27 January 2004, the appellant requested a postponement of the hearing on the grounds that the appellant wife was pregnant and unable to attend.  He stated that her evidence was essential to their case.  He provided a medical report which indicated that she was 17 weeks pregnant.  He was advised that a postponement would only be granted if there was some medical evidence that either one or both of the appellants had a medical condition which prevented them from attending a hearing and giving evidence.  The appellant sent a letter stating that his wife was pregnant and due to physical sickness was unable to attend.  He stated that he had no money and no Medicare card and was unable to attend a doctor to collect a medical certificate.

4. The application for a postponement was rejected.  There was no satisfactory explanation as to why the appellant 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 appellants were notified of the hearing date.  There was no suggestion that the appellant husband was prevented from attending for any reason.  Neither of the appellants attended the hearing arranged for them.

5. There was no explanation at all for the appellant husband’s non‑attendance. On the face of matters, it is perfectly clear that the Tribunal did give the appellants a real and genuine invitation to appear before it as s 425 of the Migration Act 1958 (Cth) (the ‘Act’) requires. Quite apart from the specific power given to the Tribunal by s 426A to proceed to make a decision where an applicant has been invited under s 425, but does not appear at the appointed time, there can be no suggestion that the Tribunal did not accord the appellants procedural fairness.

6. Before the learned Federal Magistrate, the matter was investigated at greater length.  Of the documents which had been received by the Tribunal dealing with the wife’s medical condition, his Honour correctly said:

   ‘Plainly, these did not establish an unfitness to attend a Tribunal hearing by either the husband or the wife.’

7. Despite the appellant’s giving evidence in the Magistrates Court, his Honour pointed out:

   ‘... I note that [the appellant] 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.’

8. It appears that an officer of the Tribunal spoke to the appellant’s advisor on 27 January 2004 to say that the Tribunal member concerned had seen the medical documents provided but could find no reason which would prevent the appellant’s wife from attending the hearing and that officer asked the advisor to send a proper medical certificate by the close of business on that day explaining the wife’s illness.  The learned Magistrate said of the evidence before him:

   ‘… I do not consider that the [appellant] 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.’

9. A letter from the appellant’s wife’s doctor, dated 15 February 2004, was in evidence before his Honour.  That letter indicated that he first saw the wife on 13 January 2004 when she was 15 weeks pregnant.  She was then, said the doctor, quite sick with morning sickness, lower back pain, gum abscesses, unable to eat and was vomiting.  The doctor said ‘As far as I could recollect she was unwell for 3/4 weeks.  Then gradually she felt better ...’.

10. His Honour said of this:

    ‘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.’

11. The appellant’s oral evidence in the court below was, according to his Honour, characterised, among other things, by ‘evasive loquaciousness’.

12. Having reviewed the evidence, which in some respects rather tends to contradict what the Tribunal was told, his Honour said:

    ‘In short, on his own evidence both the [appellant] 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 [appellant] 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).’

13. I am unable to detect any appealable error in his Honour’s treatment of this matter.

14. His Honour then dealt with the rag bag of more or less hopeless and confused grounds and submissions for attacking the Tribunal’s decision which was before him.  His conclusions appear correct to me.  In so far as the notice of appeal and written submissions in this Court might seek to raise further matters beyond those agitated by the learned Magistrate, I see no reason why that should be permitted and I do not permit it.  Otherwise, there has simply been a repetition of what was argued unsuccessfully before the learned Federal Magistrate and correctly rejected by him and I do not propose to deal with that material in any detail. 

15. The appeal must be dismissed with costs, which are assessed in the sum of $4,000. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             19 August 2005

Solicitor for the Applicant:	The appellant appeared in person
Counsel for the Respondent:	Mr Peter Abraham
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	29 July 2005
Date of Judgment:	29 July 2005