SZEXB v Minister for Immigration

Case •

[2005] FMCA 1771

•

19 December 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEXB v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1771
MIGRATION – Refugee – notice – invitation to hearing – the Tribunal complied with all relevant requirements – notice relating to capacity to nominate witnesses – failure to attend hearing – applicant did not come with “clean hands” – information on which Tribunal relied falls within the exception in s.424A(3)(a) – applicant was provided with the opportunity to respond to such information – no jurisdictional error – application dismissed.
Migration Act 1958, ss.422B, 424, 424A, 424A(1), 424A(2), 424A(3)(b), 425, 425A, 425A(1), 425A(2), 425A(3), 425A(4), 426A, 426(1)(b), 426(3), 441A, 441C(4)
Migration Regulations 1994.r.4.35D
Federal Magistrates Court Rules 2001.r.21.02(2)(a).
Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437
SZFKF v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FMCA 1152
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZDQO vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026
SZBNS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 458
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Applicant: SZEXB
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2170 of 2004
Judgment of: Nicholls FM
Hearing date: 11 October 2005
Date of Last Submission: 06 October 2005
Delivered at: Sydney
Delivered on: 19 December 2005

REPRESENTATION

Counsel for the Applicant: Nil
Solicitors for the Applicant: Nil
Counsel for the Respondent: Mr. D. Jordan
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The Refugee Review Tribunal is joined as the second respondent to these proceedings.

  2. The application is dismissed.

  3. The applicant to pay the first respondent’s costs set in the amount of $5500, pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2170 of 2004

SZEXB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

  1. This is an application filed in this Court on 13 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 May 2004 and handed down on 15 June 2004 to affirm the decision of a delegate of the first respondent Minister to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent to these proceedings.

  2. The applicant is a citizen of India and is a Hindu. He claimed that he feared persecution in India on the basis of his political opinion and that his activities as a member of the Bharatiya Janata Party (BJP), for which he also worked as a social worker, brought him into conflict with Muslims in his area. He claimed that there had been several occasions when there had been incidents with Muslims and as a result of these his life had been threatened. This included an incident in 2001 when he was assaulted by “gangsters” when he organised twenty Hindus to act against Muslims who were smuggling drugs. He claimed also to have been subsequently threatened as a result.

  3. The applicant arrived in Australia on 24 May 2003 and lodged an application for a protection visa on 3 July 2003 with the first respondent's Department. On 14 November 2003 a delegate of the respondent Minister refused to grant a protection visa, and on 15 December 2003 the applicant applied for review of that decision. The applicant’s claims to refugee status are found in his application to the respondent's Department (Court Book (“CB”) 1 CB 48), in his application for review to the Tribunal (CB 61 to CB 64), and the Tribunal's decision record (CB 88 to CB 97).

  4. While this issue is the subject of further evidence and consideration below at CB 69 to CB 70, a letter is reproduced dated 19 January 2004 from the Tribunal to the applicant notifying the applicant, and his then Migration adviser, that it had considered the available material but was unable to make a decision in the applicant's favour on this information alone. The letter invited the applicant to attend a hearing before the Tribunal on 16 February 2004 to give further evidence and present argument in support of his claims. The letter also enclosed a “Response to Hearing Invitation” form and asked the applicant to complete the form to advise the Tribunal if he was coming to the hearing or not. The Tribunal’s relevant checklist, reproduced at CB 71, records that an officer of the Tribunal called the applicant's adviser and that the adviser is reported as saying he would check with the applicant and call back. There does not appear to have been any return call and the applicant did not appear at the hearing on 16 February 2004. On 18 February 2004 the applicant's adviser sent by facsimile a letter attaching a medical certificate stating that the applicant wanted to give oral evidence, but that he was ill, and sought a postponement of the hearing (CB 72 to CB 73). The Tribunal's decision record at CB 91.3 states that the Tribunal again wrote to the applicant on the 19 February 2004 (this is the letter is reproduced at CB 74 to CB 75) and made reference to the applicant's request to postpone the hearing and that it had agreed to that request, and that the hearing was postponed until 25 March 2004. The letter advised the applicant that if he was not able to attend the rescheduled hearing date that he had to contact the Tribunal immediately and again reminded him that if he did not attend the hearing, and the Tribunal did not postpone the hearing, that the Tribunal could make a decision on his case without further notice. The Tribunal's decision record states that the applicant did not contact the Tribunal until 22 March 2004 (CB 91.3). The Tribunal’s file note at CB 79 reveals that the confirmation of the hearing received on 22 March 2004 was received “late” by the Tribunal and that the hearing room which had been originally allotted was no longer available. A third occasion for the hearing was scheduled for 13 May 2004, and the Tribunal's decision record reveals (CB 91.3) that the applicant confirmed by telephone on 4 May 2004 that he would attend. However, the applicant did not attend or contact the Tribunal to explain this failure to attend and in these circumstances, pursuant to s.426A of the Migration Act 1958 (“the Act”), the Tribunal proceeded to make a decision without taking any further action to enable the applicant to appear before it.

  5. The applicant's statement of his claims to refugee protection is at CB 26 to CB 28. He did not put any new claims before the Tribunal. In his application to the Tribunal at CB 63 he stated that he was “deeply aggrieved by the decision made by the case officer of the Department of Immigration”. He sought from the Tribunal a more favourable decision, and asked the Tribunal to consider the review application “favourably”. On what was before it the Tribunal advised the applicant that it could not make a favourable decision and invited him to attend a hearing. I will deal with this issue further below. In its “Findings and Reasons” (CB 93.5 to CB 97.5) the Tribunal found that the applicant had made a number of unsupported allegations which were vague, general and unsubstantiated and referred to a number of concerns and questions raised by the applicant’s claims. The Tribunal noted in its decision record that the applicant had not availed himself of the opportunity to attend his scheduled hearing and present oral arguments and evidence to explain himself. In particular it noted at CB 94.6 that it had “grave credibility concerns” about the applicant’s claims and evidence, but found that even if, notwithstanding these concerns, it accepted the applicant’s claims and evidence as to the problems that he had encountered in India, these were local problems centred on his hometown of Mumbai and in locations around the state of Maharashtra. The Tribunal found that the applicant could reasonably be expected to relocate elsewhere in India and the Tribunal's consideration of the issue of relocation is set out in its decision record at CB 94.8 to CB 97.6. An examination of the Tribunal’s decision record in this regard reveals that the Tribunal understood the relevant test as set out in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”), and properly applied this test, and found that in all the circumstances that the applicant would not face persecution for a Convention reason should he relocate elsewhere in India outside of his home city and home state.

  6. The applicant’s originating application to the Court filed on 13 July 2004 contains nine grounds of review. They are formulaic in content, style and presentation and often seen in this Court in this format. They lack any particularity. In any event the applicant filed an amended application on 20 December 2004. To some extent the amended application seeks impermissible merits review. The following claims are, however, advanced:

    “That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.

    Particulars:

    1.The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on the member of a BJP A POPULAR POLITICAL PARTY in India. I was persecuted because of my political opinion. Because of my politics I was persecuted by Congress party & their supporters. If I persecuted by Congress Party & Police it is not possible for me relocate any other place in India. I tried to relocate in India, but I failed because police searching me. I will be persecute if I return back to India because of my political opinion. It is a Convention base persecution.

    2.It is true I did not collect relevant documentary evidences to prove my persecution. Because I have no one to help me to collect the document.

    3.The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.

    4.The Tribunal fail consider my claims without any investigation.

    5.I was sick first interview because I was sick. I provided medical certificate. I refer CB page 73.

    I will provide more details to support my judicial review application in my outline of submission.

    Particulars

    The Tribunal did not provide me adequate particulars of the independent information,

    The Tribunal did not provide me an adequate opportunity to respond the substance of the information.

    The Tribunal finding that the totality of the country information does not show that BJP supporters persecuted in India.”

  7. At the hearing before me the applicant was unrepresented and was assisted by an interpreter in the Hindi language. Mr. Jordan appeared for the respondents. I have before me:

    For the applicant:

    1)The applicant’s originating application.

    2)The amended application filed on 20 December 2004 on which the applicant relied.

    For the respondents:

    1)A Court Book filed on 28 September 2004.

    2)A Supplementary Court Book filed on 13 October 2004.

    3)A Second Supplementary Court Book filed on 29 September 2005.

    4)The respondent's outline of submission filed on 6 October 2005.

    At the hearing before me Mr. Jordan sought leave to file in Court an affidavit sworn on 11 October 2005 by Jonathan Christian Willoughby-Thomas, a District Registrar of the Tribunal. I subsequently granted leave for the affidavit to be taken into evidence before me. The relevance of the affidavit and the annexures to the affidavit, go to an issue not raised by the applicant but raised fairly by Mr. Jordan. The issue arises out of and concerns the circumstances in this case leading to the Tribunal proceeding, pursuant to its discretion under s.426A of the Act, to make a decision without the applicant appearing at a hearing before the Tribunal in circumstances particularly where the date for the hearing was rescheduled on a number of occasions. The applicant's complaint in his amended application that the Tribunal did not provide him with an adequate opportunity to respond to the substance of the independent information which he claims the Tribunal relied upon, may in part relate to this. In any event I will deal with this specifically below. Mr. Jordan submitted that the material contained in the affidavit, and the Second Supplementary Court Book, would be relied upon by the respondents to establish, to the satisfaction of the Court, that the requirements for the exercise of the Tribunal's discretion under s.426A of the Act have been satisfied. I turn to his issue now.

  8. In circumstances where the Tribunal is not able to decide the review in an applicant’s favour s.425 of the Act requires that the Tribunal to 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. Section 425A dealing with the notice of the invitation to appear, is in the following terms:

    “SECT 425A

    Notice of invitation to appear

    (1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

    (2)     The notice must be given to the applicant:

    (a) except where paragraph (b) applies–by one of the methods specified in section 441A; or

    (b) if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.

    (3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

    (4)The notice must contain a statement of the effect of section 426A.”

    The applicant in the case before me was not in Immigration Detention and relevantly therefore s.441A of the Act provides, inter alia:

    “(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:

    (a) within 3 working days (in the place of dispatch) of the date of the document; and

    (b) by prepaid post or by other prepaid means; and

    (c)to:

    (i)      the last address for service provided to the Tribunal by the recipient in connection with the review; or

    (ii)     the last residential or business address provided to the Tribunal by the recipient in connection with the review.”

    Relevantly s.441C(4) provides:

    “(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

    (a) if the document was dispatched from a place in Australia to an address in Australia–7 working days (in the place of that address) after the date of the document; or

    (b) in any other case–21 days after the date of the document.”

    For the purposes of s.425A(3) of the Act, the prescribed period is that contained in Regulation 4.35D of the Migration Regulations 1994 (“the Regulations”):

    “For subsection 425A (3) of the Act, the prescribed period:

    (a)   if the applicant is a detainee – starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or

    (b)in any other case – starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.”

  9. The material before me shows:

    1)The applicant applied for review by the Tribunal on 13 December 2003. The application for review is at CB 61 to CB 64. At the time of making the application the applicant did not nominate anyone to receive correspondence, or to act on his behalf, and gave his home address as his mailing address (CB 61).

    2)On 7 January 2004 the Tribunal received by facsimile transmission (CB 67 to CB 68) notification from the applicant that he had appointed a migration consultant as an authorised recipient to receive all documents in relation to his Tribunal application, and that he had authorised this person to act on his behalf in relation to his application.

    3)On 19 January 2004 (CB 69 to CB 70) the Tribunal wrote to the applicant advising that it could not make a decision in his favour and invited the applicant to attend a hearing before the Tribunal. The Tribunal set 6 February 2004 as the hearing date. The letter was sent to the applicant's authorised recipient as had been notified by the applicant at the address provided by the applicant for that purpose. A copy of that letter was sent to the applicant's home address, which had also been provided as his mailing address.

    4)The letter advised the applicant that he should complete the enclosed “Response to Hearing Invitation” form and return it to the Tribunal. Further the Tribunal advised the applicant that the hearing date provided would only be changed for good reasons and if the applicant thought that he might be unable to attend the hearing he must contact the Tribunal “immediately”. The letter provided advice that if the applicant did not attend the hearing, and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice.

    5)On 12 February 2004, not having received the form in reply to the hearing invitation, or indeed any other communication from the applicant, or his adviser, an employee of the Tribunal rang the applicant’s “Authorised Recipient”/adviser to see if the applicant intended to attend the hearing which had been scheduled for 16 February 2004. On that date the employee of the Tribunal completed the relevant check list as to the matters to be checked in preparation for the hearing (CB 71).

    6)On 13 February 2004 the applicant's adviser rang the Tribunal and advised that the applicant did not want to attend the hearing for medical reasons and that a medical certificate would be arranged (Second Supplementary Court Book (“SSCB”) 5.3).

    7)On 18 February 2004 the Tribunal received by facsimile communication a medical certificate in relation to the applicant indicating that the applicant was “unfit for work” between 18 February 2004 and 20 February 2004 inclusive (CB 72 to CB 73).

    8)By letter dated 19 February 2004 the Tribunal addressed to the applicant (sent to his “Authorised Recipient” and copied to his home address), the Tribunal noted that the applicant had asked the Tribunal to postpone the date of the hearing and that the Tribunal had agreed to this request. The hearing was now rescheduled for 25 March 2004 (CB 91.3, CB 74 to CB 75).

    9)The Tribunal's “case” file note reproduced at SSCB 5 shows that following the applicant's failure to again return a “Response to Hearing Invitation” form a number of inquiries were made by Tribunal staff to ascertain the applicant's intention in this regard. On 9 March 2004 a Tribunal employee telephoned the applicant's “authorised recipient” to confirm whether the applicant would be attending the hearing. The authorised recipient said he did not know, and subsequently rang the Tribunal on 12 March 2004 to state that he could not contact the applicant. This was again confirmed on 15 March 2004. The Tribunal employee further attempted to contact the applicant on a mobile telephone number provided by the applicant's authorised recipient. This was unsuccessful.

    10)On 18 March 2004 a Tribunal employee was able to contact the applicant on the mobile telephone number which had been provided, and the applicant confirmed that he would come to the hearing (see SSCB 5). The Tribunal's record shows that the Tribunal employee telephoned the applicant’s authorised recipient to inform him that the applicant would be attending the hearing. The Tribunal’s file record shows at SSCB 5.7 that the applicant had not returned the confirmation by way of the “Response to Hearing Invitation” form. In particular and relevantly the letter of 19 February 2004 indicated that if the applicant was unable to attend the hearing he must contact the Tribunal “immediately”. By the time the hearing attendance could be confirmed with the applicant, and by the time the Tribunal was able to contact the applicant, the hearing room that had been previously allotted for this purpose was no longer available. This necessitated the hearing having to be rescheduled to another day.

    11)The Tribunal's case file record at SSCB 5.7 records that on 23 March 2004 an employee of the Tribunal rang the applicant to inform him of the further postponement of the hearing date and to advise the applicant that a new date would be advised in the near future. The Tribunal also advised the applicant's “authorised recipient”. The record also reveals that on 5 April 2004 the applicant and the authorised recipient were informed of the new hearing date and time by letter (SSCB 5.8).

    12)A copy of this letter was not in the material before me. It is in this regard that Mr. Jordan relied on the affidavit of Jonathan Christian Willoughby-Thomas as evidence in support of the file case note entry that the letter had in fact been sent to the applicant. The affidavit puts before the Court, relevantly, the information from the Tribunal’s file going to the issue of the letter of 5 April 2004, relevant information from the Tribunal's case management system case log, details relevant to the proposed hearing from the applicant's personal file with the Tribunal, the Tribunal's postal log relevant to this case, and Mr. Willoughby-Thomas's knowledge of Tribunal procedures, noting that Mr. Willoughby-Thomas is the District Registrar of the Tribunal in Sydney.

  1. Mr. Jordan submitted that based on all of this material there is sufficient evidence before the Court to clearly infer that notwithstanding that a copy of the letter has not been produced, that a letter inviting the applicant to a hearing rescheduled for 13 May 2004 was sent to the applicant and his authorised recipient on 5 April 2004.

  2. At the hearing before me and relevant to the issue of the period of the notice relating to the rescheduling of the hearing date, Mr. Jordan referred to the Judgement of Barnes FM in SZFKF v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FMCA 1152 (“SZFKF”). In that case Her Honour was faced with a deficiency relating to the period of notice between the date of advice of the rescheduled hearing date and the actual scheduled date for the hearing. In that case Barnes FM considered existing authorities relevant to the issue of the period of notice pursuant to s.425A of the Act and considered those authorities in light of the approach taken by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”). She concluded that there had been jurisdictional error because of the failure to accord the proper notice period, and relied on the majority of the High Court in indicating that there was a need for strict compliance with the procedural fairness issues set out in the relevant statutory provisions. In the context of the circumstances before me Mr. Jordan submitted that these circumstances can be distinguished from what was before Barnes FM, and that while that Judgement is not binding, it would have to be accepted as persuasive. Therefore, I would need to consider whether the circumstances in that case can be distinguished from the circumstances before me. In the alternative, Mr. Jordan submitted that even if that submission was not accepted and that there had been a failure to comply with one of the pre-requisites in s.425A of the Act, then again in circumstances before me, unlike the circumstances in SZFKF, there are quite strong discretionary grounds to refuse the leave. 

  3. In relation to the evidence submitted by the respondent before me, the applicant before me took no objection to, and did not dispute that the relevant telephone conversations between him and the Tribunal employee, as reported at SSCB 5 to have taken place on 5 April 2004 and 4 May 2004 (relating to the re-scheduled hearing on 13 May 2004) in fact took place. Particularly in relation to the telephone call of 4 May 2004, the applicant submitted that he in fact did have a “talk with them through the phone”, and that he was asked whether he would go to the hearing or not. The applicant's complaint however was that in relation to the returning to the Tribunal of the “Response to Hearing Invitation” form that he was expecting that his migration agent was going to return that form.

  4. In this regard the applicant did dispute what was recorded in the Tribunal's case record at SSCB 5 to the extent that it reported that the “Authorised Recipient” claimed to have had his services cancelled by the applicant from 18 February 2004 (see reported conversation on “29/4/04” at SSCB 5). In support of the applicant’s claim from the material before me, the Tribunal did not receive the termination of “Authorised Recipient” form from the Authorised Recipient until 29 April 2004 (CB 80). The applicant claimed before me that he did not terminate the agent's services until he received the Tribunal's decision. The applicant further complained before me that the agent had not assisted him because he had not informed him of “anything”. The applicant's account now that he did not cancel the adviser’s status as an authorised recipient until the time he received the Tribunal's decision is in part supported by the Tribunal's own record, in that notwithstanding the fact that the adviser is reported as having said on 29 April 2004 (CB 5.8) that his services were cancelled “from 18 February”, the record also reports other dealings by the Authorised Recipient/adviser on behalf of the applicant on and after 18 February 2004. Such action appears inconsistent with his subsequent advice that his services had been withdrawn. In particular various items recorded at SSCB 5 show that the adviser called the Tribunal on 18 February, sent a medical certificate by fax on that date to the Tribunal, attended to a telephone conversation with an officer of the Tribunal on 9 March 2004, telephoned the Tribunal on 12 March 2004, 15 March 2004 and 18 March 2004, and further attended to telephone conversations with a Tribunal employee on 23 March 2004 and 29 April 2004. It was not until that last date that the Authorised Recipient/adviser first raised the issue with the Tribunal’s employee that his services had been cancelled. Even if I accept the applicant’s account that the agent’s services were terminated after he received his decision, then this would not assist the applicant. It may be an issue for the applicant that the agent’s alleged failures can be pursued with the appropriate authority, but any such failure would not assist the applicant in showing jurisdictional error on the part of the Tribunal. The agent (also in his capacity as “Authorised Recipient”) was the appropriate person for the Tribunal to correspond and deal with in the applicant’s case. Critically however, relevant to the consideration before me now, and in particular to the matters going to the Tribunal’s obligation in inviting the applicant to a hearing, the applicant voluntarily confirmed, at the hearing before me, that the reported telephone conversations with him (as set out at SSCB 5) did take place.

  5. A critical issue in the case before me arising out of s.425A(3) of the Act is the period of notice given to the applicant for the attendance at a hearing before the Tribunal. The following can be established:

    1)In relation to the invitation to hearing letter of 19 January 2004 (the first letter) advising of a scheduled hearing date of 16 February 2004, it is clear that the applicant was invited to appear before the Tribunal pursuant to s.425A of the Act, and the letter did give the applicant notice of the day, time and place at which the applicant was scheduled to appear. Further in relation to the period of notice pursuant to s.425A(3) the applicant would be taken to have received the letter 7 working days (s.441C(4) of the Act) from 19 January 2004. The period of notice, pursuant to Regulation 4.35D of the Migration Regulations 1994 (“the Regulations”), would be 14 days from that date. This would have expired well before 16 February 2004. This letter was clearly sent to the applicant's “Authorised Recipient” for correspondence. The letter was also sent to the applicant's home address. The applicant does not dispute that he ever received this letter.

    2)In relation to the Tribunal's letter of 19 February 2004 (the second letter) notifying the rescheduled hearing date as 25 March 2004, clearly again the requisite 7 working days at the end of which the applicant is taken to have received the letter, and the 14 days prescribed period of notice still expired well short of the rescheduled hearing date of 25 March 2004. It needs to be clearly emphasised that the hearing was rescheduled at the applicant’s request, and not on the part of any requirement by the Tribunal. I also note that the request for the postponement was elicited as a result of the Tribunal's own inquiry with the applicant, and his “Authorised Recipient”. The medical certificate purportedly put in support by way of explanation for the applicant's inability to attend at the scheduled hearing date was not sent to the Tribunal until two days after the first scheduled hearing date. Further, I note that the certificate relates to an unfitness for work, and curiously, is put forward to cover the period from 18 February 2004 to 20 February 2004, when in fact the scheduled hearing date was 16 February 2004. The Tribunal’s second letter also complied with the relevant period of notice.

    3)In relation to the advice of the third scheduled hearing date, there is clearly sufficient evidence before me to show that a letter inviting the applicant to a hearing scheduled for 13 May 2004 was sent to the applicant, and his “Authorised Recipient” on 5 April 2004. Again in these circumstances, the letter would have been taken to have been received by the applicant 7 working days from that date, and the prescribed period of notice of 14 days would still see the expiry of that period of notice well before 13 May 2004 (Easter). I note relevantly that the applicant does not dispute receiving the letter, but that his claim, and complaint, is that his migration agent failed to deal with the “Response to Hearing Invitation” form.

  6. Before me the applicant put forward as his explanation for his failure to attend at the third scheduled hearing date that he had told his migration agent that he was not able to attend on the third scheduled date, and that his agent had not sent the “Response to Hearing Invitation” form, or done “anything”. The applicant claimed (from the Bar Table) that the Migration Agent had said to him “I will do the follow-up, don't worry about it”. The applicant put to me that he feels that “that is why I face this problem”. In relation therefore to the period of notice there is sufficient evidence to show that this “third letter” was also sent to the authorised recipient and the applicant and the applicant confirmed this (albeit not by way of evidence). In terms of the period of notice, the Tribunal complied with the requisite notice provisions.

  7. There are clearly conflicting accounts as to exactly when the authorised recipient ceased to act for the applicant and the “Authorised Recipient's” reported statement to the Tribunal as to the date of that cessation is in conflict with his other reported actions and dealings with the Tribunal. Further there is a conflict with the authorised recipient's reported statement to the Tribunal in relation to the timing of the cessation and the applicant's submission to me. But none of this as I have set out above would assist the applicant. In relation to the issue of the invitation letter meeting the requisite notice period, if the applicant's submission is correct and agent’s status as the “Authorised Recipient's” status did not cease until the time of the Tribunal's decision, then clearly the Tribunal complied with the requirement to send the correspondence to the “Authorised Recipient”. Even in the event that the applicant had cancelled the services of the “Authorised Recipient” on 18 February 2004, this circumstance was not made known to the Tribunal until 29 April 2004, and not confirmed until 29 April 2004 by facsimile. This is reproduced at CB 81 and I note contains nothing directly from the applicant himself, but is a notice signed by the migration agent. In any event, even taken on its face, if it did relate to a cessation of services as from 18 February 2004, then there is nothing before me to dispute, and in fact there is clear evidence before me to show, that the invitation to hearing letters were also sent to the applicant at his home address. Nor importantly does the applicant dispute this now. His complaint is about the failure of the migration agent to return the “Response to Hearing Invitation” form. There is clearly no error on the part of the Tribunal in continuing to deal with the “Authorised Recipient” right up until it was advised that the “Authorised Recipient” was no longer acting for the applicant. In any event, throughout the relevant period, the Tribunal also sent these communications to the applicant. Notwithstanding that he had an “Authorised Recipient” the Tribunal's case record at SSCB 5 shows (and this is confirmed by the applicant) that it also tried to contact, and did contact, the applicant by telephone. This is not relevant to the issue of the giving of the notice and the periods of notice pursuant to s.425A, but it further demonstrates the Tribunal’s attempts to progress the matter of the applicant attending at a hearing before the Tribunal in circumstances where the inaction on the part of the applicant and his adviser is relevant to the issue of the Court exercising its discretion to grant the relief sought. I will return to this below. In the meantime I accept Mr. Jordan's submission therefore that in the circumstances of this case, the periods of notice pursuant to s.425A(3) were met in respect of each of the three rescheduled hearing dates, and that this situation is clearly distinguished from the situation found in SZFKF in this regard.

  8. In relation to the letter of invitation to the third scheduled hearing date, Mr. Jordan submitted that it relates to the requirements of s.425A(1) of the Act, which requires notice of the day, time and place of the scheduled hearing. In this regard, he relied on paragraphs 9, 10, 11, 12 and 13 of the affidavit of Jonathan Willoughby-Thomas, and the annexures to it. He submitted that when this is considered in the context of what is reproduced at SSCB 5, it is sufficient to show that a letter was sent to the applicant on 5 April 2004 and that the letter indicated that the date, time and place of the rescheduled hearing date. In the circumstances of the evidence put before me, and noting what I have already set out above in relation to what the applicant has said at the hearing before me, I find that I can be so satisfied.

  9. In relation to s.425A(2) of the Act, which deals with the method of giving the letter of invitation to the applicant and the third letter notifying of a hearing date, Mr. Jordan relied on paragraph 8 of the affidavit of Jonathan Willoughby Thomas, and Annexure “A” to that affidavit. The Tribunal's case management system log entry for the applicant’s file shows that a letter and three envelopes (one with the applicant's home address on it) were generated on 5 April 2004. When looked at in connection with the registered post records the Tribunal set out at Annexure “D” to the affidavit, this shows registered post items sent on 5 April 2004 to the applicant, and to his authorised recipient. This at least shows that correspondence was sent to the applicant, and his authorised recipient, which at that time the Tribunal believed to be the person to whom correspondence should be sent. But in any event, a copy was also sent the applicant at his home address. As to the nature of the correspondence Mr. Jordan relied on paragraph 13 of the affidavit of Jonathan Willoughby-Thomas, that on the material before Mr. Willoughby-Thomas he was entitled to say that on 5 April 2004 the Tribunal generated a letter inviting the applicant to a hearing on 30 May 2004, at 10 a.m., at the Tribunal premises, and that this was sent to both the applicant’s “Authorised Recipient”, and that it was also sent by registered post to the applicant's postal address which was also his residential address. In the absence of any stated contradiction by the applicant, indeed the applicant's assertion as set out above was that he knew of the hearing and was relying on his authorised recipient to advise the Tribunal that he could not attend the third scheduled hearing date, (although he could have known of this through the Tribunal officer telling him), I am satisfied on the evidence before me that there is no assertion that a letter was not sent or that the applicant or his “Authorised Recipient” did not receive such a letter. In all the circumstances I am satisfied that on the evidence before me that the letter of invitation was sent, and that it was sent on the date asserted, and that it met the requirements of s.425A(2). I have already dealt with s.425A(3) and found that the Tribunal did comply with the prescribed period of notice.

  10. In relation to the matters set out in s.425A(4), the requirement is that the notice must contain a statement indicating the effect of s.426A of the Act. Section 426A provides:

    “SECT 426A

    Failure of applicant to appear before Tribunal

    (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.”

    It is clear that the letter of 19 January 2004 (CB 69) (the first hearing date letter) and the letter of 19 February 2004 (CB 74) (the second) clearly did comply with the requirement to set out the matters in s.426A. Annexure “B” to the affidavit of Jonathan Willoughby-Thomas, and the other evidence already referred to in that affidavit, clearly shows that the letter of 5 April 2004 similarly complied. The “standard” letter used by the Tribunal is set out at “Annexure B” to the affidavit and clearly shows the relevant reference to the critical matter set out in s.426A (that is, that the Tribunal may make a decision on the applicant’s case without further notice if he did not attend the hearing). I have already set out above the reasons for being satisfied that this letter was sent.

  11. Mr. Jordan, again fairly in circumstances where the applicant was unrepresented, also made submissions in relation to s.426 of the Act. This includes two further requirements relevant to an invitation to a hearing to be dealt with by the Tribunal. There are two aspects, relevantly, to s.426. The first is that notice under s.425A must notify the applicant that he or she is invited to appear before the Tribunal to give evidence. In this regard I accept the submission made by Mr. Jordan, for the reasons above, that the Tribunal satisfied that requirement in the case before me. The second requirement relates to the calling of witnesses. In this regard the section specifies:

    “Section 426(1)

    In the notice under s.425A the Tribunal must notify the applicant:

    … (b) of the effect of subsection 2 of this section.

    (2) The applicant may within 7 days, after being notified under subsection 1, give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from the person or persons named in the notice.”

    It is clear that the first letter of 19 January 2004 did contain this information. The letter of 19 February 2004 did not and the “standard” letter at Annexure “B” to the affidavit of Jonathan Willoughby-Thomas does not itself specifically refer to any suggestion that the applicant may request the Tribunal to call witnesses. Mr. Jordan's submission however was that there was compliance with s.426(1)(b) in the original letter of 19 January, and that, that invitation remained open from that time. Further that there was no suggestion in the letter of 5 April 2004 (being the standard form letter) that there had been any change in the circumstances concerning this invitation. To that extent I note that there is no such suggestion either in the second letter of 19 February 2004. The essence of Mr. Jordan's submission was that the subsequent letters were, particularly in relation to the requesting of witnesses, part of the same event. Mr. Jordan emphasised that there had been compliance with s.426(1)(b) by way of the invitation to request witnesses originally advanced in the letter of 19 January 2004, and that that invitation remained open. His argument was that this is distinct from any possible deficiency concerning the period of notice (the issue is SZFKF) because insofar as the period of notice is concerned it is focused on the applicant’s preparation for the hearing. It is understandable that in these circumstances, the notice period is required so that the applicant can attend on the hearing date and prepare for this. The reference in s.426 to witnesses is directed to the applicant notifying the Tribunal within 7 days of receiving notification pursuant to s.426(1)(b) of the Act, of the possibility of the Tribunal agreeing to take evidence from witnesses. It is clear that s.426(3) creates a mandatory requirement for the Tribunal to have regard to the applicant’s wishes in this regard, but the Tribunal is not required to then obtain the evidence from any person named in the applicant's notice relating to witnesses.

  1. In my view Mr. Jordan's submission in this regard is correct. Unlike the period of notice provided to the applicant to attend the hearing, the notice in relation to the capacity to nominate a witness does not extend to the witness ultimately appearing before the Tribunal. Clearly s.426(3) provides discretion to the Tribunal in this regard. The applicant in the case before me clearly was put on notice of the possibility to nominate any witnesses. This was done by the first letter of 19 January 2004 sent to him and his “Authorised Recipient”. There is nothing to show that within 7 days after being notified of this possibility that he gave the Tribunal any notice, let alone written notice, (as required by s.426(2)) that he wanted the Tribunal to obtain oral evidence from any witnesses. Nor is there any evidence, nor indeed is there any assertion now by the applicant, that he told the Tribunal at any time that he wanted to call witnesses or that he ever intended to tell the Tribunal that he wanted to call witnesses. I accept Mr. Jordan's submission that in this sense there was compliance with the requirement to notify the applicant of the capacity to call witnesses. This was done by the letter of 19 January 2004 and that because of the nature (as set out above) of this particular requirement it is not necessary to continue “to spell it out” every time that a hearing is rescheduled. The applicant was told of the possibility, pursuant to s.426, that he could nominate witnesses to be called before the Tribunal. He did not take this option up within the requisite 7 days, or indeed subsequently. The rescheduling of the actual hearing date does not affect this situation that the applicant was told of this opportunity, nor that this opportunity was withdrawn because of the rescheduling of the hearing date.

  2. Mr. Jordan also submitted that that there is a second basis for distinguishing SZFKF, in relation to the matters above, from the facts before me. In SZFKF the rescheduling of the hearing date occurred purely because the Tribunal, of its own motion, was required to reschedule the hearing (see SZFKF at [23]-[27]). In this regard I also note Conti J., in SZDQO vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 (“SZDQO”) where at [28]-[29] His Honour, with reference also to another judgement of Barnes FM, SZBNS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 458 (“SZBNS”) which also dealt with whether the Tribunal committed a jurisdictional error by failing to give an applicant notice of a rescheduled hearing in accordance with s.425A of the Act, said:

    “[28] In his submissions in the context of the decision of Barnes FM in SZBNS, counsel for the Minister emphasised in the present appeal her Honour’s statement at [26] ‘[i]ndeed in one sense it could be said that the letter of 4 August 2003 [notifying the applicant of the rescheduling of the hearing to 19 August 2003] was not a fresh invitation but merely a postponement’ as being ‘redolent of the approach her Honour took in SZBAZ, where her Honour distinguished between an initial application [sic, hearing] and a re-scheduling’. In doing so counsel appeared to articulate a ratio decidendi for SZBNS stripped bare of her Honour’s apparent reliance on the approach adopted by the Full Court in NAHV to breaches of s 424A.

    [29] In my opinion, the Minister’s approach is correct. The circumstances in SZBNS are distinguishable from those of the present appellant. Here the Tribunal rescheduled the hearing as a result of the appellant’s non-attendance at the original hearing at the applicant’s own initiative, albeit with the support of a doctor’s certificate. In my opinion, in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest, explicitly or implicitly, of an applicant, s 425A does not apply in relation to the notice of a rescheduled hearing, at least in so far as concerns the period of the reviewed notice. The sanction on the Tribunal in those circumstances would be the operation of the general law as to natural justice, as Hely J indicated in NAHF, albeit in a different factual context, and subject to the operation of the recently enacted s 422B of the Act. As Barnes FM reasoned in SZBAZ, in my opinion rightly, ‘[w]ere it otherwise, any delay, even of minutes or hours, at the request of the applicant, would give rise to a failure to comply with s 425A’. Other examples of circumstances where the conduct of a review by the Tribunal could be unreasonably thwarted readily come to mind. It is conceivable moreover that an applicant could set in train an indefinite number of re-scheduled hearings in a repetitive context of a requirement for not less than 14 days’ notice. It was I think soundly submitted by the Minister that Scarlett FM’s finding in the present case was correct to the effect that the period of notification given for the rescheduled hearing was reasonable and according to law, albeit involving less than 14 days’ notice. I would dismiss the appeal, which, aside from this controversial issue as to notice, was in any event devoid of any apparency of merit.”

  3. Clearly His Honour in SZDQO, (like Her Honour in SZBNS) was focused on the issue of the giving of notice, pursuant to s.425A, to the applicant in relation to the hearing date. I note and would follow Conti J., in relation to the non-application of s.425A in so far as it concerns the period of the renewed notice, in circumstances where the Tribunal has rescheduled a hearing as a result of the applicant's non-attendance or inability to attend, at the original hearing date at the applicant's own initiative. This does not detract from the necessity to provide the appropriate period of notice in relation to the hearing date in the initial invitation. In the circumstances of the notice period in s.425A, at least as it relates to the initial letter of invitation, the giving of the prescribed period of notice is a mandatory requirement of that section. As I have set out above at paragraph 14, in any event, the Tribunal complied with the requisite periods of notice in relation to each of the three letters.

  4. In relation to the matter in s.426 as I have set out above, the mandatory aspect is that the applicant must be notified of the capacity to nominate witnesses to appear before the Tribunal. But whether the applicant then chooses to so nominate a witness is a matter of discretion on the part of the applicant, and further and importantly, even where an applicant chooses to nominate a witness, the Tribunal has a discretion as to whether it obtains evidence from such a witness. In the case before me I see the Tribunal's first letter of 19 January 2004, in relation to the notification of the capacity to call a witness, as satisfying the requirement of s.426 in this regard. The subsequent letters by the Tribunal, notifying of the rescheduled hearing dates, are in this context an exercise of the Tribunal's power to adjourn the review from time to time pursuant to s.427(1)(b) of the Act, I am reinforced in this view by in drawing the analogy from what Conti J., said at [29] in SZDQO, in the case before me the rescheduling of the first notified hearing date was as a result of the applicant's non-attendance at the original hearing because of the applicant's own initiative, albeit with the support of a doctor's certificate, which I also note did not in itself cover the period for which it was meant to cover, that is, the actual date of the hearing. Nonetheless, the Tribunal agreed to an adjournment because the applicant requested it. The second adjournment of the rescheduled hearing date occurred because the applicant again failed to respond to the invitation letter as he had been asked to do. It was only as a result of the Tribunal's staff inquiries that the applicant was contacted, and at that time stated that he wished to attend. However, given the late confirmation, which clearly was as a result of the applicant's failure to respond to the Tribunal's request (in circumstances where the Tribunal’s letter clearly advised he should “immediately” contact the Tribunal if he was unable to attend), that the hearing room originally allocated by the Tribunal for the purpose of conducting a hearing was no longer available. In these circumstances the applicant, in my view, cannot now argue that the third rescheduled hearing date came about as a result of any failure on the part of the Tribunal, or indeed as a result of the Tribunal's action or desire. Clearly if the Tribunal's staff had not taken the initiative of contacting the applicant it is quite probable that the applicant, given that he did not attend the rescheduled hearing date in any event (contrary to his telephone advice) and gave no subsequent explanation, would not have attended. In those circumstances the discretion under s.426A would have been available to the Tribunal, in any event, at that earlier time.

  5. I note that I am also persuaded by the submission of the respondent, in the alternative, that even if there was a failure to comply with s.426(1)(b), which in my view there is not, then to the extent that the Court has discretion, in the circumstances of this case, relief should in any event be declined. In SAAP McHugh J. said at [80]:

    “The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary[59]. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands[60]. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome[61].”

    I note that that argument in essence was advanced in SZFKF, and Barnes FM concluded that there was no basis to apply any of the criteria that could be ascertained from McHugh J's Judgement. The situation in the case before me however can be clearly distinguished. The hearing in that case was rescheduled, solely and purely because of the Tribunal's circumstances and difficulties. There was nothing in that case to show that the applicant had done anything to contribute to the need for the rescheduling of the hearings, and indeed as Mr. Jordan submitted, even though the notices were short the applicant attended the hearing that was ultimately scheduled. In the case before me however, it cannot be said that the applicant comes with “clean hands” in the sense referred to by McHugh J. The applicant had a migration adviser for the purposes of assisting him with the progress of the application before the Tribunal. He nominated this adviser as his “Authorised Recipient” for correspondence. The Tribunal sent all correspondence to the adviser with copies to the applicant.

  6. It is clear from the material before me that both in relation to notifying whether he would attend at each of the hearing dates, or whether he wanted any witnesses to support his case to be called by the Tribunal, which both could be notified through the return of the “Response to Hearing Invitation” forms, the applicant repeatedly did nothing in this regard. Nor does it appear, did the adviser. It is quite clear that on each occasion it was only on the initiative of Tribunal's staff in contacting both the adviser and the applicant, and this appears to have been done repeatedly, that matters were able to progress. In relation to the first letter of 19 January 2004 (CB 69 to CB 70), this letter clearly put the applicant and his adviser on notice that the “Response to Hearing Invitation” form should be completed and returned for the purpose of telling the Tribunal whether the applicant would attend the hearing or not. Further, by completing the “Witnesses” part of the form if the applicant wanted the Tribunal to obtain oral evidence from another person he could so inform the Tribunal. Neither the applicant nor his adviser did anything in this regard. It is clear that it was the Tribunal's staff's inquiries that finally elicited a response from the applicant in the form of a medical certificate seeking to explain why he did not attend the scheduled hearing date. As I have already noted, even the dates for which the medical certificate was current were for a time two days after the scheduled hearing date. In terms of seeking to notify the Tribunal of any witnesses, nothing was done by the applicant in this regard, even though there was a period of some three weeks between the date on which the applicant and his adviser would have received the letter and the scheduled hearing date given by the Tribunal.

  7. In relation to the second letter of 19 February 2004 notifying of the rescheduled hearing date of 25 March 2004, the letter, in bold, notified the applicant:

    “Please immediately telephone (a Tribunal officer on a Tribunal number) and tell us whether you will attend the hearing.”

    Once again neither the adviser nor the applicant did anything to prosecute the application before the Tribunal. Again it was the Tribunal's staff who followed up by telephone with both the “Authorised Recipient” and the applicant. It is clear that the failure of the applicant and his adviser to respond in a timely way to this letter sent by the Tribunal again resulted in the frustration of the re-scheduled hearing. Had the applicant and his adviser acted in an appropriate and timely fashion then the difficulty relating to the availability of the hearing room could clearly have been avoided. The unavailability of the hearing room in circumstances where neither the applicant nor his adviser, having been given nearly five weeks as between the date of the letter and the second hearing date, did nothing to respond, cannot be seen as the fault of the Tribunal. It is clear that if the Tribunal's staff had not made any attempt to contact the applicant as the hearing date drew nearer then the Tribunal could have proceeded to make the decision in the absence of the applicant at the hearing. Again in relation to s.426(1)(b) there was nothing from the applicant or his adviser throughout this available period to notify as to the requirement for any of witness to be examined by the Tribunal.

  8. The same situation occurred in relation to the third hearing date. The Tribunal sent a letter to the applicant and his adviser on 5 April 2004. Again there was no response until inquiries were made by Tribunal's staff. It was only by 4 May 2004 that as a result of the Tribunal's inquiry of the applicant, that he indicated that he would attend the hearing. There was still no return of the “Response to Hearing Invitation” forms. Then, in the circumstances, (as Mr. Jordan described it), consistent with the “long history of the applicant”, without explanation, either at the time or subsequently, did not attend the hearing. Even if there is some force (although in the circumstances that is not certain) to the applicant's complaint before me about the failure of his migration agent to properly deal with his matter, what is quite clear is that the applicant confirmed that he had received the telephone calls from the Tribunal personally, and specifically was rung by the Tribunal's staff on 4 May 2004, and asked if he was going to attend the hearing that had been scheduled for 13 May 2004. It is clear that from that point at least the applicant cannot complain about any failure of his agent in relation to his failure to attend the hearing on 13 May 2004. Further, he was specifically asked to return the “Response to Hearing Invitation” form and was reported as saying that he would. No form was returned, and nothing further was heard from the applicant. I note the comments of Conti J., in SZDQO where at [31] he said:

    “I would add that there is force in the submission of the appellant in the alternative, in accordance with the notice of contention filed, that if jurisdictional error has been established, contrary to my present view, then to the extent that the Court has a viable discretion in the circumstances of the case, relief should be declined in any event. In that regard, the appellant did not testify that he wanted to attend the hearing secondly scheduled in lieu of the first hearing, but was prevented from doing so by insufficiency of notice. Nor was there any evidence or indication to suggest that the appellant had further evidentiary material he would have put before the Tribunal in that regard. Moreover for what it may further matter, when informed by the Minister that the Tribunal’s decision would be shortly handed down, the appellant did not seek to put further material before the Tribunal, nor seek any further Tribunal hearing antecedently to the handing down of its decision.”

  9. In the case before me, the three rescheduled hearing dates were all, in relation to the period of notice, compliant with the statutory requirements. In relation to the issue of the calling if any witnesses pursuant s.426(1)(b) the applicant took no steps, despite constant reminders, to make any notification in this regard to the Tribunal. Ultimately, he himself failed to attend before the Tribunal when he had clear notice of the rescheduled hearing date (at least by telephone). In all these circumstances I would not have exercised the Court’s discretion in the applicant’s favour.

  10. Towards the end of the hearing before me the applicant attempted to explain his failure to respond to any of the Tribunal's letters and requests as being due to either being misled by his migration adviser, or relying on his adviser to do things on his behalf, and that the adviser did not do so. When I pointed out to the applicant that the Court could only proceed on the evidence and material that was put before it, the applicant indicated that he could produce affidavits “on those issues”. He explained this by saying that the things that he had been putting from the Bar Table in relation to his migration agent were “true”, and that he could provide “proof”. To the extent that this could be characterised as an application for an adjournment, I considered also the applicant’s complaint put at the same time that he had not received the Supplementary Court Book filed on 13 October 2004. In this regard I note that the applicant's complaint appeared to be that he did not have prior notice of the issues now raised before the Court, and was presumably seeking more time to file evidence in relation to these issues. There was no complaint that he had not received, prior to the hearing, the Court Book filed on 28 September 2004, or the second Supplementary Court Book filed on 29 September 2005. (In any event see also “RE 1” – letter of 29 September 2005 by the respondent’s solicitors to the applicant enclosing SSCB). In relation to the Supplementary Court Book, Mr. Jordan tendered a file copy of a letter from the respondent’s solicitors to the applicant dated 14 October 2004, which I subsequently marked as Respondent’s Exhibit 2 (“RE 2”). The letter states that the Supplementary Court Book was enclosed (by way of service with the letter). In any event, the Supplementary Court Book, which is 8 pages, relates to the independent country information used by the Tribunal, and is not of relevance to the issue in relation to which the applicant claimed he wanted to bring further evidence. This issue was clearly his complaint about what could be characterised as the failure or negligence on the part of his migration agent to properly conduct matters on his behalf, but in particular in responding to the Tribunal’s various invitations to hearing letters and the alleged failure of the agent to properly respond on his behalf. It is clear that if the applicant wanted to raise this issue (the alleged failures by his migration agent) then any need, or desire, for him to do so would have been apparent from the material that was provided to him in the Court Book, in particular from page 5 of the Second Supplementary Court Book, which was served on him in circumstances where he would have had more than reasonable opportunity to have prepared his case. Even further however, in the circumstances before me, and in the context as set out above in this Judgement, I cannot see that even if the applicant were to bring this “evidence” as to the “failure” of his migration agent, that this would assist the applicant in showing jurisdictional error on the part of the Tribunal. The Court Book, at least, was certainly available to the applicant by the time he filed his amended application. The matters of concern to him now relating to the communication with the Tribunal were evident, and were contained in various parts of that Court Book. Clearly the Tribunal’s case record, at least reflecting entries up until 22 March 2004 was available as at CB 79 in the (first) Court Book. (The case file record SSCB 5 is the later and chronologically expanded version containing entires after 22 March 2004 of the version at CB 79). Nor did the applicant make any written submissions prior to the hearing before me. I note relevantly that the applicant had about one year from the first Court date in this matter to the final hearing to have addressed this issue. The applicant before me was unable to assist with any detail as to the nature of this “proof”, nor how it would assist in showing error on the part of the Tribunal. Clearly any omission or negligence on the part of the migration agent would not, in the absence of anything else, assist the applicant in showing jurisdictional error on the part of Tribunal. As I have already set out, even in circumstances where the migration agent may have been negligent in how he went about assisting the applicant, it is clear that in relation to the hearing dates, and the issue of calling any witnesses, the applicant was on very clear notice, if for no other reason than through personal contact with him by Tribunal staff who conveyed the relevant hearing dates and the need to notify the Tribunal as to attendance at the hearing, and any desire to call witnesses before the Tribunal. From what the applicant said before me, and in the circumstances before me, I could not see that there was any realistic prospect that material that would be ultimately probative and relevant could be obtained, or that any material that was obtained would assist the applicant in showing jurisdictional error. It may be, as I have stated above, that it is appropriate for the applicant to consider whether he should pursue this grievance against his former migration agent with the appropriate authorities, but I could not see it as an appropriate basis for granting any adjournment to the applicant in the matter before me. 

  1. The applicant's complaints, as set out in his amended application, and as numbered under the first heading of “Particulars” are:

    1)The applicant asserts that the Tribunal did not properly consider the chance of persecution upon his return to India based on his membership of the BJP.

    It is clear, as I have set out above, that the Tribunal's findings in relation to the applicant's claims to fear persecution on the basis of his political opinion was based on what the Tribunal described as “a number of unsupported allegations” (CB 93), and were “vague, general and unsubstantiated”. It found that the applicant had provided “no details” about the structure or claims or objectives of the BJP and that there were deficiencies and issues of concern in the “scant information” that he did supply. The Tribunal's decision however turned also on its separate finding that although it had grave credibility concerns with what was before it, even if it accepted these claims, they were “localised” to his city and state and it was satisfied that the applicant could safely relocate to another part of India and could reasonably be expected to do so. The applicant complains now that he could not relocate. But there is nothing before me to show that the Tribunal did not address this issue in a manner consistent with what was relevantly set out by the Full Federal Court in Randhawa. In its “Findings and Reasons” the Tribunal (at CB 94.6 to CB 97.5) set out the relevant test and its applciation to the applicant’s circumstances and found “that relocation is a reasonable and feasible option for the applicant” (CB 97.4). This was open to the Tribunal on what was before it. From what is before me, the applicant's complaint in his amended application, in the absence of anything further that the applicant was able to put to me at the hearing before me, amounts to a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), and does not succeed.

    2)The second particular appears to be a statement confirming that the applicant did not provide documentary evidence to the Tribunal to “prove my persecution”.

    In the absence of anything further this is not a complaint that could show jurisdictional error on the part of the Tribunal. The applicant applied to the Tribunal for review on 15 December 2003. He was assisted by a migration agent. He was clearly on notice by the Tribunal’s letter of 22 December 2003 that, amongst other things, he should “immediately” send to the Tribunal “any documents, information or other evidence” that he wanted the Tribunal to consider (CB 66.4). Further, the letter inviting the applicant to a hearing advised, inter alia; “send us any new documents… you want the Tribunal to consider” (CB 70.1). There was nothing before me to show that the applicant, or his adviser put anything of this nature before the Tribunal, or that they advised the Tribunal that they were seeking to obtain any documents.

    3)The applicant also complains that the Tribunal's decision was not based on reasoning which provided a rational or logical foundation for this belief.

    Again no particulars whatsoever are provided, nor was the applicant able, at the hearing before me, to provide anything further to support this complaint. It is clear that the Tribunal was unable to reach the requisite level of satisfaction that the applicant was a person to whom Australia owed protection obligations pursuant to the Refugees Convention on the material which the applicant had placed before the Tribunal. The Tribunal’s central finding was, while there were “grave” credibility concerns about the applicant’s clams to fear harm, they were “local” claims centred on his home town and in his home state. It found that on what was before it the applicant could reasonably and safely relocate elsewhere in India. There is nothing in the material before me to show that the Tribunal's decision lacked any rational or logical foundation for these findings which were open to the Tribunal on the material before it, and in respect of which the Tribunal gave reasons.

    4)In the “second” numbered “three” in the amended application the applicant complains that the Tribunal did “not observe the Migration Act properly” in making its decision.

    Again no particulars whatsoever are provided, and nor did the applicant say anything to me further in this regard at the hearing before me. I have already dealt with the issue of the invitation to the hearing above. To the extent that this is a complaint that the Tribunal failed to observe the requirements of the Act in relation to the invitation to a hearing, I have already dealt with this above and found no such breach. I will deal below with the other possible relevant statutory provision (that relating to the Tribunal’s obligation in relation to information on which it relies).

    5)The applicant also complains that the Tribunal considered the applicant's claims “without any investigation”. Yet again nothing in support of this claim was made out before me. In this regard I note that the Migration Act does not impose any obligation on the Tribunal to “investigate” the applicant's claims.

    The Tribunal’s obligation is to consider the applicant’s claims, and what may arise from the circumstances before it, and if it can be satisfied (s.65 of the Act) that the person meets the definition of refugee (effectively s.36(2)) and meets the other requirements for a protection visa then the visa must be granted. On what the applicant put before the Tribunal and on independent information available to it the Tribunal found it could relocate and was not satisfied that he was a person to whom Australia owed protection obligations. The applicant did not ask the Tribunal to further investigate any aspect of his claims, nor can I see any need or obligation for the Tribunal to have done so on what was before it. In any event the Tribunal having put the applicant on notice that it could not be satisfied on what was before it, invited the applicant to a hearing to provide further material in support of his claims. The applicant without explanation did not attend. In all the circumstances this complaint also cannot be sustained.

    6)The applicant also claims that “I was sick first interview because I was sick” and that he provided a medical certificate. I cannot see that this complaint, or rather this assertion, assists the applicant in showing jurisdictional error on the part of the Tribunal. Noting again, that the medical certificate did not relate to the date of the hearing, the Tribunal nonetheless accepted the medical certificate and adjourned the hearing date to a subsequent date. I cannot see that this in anyway is going to assist the applicant in showing jurisdictional error on the part of the Tribunal and refer again to the consideration alone of the issue of the invitation to the hearing.

  2. Under the second heading of “Particulars” in the amended application the applicant puts forward the following complaints:

    1)That the Tribunal did not provide the applicant with adequate particulars of the independent information.

    It is clear from the Tribunal's decision record that the Tribunal did refer to independent evidence particularly in relation to the issue of relocation (CB 95.5 to CB 96.2). The actual reports are contained in the Supplementary Court Book. I note as Mr. Jordan has submitted that relevant to this complaint the Tribunal's decision post-dated the introduction of s.422B of the Act, and that the requirements set out in s.424A are an exhaustive statement of the natural justice hearing rule in relation to this case. In this regard the information on which the Tribunal relied clearly falls within the exception contained in s.424A(3)(a) of the Act from the requirement to put to the applicant this information pursuant to s.424A(1) in the manner set out in s.424A(2): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.

    2)The applicant also complains that he was not given an adequate opportunity to respond to the “substance” of this information. Even in the context of common law principles of procedural fairness this complaint must fail in circumstances where the applicant was provided with an opportunity to attend a hearing before the Tribunal, and chose not to attend the hearing. In any event, as Mr. Jordan submits, particularly in the context of the application of any common law principles of procedural fairness, the issue of relocation was an issue that was considered by the Minister's delegate (CB 59.4) and the information before the delegate in this regard (CB 57.8 to CB 58.1) was in substance similar to the information referred to by the Tribunal. The applicant clearly had notice of the delegate’s decision as he made specific reference and complaint about it in his application to the Tribunal and would have therefore been on clear notice as to the substance of the information on which the Tribunal relied on making any finding of relocation. The opportunity was there to the applicant to have made submissions not only at any hearing, but in writing to the Tribunal in this regard. In the statutory context s.424A(3)(a), as I have said above, applies.

    3)The applicant also complains that the Tribunal found that the totality of the country information did not show that BJP supporters were persecuted in India.

    The applicant did not assist at the hearing before me, but presumably this is a complaint that the Tribunal erred in relying on country information and finding that the BJP supporters were not persecuted in India. This complaint is not an accurate reflection of the Tribunal's finding. The basis of the Tribunal's decision was that the applicant had not provided sufficient detail to the Tribunal to enable it to reach the requisite level of satisfaction before a protection visa could be granted to the applicant (s.65 and s.36(2) of the Act). This was based on what the applicant himself had put and not on any country information. In any event the Tribunal found that the applicant could relocate away from his home state elsewhere in India. The Tribunal’s use of country information in this regard was focussed on the issue of relocation and freedom of movement and human rights in India. The Tribunal’s decision in this regard does not rely on any finding in the manner now asserted by the applicant. In these circumstances this complaint also cannot succeed.

  3. The applicant was aggrieved by the decision made by the first respondent's delegate to refuse a protection visa to him, he put his complaint before the Tribunal and sought review of that decision. He was put on notice that the Tribunal, on the information before it, was unable to make a decision favourable to him. The Tribunal invited him to a hearing which, ultimately without explanation, he did not attend. In all the circumstances the applicant cannot now complain that the Tribunal was not entitled to proceed to a decision without taking further action to allow him on yet another occasion to appear before it. The Tribunal considered the claims that had been before it by the applicant and for reasons that it gave, made findings that were open to it on the material before it, that the applicant was not entitled to a protection visa. I can see no jurisdictional error in the Tribunal's decision. The application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 19 December 2005  

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Cases Citing This Decision

1

SZCZX v Minister for Immigration [2006] FMCA 786