SZIGU v Minister for Immigration
[2006] FMCA 1721
•9 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIGU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1721 |
| MIGRATION – Protection visa – Refugee Review Tribunal – no jurisdictional error – failure to attend hearing – whether s.425A of the Migration Act satisfied – whether compliance with s.424A – application of s.422B – whether bias – application dismissed. PRACTICE AND PROCEDURE – Adjournment refused – whether adequate opportunity to seek legal assistance – November hearing date fixed at directions hearing in April. |
| Migration Act 1958, ss.422B, 425A Migration Regulations 1994, reg 4.35D |
| SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 SZBAZ v Minister for Immigration [2004] FMCA 790 Minister for Immigration and Multicultural Affairs v SZFML [2006] FCAFC 152 80 Johnson v Johnson (2000) 201 CLR 488 493 Minister for Immigration and Multicultural Affairs vLay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 |
| Applicant: | SZIGU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG378 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 9 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2006 |
REPRESENTATION
| Applicant: | In person (assisted by Mandarin interpreter) |
| Solicitor for the Respondents: | Ms K Hooper |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $3,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 378 of 2006
| SZIGU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 22 December 2005.
In its decision the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant the Applicant a protection visa.
The Applicant before this court is self-represented, though assisted by an interpreter.
When the matter commenced the Applicant effectively sought an adjournment of the proceedings. He specifically stated to the court that he would like more time to prepare what he wants to say.
I took that to be an application for an adjournment. I indicated at the outset to the Applicant that the application for the adjournment was refused. I refused the application for adjournment on the basis that in my view the Applicant in this instance, albeit self-represented, has had more than adequate opportunity in which to provide submissions in support of the application and/or arrange, if able to, appropriate legal representation.
It is noted that in this instance the decision of the Tribunal which is the subject of the application was dated 22 December 2005.
The application seeking judicial review was filed in this court on 7 February 2006. It is further noted from the court file that orders were made by this court on 7 March 2006 whereby, amongst others, orders were made which permitted the Applicant to file and serve legal submissions, and indeed permitted the Applicant to file and serve any amended application giving complete particulars of each grant of review relied upon by 30 May 2006.
The Applicant took advantage of the opportunity to file an amended application and did so within the time limit set by the court.
An amended application was filed on 26 May 2006. I note further from the orders made by the court on 7 March 2006 this application had then been fixed for what is described as a callover on 19 January 2007. However, it is also clear from the court file that in correspondence dated 3 April 2006 the parties were notified that the callover date of 19 January 2007 was vacated and the matter listed for final hearing before this court on this day.
As indicated, it would appear after that date the Applicant filed and served the amended application but has not filed and served any further submissions in support of the application. Prior to the court commencing this hearing it became apparent that the Applicant having received the Respondent's outline of submissions on or about
31 October 2005 sought to take advantage of the availability of the interpreter who interpreted the contents of that document prior to the commencement of this hearing.
In my view, in the exercise of the court's discretion on the question of whether to grant an adjournment it is relevant to take into account the chronology of events and to note, as I did in an exchange with the Applicant, that it was my view that the Applicant had an adequate opportunity over the past months to prepare for this hearing.
I should further note that in the circumstances it is not appropriate to permit the Applicant any further time to seek or obtain legal assistance. The Applicant referred to a person who he only knew by the name of Mr ‘Wu’ as being a person who apparently had been asked to consider this matter but had told the Applicant that he was too busy to come to court this day. No further details have been provided in relation to any proposed representation of the Applicant by Mr Wu, and it is noted that counsel, Ms Hooper, for the First Respondent has advised that there has been no notification given to the First Respondent of the involvement of any lawyer, including any lawyer by the name of
Mr Wu.
Where an application has been fixed for hearing at least as early as April this year and where the Applicant has had at the very least approximately seven months in which to prepare material and has indeed filed an amended application, in my view that period of time is sufficient for the Applicant to have properly prepared material in support of the application. It is further noted from the court file that the First Respondent was ordered to file and serve the legal submissions seven days before the hearing, which appears to have occurred.
Whilst that might provide what would otherwise be described as a relatively short period of time within which the Applicant may consider that material, and whilst it might be desirable to provide a longer period of time for those submissions to be considered, I am satisfied having regard to the nature of this application to which I will refer presently that the Applicant having had those submissions translated this day and having had the benefit of hearing submissions made arising from those written submissions has not been unduly prejudiced in his inability to apparently reply.
The submissions clearly relate to matters of law and I make due allowance for the fact that the Applicant is not a lawyer and does not appear to have received legal advice. Nevertheless, on the material before me I am satisfied for the reasons given that it is inappropriate to exercise my discretion in favour of the Applicant by granting an adjournment.
The Applicant is a male citizen of China. He arrived in Australia on
29 June 2005 and applied for a protection visa on 26 July 2005.
The claims made by the Applicant are set out in a statement which accompanies the application which appears in the Court Book at page 27. That application was refused on 30 September 2005. Under the heading “Claims and Evidence” the Tribunal in this matter recites in some detail the Applicant's claims. Specifically, at Court Book page 68 the Tribunal states the following:
“In his protection visa application the applicant states that he was born in Tieling in China in 1958. He states that he was married in Tieling in 1983 and his wife and son (born in 1985) reside in China. He also indicates that his mother still resides in China. He states that before his current journey to Australia he travelled to Korea on 30 April 2005 and returned to China on 3 May 2005. In his form he indicates that prior to coming to Australia he was a worker; he indicates that from December 1980 until June 2004 he was a worker in a grain depot. He states that he lived at the same address in Tieling, which he gives, from July 1995 until June 2005. He states that he left his country legally through Pudong and indicates that he had difficulties obtaining his travel documents; he states that he ‘purchased passport’. He indicates that he was issued his visa in Shanghai on 29 June 2005 valid until 29 July 2005.”
The Tribunal then goes on to recite in some detail the claims arising from the accompanying statement made by the Applicant. It is important to note in this application that the Tribunal by letter dated
8 November 2005 (Court Book p.50) the Tribunal invited the Applicant to attend a hearing then scheduled for 8 December 2005. The Applicant then provided a response on 22 November 2005 where he clearly indicates that he wanted to attend the hearing (Court Book p.52).
On the scheduled hearing day, that is 8 December 2005, the Applicant by facsimile transmission (Court Book p.55) advised the Tribunal that he was not well. It is not necessary to refer to that facsimile transmission in any further detail. It is noted however that the Tribunal, by letter dated 8 December 2005 (Court Book p.56) wrote to the Applicant advising that it had rescheduled the hearing for
15 December 2005. It is clear therefore that the Applicant had been successful in persuading the Tribunal to reschedule the hearing for a period of one week.
I am satisfied the letter advising the Applicant of the rescheduled hearing was forwarded to the Applicant care of his address for service which had been notified to the Tribunal in the Applicant's application for review (Court Book p.46). It is not in dispute that on the rescheduled hearing date, the Applicant did not attend the hearing and nor did he reply to the letter from the Tribunal dated 8 December 2005, which apart from notifying the Applicant of the rescheduled hearing, also in bold print states the following:
“Important information about your hearing
•If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.
…”
The application currently before the court sets out what purport to be a number of grounds. The grounds do not appear to be particularised.
I am satisfied that the First Respondent has appropriately summarised the grounds in the following terms.
·The first ground implies an allegation of bias.
·The second ground is that the Tribunal's decision was based on unwarranted assumptions and irrational or illogical reasoning.
·The third ground raises an issue that the Tribunal did not act in a bona fide manner because its findings and reasons are not long enough.
It is clear in this matter that the Tribunal, in its decision, after reciting the claims made by the Applicant in the material to which
I have already referred, rejected the Applicant's claim of a fear of persecution for convention reasons. It is noteworthy that the Tribunal states under the heading, "Findings and Reasons," that it was not satisfied in this application about the matters raised by the Applicant. Specifically, the Tribunal states in part, the following:
“The reason that the Tribunal cannot be satisfied about the above matters is that the applicant's claims are essentially untested assertions and are unclear in important respects. …”
(Court Book page 71)
The Tribunal refers in some detail to the claims and the cause for concern. The Tribunal then significantly goes on to state the following:
“In the Tribunal's view it would be expected that further details about the applicant's claims, together with some clarification of the matters referred to above, would be forthcoming from the applicant either in writing in the applications or orally at a hearing, if his claims were genuine and could be substantiated. …”
(Court Book page 72)
The First Respondent, consistent with the duty to act as a model litigant, has referred to the application before this court and appropriately, after setting out in summary form the grounds relied upon, has then proceeded to consider, albeit that this was not considered in detail by the Applicant at all, the issues which may have arisen from the rescheduling of the hearing. In particular, submissions were made concerning the application of s.425A of the Migration Act 1958 (the Migration Act).
The First Respondent submitted that the correspondence dated 8 December 2005, referring to the rescheduled hearing of 15 December 2005, clearly gave less than the 14 days notice usually required under s.425A of the Migration Act and Regulation 4.35D of the Migration Regulations 1994. The First Respondent submitted correctly in my view, for reasons which will become evident, that the Tribunal did not need to comply with the 14 day notice requirement because it had rescheduled the hearing at the Applicant's request.
The Respondents relied upon the authority of the Federal Court in the matter of SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 (SZDQO), where in that case, Conti J at paragraph 29 states the following:
“… 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 a recently enacted s 422B of the Act. As Barnes FM reasoned is 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’”.
I note from that paragraph and the decision of Conti J, in the matter of SZDQO, that His Honour has effectively applied the reasoning of Her Honour Barnes FM in SZBAZ v Minister for Immigration [2004] FMCA 790. It is further noted that a Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SZFML [2006] FCAFC 152 endorsed the reasoning of Conti J in SZDQO. I have no hesitation in applying those relevant authorities to the circumstance of the present case and conclude that there has indeed been no breach of s.425A of the Migration Act.
It is not necessary for the court to further consider the application in the circumstances of s.422B in relation to the question of whether natural justice applies. I have regard to the recent Full Court authority of Minister for Immigration and Multicultural Affairs vLay Lat [2006] FCAFC 61 (Lay Lat) at [60 – 70]:-
“60. The question of the proper construction of s 51A and the corresponding provisions of ss 357A and 422B has been the subject of a number of judgments of single judges of the Court.
61. The authorities in which the ambit of these provisions has been considered are: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 (“VXDC”) at [22] – [31] (Heerey J); NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at [50] – [87] (Lindgren J); Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 at [21] – [23] (Hely J); Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 at [23] – [37] (Gray J); WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [47] – [59] (French J); Applicant M17 v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 85 ALD 597 at [83] (Ryan J); SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [1] – [18] (Branson J); WAID v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 220 at [57] (French J); SBTC v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 260 at [19] (Finn J); SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [27] – [29] (Edmonds J); Katisat v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1908 at [45] – [49] (Bennett J).
62. Reference has also be made to this question, by way of obiter remarks, in a full court authority; see NAMW v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 140 FCA 572 at [139] (Merkel and Hely JJ).
63. We do not propose to repeat or analyse the division of opinion as to the ambit of the provisions which is revealed in those authorities. The differing views are fully set forth in the passages from the judgments to which we have referred.
64. It is true that the words “in relation to the matters it deals with” might be thought to be ambiguous or, perhaps, as Heerey J said in VXDC, obscure. However, reference to the Explanatory Memorandum and the Second Reading Speech makes it plain that s 51A and the related provisions of the Act, were intended to overcome the effect of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 (“Miah”).
65. Heerey J set out in VXDC at [23] – [25] the relevant passages from the majority judgments in Miah and the salient portions of the Explanatory Memorandum and the Second Reading Speech. The words “exhaustively state” are, as Heerey J pointed out, picked up in the Explanatory Statement from the majority judgments in Miah. We agree with the observation at [30] in VXDC that the drafters of the Explanatory Statement and the Minister could hardly have made the intention of the 2002 amendments any clearer.
66. What was intended was that Subdivision AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
67. Other aspects of the common law of natural justice, such as the bias rule are not excluded; see VXDC at [27].
68. The intention to exclude the common law rules in the present case is especially plain when s 51A(1) is read with s 57(3). The Legislature could hardly have intended to provide the full panoply of common law natural justice to visa applicants who are required to be outside Australia when the visa is granted, while conferring a more limited form of statutory protection upon onshore applicants.
69. Counsel for the respondent submitted that the words “in relation to the matters it deals with” mean that the decision-maker must, in each case, consider whether there is an applicable common law rule of natural justice and then examine the provisions of subdivision AB to see whether it is expressly dealt with.
70. We reject this submission. As was said in VXDC at [31], the decision-maker is likely to be a person without legal qualifications. Parliament could not have intended that “the uncertainties of the common law rules were in some unspecified way and to some unspecified extent, to survive.”
Whilst it may be argued that the decision in set out above may be regarded as obiter dicta that was clarified by a further brief decision of the same Full Court in a decision delivered on the same day as Lay Lat namely SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 where the Court relevantly states the following,
“7 In another decision handed down today, Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61, we have dealt with the same point in relation to s 51A of the Act, which is the equivalent of s 422B in relation to visa applications at Departmental level (see also s 357A in relation to reviews by the Migration Review Tribunal).
8 For the reasons given in Lay Lat at [59]-[67] we hold that the common law natural justice hearing rule did not apply. The appeal will be dismissed with costs.”
Nevertheless, even if I were to apply principles of natural justice, I am satisfied in this case there has indeed been no denial of natural justice in the manner in which the Tribunal has conducted itself. Indeed, quite to the contrary. The Tribunal has accepted on face value the claim of illness set out in the facsimile transmission to the Tribunal and afforded the Applicant a further opportunity of seven days within which to recover and appear at a hearing where he would have been given, I am satisfied, an appropriate and adequate opportunity to answer questions and further present claims in support of his application.
Again, the Respondent's counsel, consistent with the principles of acting as a model litigant, has also referred to s.424A of the Migration Act. In this instance it is submitted that s.424A obligations do not arise.
In this instance it is submitted that in fact the Tribunal, confronted with a claim but without the benefit of the Applicant attending the hearing, was entitled to do as it is required to do, namely make an assessment of the application and then ultimately affirm the decision not to grant a protection visa. It is not necessary for me to refer in detail to the authorities otherwise relied upon by the First Respondent in support of the submissions concerning s.424A save that I accept those submissions are correct and that in this instance, s.424A does not apply.
It is further noted that the First Respondent refers to the question of bias and it seems to me appropriate that the court should refer to that issue together with any claim that the Tribunal embarked upon its task in a manner which could be claimed to be lacking in bona fides.
The question of bias is a significant matter. It cannot be simply raised, as it has been in the present case, without any further particulars having regard to the relevant authorities which apply in relation to the issue of bias.
I note, for example, the High Court authority of Johnson v Johnson (2000) 201 CLR 488 493, amongst other authorities, it is clear in a circumstance of this kind that upon a proper reading of the Tribunal's decision, that its embarked upon its task in an entirely appropriate and reasonable manner free of the slightest suggestion of bias. It has indeed given to the Applicant the opportunity to attend the hearing and support the application in further detail. I am satisfied on the material before me that there is no evidence which would suggest that there has been any lack of bona fides or indeed that there is any basis upon which it could be claimed that there is bias.
I do not find, in this case, that a fair minded observer would reasonably apprehend that the Tribunal member in this instance did not bring an open mind to the resolution of the application.
Whilst the court acknowledges that the Tribunal's reasons are indeed very brief, the simple explanation for that is that the Applicant failed to attend a hearing, and what might otherwise have occurred between the Tribunal and the Applicant did not occur, that is, an exchange between the Tribunal and the Applicant concerning matters where there were apparent contradictions or issues of concern to the Tribunal.
In the circumstances, having regard to the unparticularised grounds set out in the amended application, and for the reasons given, it follows the application as amended should be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 9 November 2006
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