SZIVL v Minister for Immigration - [2006] FMCA 1208

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIVL v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1208

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – failure to disclose an arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.48B, 417, 425, 426A

Applicant:

SZIVL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1381 of 2006

Judgment of:

Driver FM

Hearing date:

21 August 2006

Delivered at:

Sydney

Delivered on:

21 August 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms L Gazi
Australian Government Solicitor

INTERLOCUTORY ORDERS

The Court directs that the Refugee Review Tribunal is joined as the second respondent to the amended application.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and paragraph 1(b) of part 2 of schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1381 of 2006

SZIVL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

(as corrected)

I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). The decision was notified to the applicant by letter dated 20 April 2006. She asserts notification on the same day when she attended the handing down of the decision. The show cause application was filed in 12 May 2006. I find that the application was filed within time.
This matter came before me for the first time on 14 June 2006. At the time I doubted that the application properly asserted jurisdictional error, although it was apparent that there might be an issue concerning the invitation which should have been given to the applicant to attend a hearing before the RRT. I directed that the matter be listed for a hearing today under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I also gave the parties the opportunity to file and serve additional material. The Minister filed a book of relevant documents on 26 June 2006. The applicant tendered in court today a medical certificate which I marked as an exhibit[1]. I received both as evidence for today’s hearing. I also gave leave to the applicant to file in court today an amended application.
[1] exhibit A1
The amended application raises a single issue, that is, whether the RRT committed jurisdictional error in refusing to adjourn the hearing scheduled for 31 March 2006. The issue raised in the amended application is the only issue which could arise in this case. The facts are that by letter dated 3 March 2006 the RRT invited the applicant to attend a hearing on 31 March 2006[2]. To that extent the RRT met its obligation under s.425 of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant received that invitation.
[2] court book, pages 56 and 57
On 30 March 2006, the day before the scheduled hearing, the applicant sent a facsimile to the RRT. The facsimile appears on page 58 of the court book. In that facsimile the applicant asserted inability to attend the scheduled hearing because of a “medical problem”. Relevantly she asked for the hearing to be postponed for two weeks. The copy of the facsimile in the court book contains the handwritten notation, apparently by the presiding member or a tribunal officer, as follows:
As the applicant does not explain the nature of her “medical problem” or provide any evidence in support, the hearing cannot be postponed. Further, the Tribunal cannot contact the applicant to clarify (no phone number).
The absence of a telephone contact is confirmed by the review application in the court book[3]. The presiding member dealt with the circumstances in the RRT decision on pages 65 and 66 of the court book:
On 27 February 2006, the Tribunal wrote to the applicant advising that the Tribunal had received the application for review. This letter was sent to the applicant’s mailing address as provided by the applicant in the review application. The Tribunal informed the applicant that she should immediately advise the Tribunal of any change of address and telephone number and “If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice”. The Tribunal’s letter also explained that the applicant might be invited to a hearing and that a “hearing is your opportunity to give the Tribunal evidence to support your application”. There is no record before the Tribunal that the letter was not received.
On 3 March 2006, the Tribunal wrote to the applicant, advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 31 March 2006. The applicant was also advised that if she did not attend the hearing listed on 31 March 2006 and a postponement was not granted, the Tribunal can make a decision on the case without any further notice. The applicant was requested to respond to the hearing invitation by 21 March 2006 but she did not. At about 3.00pm on 30 March 2006, the Tribunal received a facsimile from the applicant stating “I am afraid I can not go to the hearing tomorrow because of my medical problem. Can I ask you to postpone the hearing for two weeks?......”.
The applicant did not provide any telephone contact details in the letter, or in the application for review or protection visa and consequently, the Tribunal could not clarify with her the nature of the problem. Given the fact that the applicant did not explain the nature of her “medical problem”, or how it would impact on her ability to give evidence, or provide any medical evidence in support, the Tribunal has decided not to postpone the hearing. The Tribunal has an obligation to finalise the review in a, inter alia, fair and timely manner. The Tribunal is not satisfied that if the hearing were to be postponed, the applicant would attend. The applicant was put on notice that if she did not attend the hearing listed on 31 March 2006 and a postponement was not granted, the Tribunal can make a decision on the case without any further notice. She has clearly received the relevant letter.
The applicant did not attend the hearing listed on 31 March 2006. This matter has therefore been determined on the evidence available to the Tribunal.
[3] See in particular the review application at court book, page 50
The applicant told me from the bar table that she is illiterate. Two men attended court this morning to assist her. She must have had assistance both with her review application and with the facsimile that she sent to the RRT. She appears to have signed both documents. The applicant told me from the bar table, with the assistance of her friends who attended court, that she felt unwell the day before the RRT hearing, but did not appreciate at that time the severity of her illness. It was a considerable time later that she sought medical attention. Exhibit A1 confirms that the applicant was examined by Dr Fred Leung on 16 July 2006. The doctor certifies that as a result of that examination the applicant was unfit for work between 29 May 2006 and 16 July 2006. That was well after the RRT decision.
The amended application asserts that the applicant has been suffering from pneumonia. I have no reason to disbelieve her. Unfortunately, she has lost the opportunity to explain her protection visa claims to the RRT. It was not her fault that she was apparently unwell at the scheduled time of the hearing. However, on the available material, the RRT properly exercised its discretion to proceed in her absence pursuant to s.426A. The presiding member was entitled to conclude that the mere assertion of an unspecified medical illness, without any supporting medical evidence, was insufficient. The presiding member was also entitled to conclude that, given the lateness of the asserted illness and the inability to contact the applicant by telephone, the RRT could and should proceed in her absence. I see in this case no arguable case of error in the exercise of discretion under s.426A. Hence, it is not arguable that the RRT breached its obligation to invite the applicant to a hearing under s.425.
Nevertheless, the circumstances as they now appear, with the benefit of hindsight, are unfortunate. It is open to the Minister, if she wishes, to take those circumstances into account in considering whether to exercise her powers under ss.48B or 417 of the Migration Act. That is beyond the scope of these proceedings.
I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
The application having been dismissed, costs should follow the event. The Minister sought scale costs. The applicant and her friends appeared to be concerned about her capacity to pay, but that is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in accordance with rule 44.15(1) and paragraph (1)(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.
For the avoidance of doubt, I will also direct that the Refugee Review Tribunal, which was a party to the original application, is also the second respondent to the amended application.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 4 September 2006

CORRECTIONS

1. The second respondent has been added to the cover sheet and heading of the judgment.