SZJUM V Minister for Immigration & Citizenship

[2007] FCA 1200

FEDERAL COURT OF AUSTRALIA

SZJUM V Minister for Immigration & Citizenship [2007] FCA 1200

SZJUM AND SZJUN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1095 OF 2007

JESSUP J
7 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1095 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJUM
First Appellant

SZJUN
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	7 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeals be dismissed.

2.The appellants pay the costs of the first respondent of the appeals fixed in the sum of $3000.

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	NSD1095 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJUM
First Appellant

SZJUN
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	7 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By Notice of Appeal filed on 15 June 2007, the appellants appeal from a judgment of the Federal Magistrates Court of Australia given on 4 June 2007 in which that court dismissed an Amended Application for writs of mandamus and certiorari, for an injunction and for other orders directed to the Refugee Review Tribunal (“the Tribunal”) and the respondent Minister in relation to a decision of the Tribunal signed on 20 October 2006. In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellants protection visas pursuant to s 36 of the Migration Act 1958 (Cth) (“the Act”).

2. The appellants did not appear at the hearing of the appeal this morning.  Their failure to do so was explained by a facsimile message received by the court from the first appellant immediately before I came onto the bench this morning in the following terms:

   Dear Sir,

   I would like to write you that my matter is listed for hearing today at Law Court Building, Queens Square Sydney.  Unfortunately I am not able to attend hearing due to my medical treatment.  Here with I am sending medical certificate and medical prescription by faxed which I received at this morning.  Please consider my circumstances.

   Sent with that memorandum was a copy of a letter over the hand of Dr Abrar Maqbool, General Surgeon, Provider Number 2548431W of the Greater Southern Area Health Service of New South Wales Health, dated 2 August 2007, addressed to someone who I presume to be a general practitioner consulted by the first appellant.  The letter thanks the practitioner for referring the first appellant to the writer and continues:

   …he was seen on the 31 July 2007.  I have booked him for banding of haemorrhoids, a minor procedure, to be done as an out-patient on the 21 July 2007.

3. It is clear that there must be something wrong with these dates, since the letter itself is dated 2 August 2007.  I think the most probable explanation, and the one which makes greatest sense of the communication from the first appellant, is that the booking for the procedure has been set down for 21 August 2007, not 21 July 2007.  Although, in his covering memorandum, the first appellant says that he received the facsimile from Dr Maqbool this morning, other than the imprint which refers to the sending of these documents to the court itself, the only other facsimile imprint on the top of Dr Maqbool’s letter is 2 August 2007, namely, the date upon which it was written.  A third page was also sent to the court by facsimile which appears to be a prescription of some kind, and as far as I can read the notation on the prescription, it is dated today, 7 August 2007.

4. Mr Mitchell, who appeared this morning on behalf of the respondent Minister, was prepared to treat this correspondence as an application for an adjournment of the hearing of the appeal, and I shall do likewise.  He submitted to me that the correspondence does not constitute or contain a medical certificate as to the incapacity of the first appellant to attend at the court today.  I accept that submission.

5. It appears that the first appellant saw Dr Maqbool on 31 July 2007, namely, Tuesday of last week.  The letter from Dr Maqbool is dated 2 August 2007, namely, Thursday of last week.  There is no evidence or suggestion of any communication by the first appellant to the respondent Minister or to the court prior to the facsimile which was received this morning immediately before I came onto the bench.  Although that facsimile is headed “Urgent”, I consider that the circumstances of urgency arose only because the first appellant decided not to send the facsimile until immediately before the commencement of the hearing of his appeal.  Had he communicated his circumstances to the respondent Minister in a timely way, the Minister might have taken a different approach, and almost certainly would have avoided incurring the costs which have been rendered necessary by an appearance in court this morning.  I do, therefore, take into account the lateness of the notification of the first appellant’s circumstances and the appearance which the documents have of showing an absence of any explanation why the Minister and/or the court were not contacted earlier.

6. However, the main circumstance which is disclosed by this correspondence is the one to which I first referred, namely, that no inability or incapacity to attend court today is demonstrated.  It appears only that the first appellant has been booked for a minor procedure which is to be carried out, as best I can infer from the correspondence, in about a fortnight’s time.  No medical certificate as to his inability is forwarded or relied upon.  In those circumstances, I am not persuaded that the minor medical situation, which is apparently affecting the first appellant, has prevented him from attending court today or from prosecuting his appeal.  For those reasons I rejected the implied application for an adjournment and I proceeded to hear the appeal on its merits.

7. The appellants are citizens of India who arrived in Australia on 3 June 2006, and very shortly thereafter, applied for protection visas pursuant to the Act. In a relatively short decision, the Tribunal accepted the evidence of the appellants that their store in India was destroyed in riots in 2002 and that they had been threatened by Muslims since then. The Tribunal found, however, that it would be reasonable for them to relocate to another city in India, such as Mumbai or New Delhi, where they could live safely. The Tribunal based that finding upon a report of the US State Department for the year 2005, entitled “Country Reports on Human Rights Practices – India” and possibly also upon other general information relevant to India to which the Tribunal had access. The Tribunal also relied upon the evidence which had been given to it by the appellants themselves.

8. The only ground of application in the Federal Magistrates Court which has become relevant on this appeal is the then applicants’ claim that the Tribunal failed to afford them procedural fairness by denying them an opportunity to respond to all the adverse findings and inconsistencies in accordance with the requirements of s 424A of the Act. In his reasons for judgment, the Federal Magistrate dealt with that ground as follows:

   16.Ground three alleges breach of s.424A. Particular 3.1 complains that the Tribunal relied on "information before the Deparment and the Tribunal (decision page 4.4)... and other material...from a range of sources." It is clear that the reason for the Tribunal’s decision to affirm the decision of the delegate was its finding that relocation was not unreasonable. In reaching that conclusion it relied on the applicant’s evidence (which is excepted under s.424A(3)(b)) and country information (which is excepted under s.424A(3)(a)). It is not apparent that the Tribunal relied on any other information as a reason for its decision. The Court finds no breach of s.424A.

   17.Particular 3.2 alleges again a breach of s.424A. This allegation is dismissed for the reasons already expressed.

   18.Particular 3.3 complains that a statement should have given to the applicant setting out the reason or part of the reason for affirming the decision. Such a statement is necessary only where there is "information" which calls for disclosure under s.424A. That did not apply here. This particular is rejected.

   19.Particular 3.4 complains that s.424A was breached because the Tribunal did not ensure the applicant understood why the information required to be disclosed under s.424A was relevant, in particular as to the credibility of the applicant. The Tribunal did not make, or rely on, an adverse finding of credibility of the applicant. As there was no "information" which was required to be disclosed under s.424A, no statement as to its relevance was required. This particular is rejected.

   20.Particular 3.5 alleges procedural error in the Tribunal failing to comply with s.424A. The Court repeats its findings that s.424A was not breached. This particular is rejected.

9. In the only ground relied upon in their Notice of Appeal in this court, the appellants allege that the Federal Magistrate failed to find that the Tribunal’s decision was in breach of s 424A of the Act and, therefore, fell into jurisdictional error. There was a single particular of the allegation contained in that ground, namely, that there was –

   … certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

10. I have not received any written outline or submission by or on behalf of the appellants. It is not apparent to me how the single ground in the Notice of Appeal could possibly be sustained. The Federal Magistrate appears to have dealt with the relevant ground in the application before him without error and, if I may say so with respect, in a systematic and comprehensive way. I agree with the way in which he disposed of that ground and with his conclusion that nothing in the decision of the Tribunal, or in the material which was before the Federal Magistrates Court generally, discloses a failure to comply with s 424A of the Act.

11. For these reasons I propose to dismiss the appeals.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:         9 August 2007

Counsel for the Appellants:	The appellants did not appear
Counsel for the Respondents:	Mr J Mitchell
Solicitor for the Respondents:	Blake Dawson Waldron
Date of Hearing:	7 August 2007
Date of Judgment:	7 August 2007