SZEGZ v Minister for Immigration
[2005] FMCA 416
•28 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGZ & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 416 |
| MIGRATION. Migration Act 1958, s, 426 Migration Legislation Amendment Act (No. 1) 1998 No 113, 1998 (commenced by Royal Assent on 11 December 1998) and applied in this application for review pursuant to Schedule 3, Part 2 of that Act. Ex parte Fowler and Ors (1980) 31 ALR565 [at 569.5 and 570.2] |
| Applicant: | SZEGZ & SZEHA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2657 of 2004 |
| Delivered on: | 28 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 28 February 2005 |
| Judgment of: | Nicholls FM |
REPRESENTATION
| Applicant appeared in person. |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr G. Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
The applicants pay the respondent's costs set in the amount of $4750 pursuant to r 21.02(2a) of the Federal Magistrate Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2657 of 2004
| SZEGZ & SZEHA |
Applicants
And
| THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application filed on 26 August 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) which appears to have been made on either 17 June 1999 or 2 July 1999. The apparent contradiction as to the date of the decision is found on Court Book pages 55 and 62 is relevant to the issue of when the applicants were notified of the Tribunal decision. It is clear, however, that the applicants would have been notified of the decision by mid July of 1999. This was a decision to affirm the earlier decision of a delegate of the respondent Minister to refuse a protection visa to the applicants. This decision having been made on 31 October 1998.
The applicants are wife and husband, both nationals of the Peoples Republic of China. Only the applicant wife made refugee Convention claims before the Tribunal and the applicant husband applied as a member of the family unit. In this regard see CB 24 – CB 25.
At the hearing before me today only the applicant husband appeared. He was unrepresented and assisted by an interpreter in the Mandarin language. The applicant husband sought an adjournment of the hearing on the basis of his wife’s medical condition. The applicants did not file any material in support of this claim, but sent a number of medical certificates to the respondent. What I do have before me is a copy of a letter from the respondent’s solicitors to the applicants dated 23 February 2005. This, and a number of attachments were sent to the Court by the respondent’s solicitors on 25 February 2005. Attached to this letter is what appears to be a copy of a medical certificate dated
19 February 2005 and, in this medical certificate, there is reference to, I presume, the person who is the applicant wife and the certificate states that she is very tired and needs rest for a period of time. I cannot see from the certificate that it says how long this time needs to be. What I have before me is a photocopy of a document that is headed, “Certificate Of Sickness,” and that the certificate makes some general reference to anaemia and that the applicant wife needs to rest for a period of time, but it doesn’t tell me how long or, more importantly, what I don’t have in front of me is that, notwithstanding the fact that she is suffering from anaemia, whether in the doctor’s opinion that would stop her from attending Court.
I also have another copy of another certificate, dated 24 February 2005, which in effect repeats that she is tired and in need of “investigation and treatment”, it looks like, “following blood test”. Then reproduced on the same page as the letter from Sparke Helmore, the applicant’s solicitors, to the applicants there is yet another copy of a certificate from another doctor, dated 24 February 2005 certifying that the applicant wife is: “still unfit to resume her usual work on and including 24.2.05 to 4.3.05”.
This material from the doctors, even if accepted, does not address whether or not the applicant wife can come along and talk to the Court. It speaks about her being unfit for her usual work. It does not tell the Court what that usual work is. If for instance she was talking to the doctor about the work in which she was last involved in her homeland, before coming to Australia, then she may very well have told the doctor that she was somebody who operated a clothing factory. But in any event, whatever she said to the doctor as to her work, there is nothing to say that she is unfit to come to Court. There is nothing to say that she cannot address the Court about her case and there is also nothing to indicate why things are expected to change in the short time between 24 February and 4 March 2005 (in relation to the third certificate) and why she is going to be able to talk to the Court next week but not this week, if that is the doctor’s opinion. Nor was the applicant husband able to inform the Court further why the applicant wife cannot come along and talk about her case.
The applicant husband also sought an adjournment on the basis that he and his wife had not received adequate legal advice. Again he produced no evidence to support his claim. However appearing on a copy of a letter from the Court dated 11 January 2005 that is attached to the previously mentioned letter from the respondent's solicitors to the applicants, there is a copy of a letter from the Court to the applicants and, on this, there are some handwritten statements:
“This lawyer has never contacted us. When we rang him a moment ago, he admitted that he had put our papers away. Given that our lawyer has not yet met us and [applicant wife] is unwell and [applicant husband] needs to look after [applicant wife]. Please adjourn the hearing.”
The applicant before me confirmed that this represented his position and request.
The applicant’s complaint that “this lawyer has never contacted us”, seems in fact untrue. Mr Johnson of Counsel for the respondent Minister tendered four documents:
(1)An email from Mr Zipser of Counsel: (Marked “REI”)
“By letter from the Federal Court dated 11 January 2005 I have been appointed legal adviser for the applicants under the Refugee Review Tribunal Legal Advice Scheme. The matter is listed for hearing on 28 February 2005. Until today I have not attempted to contact the applicants nor have the applicants attempted to contact me. For your records, this afternoon I received a phone call from a friend of the applicants. The friend stated that the applicants were in the room with her. The friend inquired about the applicants obtaining legal advice. I offered to meet with the applicants or (one of them if the other was unavailable), tomorrow or early Monday morning for the purpose of providing them with advice. The applicants declined my offer, although the friend stated that she may phone me back. I would normally communicate this information to the RRT Legal advice scheme coordinator in the Federal Magistrates Court Registry, so that the information could be put on Court file. However, in light of the short time until the hearing and likelihood that the Court file is now with Federal Magistrate Nicholls, I thought it best to communicate this information to you. Regards, Ben Zipser.”
(2)An email copy from Mr Zipser to the Court registry on 25 February 2005 with a copy sent to Ms Gray of the respondent’s solicitors. (“RE2”).
“David,
I refer to our telephone conversation a few minutes ago. I understand that earlier today the applicants faxed an application to the Federal Magistrates Court Registry seeking to adjourn the hearing on 28 February 2005. I also understand that the applicants, as part of their application for an adjournment, stated that I refused or was unable to provide them with legal advice under the RRT legal advice scheme. This statement by the applicants is not correct. Below is an email I sent to the respondent’s solicitor yesterday afternoon. The email is self-explanatory. Regards, Ben Zipser.”
(3)Letter from the respondent to Mr Zipser dated 14 January 2005, enclosing the Court Book in this matter (“RE3”).
(4)Letter to applicant wife dated 13 October 2004, enclosing the Court Book (“RE4”).
The applicants have had a reasonable opportunity to obtain legal advice, and any suggestion that legal advice has been refused to them by the Court appointed person is not correct. Further, it is clear from the copy of the letter to them, upon which there are written claims about the legal adviser not contacting them, that they knew that an adviser was appointed and took no steps to contact him. Even if they thought until Thursday or Friday of last week that they had to wait for the lawyer to contact them rather than they contacting him, they refused the invitation that he made to give them advice at the end of last week or this morning. Of course, it was always open to the applicants to seek other legal advice.
I also have before me the affidavit of Catherine Jane Gray which was read in Court this morning. I have marked four exhibits that the respondent’s Counsel has tendered, all of which have been explained and read to the applicant husband this morning. The applicant husband further claimed before me today that he never received the Green Book, that is, the court papers, known as the Court Book. Tendered this morning and marked “Respondent’s Exhibit 4”, is a letter dated 13 October 2004 addressed to the applicant wife, who was the principal applicant before the Tribunal, and this letter is from the respondent’s solicitors. The copy of this letter that I have before me states that it encloses a copy of the Court Book. This letter was sent to the address that the applicants provided to the Court as the address for service. The relevant point that I made to the applicant husband is that the applicants provided an address for service in their application to the Court and the respondent, as they are required to do, dealt with them at that address for service. The applicant husband claimed they did not receive the Court Book, but could not explain why they did not receive it. Nor is there anything before me to show the letter was returned as undeliverable.
Even applicants from a non-English speaking background, should take some action, some positive action on their part to pursue their own application. I explained to the applicant husband that it is he and his wife who have come to this Court. What is clear is had the applicants followed the advice that was in the letter that had originally been sent to them by the Court on 11 January 2005 and taken steps to contact the panel lawyer, then clearly he would have been very ready to have provided that advice to them. In fact, from what is before me, he even says that he was ready to have provided that advice to the applicants even this morning or last Friday, but the applicants declined that offer. The applicants could have taken legal advice, have provided no evidence to show they did not receive the Court Books and the applicants have provided no clear evidence to support the need for any adjournment of this hearing.
I am very mindful in a case of this type involving unrepresented applicants and applicants from a non English speaking background, and have in the conduct of the hearing and in the making of my decisions on both the issue of the refusal of the adjournment and in dismissing the application, taken into account the need to be cautious and careful in proceeding in such circumstances.
The applicants' claims before the Tribunal are reproduced at CB 17 to CB 20 being part of the application to the respondent's Department, and CB 38 to CB 42 being part of the application to the Tribunal. The Tribunal has also reproduced these claims in its reasons for decision at CB 58.9 to CB 60.5. Essentially, the applicant wife claimed she feared harm from the Chinese authorities on the basis of political opinion and recounts events in China involving her family, herself, her teaching experience and her business. As I have already mentioned, only the applicant husband appeared before me today. I did give the applicant husband an opportunity, with a short adjournment during the hearing, to contact his wife to obtain any further advice from her and this was done after explaining to the husband the significant matters that he and his wife needed to focus on, particularly given the submissions made by Mr Johnson of Counsel on behalf of the respondent. In particular, these matters were in relation to the need to provide an explanation for the delay in bringing the matter before the Court and, in relation to providing further particulars or argument to support the claims made in the application before the Court.
The applicants are aggrieved by the Tribunal’s decision and the application before me asserts :
“1)The minister is responsible for the administration of the Migration Act 1958.
2)The decision requires her to take steps which are unlawful.”
The sole stated ground in the application is:
“The decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision.”
No real particulars are provided and the stated particular is that the Tribunal misconstrued or misapplied the law to the facts concerning its determination.
Clearly, the first assertion above does not allege any jurisdictional error. In relation to the second assertion, the respondent’s counsel submits in written submissions that it does not make sense, but in context, if the reference to "her" is a reference to the Minister this may be a reference to the Minister acting on the Tribunal’s decision to remove the applicants from Australia. But in any event, whatever the meaning, no jurisdictional error is alleged in relation to the Tribunal’s decision. In relation to the ground asserting an error of law, nothing is provided in support. In spite of repeated opportunity at the hearing before me today the applicant husband was unable to provide anything further.
I note, relevantly, that the applicant wife appeared at the first Court date in this matter on 13 September 2004. On that date, neither of the applicants was legally represented but were assisted by an interpreter in the Mandarin language. Orders made by consent, by the Court, required the applicants to file and serve an amended application. Relevantly:
“2.The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application to the Court and any evidence upon which the applicant proposes to rely by 8 November 2004.
4.The substantive application and the notice of objection to competency be listed for hearing at 10.15 am on 28 February 2005.
5.Applicant to file and serve written legal submissions 7 working days before the hearing date.”
No amended application or written submissions have been filed and in part this appears to be consistent with the applicants' lack of impulsion in pursuing their application both before the Tribunal and before this Court as seen in part by the unexplained failure to attend the Tribunal hearing and the failure to contact the panel adviser under the Court's Legal Advice Scheme, which opportunity had been clearly communicated to them by the Court, by letter dated 11 January 2005.
I note the respondent has filed a Notice of Objection to Competency on 10 September 2004. This is not now pressed. The respondent now seeks dismissal either on the basis that no jurisdictional error is evident on the part of the Tribunal or in the alternative, that the Court refuse relief in the exercise of its discretion on the basis of unwarrantable, unexplained delay.
Given that the applicants are unrepresented before me, as I have said, and while the Court is satisfied that opportunity was given to the applicants to access the Court's Legal Advice Scheme, and indeed I note that it was always open to the applicants to obtain their own legal advice at any time, and while it is a matter for the applicants, no explanation for any failure to do so has been put to the Court.
Nonetheless, a refusal of relief on discretionary grounds should be done with great caution and the Court therefore looked carefully at the material before it. In this regard I note that, by letter dated 6 April 1999 [CB 43 to CB 44] the Tribunal wrote to the applicant wife and included the applicant husband. The letter was headed “Notice Under Section 426 of the Migration Act 1958” and advised the applicants that the Tribunal was unable to make a favourable decision on the information before it, and invited the applicants to attend an oral hearing before the Tribunal to provide evidence in support of the application. The letter also contained a warning that the Tribunal may proceed to a decision if they did not attend.
There appeared to be the some difficulty, in contacting the applicants [CB 45] but, eventually the applicant wife responded [CB46] and said she did want to attend a hearing and this was arranged for 16 June 1999. Relevantly I also note that at CB 48, being the second page of the letter confirming the hearing date, the Tribunal said:
“The tribunal will not change the hearing date unless there are very good reasons for doing so. If you think that you may be unable to attend the hearing you should contact immediately.”
And then in bold:
“If you do not attend the hearing and a postponement has not been granted, we will assume that you no longer want to come to a hearing and the Tribunal may make a decision on your case without further notice.”
The applicants however, did not attend and there is nothing before me to explain the failure to do so, nor is there anything before me to show that any adjournment was requested. The Tribunal proceeded to make a decision without taking further steps to enable the applicant husband and wife to appear before it. The Tribunal's notification of the time, date and place of the hearing before it was sent to the address provided by the applicants in their application, and with a copy sent to the applicants' then migration adviser. I also note that as Mr Johnson, Counsel for the respondent has submitted that s.426A of the Migration Act applies to the Tribunal decision before me, by operation of the relevant enacting legislation. [CB 58.7 and s.426A of the Migration Act 1958, which was added by the Migration Legislation Amendment Act (No.1) 1998 No 113, 1998 (commenced by Royal Assent on 11 December 1998) and applied to this application for review pursuant to Schedule 3, Part 2 of that Act.]
The Tribunal's findings are set out at paragraph 11 of the respondent's written submissions filed on 23 February 2005 and I adopt these for the purposes of this Judgment.
“11.The Tribunal found that:
(i)the applicant’s claims were insufficient to establish the facts of her case;
(ii)even though the applicant gave dates for the occurrence of certain events, the applicant had not provided sufficient information for the Tribunal to make any “findings on the congruence of these events with those published in other sources;”
(iii)The applicant provided insufficient information for the Tribunal to make findings on the severity of the incidents described by her;
(iv)Some aspects of the applicant’s claims led the Tribunal to question whether they were Convention related and without an opportunity to explore those issues the Tribunal was not satisfied that those parts of her claims were grounded in the Convention;
(v)The Tribunal was unable to explore the reasons why the applicant possessed two passports and the delay between her arrival in Australia and her application for a protection visa;
(vi)The applicant had not provided any further information in support of her claims despite ample opportunity to do so and being warned that the Tribunal could not make a favourable decision on the papers alone;
(vii)The applicant did not give the Tribunal an opportunity to explore aspects of her claims with her;
(viii)The applicant’s failure to attend the hearing left a number of relevant questions unanswered; and
(ix)The applicant husband made no specific Convention related claims and his application depended on the outcome of the applicant’s.”
In relation to the hearing before the Tribunal it is clear that the Tribunal complied with the statutory requirements and, in any event, there is nothing before me to show any common law breach of procedural fairness. The invitation to the hearing was meaningful and not a hollow gesture. The applicant wife said she would attend, she did not, and gave no explanation, nor did she seek any adjournment. Nor after giving him an opportunity to speak to his wife today did the applicant husband provide any explanation at the hearing before me today.
The Tribunal based its decision upon its lack of satisfaction on the material before it, that the applicant wife had a well founded fear of persecution within the refugee Convention meaning. Relevantly, section 65 of the Migration Act provides that the Minister is to grant a visa if satisfied of various matters, and it is clear that the satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse the visa. The lack of satisfaction in this case came about because of insufficient information or detail to support the applicants' case and in circumstances where the Tribunal put the applicants on notice of this situation, and gave the applicant wife, in particular, an opportunity to address it, I can see no error in this regard on the part of the Tribunal.
Further, the respondent’s Counsel has submitted that the Tribunal was under no obligation to accept at face value the brief outline of claims put forward and, in fact, the Tribunal addresses this issue in its statement of “Findings and Reasons”, see CB 60.6. The applicants chose not to attend the hearing without explanation when given clear notice as to the consequences. In this regard I note the respondent's submissions and reference to NAVX v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 and Applicant S154/2002 [58], where a Full Federal Court described the rejection of an application in similar circumstances as those before me, that is a failure to appear in the face of a letter putting the applicant on notice, as the “inevitable consequence” of the failure to attend. Clearly the Tribunal is “not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.” I can see no error, let alone jurisdictional error, in what the Tribunal has done and the application should be dismissed on this basis.
However, the respondent has also submitted that the application should be dismissed on the basis of unwarrantable delay in making this application for review to this Court. For the applicant’s benefit I should outline the following. In support of the respondent’s request I have before me the affidavit of Catherine Jane Grey, a solicitor in the employ of the respondent’s solicitors, with relevant annexures. Dismissal on this basis could of course be done without looking at the merits of the case, which I have already done. The respondent has submitted R vABT; ex parte Fowler and Ors (1980) 31 ALR565 [at 569.5 and 570.2] as relevant authority.
Delay is of course a discretionary criterion for the denial of certiorari and prohibition and may even be sufficient to justify discretionary refusal of mandamus which should cover what the applicant's appear to be seeking by way of relief. The respondent has submitted, supported by the affidavit of Catherine Jane Grey, that the Tribunal’s decision was notified to the applicants in July 1999, and that the applicants became part of proceedings before the High Court in the Lie class action in August 2001. Subsequently, Emmett J, in the Federal Court, refused the application for an order nisi which ultimately dealt with the statement of claim before the High Court which had been remitted to the Federal Court. This was done on 20 February 2004. The applicants, made application to this Court on 26 August 2004, some six months later.
The delay then, in bringing this matter before this Court is a period of two years being the period between the Tribunal decision and the joining of the Lie class action, and the six months between the orders made by Emmett J and the filing of the application in this Court. Despite repeated attempts at the hearing today to obtain an explanation from the applicant husband, and in particular I gave the opportunity to obtain that explanation from the applicant wife, no explanation has been provided for this lengthy delay.
In the circumstances and in exercising this discretion, it would be appropriate for the application to be dismissed on the basis of unexplained unwarrantable delay. However, the application is dismissed on the basis that the applicants were given the opportunity to support their claims before the Tribunal after being put on notice of the consequences of failing to take the opportunity to satisfy the Tribunal as to the matters of concern to it and that the Tribunal was entitled to make the decision that it did. No error is apparent. The application filed on 26 August 2004 is therefore dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Tanya Koens
Date: 29 March 2005
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