SZFTH v Minister for Immigration - [2005] FMCA 1729

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTH v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1729

MIGRATION – Refugee – failure to attend hearing – summary dismissal pursuant to Rule 13.10(a) – dismissal pursuant to Rule 13.03A(d) – no reviewable error – application dismissed.

Migration Act 1958, ss.65, 36(2)
Federal Magistrate Court Rules 2001, rr. 13.10(a), 13.03A(d), 21.02(2)(a).

Applicant A163 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 677
Xie v Immigration Department [1999] FCA 365
Applicant A135 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 708
Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455
Yo Han Chung vUniversity of Sydney and Ors [2002] FCA 186
Kosi vMinister for Immigration [2003] FMCA 340.
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Abebe v The Commonwealth (1999) 197 CLR 510
NAST vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
SZCSX v Minister for Immigration and Multicultural and indigenous Affairs [2005] FCA 520

Applicant:

SZFTH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 444 of 2005

Judgment of:

Nicholls FM

Hearing date:

22 November 2005

Date of Last Submission:

16 September 2005

Delivered at:

Sydney

Delivered on:

22 November 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr. Z. Chami

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Refugee Review Tribunal is joined as the second respondent in these proceedings.
The application is dismissed pursuant to rule 13.03A(d) of the Federal Magistrates Court Rules 2001.
The applicant pay the first respondent’s costs set in the amount of $2500, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 444 of 2005

SZFTH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

I have before me an application filed in this Court on 21 February 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 December 2004, and handed down on

28 January 2005, to affirm the decision of a delegate of the respondent Minister made on 9 August 2004 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The matter today came on before me by way of an application filed by the first respondent on 16 September 2005, seeking summary dismissal pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (“the Rules”) on the basis that no reasonable cause of action is disclosed in relation to these proceedings. I also have before me
an affidavit in support sworn on 15 September 2005 by Ziad Chami, a solicitor in the employ of the respondent’s solicitors, filed on

16 September 2005 and written submissions on the behalf of the respondents filed on 16 September 2005. (For ease I will continue to refer to the Minister and Tribunal as the respondents and the applicant before the Tribunal as the applicant before me).
The applicant is a national of Uzbekistan who arrived in Australia as a “temporary business entrant” in July 2004, and lodged an application for a protection visa on 27 July 2004. This was refused by a delegate of the first respondent on 9 August 2004. On 31 August 2004 the applicant applied for review of that decision by the Tribunal. The applicant's original claims for a protection visa are set out in the application for a protection visa reproduced at Court Book (“CB”) 1 to CB 25, and particularly in a statement attached to the application at CB 25. The applicant made no additional claims whatsoever in his application for review (CB 40 to CB 43). The Tribunal wrote to the applicant on 12 October 2004 (CB 48 to CB 49) advising the applicant that on the material before it, it could not make a favourable decision, and invited the applicant to a hearing before it to present oral evidence and arguments in support of his claims. This hearing was scheduled for 17 November 2004. The letter was sent to the applicant’s residential address as provided by the applicant in his application to the Tribunal, and in compliance with the applicant’s advice (CB 41). The applicant did not employ a migration adviser and specifically stated he wanted correspondence to be sent to his home address (CB 42). The Tribunal enclosed a “Response to Hearing Invitation” form, and advised the applicant that if he did not attend the hearing the Tribunal might make a decision on his case without further notice. There is nothing before me to show this letter was returned to the Tribunal as undeliverable. The applicant did not appear at the hearing, and did not contact the Tribunal to provide an explanation, or to seek an adjournment. The Tribunal proceeded to make a decision and affirmed the decision of the respondent Minister.
The Tribunal's decision record is at CB 56 to CB 63. Its “Findings and Reasons” are at CB 61.6 to CB 62.10. The Tribunal found that the applicant had provided “only the bare outline of claims” (CB 62.3). It found that the applicant had provided no explanation as to how he was persecuted for being, as claimed, a Wahhabi Muslim which he further claimed was seen as “fundamentalist” by the Uzbek authorities. Nor did he explain how he was able to leave the country legally if he had attracted the attention of the authorities as he claimed (CB 62.5). The Tribunal noted that these were all matters which could have been confirmed at the hearing (CB 62.6). Ultimately, on what had been put before it, the Tribunal was unable to be satisfied that the applicant had a well founded fear of persecution for a Convention reason if he were to return to Uzbekistan. Clearly, on what was before it, this finding was open to the Tribunal.
The application to this Court, filed on 21 February 2005, complains:
“1)RRT has erred in law having misapplied a definition of convention ground.
2)RRT ignored all material facts.”
The applicant failed to appear before me today (22 November 2005). Mr. Z. Chami appeared for the respondents. On 21 November 2005, the Court’s registry received a facsimile transmission (presumably from the applicant or someone acting on his behalf). This fax was a copy of a Doctor’s Certificate that stated:
“This is to certify that on 21/11/2005 I examined the above named person. In my opinion he is suffering from Peptic ulcer acute with haemorrhage and will be unfit for work from 21/11/2005 to 23/11/2005.”
This one page document was unaccompanied by anything else from the applicant. I note that the applicant did not telephone, or contact the Court in any other way requesting an adjournment. Further that the applicant (I noted Mr. Chami’s submission in this regard) has made no attempt to contact the respondent as to his inability to attend today. The relevant history of this matter is that after filing his application on

21 February 2005, the applicant attended the first Court date in this matter on 2 March 2005. He was assisted by an interpreter in the Russian language. He signed short minutes of order that subsequently became orders of the Court that amongst other things he file and serve an amended application given particulars of each ground of review relied upon by 9 May 2005 (Order 4). I should note that Order 5 put the applicant on notice that a failure to do so may result in the respondent seeking summary dismissal of the application. The applicant did not comply. On 17 May 2005 the respondent’s solicitors wrote to the applicant (see annexure to the affidavit of Ziad Chami) and put the applicant on notice that he had not complied and granted the applicant an “extension of time until 1 June 2005” to file and serve an amended application giving full particulars of each ground of review. The letter put the applicant on notice that the respondent would seek dismissal of the application if he failed to comply. The applicant did not comply. The respondent wrote to the applicant on 19 September 2005 (filed in Court with leave on 22 November 2005) indicating that the application for dismissal would be heard before me today (see the Respondent’s Exhibits 1, 2 and 3).
However, in the circumstances before me I do accept, particularly considering that this is an unrepresented applicant from a non-English speaking background, that by faxing the medical certificate to the Court that I should consider whether the fax of the Doctor’s Certificate in effect amounts to a request for an adjournment of the hearing date. Mr. Chami for the respondent opposed the adjournment and submitted that the mere provision of a doctors certificate is not of itself sufficient to support an adjournment unless it is somehow “indicative of the fact that the applicant could not turn up and that there was some sort of communication between the Doctor and the patient in regard to why the patient would be unable to attend a hearing before the Court.” Mr. Chami noted that the wording of the medical certificate was “unfit for work”, and made no reference to attending Court. He also pointed out that the applicant lives in Lidcombe and the doctor’s consulting rooms are in Bondi and this is a distance greater than that between the applicant’s residential address and the Court. I pointed out to Mr. Chami that the practitioner may have made a house call and that there was no evidence to suggest where the actual consultation took place. But nonetheless, and critically, I accept Mr. Chami’s submission that the medical certificate relates to the applicant’s unfitness to work and further that it is not specific to the purpose for which it may have been submitted to the Court (that is, to seek an adjournment). For these reasons I did not agree to the applicant’s request for an adjournment, if indeed that was what was intended by the sending of the certificate, which I note again was unaccompanied by anything from the applicant.
Mr. Chami proposed that in these circumstances I proceed, pursuant to rule 13.03A(d) of the Rules, by hearing the application on its merits. I agreed with Mr. Chami’s proposal, but also proceeded to first consider whether the application for summary dismissal would be successful.
The application to this Court filed on 21 February 2005 does not disclose any real grounds of review and I cannot see any jurisdictional error in what is before me. The application makes mere assertion of an error of law and that the Tribunal ignored “material facts”. Nothing further has been put forward by the applicant in the intervening nine months. For the applicant's benefit, I note that an application for summary dismissal should be approached with some caution, and that an order summarily dismissing proceedings on the basis that the application for review fails to disclose a reasonable cause of action should only be made where there is no real question to be tried or where the claims are clearly untenable and cannot succeed: Applicant A163 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 677 at [1] per Selway J., Xie v Immigration Department [1999] FCA 365 at [20] per Carr J. and Applicant A135 of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 708 per Finn J. at [3]-[6]. I also note Ebber v The Human Rights and Equal Opportunity Commission (1995) 129 ALR 455 per Drummond J., at 468:
“A complainant must therefore have at the outset of the inquiry into his complaint sufficient material … to show that he has more than a remote possibility of a well-founded claim if he is to defeat an application for the summary dismissal of the case that can be made out at the start of the inquiry.”
The applicant's originating application to this Court does not identify any grounds by which it could be said that the Tribunal decision was affected by jurisdictional error. The applicant attended at the first Court date in this matter on 2 March 2005 and signed short minutes of order which became orders of the Court, by consent, which required inter alia that the applicant file and serve an amended application by 9 May 2005 (later extended to 1 June 2005). No amended application has been filed to date.
In circumstances where an applicant is unrepresented, it has been held that a Court should independently consider whether an arguable case, based on the material, could be made out by the applicant: Yo Han Chung vUniversity of Sydney and Ors [2002] FCA 186, also Kosi vMinister for Immigration [2003] FMCA 340. I accept the respondent’s submissions that no arguable case can be made out on the material before me.
Section 65 of the Migration Act 1958 (“the Act”) makes it a requirement that a decision maker, when deciding to grant or refuse a visa, must be satisfied as to certain criteria prescribed by the Act. In relation to a protection visa, the matter set out in s.36(2) of the Act (definition of refugee) requires the Tribunal to be satisfied that the applicant is entitled to a protection visa. The applicant must establish that they are a non-citizen in Australia with respect to whom the Minister (decision maker) is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. This legislative scheme requires a positive state of satisfaction as to whether protection obligations are owed, and if that level of satisfaction cannot be reached, a refusal decision is mandated; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16]:
“[15] It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. A criterion for a protection visa specified in s.36(2) of the Act is;
‘...that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.’
[16] It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister:
‘The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.’
Moreover, the Tribunal was entitled, in assessing whether the appellant had a well-founded fear of persecution if he were returned to Sri Lanka to take account of the fact noted in the extract quoted at [6] above that ‘according to the Applicant’s own evidence he departed Sri Lanka legally and without difficulty’.”
See also NAST vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5]:
“[4] In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.
[5] In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.”
It is clear in the case before me that the Tribunal could not be satisfied on the material before it that the applicant was an individual to whom Australia owed protection obligations. Further, the Tribunal, by letter dated 12 October 2004, wrote to the applicant indicating this to be the case, and invited the applicant to give further evidence in support of his claims. I note that in similar circumstances, where an applicant failed to appear before the Tribunal in the face of such a letter that put the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant, a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. Clearly the applicant was put on notice as to the Tribunal's preliminary view, and given the opportunity to provide further material by way of evidence at a hearing before the Tribunal or oral submissions in support of the claims. The applicant, for whatever reason, chose not to attend. The applicant gave no explanation and did not approach the Tribunal to seek an adjournment. The applicant was notified of the scheduled hearing on 17 November 2004, by letter dated 12 October 2004. The Tribunal’s decision was not made until 30 December 2004 and handed down on 28 January 2005. There is nothing in the relevant material before me to show that the applicant approached the Tribunal in that time to explain his failure to attend or to seek another hearing time or to seek any opportunity to make written submissions or submit documents in support of his claims.
The Tribunal described the applicant’s claims that were before it as a “bare outline” (CB 62.3), and that there were matters “which could have been clarified at a hearing” (CB 62.5). As the applicant had not made any other claims, and did not attend the hearing, the Tribunal could not be satisfied as required by the Migration Act. On what was before it this finding was open to the Tribunal.
The application does not say what error of law infected the Tribunal’s decision or how the Tribunal misapplied the “definition.” Nor does it say how the Tribunal “ignored all material facts”. The application does not “pass muster” in the words of Madgwick J in SZCSX v Minister for Immigration and Multicultural and indigenous Affairs [2005] FCA 520 at [8] and no amended application has been filed. The applicant has not provided a satisfactory explanation for his failure to attend Court today – a matter of which he clearly had notice. A Doctor’s Certificate asserting unfitness for work does not in my view satisfactorily explain an inability to attend Court. In the exercise of my discretion in this regard I also take note of the fact that the applicant has done absolutely nothing in the nine months since filing his complaint about the Tribunal’s decision to prosecute his case even when prompted with the need to act. Even for an unrepresented applicant from a non-English speaking background, this is an unsatisfactory state of affairs.

Turning to the respondent’s application that I proceed pursuant to Rule 13.03A(d) of the Rules, an examination of the claims before the Tribunal, and an independent examination of the Tribunal’s decision record reveals no jurisdictional error. Even if the applicant were given the opportunity to go to another final hearing before the Court, the application would be doomed to fail. He made “bare” claims, was on notice of the consequences of failing to attend the hearing before the Tribunal, the Tribunal looked at all the claims such as they were, and it was open to the Tribunal to find it could not be satisfied as to the matters that it must be satisfied before a protection visa must be granted. As such, pursuant to rule 13.03A(d) of the Rules, in the default of appearance of a party I am empowered to proceed with the hearing generally. I have turned my mind to any ground that may arise from the applicant’s material and additionally, after an independent examination of the material, conclude that there is no jurisdictional error demonstrated in the Tribunal’s decision for all the relevant reasons set out above. I could dismiss this application on a summary basis pursuant to Rule 13.10(a) of the Rules as it discloses no reasonable cause of action. However, for the reasons above, I proceed to dismiss the application pursuant to Rule 13.03A(d).

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Sybilla Waring-Lambert

Date: 24 January 2005