SZEIL v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1067

FEDERAL COURT OF AUSTRALIA

SZEIL v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1067

Migration Act 1958 (Cth) s 426A

SZEIL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 840 of 2005

BRANSON J
21 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 840 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEIL APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	21 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs fixed in the sum of $3 000.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 840 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEIL APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	21 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment of the Federal Magistrates Court by which the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) was dismissed.  On 21 July 2005 I dismissed the appeal with costs at the completion of oral argument.  I indicated at that time that I would publish brief reasons for judgment at a later date.  These are my reasons for judgment.

2. The appellant is a citizen of India who arrived in Australia on 14 March 2004.  He adheres to the Hindu religion.  By his application for a protection visa he claimed that he lived in a Muslim dominated suburb of Hyderabad where he was attacked and threatened because of his religion.  He claimed that because of political support his attackers could mistreat him with impunity and he was unable to relocate because the same threat would apply elsewhere.

3. A delegate of the first respondent was satisfied that the appellant is not a person in respect of whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (‘the Refugee Convention’).

4. The appellant applied to the Tribunal for review of the decision of the delegate.  He did not provide any details of his claim to be entitled to a protection visa in his application to the Tribunal stating merely that he would submit a full report later.  He did not do so.

5. The appellant accepted an invitation to appear before the Tribunal to give oral evidence and present arguments in support of his claim.  His response to the invitation indicated that he would bring two friends to the hearing which was scheduled for 15 July 2004.

6. On 14 July 2004 the Tribunal received a letter dated 13 July 2004 from the appellant.  The letter stated that he would be unable to attend the hearing as scheduled ‘because I am sick and am at the GP for referral to a specialist’.  The letter asserted that a medical certificate would be sent by the next mail.  The letter makes no reference to the two friends who were to accompany the appellant to the hearing.

7. The Tribunal did not receive a medical certificate by the next mail or at all.  It does not appear that either of the friends referred to in the appellant’s response to the hearing invitation attended the scheduled hearing.

   REASONS FOR DECISION OF THE TRIBUNAL

8. The Tribunal was not satisfied that the appellant was prevented by illness from attending the scheduled hearing. It noted that he had neither provided a medical certificate nor contacted the Tribunal to check whether his hearing had been adjourned as requested by him. The Tribunal relied on s 426A of the Migration Act 1958 (Cth) (‘the Act’) in deciding to make a decision on the review without taking any further action to allow or enable the appellant to appear before it.

9. The Tribunal noted that the claims advanced by the appellant lacked detail in important respects.  It concluded that it could not accept the truth of the assertions made by the appellant because it had not had the opportunity to test the assertions by questioning the appellant at a hearing.  The Tribunal was not satisfied that the appellant is a person in respect of whom Australia has protection obligations under the Refugee Convention.

   REASONS FOR JUDGMENT OF THE FEDERAL MAGISTRATES COURT

10. Before the Federal Magistrates Court the appellant relied on two grounds of review.  First, that he should have been given an opportunity to appear before the Tribunal and secondly, that the Tribunal should have considered the cumulative effect of the various fears of persecution held by him.

11. The appellant told the learned Federal Magistrate that the letter received by the Tribunal on 14 July 2004 had been written for him by a friend and he had been unaware that the letter had promised that a medical certificate would be sent to the Tribunal.  I interpolate that before this Court the appellant asserted that he gave a medical certificate to a friend (who has now left Australia) who later confessed to having forgotten to send it to the Tribunal.

12. The Federal Magistrate was satisfied that s 426A of the Act authorised the Tribunal to make a decision on the review without taking any further action to allow or enable the appellant to appear before it. His Honour was further satisfied that no occasion arose for the Tribunal to give consideration to the cumulative effect of the appellant’s various fears as the Tribunal was not satisfied as to the veracity of his claims to fear persecution in India.

13. The Federal Magistrate was not satisfied that the decision of the Tribunal was affected by any reviewable error.  He dismissed the appellant’s application to the Federal Magistrates Court.

    AMENDED NOTICE OF APPEAL

14. The amended notice of appeal states two grounds of appeal.  The first ground of appeal alleges that the Federal Magistrate erred in failing to hold that the decision of the Tribunal ‘involved an error of the law, being an error including [sic] an incorrect interpretation of the applicable law on correct interpretation of the facts as found by the Refugee Review Tribunal.’  No particulars are given of this ground of appeal.  The second ground of appeal alleges that the Tribunal ‘did not properly consider the grounds of [the appellant’s] fear of persecution.’  Two particulars are given of this ground of appeal. The first particular asserts that the Tribunal relied exclusively on country information and ignored information provided by the appellant.  The second particular asserts that the appellant was denied procedural fairness when he lost his chance to present oral evidence to the Tribunal.

    CONSIDERATION

15. When the appellant was given an opportunity to explain what his first ground of appeal was intended to convey he explained, in effect, that the error of law was demonstrated by the problems that he is presently facing.  I understood him to mean by this the problems that he asserts that he will face on return to India.  I suspect that the appellant copied the first of his grounds of appeal from a notice of appeal in another case. It does not bear a sensible relationship to his case before the Federal Magistrate.  He was unable to demonstrate its relevance to this appeal from the judgment of the Federal Magistrates Court.  The first ground of appeal need not be further considered.

16. The contention that the Tribunal did not properly consider the appellant’s fear of persecution because it relied exclusively on country information and ignored information provided by the appellant is also groundless.  The Tribunal did not place any reliance on country information.  Its decision was based on the generalised nature of the assertions made by the appellant in his application for a protection visa.  Without being able to test these claims at a hearing, the Tribunal was not satisfied that the appellant has a well‑founded fear of persecution by reason of his religion in India.

17. The Federal Magistrate rightly rejected the appellant’s claim to have been denied procedural fairness by the Tribunal. Section 422B of the Act provides that Division 4 of Part 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters the Tribunal deals with. Division 4 of Part 7 deals with the right to a hearing before the Tribunal in s 426A.

18. Section 426A provides:

    ‘(1)     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;

    the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

    (2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.’

19. In this case the Tribunal gave consideration to whether it should reschedule the appellant’s hearing.  It noted that no explanation was given in the letter received by it on 14 July 2004 for the failure to send a medical certificate with that letter.  It further noted that the medical certificate that had been promised ‘in the next mail’ had not been provided.  It additionally placed weight on the appellant’s failure to contact the Tribunal to see if the requested adjournment had been granted.

20. In my view no error attends the decision of the Federal Magistrate that, in the circumstances, the Tribunal was entitled to make a decision on the review without taking any further action to allow or enable the appellant to appear before it.  While it is not strictly relevant I consider it appropriate to record that the appellant has not at any time produced evidence to support the claim that he was too ill to attend the hearing scheduled for 15 July 2004.  Moreover he has given inconsistent explanations to the Federal Magistrates Court and this Court respectively concerning his failure to provide a medical certificate to the Tribunal.

    CONCLUSION

21. No error affecting the judgment of the Federal Magistrates Court has been identified.  The appeal was for this reasons dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             3 August 2005

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the Respondent:	S Kaur-Bains
Solicitor for the Respondent:	Philips Fox
Date of Hearing:	21 July 2005
Date of Judgment:	21 July 2005