SZEIL v Minister for Immigration - [2005] FMCA 822

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEIL v MINISTER FOR IMMIGRATION

[2005] FMCA 822

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal refused to postpone hearing – no medical certificate – no failure of procedural fairness – cumulative effect of fears – privative clause decision – application dismissed.

Migration Act 1958 (Cth)

NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:

SZEIL

Respondent:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

File Number:

SYG 2748 of 2004

Judgment of:

Mowbray FM

Hearing date:

10 May 2005

Date of Last Submission:

10 May 2005

Delivered at:

Sydney

Delivered on:

10 May 2005

REPRESENTATION

Advocate for the Applicant:

In person

Counsel for the Respondent:

Lenny Leerdam

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2748 of 2004

SZEIL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an ex tempore judgment which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (Tribunal) made on 16 July 2004 and handed down on

10 August 2004.
The applicant is a citizen of India who arrived in Australia on

14 March 2004. On 27 April 2004 he applied for a protection visa, which application was refused by a delegate of the Minister on

29 April 2004. On 26 May 2004 the applicant lodged an appeal with the Tribunal. The Tribunal invited the applicant to attend a hearing on 15 July 2004 and the applicant responded to that invitation on

11 June 2004 indicating he wished to attend the hearing.
On 14 July 2004 the Tribunal received a letter from the applicant which was dated 13 July 2004 (at the top it says 13 July 2003, but the signature is dated 13/07/2004). This letter requested the Tribunal to postpone the hearing as the applicant was sick. He would send a “medical certificate by next mail”. The Tribunal did not receive a medical certificate and therefore did not postpone or adjourn the hearing. On 16 July 2004 the Tribunal affirmed the decision of the Minister’s delegate not to grant a protection visa and that decision was handed down on 10 August 2004.

Claims before the Department and the Tribunal

The applicant’s claims centred on his concern that he would be persecuted because of his religious beliefs as a Hindu. He said he participated in Hindu cultural activities in his local suburb. He was attacked and threatened by the majority Muslims for his religious activities. He was cut on his left thigh and was threatened that he would be killed wherever he lived in India. He reported the matter to the local police but they took no action. He claims that the Muslims are supported by politicians. He stated that his local Member of Parliament and the Member of the Legislative Assembly are Muslim. He also said that even if he were killed a judicial inquiry would not be ordered.
He claims that if he were to relocate within India he would encounter the same threats from Muslims. He says the world knows how powerful the Muslim community is and how corrupt the authorities are. As a consequence he claims his life is not safe.

Tribunal decision

The essential elements of the Tribunal decision are encapsulated in the passages at Court Book pages 60 to 61:
The applicant’s claims that he was mistreated in the past because he is Hindu and faces such harm in the future are merely assertions. Furthermore, they lack detail in important respects. He claims he had problems with local Muslims everyday but does not explain what those daily problems were. He claims he was physically assaulted many times without giving any indication of how often or over what period of time the attacks occurred. The applicant claims he reported the attacks to the police but does not state when he went to the police or what occurred when he went to the police station. He claims he was involved in Hindu cultural activities which caused problems for him but no particulars of those activities are provided.
Given the lack of detail in his claims and without the opportunity to test his claims at a hearing, the Tribunal is not willing to merely accept his assertions that he was harmed in the past because he is Hindu or because of any cultural activities, or that he will be harmed as he claims if he returns to India.
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

Consideration

The amended application contains two grounds for review:
1. The applicant claims the Tribunal made a jurisdictional error when the applicant lost opportunity to attend the hearing.
…
2. The RRT made a jurisdictional error when it failed to consider the cumulative effect of various fears of persecution held by the applicant for refugee status

Opportunity to attend a hearing

It is useful to set out the sequence of events in relation to this particular ground. On 4 June 2005 the Tribunal wrote to the applicant inviting him to attend a hearing at 1.30pm on Thursday 15 July 2004. This letter is set out at Court Book page 43. It said:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
Further down the page the letter continues:
The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. 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.
At Court Book pages 45 and 46 the applicant’s response to the hearing invitation is reproduced. He stated that he wished to attend the hearing and to bring two other people with him to give evidence.
However, on 13 July 2004 the applicant wrote to the Tribunal seeking an adjournment. The Tribunal received the letter on 14 July 2004. The letter says:
I will not be able to attend the Tribunal as scheduled hearing on 15 July 2004 because I am sick and am at the GP for referral to a specialist.
I have severe flu and stomach pains.
However I will be sending the medical certificate by next mail.
I sincerely hope that my hearing will be given an adjournment
The Tribunal’s letter dated 15 July 2004 (the date of the hearing) in response to the applicant’s letter is reproduced at Court Book page 48. The Tribunal said:
On 14/07/2004 you asked the Tribunal to postpone your hearing. You indicated that you would also be mailing a medical certificate to the Tribunal in relation to your request but no medical certificate was received prior to the time of the scheduled hearing on Thursday, 15 July 2004 at 1:30 PM.
The Member reviewing your case decided not to postpone your hearing. As your request for an adjournment was received a day before the scheduled hearing, you provided no telephone contact details to the Tribunal and did not telephone the Tribunal yourself to ascertain whether an adjournment was granted, the Tribunal was unable to inform you of the Member’s decision prior to the scheduled time of the hearing. However, the invitation to a hearing sent to you on 4 June 2004 states that if you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision in your case without further notice.
In its reasons for decision the Tribunal sets out why it decided not to adjourn or postpone the hearing at Court Book pages 59 and 60:
The letter [received on 14 July 2004] does not explain why, if the applicant had been to see a GP at the time he wrote the letter, he had not submitted a medical certificate with the letter. No medical certificate was received by the Tribunal in the mail the following day before the scheduled hearing. The applicant had not provided a contact telephone number to the Tribunal so it was not possible to discuss his request with him or obtain contact details for the GP he had consulted. The Tribunal was not willing to accept the applicant’s assertion that he was unfit to attend the hearing without supporting medical documentation. In those circumstances the Tribunal decided not to adjourn the hearing. The Tribunal wrote to the applicant to inform him of the decision to refuse the request for an adjournment however, as the applicant’s request for an adjournment had only been received a day before the hearing, he had provided no telephone contact number and did not contact the Tribunal himself to ascertain whether an adjournment had been granted it was not possible for the Tribunal to inform him of the decision prior to the time the hearing was scheduled.
The applicant did not attend the hearing nor, as already stated, did he contact the Tribunal to ascertain whether an adjournment had been granted. Although the Tribunal was not able to inform him of its decision to refuse an adjournment, the hearing invitation sent to the applicant stated that if he did not attend the hearing and the hearing was not postponed, the Tribunal could make a decision on his case without further notice.
In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to attend before it.
In his submissions filed in this Court on 6 May 2005 the applicant states:
The applicant claims that he performed his obligation by informing the Tribunal about his sickness. The Tribunal received the letter on 14 July 2004. The Tribunal had accepted that the Tribunal received a letter from the applicant on 14 July 2004, just one day before the hearing. He could not supply the medical Certificate at the same time and did not explain in the letter about the type of sickness or illness.
…
As he had stated in the amended application that he became ill. He had no close relatives or friend who could take him to the Doctor at the same time. He has Gastric problems for the last

20 years. Some time it becomes very worst.
The applicant had no telephone line at the time. The applicant claims that it is not unusual for a person to become sick or ill. He informed the Tribunal at the correct time (before the hearing on 15 July 2004) and correct information (he was really sick-) about his health condition.
He claims that he was denied natural justice when the Tribunal member did not account his illness for adjournment.
The applicant reiterated some of these points but not all of them in Court before me. No sworn evidence was presented to the Court on his behalf, but he made some further assertions from the bar table. For example, he asserted that the letter received by the Tribunal on

14 July 2004 had been written for him by an acquaintance. He said he was not aware at the time that the letter promised that he would provide a medical certificate. But he did agree that he signed the letter. It is clear that he did send the letter to the Tribunal and the Tribunal received it on 14 July 2004.
In the circumstances it was reasonable for the Tribunal to wait for a medical certificate and when it did not receive one to refuse to postpone the hearing. Here the Tribunal clearly gave consideration to whether it should adjourn the hearing and declined to do so. This is evident from the Tribunal’s reasons for decision at Court Book pages 59 and 60 and from the letter at Court Book page 48.
The obligation to provide an invitation to a hearing is set out at s.425 of the Migration Act 1958 (Cth) (the Act) which relevantly provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
As the Full Court of the Federal Court said in NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121:
30.The obligation of the Tribunal under s 425 of the Migration Act is to issue an invitation to the applicant for review to attend a hearing. That invitation must be real and meaningful and not just an empty gesture …
…
35.In the present case the learned federal magistrate found as a fact that the Tribunal had informed the appellant’s representative, Mr Haque, that a medical certificate would be required if the request for an adjournment was to be granted. No medical certificate was forthcoming. That finding of fact was not controverted on appeal. The Tribunal, having made the reasonable requirement that some evidence be produced to support the request for an adjournment, did not render the s 425 invitation illusory by proceeding to the hearing on the appointed day in the absence of the appellant. It also had regard to the fact that the appellant had known of the date of the proposed surgery at the time that he had accepted the invitation to attend the hearing. Nothing in the Tribunal’s approach reflected a failure to provide a real opportunity to the appellant to be heard. There was nothing in its approach to this matter therefore that was in breach of s 425, however construed. Nor was there any procedural unfairness on the part of the Tribunal.
Although the factual situation in NALQ was somewhat different from that in the case before me, I am satisfied that the conclusions of the Full Court still apply. In the words of the Full Court it was a reasonable requirement that some evidence be produced to support the request for an adjournment; that reasonable requirement being a medical certificate which the applicant had promised to provide by next mail. As the Tribunal received no such medical certificate and as the applicant failed to appear before the Tribunal on the day scheduled for the hearing, the Tribunal decided not to postpone the hearing but to make a decision without taking any further action to allow the applicant to appear before it. It was entitled to do so pursuant to s.426A of the Act. In the words of the Full Court, nothing in the Tribunal’s approach reflected a failure to provide a real opportunity to the appellant to be heard. There was nothing in its approach to this matter therefore that was in breach of s.425.
The adverse consequences for the applicant result from his failure to provide the medical certificate as his letter promised.
In this matter s.422B of the Act also applies so that s.425 exhausts the requirements of procedural fairness in so far as they relate to the right to attend a hearing.
I am satisfied that the Tribunal did not commit jurisdictional error in relation to the invitation to a hearing and when it proceeded without according an oral hearing to the applicant.

Cumulative effect of fears of persecution

In this ground the applicant claims the Tribunal made a jurisdictional error by failing to consider the cumulative effect of his various fears of persecution. However, as the respondent has pointed out, as a result of the inadequacy of the evidence, the Tribunal never reached the point at which it could consider any cumulative effect of various fears. It was precisely because the Tribunal wanted to give the applicant an opportunity to substantiate his claims that he had been given a hearing date. When the applicant failed to attend the hearing the Tribunal was left with only the sparse details in his application for a protection visa on which it could rely. Faced with this situation the Tribunal could not even establish the primary facts as a basis for any consideration of cumulative fears. This ground of review must also be rejected.

Conclusions

Counsel for the Minister has submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree.

It is apparent that on the evidence before it the Tribunal was unable to be satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention. This conclusion by the Tribunal was reasonably open to it on the material before it.
I am not satisfied the Tribunal made any legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and related to the powers conferred on the Tribunal.
In the circumstances I dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Mowbray FM

Associate: K Thynne

Date: 27 June 2005