SZIDH and Anor v Minister for Immigration and Anor (No.2)

[2006] FMCA 1831

MAGISTRATES COURT OF AUSTRALIA

SZIDH & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2006] FMCA 1831

MIGRATION – Application for reinstatement – reasonable excuse for non-appearance – application refused due to no arguable case – Applicant failed to respond to invitation to attend Tribunal hearing – no obligation to telephone or otherwise contact Applicant.

Migration Act 1958, s.424A

SZIDH & Anor v Minister for Immigration & Anor [2006] FMCA 1691
SZEZI v MIMIA [2005] FCA 1195
NAST v MIMIA [2004] FCAFC 208
Johnson v Johnson (2000) 201 CLR 488

First Applicant: SZIDH

Second Applicant: SZIDI

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG168 of 2006

Judgment of: McInnis FM

Hearing date: 6 December 2006

Delivered at: Sydney

Delivered on: 6 December 2006

REPRESENTATION

First Applicant: In person (assisted by a Mandarin interpreter)

Counsel for the First Respondent: Ms K Hooper

Solicitors for the First Respondent: Phillips Fox

ORDERS

1. The Application for reinstatement be refused.

2. The Applicants shall pay the First Respondent’s costs fixed in the sum of $900.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 168 of 2006

SZIDH

First Applicant

SZIDI

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter the Applicants, by notice of motion filed 29 November 2006, effectively seek orders for reinstatement pursuant to Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (the Federal Magistrates Court Rules) of an application which had been filed in the court on 17 January 2006. The original application sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The Applicant then sought to rely on an Amended Application filed

   
   

   8 May 2006.

2. The decision of the Tribunal dated 5 December 2005 had affirmed a decision of a delegate of the First Respondent refusing to grant to the Applicants a protection visa.  The First named Applicant appears this day self-represented, though with the assistance of an interpreter.  The Second Applicant is his wife, who does not appear this day.  It is accepted that the First Applicant is in fact the primary Applicant for the purpose of these proceedings. 

3. The notice of motion is supported by an affidavit affirmed by the First Applicant on 29 November 2006. To understand the nature of this application it is important to note that on 8 November 2006 the substantive application was listed for hearing before this court. On that occasion the court made orders that the application as amended be dismissed pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules due to the non-appearance of the Applicants.  Other orders were made in relation to costs. 

4. The reasons for the court’s decision appear in the court’s judgment in the matter of SZIDH & Anor v Minister for Immigration & Anor [2006] FMCA 1691. It is not necessary for me to restate the details set out in that judgment concerning the reason for the non-attendance of the First Applicant on that occasion although I note that the court did not accept that there was sufficient material on that occasion to justify an adjournment.

5. It is now conceded properly and appropriately by counsel for the First Respondent that as a result of the further affidavit material setting out in some detail the First Applicant’s medical problems and condition that there is at least now sufficient material before this court which would enable the court to make a finding that there is a reasonable excuse for the non-attendance of the Applicant on the previous occasion.  That concession having been reasonably made in my view is one which does enable the court, albeit with some reluctance, to make the findings that in this instance there is a reasonable excuse.  I indicate with some reluctance as the affidavit material, whilst providing further detail concerning the Applicant’s medical condition, does not provide any adequate material as to why the Applicant was unable to arrange for some direct contact to be made, even by telephone, with the court or with the First Respondent to indicate the reasons for inability to attend the court on 8 November 2006.  However, in the circumstances and having regard to the concession made, I am prepared to accept that there is now sufficient evidence to satisfy the court that a reasonable excuse has been provided, having regard to the Applicant’s medical condition on the previous occasion.

6. I should also add that before the court his day the Applicant has also claimed to have difficulties with his memory and claims he is not well.  At the commencement of the proceedings I indicated to the Applicant that he could remain seated and could, indeed, take his time with the submissions that he wished to make.  At one point the Applicant indicated that he sought more time in order to produce evidence.  It was indicated to the Applicant that the role of this court is not to receive and hear additional evidence nor to undertake a further merit review of the application and in the circumstances, to the extent that an adjournment may be sought for that stated reason, then the adjournment is refused.  I refuse the application for an adjournment, if indeed it be an application for an adjournment, on the grounds that in my view the request by an Applicant in circumstances of this kind to simply obtain further evidence as to his personal situation and the circumstances in India is not an appropriate basis upon which the court should allow an adjournment.  This is judicial review of a decision of the Tribunal.  It is not merits review and I can see no useful purpose being served in permitting an adjournment for the purpose of the Applicant obtaining further evidence.

7. The Applicant, it is noted, otherwise relies upon the application which was filed in this matter on 17 January 2006 and then, as indicated earlier in this judgment, has further relied upon what has been described as an amended application, which I note was filed on 8 May 2006.  The respondent in the substantive submissions has addressed the grounds which are now relied upon by the Applicants in the amended application.  It is appropriate to note that in this instance the claims made by the Applicants were set out in some detail under the heading ‘Claims and Evidence’ in the Tribunal’s decision.

8. It is also significant to note, as noted on the previous occasion, that despite an invitation having been issued to the Applicant to attend the hearing which was scheduled to be conducted by the Tribunal on 2 December 2005, the Applicant did not attend and indeed did not respond to the invitation.  I am satisfied the invitation was sent to the Applicant’s postal address as requested by the Applicant and which I am satisfied otherwise complied with the obligations and requirements of the Tribunal pursuant to the relevant provisions of the Migration Act 1958 (the Migration Act).

9. I can see no error at all arising from the manner in which the Tribunal undertook the task of inviting the Applicant to attend the scheduled hearing.  Indeed, the letter dated 24 October 2005 (Court Book p.57) apart from indicating the date, time and place of the scheduled hearing otherwise clearly stated the following: 

   “The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.”

10. The invitation, in standard form, also had enclosed with it the Response to Hearing invitation form, the brochure entitled ‘What is a Hearing?’ together with multilingual advice. 

11. I note in passing that in the amended application the Applicants seek to further rely upon other grounds in relation to the procedure followed by the Tribunal.  It seems to me that in the circumstances of this case, where an application has been made to the Tribunal and the Applicant provided with an invitation to attend the hearing and fails to do so, it is hardly surprising that the Tribunal might then proceed, in the absence of obtaining further information from the Applicant, to make an adverse finding and to not be satisfied that the Applicant had a well founded fear of persecution for a Convention reason.

12. It is also clear to me from a proper reading of the Tribunal’s decision that it has set out in some detail the claims made by the Applicants.  So much is evident from the summary of the claims which appear in Court Book page 68 as follows, where the Tribunal states:

    The Applicant claims that:

    ·    If he returns to India he fears being killed by Muslim fundamentalists. 

    ·    He operated a retail and wholesale business. 

    ·    His business did well until the Hindu-Muslim riots in Gujerat in 2002. 

    ·    His shop was in a Muslim majority area.  It was set on fire and he received threatening phone calls. 

    ·    He could not re-establish his business, could not get any compensation and could not get protection from the police even though a Hindu party was in power. 

    ·    He obtained an Australian visa with great difficulty and travelled directly to Australia on 11 July 2005.

    ·    If he returns to India he will have nowhere to go.”

13. The Tribunal sets out those claims and then proceeds to make its findings and give its reasons.  As will be evident from the summary of claims set out in the Tribunal’s decision, the Applicant arrived in Australia on 11 July 2005.  He applied for a protection visa on 10 August 2005.  The claims were set out in a statement which accompanied the application for a visa.  The application was refused on 15 September 2005 and then an application was made to the Tribunal for review that decision.

14. As I have indicated, I am satisfied that the Tribunal then forwarded to the Applicant the appropriate invitation to attend the hearing scheduled for 2 December 2005.  In the application before this court it is noted that the Applicant seeks to rely upon a number of grounds whereby he asserts that there has been jurisdictional error.  Perhaps not surprisingly the Applicant, who is self-represented, was unable to elaborate on those grounds in support of the application this day.  Nevertheless it is appropriate that the court considers those substantive matters which have been relied upon by the Applicant in the amended application, even though the Applicant himself was perhaps unable to elaborate on those claims.

15. The court has already dealt with the question of the invitation to attend the hearing, which I am satisfied in this case had been issued in a manner free of any error and that the Tribunal has otherwise discharged its obligations under the relevant provisions of the Migration Act.

16. The Applicant, though, further relies upon an alleged breach of s.424A of the Migration Act in relation to information from the Department file and country information.

17. The First Respondent has submitted that, on a proper reading of the Tribunal’s decision, the Tribunal did not have particular regard to country information. In any event, it was submitted in the alternative that the information referred to by the Tribunal could properly be regarded as general country information, exempt from the operation of s.424A of the Migration Act by the operation of s.424A(3)(a) of that Act. That submission, in my view, is clearly correct.

18. To understand the Tribunal’s decision, it is relevant to note that in its findings the Tribunal states the following,:

    “I accept that the applicant is an Indian national.  However,

    
    

    I have a number of problems with his claims.  For example, the applicant claims that his shop was burned down in the communal riots in Gujerat in 2002.  However, his protection visa application also states that he was self-employed until 2005.  The applicant has not explained what sort of business he was involved in between 2002 and 2005.  In addition, while the applicant claims that he came ‘directly’ to Australia, his protection visa application indicates that he remained in India for almost six weeks after his visitor’s visa was issued.  The applicant has not explained the delay in his departure from India.  Furthermore, the applicant claims that he would have nowhere to go if he returns to India.  However, his protection visa application indicates that he lived in the same place from 1964 until 2005.  The applicant has not explained how he was able to live in the same place until 2005 if his life had been seriously disturbed by the riots in 2002. 

    In view of the lack of detail in the protection visa application,

    
    

    I am unable to make findings of fact in relation to the applicant’s claims.  It follows that I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason arising from his claims.  The applicant has not suggested that he fears returning to India for any other reason than that set out in his protection visa application and no other reason is suggested on the evidence before me.  Accordingly, I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.”

    (Court Book p.69)

19. It is clear from that extract from the Tribunal’s decision that the Tribunal has not, in my view, as correctly submitted by the First Respondent, relied upon in its decision country information to any significant or relevant degree.  Rather, the Tribunal has identified what could understandably be concerns the Tribunal had on the information then available to it in the absence of the Applicant who, as I have indicated, I am satisfied was issued a genuine invitation to attend the hearing.

20. I should add in passing that the Tribunal is not required to do anything more than what it has done on this occasion, that is, to forward a letter inviting the Applicant to attend a hearing and to forward that letter to the appropriate address for the Applicant. There is no further obligation to then contact the Applicant by telephone or otherwise, which seems to have been referred to in the Applicant’s original application. In the circumstances I accept, having regard to the findings in the extract of the Tribunal’s decision earlier, that as submitted by the First Respondent the s.424A obligations do not arise; (see SZEZI v MIMIA [2005] FCA 1195 at [29] and [30]).

21. I am further satisfied and note, as observed in the case referred to by the First Respondent of NAST v MIMIA [2004] FCAFC 208 at paragraphs 4 and 5, that the Tribunal is entitled to list a number of significant matters on which it would have liked to satisfy itself at the hearing and in the case where the Tribunal, as in the present case, is not satisfied that the Applicant has a well-founded fear of persecution, it is bound to then affirm the decision not to grant a protection visa. In the present case I am satisfied that that is all that has occurred in this instance. The Tribunal, confronted with claims which it would have liked to have explored in further detail, was denied the opportunity to do so solely as a result of the non-attendance of the Applicant at the hearing and the failure of the Applicant to respond appropriately to the genuine invitation issued by the Tribunal.

22. It is noted that a further allegation has been made of bias on the part of the Tribunal.  The Applicant is concerned about the manner in which the Tribunal referred to the Applicant being ‘self-employed’.  That is not in itself a matter which would provide any or any adequate basis upon which the court would be able to conclude that the Tribunal has been biased.

23. The First Respondent submits, and I accept, that the comment about the Applicant being self-employed needs to be considered in context.  The Applicant had claimed that his shop had been burned down in 2002 but also claimed he was self-employed until 2005.  The Tribunal simply observed that the Applicant had not explained what he was doing in that period between 2002 and 2005.  I accept, as submitted by the First Respondent, that in that context it is clear the Tribunal was simply referring back to what was a further lack of information in the Applicant’s original application.  It was not in any way, and should not be taken to be, disparaging towards the Applicant for simply being self-employed.

24. In the circumstances I accept, as submitted by the First Respondent, applying the relevant authority of Johnson v Johnson (2000) 201 CLR 488 at 493, that this is not a case where the court could be satisfied that a fair-minded observer would reasonably apprehend that the Tribunal member did not bring an open mind to the resolution of the application. In my view, the ground suggesting bias should therefore fail.

25. A further issue raised by the Applicant which was the subject of response by the First Respondent is the issue of whether or not the Tribunal made its decision without the support of any evidence.  In this instance I am satisfied, again as submitted by the First Respondent, that the Tribunal was entitled to have regard to material on file and as a consequence of the failure of the Applicant to attend the hearing that obviously became the primary information the Tribunal then had available to it in making its decision.

26. Having considered that information I am satisfied the Tribunal then in a manner free of error properly considered and reached a decision about the claims made by the Applicant.  I am otherwise satisfied that in the present case the Tribunal has properly considered issues including relocation and has otherwise considered the question of what might happen as to whether or not the Applicant did have, indeed, a reasonable fear of persecution.  Having rejected the primary claim of the Applicant it was not then required to further consider what may happen to the Applicant upon his return to India.  Accordingly, there is no error in the manner in which the Tribunal has embarked upon its task.

27. It follows for the reasons given that in my view there has been no demonstrated jurisdictional error in this matter and I can see no error of any kind in the way in which the Tribunal has embarked upon its task.  It is my conclusion therefore that the Applicant in this instance has no arguable case.  Whilst I have accepted that the Applicant may have provided a reasonable excuse for not attending the court on 8 November 2005, it is my concluded view that as there is no arguable case or in this instance, as submitted by the First Respondent, no reasonable prospect of success, it would be inappropriate to allow the application for reinstatement.

28. In the circumstances the appropriate order is:

    (1)    The application for reinstatement be refused.

    (2)The Applicants shall pay the First Respondent’s costs fixed in the sum of $900.00.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  6 December 2006