SZIAO v Minister for Immigration and Citizenship

[2007] FCA 848

FEDERAL COURT OF AUSTRALIA

SZIAO v Minister for Immigration & Citizenship [2007] FCA 848

SZIAO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 287 OF 2007

DOWSETT J
11 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 287 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIAO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	11 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the first respondent’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 287 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIAO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	11 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of a federal magistrate refusing relief in connection with an earlier decision of the Refugee Review Tribunal (the “Tribunal”). 

2. The appellant, who claims to be a citizen of Sri Lanka, arrived in Australia on 18 January 2004 and, on 2 May 2005, lodged an application for a protection visa.  He claimed to fear persecution if returned to Sri Lanka.  His fear of persecution, according to his claim, appears to be at the hands of either the government, or a political party, or the LTTE, or perhaps some combination of all three.  His application was refused by the delegate, and he applied to the Tribunal for reconsideration.  On 30 September 2005 the Tribunal wrote to him advising that it had considered all of the material which was before it relating to his application but was unable to make a favourable decision on that information alone.  The Tribunal invited the appellant to give oral evidence and present arguments at a hearing to take place on 14 November 2005.  He was advised that if he did not attend the hearing on that date, and a postponement was not granted, the Tribunal could make a decision on the case without any further notice.

3. On 7 October the appellant indicated that he desired an indefinite adjournment of the hearing on various grounds, primarily that he wished to obtain documents from Sri Lanka and that it was difficult to do so, due to pre-election violence.  On 10 November he was advised that the hearing would not be postponed.  During a telephone conversation on that day he told a case officer that he was taking medication for allergies and was not certain how he would be on 14 November.  He said that he would fax a medical certificate on 10 or 11 November.  On 12 November he sent a facsimile enclosing a medical certificate which said:

   ‘This is to certify that on 11/11/2005 I examined the above named person.  In my opinion he is suffering from Allergic Rhinitis needs further follow up.’

4. Other words were deleted.  They appear to be:

   ‘From 11/11/2005 to 11/11/2005 inclusive.’

5. In an accompanying fax transmission the appellant claimed to be suffering from severe allergy, that his condition was critical and that he had sought medical treatment.  He asked for a postponement of the hearing.  For whatever reason the Tribunal contacted the medical practitioner, asking a number of questions concerning the medical certificate and in particular:

   ‘·        From what date until what date is [the appellant] incapacitated?

   ·The dates on the medical certificate are crossed out, please explain the reasons.

   ·Did [the appellant] tell you he had a hearing today?

   ·How does [the appellant’s] “Allergic Rhinitis” affect his ability to give evidence at a hearing?’

6. Perhaps surprisingly, the medical practitioner responded to this inquiry as follows:

   ‘·        The certificate issued is a certification of attendance and not a sick leave certification.

   ·Dates on certificate crossed out by me because it is a “Fixed Format” on the computer print for sick leave – which was not provided to the patient.

   ·[The appellant] did not mention of any “hearing for the day”.

   ·In my opinion the allergic rhinitis with sneezing and runny nose which he said he was having for about three months would not affect his ability to give evidence at a Hearing.’

7. Notwithstanding that rather unfavourable (to the appellant) report, the Tribunal scheduled a further hearing on 18 November 2005 and advised the appellant by telephone on 15 November 2005 of that adjourned hearing date.  The appellant said that he was still not feeling well and was going to see a specialist.  On that date the Tribunal confirmed the hearing date by express post.  The appellant was advised that if he did not attend, and a postponement was not granted, the Tribunal could make a decision without further notice.

8. At 9.17 am on 18 November the appellant sent a facsimile advising that he was still unwell and requesting a postponement.  The letter was unsupported by a medical certificate although, in the letter, the appellant said that he would be sending a medical certificate during the day.  It seems that a certificate was subsequently faxed to the Tribunal saying:

   ‘This is to certify that on 18/11/2005 I examined the abovenamed person.  In my opinion he is suffering from allergy and I have referred him to the allergy specialist.’

9. The fax was dated 18 November 2005 but bore a fax transmission date of 11.16 am on 23 November 2005.  Nonetheless, the appellant said that it was sent on the 18^th.  That evidence was rejected by the Magistrate.

10. When the appellant failed to appear before the Tribunal on 18 November the Tribunal did not schedule a further hearing.  It proceeded to determine the matter.  Concerning the appellant’s failure to appear, the Tribunal set out the matters to which I have referred and concluded:

    ‘Given the fact that the Medical Certificate of 18 November 2005 does not say that the [appellant] is unfit to give evidence at a hearing, nor does it explain how the [appellant’s] “allergy” could have any impact on his ability to attend a hearing and or to give evidence, and given previous clinical evidence, namely the letter of 15 November 2005 from the other medical practitioner that “In my opinion the allergic rhinitis with sneezing and runny nose which he said he was having for about three months would not affect his ability to give evidence at a Hearing”, the Tribunal has decided not to adjourn the hearing. 

    In essence, the Tribunal is satisfied that there is no clinical evidence before the Tribunal that the [appellant’s] “allergy” would have impacted upon his ability to attend the hearing and give evidence.  The [appellant’s] claims to the contrary are fundamentally unsupported assertions.  Furthermore and despite clear clinical evidence that the [appellant] did not have a “sick leave certification” for his lack of attendance on 14 November 2005, the Tribunal gave the [appellant] a further opportunity when the Tribunal could have proceeded to make a decision on the review without taking any further action.  The Tribunal is satisfied that the [appellant] has chosen, without a reasonable explanation not to attend the hearing listed on 18 November 2005.

    In accordance with s 426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the [appellant] to appear before it.  This matter has therefore been determined on the evidence available to the Tribunal.’

11. The Tribunal returned to the matter again in its findings and reasons.  It said:

    ‘The Tribunal is satisfied that the [appellant] has been given proper opportunities to support his application both at the primary level as well as at the review stage.  He has not attended a hearing and the Tribunal has no reasonable explanation for the lack of attendance.  He claims to be unwell and consequently cannot attend a hearing yet the medical evidence before the Tribunal does not support the [appellant’s] assertions.  The Tribunal is satisfied that the [appellant] was put on notice that the Tribunal could not make a favourable decision on the basis of the available information.  The Tribunal is satisfied that the appellant has had notice of the hearing but is not genuine about pursuing his case.  The Tribunal is satisfied that his requests for adjournments are not for medical reasons.  The Tribunal can only speculate as to his real reasons for not attending the hearing.’

12. The Tribunal otherwise disposed of the appellant’s claim to be a refugee on the basis that the claim was lacking in particularity or corroboration, and upon the basis that it had not had the opportunity to explore the claim with him with a view to clarifying it and, no doubt, testing its validity.  On that basis the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations.

13. In the proceedings before the Magistrate the appellant asserted various procedural errors on the part of the Tribunal.  The magistrate found against him in respect of all of them.  The grounds of appeal from that decision are that:

    ·The Federal Magistrate should have found that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (the “Act”);

    ·The Federal Magistrate should have found that the Tribunal failed to give to the appellant a reasonable opportunity to appear before the Tribunal; and

    ·The Federal Magistrate should have found that the Tribunal failed to afford procedural fairness to the appellant in refusing the application for an adjournment.

14. Before me and, indeed, before the Magistrate, the primary focus of the appellant’s complaint has been the Tribunal’s action in contacting his medical practitioner on 14 November 2005, receiving additional information from that practitioner in connection with the appellant’s condition and the meaning of the earlier certificate, and then acting upon that information. 

15. The appellant says, and I do not understand it to be disputed, that he was not aware of the information obtained by the Tribunal from the medical practitioner until after the preparation of the “appeal book”.  I believe that to be a reference to the court book which was before the magistrate.  I accept that he was not aware of that material until some time prior to the hearing before the Magistrate, but after the Tribunal’s decision.

16. In my view the Tribunal would have been better advised to have asked the appellant to obtain any relevant further information from his medical practitioner, rather than, itself, approaching the practitioner.  My own experience is that medical practitioners are generally unwilling to be quite as cooperative as this practitioner was, but that is beside the point.  It is because of this direct contact that the present problem has arisen.  It would not have arisen if the appellant had been asked to obtain the additional information.  If he did not do so, the Tribunal would have been in a position to act as it saw fit.

17. The appellant’s complaint has two aspects; firstly, he complains that the Tribunal failed to comply with s 424A of the Act; secondly he complains that he was denied procedural fairness in connection with his application for a second adjournment. As to the first point s 424A deals with information which the Tribunal considers would be the reason or part of the reason for affirming the decision under review. In other words, it is concerned with the substantive issue, namely the appellant’s claim to be a person to whom Australia owes protection obligations.

18. Section 424A requires that information fitting that description be provided to the relevant applicant so that he or she may comment upon it. In the present case it is clear that the Tribunal’s decision was based upon the lack of particularity which it perceived in the appellant’s claim and its inability to explore that claim with him. Although the Tribunal referred to the circumstances in which the appellant had failed to appear, there is no reason to believe that it drew any adverse inference from those circumstances in connection with the ultimate issue which it was called upon to determine. Hence s 424A had no application, as the Magistrate correctly found.

19. As to the second point, namely procedural fairness in connection with the decision to decline a second adjournment, I had some initial concern as to the way in which Div 4 of Pt 7 should be applied.  In the end, however, I accept, as I must, the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214, especially at [65] et seq.

20. Division 4 must be read as exhaustively defining the requirements of procedural fairness but not other aspects of the rules of natural justice.  Section 422B has that effect.  In the present case the Tribunal was obliged, pursuant to s 425, to invite the appellant to appear.  This it did.  The reason that the appellant did not, in fact, enjoy an opportunity to put his case was that he failed to appear on the adjourned date.  Section 426A deals specifically with that situation.  It authorizes the Tribunal to make a decision without taking any further action to allow or enable the appellant to appear before it, although subs 426A(2) provides that the Tribunal may reschedule a hearing if it wishes to do so.  Clearly, it is for the Tribunal to determine, on the material before it, the steps which it should take.  It was within its jurisdiction, generally speaking, to decide not to fix another hearing date, having regard to the material before it.  The only question is whether or not it was obliged to observe the rules of procedural fairness in reaching that decision, the possible failure to do so being the fact that it, to some extent, acted upon information in its possession of which the appellant was unaware and, as to which, he had no opportunity to explain or respond.

21. It is, of course, possible for the rules of procedural fairness to be interpreted and applied in ways which produce results which are absurd.  A theoretical failure to inform the relevant party of some part of the case which he or she must face may have no theoretical or practical adverse consequences.  It is not necessary for me to deal with that possibility in the present context.  Given the operation of s 422B to which I have referred, all requirements of procedural fairness in connection with hearings must be derived from Div 4 of Pt 7.  That Division authorized the Tribunal to act as it did in this case and to make the decision which it made.  Section 426A was obviously designed to enable the Tribunal to dispose of the matter without taking any further step.

22. It is important to keep in mind that proceedings in the Tribunal are administrative and not judicial.  Whilst it is true, as pointed out by the appellant in his submissions, that applications for protection visas are very serious matters, it does not follow that the Tribunal or any other body charged with making decisions in this area is obliged to take all steps, ordinary and extraordinary, in order to ensure that the relevant applicant has every conceivable opportunity to which he is entitled, or to which he would like to be entitled, in order to bring about a favourable result.

23. Division 4 obviously strikes a compromise. It is impossible to see, in the present case, that such compromise has produced any unfair outcome. The Tribunal complied with the Act. The appellant had an opportunity to make submissions to the Tribunal. He chose not to do so. None of the material before the Tribunal, the Magistrates Court or me indicates that he was unable to attend on the relevant day. It was his own choice.

24. In those circumstances I see no error in the Magistrate’s decision.  The appeal must be dismissed.  I order that the appellant pay the first respondent’s costs of the appeal.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       1 June 2007

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent did not appear
Date of Hearing:	11 May 2007
Date of Judgment:	11 May 2007