SZDNZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 208

FEDERAL COURT OF AUSTRALIA

SZDNZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 208

SZDNZ V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1817 of 2004

JACOBSON J
3 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1817 OF 2004

BETWEEN:	SZDNZ APPELLANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	3 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed; and

2.The appellant pay the respondent’s costs of the application.

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 1817 OF 2004

BETWEEN:	SZDNZ APPELLANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	3 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Scarlett given on 10 November 2004 dismissing an application for review of a decision of the Refugee Review Tribunal (“RRT”) handed down on 20 April 2004.  The RRT affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa. 

2. When the matter was called on for hearing this morning there was no appearance by the appellant.  I was aware before the matter was called that it was unlikely that the appellant would appear.

3. Yesterday afternoon a facsimile from the appellant dated 2 March 2005 was received in the registry at 1.21 pm.  The facsimile stated that the appellant had applied for legal assistance from the New South Wales Bar Association which is "still pending processing with them".  It then states:

   “I am without an assistant of a lawyer.  In these circumstances, I wish to request an adjournment of my case.  I kindly request the court to grant a postponement of my case.

4. A registrar of the court then telephoned the appellant to inform him on the basis of communication made through my associate that I was not prepared to grant an adjournment on the basis of the facsimile and that the appellant should attend court and that he could make an application for an adjournment to me at the hearing.  The registrar apparently also informed the appellant that he should be prepared to proceed if his application for an adjournment was refused.  As I understand the communications, the appellant told the registrar that he would do so. 

5. A second facsimile also dated 2 March 2005 was received in the registry at 6.34 pm.  It states that the appellant has severe stomach pain and loose bowel motions and that he visited his GP who gave him medicines and that he is "very weak at present".  It then states:

   “I regret that I am not in a position to attend the hearing tomorrow due to my sickness and kindly request a postponement of my appeal.”

6. The facsimile attaches a doctor's certificate which states as follows:

   “He/she is suffering from gastroenteritis.  In my opinion he/she will be unfit for his/her school/normal work from 2 March 2005 to 3 March 2005 inclusive.”

7. Counsel for the Minister asks me to deal with the matter pursuant to Order 52 Rule 38A(1)(d) under which I have the power to proceed with the hearing in the absence of the appellant.  It seems to me that it is appropriate that I do so.  I am not satisfied on the material that has been put before me in the facsimiles to which I have referred that there is sufficient explanation for the appellant's failure to at least attend court today and to make whatever request for an adjournment he wished to put to me.

8. I also note that the history of this matter discloses that the appellant has previously sought at least one adjournment in the Federal Magistrate's Court.  Indeed one of his grounds of appeal is the failure of the Federal Magistrate to grant the adjournment which was sought. 

9. I will deal very briefly with the background before turning to the matters raised in the notice of appeal.

10. The appellant is a citizen of India of Tamil ethnicity and is a Hindu.  He arrived in Australia on 28 July 2003 entering the country lawfully on an Indian passport with a temporary business visa.  The appellant claimed to have a well-founded fear of persecution on the ground of his membership of the Marumalarchi Dravida Munnetra Kashagam ("MDMK" Party) and his funding activities for the Liberation Tigers of Tamil Elam ("LTTE") in his capacity as Madukkur "Leo Club" President.

11. The RRT accepted that the appellant may have been involved in assisting Tamils and as a supporter of the MDMK Party.  However the RRT found the appellant's evidence regarding the adverse interest in him by the police was vague and unsatisfactory.  The RRT accepted that the appellant attended a small meeting to protest the detention of the General Secretary of the MDMK in July 2002 and that the police broke up the meeting.  The RRT then went on to find as follows: 

    “I do not accept that the police searched for the appellant or had any adverse interest in him following the meeting.  I do not accept that he went into hiding after July 2002 and that he lived at the homes of 10-12 relatives at this time. His evidence of his whereabouts during this time was vague and unsatisfactory. After he was pressed on his whereabouts he said he could not give exact details.  He also admitted that he continued to be involved in his pawnbroking business until December 2002. I find that if the police had an adverse interest in the appellant they could have located him at his business or through his relatives or when he departed India through Chennai International airport.”

12. The RRT found that the appellant had not been mistreated nor had he been threatened with harm for reasons of his support of the MDMK.  The RRT said that the country information indicated, and the RRT accepted, that the MDMK is a small political party with diminishing political influence and little public support in Tamil Nadu.  Furthermore the RRT found that the appellant had a very low political profile and there was nothing to suggest that he was targeted for harm by the All India Anna Dravidian Progressive Association (“AIDMK”) the appellant having claimed that this was a rival political party and that he was harassed and threatened by police after that party came into power.

13. The RRT also found:

    “I have considered the situation if the appellant returns to India.  I accept the country information that India is a longstanding parliamentary democracy with independent judiciary, a broad range of democratic institutions and comprehensive framework for the protection of human rights.  The MDMK Party operates legally, fields candidates in state and national elections, holds party meetings and has a small membership and support base.  Whilst it does not hold any seats in state government it is a minor coalition member of the national government.  I find that given the low profile of the party in Tamil Nadu and the minor role of the appellant that he would not face any chance of persecution for reasons of his political opinion if he returned to his home in Tamil Nadu.  There is no independent evidence available to me to suggest that the state or national governments engage in persecutory conduct against low profile supporters of the MDMK”

14. The learned Federal Magistrate referred to the background facts relied upon by the appellant before the RRT.  The Federal Magistrate set out the findings and reasons of the RRT noting that the RRT did not accept the appellant's evidence on a number of significant points.  He stated that the application for review is not a hearing de novo and that it was not open for the court to substitute its own assessment of the evidence.

15. The notice of appeal is lengthy, but it raises four principal grounds.  The first ground of appeal is that the Federal Magistrate ought to have found that the RRT erred in failing to accept the appellant's explanations in support of his claim of a genuine fear of persecution.  However, it is well established that this is not a ground of review and there was no error in the way in which the Federal Magistrate dealt with the question. 

16. The second ground is a procedural fairness ground, which is that the Federal Magistrate ought to have found that the RRT erred in failing to provide the appellant with an opportunity to respond to adverse material categorised as the Part B documents.  This seems to be a reference to the decision of the High Court in Muin v The Refugee Review Tribunal (2002) 198 ALR 601 (“Muin”). 

17. This ground must fail for a number of reasons.  Firstly, there was nothing to suggest that the facts necessary to make a claim under Muin had been proved or that there were any agreed facts.  Second, the RRT relied on country information which was not specifically about the appellant but was just about a class of persons of which the appellant was a member.  Accordingly, the information fell within the exception contained in section 424A(3) of the Migration Ac 19568 (Cth).  Thirdly, in any event, it is clear enough from the RRTs decision that the information was put to the appellant at the hearing and he was offered an opportunity to respond.

18. The next ground of appeal is that the Federal Magistrate is said to have denied the appellant procedural fairness by conducting the hearing in spite of the request made by the appellant for an adjournment.  The Federal Magistrate had a discretion under s 15 of the Federal Magistrates Court Act 1999 (Cth) to grant or refuse an adjournment.  The learned Magistrate dealt with the adjournment request at [6] and [7] of his judgment.

    “I have considered the application for an adjournment.  The appellant commenced these proceedings on 12 May 2004.  he had assistance from a friend in preparing his documentation.  He filed an amended application on 29 September.  Quite clearly he had assistance from someone on that occasion.  The appellant has said that he hopes to have the money to afford a lawyer if the matter is adjourned until the ‘middle of next year.  He has not made any inquiries about obtaining a lawyer, nor has he inquired about how much a lawyer would cost him.

    There is no right to be legally represented in the Federal Magistrates Court.  I accept the fact that the appellant is usually under a disadvantage if the appellant does not have legal adice.  These matters are very technical and it is hard for a layperson to represent themselves without legal advice. I accept that this would place the appellant at a disadvantage.  Nevertheless, I am not satisfied that in all the circumstances, the face that the appellant does not have a lawyer is a ground for adjournment of the application.”

19. There is no error in the exercise of the Federal Magistrate's discretion in accordance with well-established authorities.  There was no error of principle and no extraneous material was taken into account. 

20. The next ground is that the learned Magistrate ought to have disqualified himself by reason of "a prima face case of conflict of interest".  The Magistrate stated at [11] that he indicated to the appellant that he had become aware during the morning that he knew the identity of the member of the RRT whose decision was under review.  He dealt with this at [11] of his judgment.  He said he indicated that the person had been a student at the University of Sydney Law School at the same time as the Magistrate but he had not seen the person for over 20 years.

21. The learned Magistrate correctly stated the test to be applied in relation to a reasonable apprehension of bias.  He referred to the decision of the High Court in R v Watson;  Ex parte Armstrong (1976) 136 CLR 248. It is plain that the Magistrate applied the correct test when he said at [14] that he was satisfied that a fair minded person could not have formed a reasonable apprehension of bias, that he had pre-judged the matter: Livesey v New South Wales Bar Association (1983) 151 CLR 288. This ground of appeal cannot be sustained.

22. The notice of appeal is very lengthy and I have not endeavoured to deal with each point raised in it but it is sufficient to say that it is plain that the notice does not disclose any arguable ground of appeal.  There is in my view no error in the decision of the Federal Magistrate.  I should add that the appellant having been self represented before the Magistrate, the decision of the Federal Magistrate does not indicate that his Honour considered for himself the decision of the RRT to see whether it disclosed any possible jurisdictional error.

23. However, I do not see that this point (which was not raised in the notice of appeal) could possibly give rise to any ground of appeal.  I have considered the decision of the RRT myself and in my view it does not disclose any jurisdictional error.  Accordingly, I propose to order that the appeal be dismissed with costs.  Those are the orders of the court.

I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             8 March 2005

Counsel for the Appellant:	The Appellant did not appear
Counsel for the Respondent:	Mr Mantziaris
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	3 March 2005
Date of Judgment:	3 March 2005