SZKLB v Minister for Immigration

[2007] FMCA 1893

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKLB v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1893

MIGRATION – Review of decision of Refugee Review Tribunal – applicant’s application for adjournment refused – whether medical certificate adequate – whether application has reasonable prospect of success – whether utility in granting adjournment.

Migration Act 1958 (Cth), ss. 65(1); 425; 425A; 426A
Federal Magistrates Court Rules 2001, rr.13.03A; 16A; 44(12)

NALM v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2004) FCAFC 17
NAKX & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559
MZXQD v Minister for Immigration & Citizenship& Anor [2007] FMCA 1258

Applicant: SZKLB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1077 of 2007

Judgment of: Emmett FM

Hearing date: 5 November 2007

Date of last submission: 5 November 2007

Delivered at: Sydney

Delivered on: 5 November 2007

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Mr R. White, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1077 of 2007

SZKLB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 16 May 2007 the Applicant attended a directions hearing before this Court and on that occasion the matter was set down for hearing before this Court this afternoon. There has been no appearance by the Applicant this afternoon. A handwritten letter, purportedly from the Applicant was received by this Court early this morning and stated the following:

   “I can't attend my hearing tomorrow due to my sudden health condition.  I have enclosed doctor certificate for your consideration.  I’d appreciate if you could arrange another hearing for me.”

   I understand the letter to be an application by the Applicant for an adjournment of today’s hearing.

2. Attached to that letter is a medical certificate from Dr Ricky Lam from the Associated Medical Centre in Campsie dated 3 November 2007 and stating that in the doctor’s opinion the Applicant is “suffering from “backache” and will not be/was not fit for duty from 2/11/07 to 7/11/07 inclusive”.

3. The application for adjournment of this afternoon's hearing is opposed by Mr White, solicitor for the First Respondent on two bases. The first is that the medical certificate is inadequate. The second is that the Applicant's application has no reasonable prospect of success and it would therefore be futile to grant an adjournment.

4. In relation to the inadequacy of the medical certificate, Mr White referred the Court to three authorities. In NALM v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2004) FCAFC 17 (“NALM”) at [24] where a medical certificate which referred only to a “medical condition”, the Full Court of the Federal Court held that a reference only to a “medical condition” is insufficient to explain why the applicant was unable to participate effectively in the hearing. In NAKX & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559 (“NAKX”), a medical certificate that stated:

   “This is to certify that on 13/12/2003 I examined the above person.  In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.”

   Lindgren J held that the terms of the certificate were unsatisfactory as they did not address the critical question of whether and, if so, why the medical condition would prevent the applicant from travelling to the Court and participating effectively in the Court hearing.

5. Both NALM and NAKX were referred to in MZXQD v Minister for Immigration & Citizenship& Anor [2007] FMCA 1258 by Riethmuller FM in circumstances where the medical certificate presented before that Court did not disclose what medical condition the applicant may be suffering from, nor did it attest to any medical treatment.

6. The medical certificate before this Court states that the Applicant is suffering from backache and that the Applicant is unfit for duty for a period of five days from 2 November 2007 to 7 November 2007. Backache may be a symptom of a medical condition but is not, of itself, a medical condition or a diagnosis of a medical condition. The medical certificate does not sufficiently identify the medical condition from which the Applicant was diagnosed to be suffering. To that extent the medical certificate is deficient. Further, the medical certificate does not specify the “duty” for which the Applicant is unfit or what medical condition prevents him from attending Court today.

7. However, even if I was persuaded that the medical certificate was adequate to excuse the Applicant from appearing today, I am of the view that the application before this Court seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 February 2007 has no reasonable prospects of success for the reasons below.

8. The Applicant lodged an application for a protection visa on 21 September 2006, together with a statement in support. The statement in support is accurately summarised in the Tribunal’s decision as follows:

   “The applicant claimed fear of persecution because he is a Falun Gong practitioner in China. 

   The applicant claimed that he was introduced to Falun Gong in 2004. 

   He claimed that after practicing for a few months his health had remarkably improved and he was in high spirits. 

   He claimed that he began to believe in Falun Dafa and started to learn the principle of the universe. 

   He claimed that he became an active practitioner and tried to introduce his friend and other people to Falun Gong. 

   The applicant claimed that in October 2005 his workplace leaders interviewed him.  The applicant claimed that they told him that Falun Gong is against the Government and is using the evil theory to instigate people into evil deeds.  They asked him to change his thoughts and beliefs and to keep a clear breach with Falun Gong.

   The applicant claimed that he believed that he did nothing wrong and Falun Gong is right, so he continued to practice.

   The applicant claimed that in March 2006, he was formally warned by his local security branch and they checked his home.  He claimed that he was told that he would lose his job and would be arrested if he continued to practice Falun Gong.

   The applicant travelled to Australia”

9. On 4 November 2006, a delegate of the then First Respondent (“the Delegate”) refused the Applicant a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations. The Delegate identified as part of the reasons for the Delegate’s lack of satisfaction that there was no evidence to support the claim that the Applicant had come to the attention of the authorities in China because of involvement in Falun Gong activities. The Delegate noted that there were no letters of support and that the Applicant was issued with a passport in his own name in May 2006.

10. On 7 December 2006, the Applicant lodged an application for review of the Delegate’s decision with the Tribunal. The Applicant provided no further material in support of his review application.

11. On 19 December 2006, the Tribunal wrote to the Applicant informing the Applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter was addressed to the Applicant at the Applicant’s identified address for correspondence in his application for review.

12. The letter went on to invite the Applicant to come to a hearing at a specified date, time and place. The letter also informed the Applicant that if he thought he may be unable to attend the hearing, he should contact the Tribunal immediately because if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision in his case without further notice. The letter enclosed a response to hearing invitation form that it requested the Applicant to complete and return to the Tribunal. The letter also invited the Applicant to send any new documents or written arguments he wished the Tribunal to consider. No further material was received by the Tribunal from the Applicant.

13. The First Respondent read the affidavit of Jonathon Willoughby-Thomas, sworn 16 October 2007 and filed on 22 October 2007. Mr Willoughby-Thomas deposed to the practices and systems employed in the drafting of hearing invitation letters sent pursuant to s.425 of the Migration Act 1958 (Cth) (“the Act”). Mr Willoughby-Thomas is the District Registrar employed by the Tribunal and is responsible for the “efficient running of the Sydney Registry, including the management of correspondence relating to applications for review by the RRT.”

14. Mr Willoughby-Thomas deposed that the usual practice in the Sydney Registry for letters of invitation is that they are sent by ordinary pre-paid post and sent on the date appearing on the letter as the date on which the letter was written or the next business day if a letter had missed the external mail despatch for that day. A note of any letter having been prepared is made in the Tribunal’s electronic case management system by the person preparing the letter. A print-out from the electronic case management system is annexed to Mr Willoughby-Thomas’s affidavit. That print-out discloses that the letter dated 19 December 2006 was dispatched on 19 December 2006. Mr Willoughby-Thomas’s evidence was unchallenged and the Court accepts the practice deposed to by Mr Willoughby-Thomas. There is no evidence before this Court to suggest that the letter of invitation to the Applicant, dated 19 December 2006, was not sent in accordance with the Sydney Registry’s usual practice.

15. In the circumstances, the Court is satisfied that the letter of invitation was sent within three days of the date of the letter and was sent in compliance with ss.425 and 425A of the Act.

16. The Tribunal, in its decision, noted that it had written to the Applicant on 19 December 2006 advising the Applicant that the Tribunal was not able to make a decision in his favour on that information alone and that the Applicant was invited to attend a hearing on 7 February 2007. The Tribunal noted that the Applicant did not appear before the Tribunal on that day and at the time and place at which he was scheduled to appear. The Tribunal was satisfied that the Applicant was invited pursuant to s.425 and was satisfied that the letter of invitation complied with s.425A. In the circumstances, the Tribunal purported to exercise the discretion provided under s.426A of the Act to proceed to make its decision on the review without taking any further action to allow or enable the Applicant to appear before it.

17. The Tribunal went on to consider the Applicant’s statement lodged in support of his protection visa application that ultimately found that this information was “very scant and lacks detail”.

18. The Tribunal identified some of the matters that caused it concern arising from the Applicant's claims and concluded that:

    “The little detail and generalised description of contact and involvement given does not satisfy the Tribunal that the claims made are in fact truthful.”

    A fair reading of the Tribunal’s decision does not suggest that by the use of those words the Tribunal was in fact intending to find that the Applicant was untruthful. Rather, the Tribunal was simply not satisfied on the information before it provided by the Applicant of the Applicant's involvement and interest in the practice of Falun Gong. The Tribunal found that the Applicant provided little detail of the nature and extent of his Falun Gong practice.

19. The Tribunal concluded that it was not satisfied that the Applicant was a refugee and affirmed the decision under review.

20. On 3 April 2007, the Applicant filed an application seeking judicial review of the Tribunal’s decision. The grounds of that application are set out as follows:

    “1, I am a Chinese citizen and I am a genuine Falungong member. When I was in China I was actively involved in practicing Falungong for years and I have been questioned by my local security and company. I was clearly warned to be put in prison if I continue this activity.

    2, I believe Falundafa is a health activities since it has helped a lot with my health condition. I can not go back to China since I have a strong fear to be sentenced. My family members there all worried about my safety.

    3, I have been actively practicing Falungong since I arrived in Australia. My family told me that Chinese government still look for me. They told me not to go back since they came to my home a few times and requested my family to report to them if I return.”

21. The grounds as identified appear to be a restatement of claims made by the Applicant and do not disclose any error capable of review by this Court.

22. The Applicant first appeared before this Court on 3 May 2007 at which time the application was set down for a show-cause hearing pursuant to Rule 44(12) of the Federal Magistrates Court Rules 2001. The Applicant was given leave to file and serve an amended application and any evidence in support by 14 May 2007 and the matter was stood over to 16 May 2007.

23. On 16 May 2007, the Applicant produced a letter, marked Exhibit 1A, which appeared to offer an explanation as to why he may not have received the Tribunal’s invitation to come to a hearing. There was no other document filed by or on behalf of the Applicant, nor was there any evidence filed by the Applicant in support. Further directions were made on that occasion giving leave to the Applicant to file an amended application giving complete particulars of any ground to be relied upon and also to file and serve by way of affidavit, any further evidence upon which the Applicant intended to rely, including any explanation as to why he may or may not have received the Tribunal’s invitation to come to a hearing dated 19 December 2006. Nothing has been filed by or on behalf of the Applicant since that date.

24. There is no error identified by the Applicant going to the jurisdiction of the Tribunal that is capable of review by this Court. The Applicant has, on two occasions, been given leave to file an amended application and on two occasions been directed to file evidence in support of his application. The Applicant has declined to avail himself of those opportunities or otherwise comply with the Court directions.

25. A fair reading of the Tribunal’s decision does not disclose any error. It would appear that the Tribunal has complied with the statutory regime, both in the making of its decision, including the conduct of its review. The Tribunal considered the only material in support of the Applicant’s review application that was before it, however, was not satisfied on that material that the Applicant was a refugee. Where a Tribunal is not satisfied that an applicant for a protection visa meets the criteria prescribed by the Act, then s.65(1) of the Act mandates that such a decision maker must refuse the applicant a protection visa. It was inadequacy in the Applicant’s information that was the reason for the Tribunal’s lack of satisfaction. That conclusion was open to the Tribunal on the evidence and material before it and for which it provided reasons. In the circumstances, I am satisfied that the Applicant’s proceeding in this Court has no reasonable prospect of success.

26. In the circumstances, there is no utility in granting the Applicant’s application for an adjournment. The medical certificate provided by the Applicant is inadequate in its terms to satisfy the Court as to the particular medical condition from which the Applicant alleges he was suffering that prevented him from attending Court today. The Court also notes that the medical certificate is in fact dated 3 November 2007, although was not sent to this Court until this morning.

27. Accordingly, the Applicant’s application for an adjournment is refused.

28. In the circumstances, there is no appearance by the Applicant at today’s hearing. The Court is satisfied that the Applicant was aware of today’s hearing. The Court has dismissed the Applicant’s application for an adjournment.

29. The First Respondent seeks an order that the proceeding before this Court be dismissed by reason of the non-attendance of the Applicant at today’s hearing. Accordingly, in light of the failure of the Applicant to appear at today’s hearing, the proceeding before this Court commenced by way of application filed on 3 April 2007 is dismissed pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001.

30. I direct the first respondent to notify the Applicant forthwith of the orders made today and to provide to the Applicant a copy of Rule 16A of the Federal Magistrates Court Rules 2001.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Maconachie

Date:  12 November 2007