SZLLY v Minister for Immigration

[2008] FMCA 1086

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLLY & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1086

MIGRATION – Review of decision of Refugee Review Tribunal –
whether Tribunal gave applicant a meaningful opportunity to attend a hearing – Tribunal did provide the applicant with a meaningful opportunity to attend a hearing - obligation in s.424A(1) not enlivened – Tribunal’s view not “information” – notice period of rescheduled hearing was reasonable in all the circumstances – open to Tribunal to not accept applicant’s explanation for an inability to attend a particular location for hearing – not necessary for Tribunal to consider whether it should hold the hearing at another location in the circumstances – not unreasonable for Tribunal to refuse a hearing by video link – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R(1), 4242A, 425, 425A, 426, 65, 36, 429A
Migration Regulations 1994 (Cth), reg.4.35D(b)

SAAP v Minister for Immigration and Multicultural Affairs (2005) 228 CLR 294; [2005] HCA 24
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Minister for Immigration and Citizenship v SZHXF [2008] FACFC 36
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572
SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
Mahzar v Minister for Immigration and Multicultural Affairs (2002) 183 ALR 188; [2000] FCA 1759

First Applicant: SZLLY

Second Applicant: SZLLZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3171 of 2007

Judgment of: Nicholls FM

Hearing date: 8 May 2008

Date of Last Submission: 8 May 2008

Delivered at: Sydney

Delivered on: 31 July 2008

REPRESENTATION

Counsel for the Applicants: Nil

Solicitors for the Applicants: Nil

Counsel for the Respondents: Mr G T Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 12 October 2007, and amended on 15 January 2008, is dismissed.

2. The applicants pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3171 of 2007

SZLLY

First Applicant

SZLLZ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 12 October 2007, and amended on 15 January 2008, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 31 August 2007 which affirmed the decision of a delegate of the respondent Minister to refuse protection visas to the applicants.

Background

1. Pursuant to orders made by the Court, the first respondent has filed a bundle of relevant documents in this matter (the Court Book – “CB”) from which the following background may be discerned.

2. The applicants are husband and wife, and are citizens of India.

   
   

   They arrived in Australia 22 March 2007 and applied for protection visas on 1 May 2007. The application is reproduced at CB 1 to CB 35 (with annexures). The applicant husband (“the applicant”) submitted claims to be a refugee and provided a statement with his protection visa (CB 32 to CB 35) in support. The applicant wife applied for a protection visa as a member of her husband’s family unit, and did not purport to have refugee claims of her own (see CB 27).

Claims to Protection

1. In his statement, the applicant claimed that his father owned a “garment shop” in Ahmedabad, Gujarat in India. He and his brother “were living happily” with their father. Following a fire they suffered economic loss.

2. While his brother maintained a good economic position, the applicant found it “difficult to manage”. He started work in a local factory. After some two years, and “much economic shortage”, a relative advised him to start a cotton trading business. With help, the business did well (“slowly my business increased”).

3. Ultimately, the applicant sought to expand and he was introduced to a “trader” who was “Muslim”. With his help, the business expanded. However, following changes by the Gujarat State Government in relation to excise duty on the transportation of cotton, the price of cotton increased and he lost customers. He lost business and at some time the “Muslim trader” called him and “scolded” him. Ultimately, the “Muslim trader” refused to make payment for cotton that the applicant had delivered to him. Following further difficulties the applicant was unable to make payments to his suppliers and further lost business.

4. He claimed that he was warned that if he sought payment from those who owed him money they would kill him. The applicant was unable to repay a debt to a particular dealer. There was a quarrel at his home and the dealer purportedly gave him “warnings of life”. He and his wife were frightened and although he sought to relocate to a nearby town, the people to whom the applicant owed money found him and they started “hitting” his wife and son. The applicant and his wife left India and came to Australia because he was unable to repay the debt and they were “under pressure and danger”. (I note that the applicant’s son and daughter remain in India (see CB 4).) The applicant blamed his “problems” on the “Muslim merchant”.

The Delegate’s Decision

1. The Minister’s delegate refused the visas because he found that the applicant’s claims did not reveal a Convention nexus (CB 41.8):

   “Based on the evidence before me I conclude that the applicant’s fears are essentially related matters that can best be described as private and criminal in nature and not related to any of the reasons enumerated in the refugees Convention.”

The Tribunal

1. The applicants sought review by the Tribunal on 7 June 2007 (see CB 43 to CB 46). No new claims were put before the Tribunal at that time.

2. By letter dated 8 June 2007 (CB 47 to CB 49) the Tribunal acknowledged receipt of the application and set out for the applicants the process by which their application would be reviewed. In particular, the letter noted that the Tribunal would look at the information before it, and a decision would be made either in the applicants’ favour, or, if that was not possible, it would invite the applicants to a hearing.

3. The letter emphasised the importance of the hearing as the opportunity for the applicants to give evidence in support of the application. Relevantly, the following also appears at CB 48.3:

   “When and where will the hearing take place? 

   We will tell you the date and time of the hearing and where the hearing will be held.  Hearings can take place in person at the Tribunal’s offices in Sydney or Melbourne, but in some circumstances hearings may be conducted by video or telephone links.”

4. By a letter dated 10 July 2007 (CB 50 to CB 51) and sent by registered post to the applicant at the address for service (a post office box address in Griffith), the Tribunal advised that it had considered the material before it, but was unable to make a favourable decision on this information alone, and invited both applicants to a hearing before the Tribunal. This was arranged for 21 August 2007, at 9.30am, at the Tribunal’s premises in Sydney.

5. The letter enclosed a “Response To Heaving Invitation” form, and directed the applicants to complete, and return, this form to confirm that they would attend the hearing. The letter also advised the applicants of the opportunity to attach any “additional information if there are any requests or new information” that they wished “the Tribunal to consider”.

6. The applicants did not return the “Response To Hearing Invitation” form (CB 70.3).

7. On the evening of 20 August 2007 (it would appear at 6.27pm – see the transmission advice at the top of CB 52 to CB 55, and see also CB 70.4) the applicant husband sent, by facsimile communication, a handwritten letter to the Tribunal.  The applicant relevantly advised:

   1)He was “keenly willing to appear” at the hearing on 21 August 2007.

   2)He was in “great financial hardship” and was not able to travel to Sydney.

   3)Sought that the Tribunal arrange “another hearing for us people in our residence town” (the applicant claimed that he had heard that it was possible to get a hearing in this way).

   4)The applicant’s “financial trouble” was “a good enough reason” to give the applicant “another hearing at my near residence place”.

8. Not surprisingly, the next day the applicants did not appear at the time and place which had been arranged for the hearing (CB 56 to CB 57).

9. The Tribunal responded by letter dated 22 August 2007 (CB 58 to CB 59). The letter was sent by registered post to the address for service (Registered Post number DL6419883 – CB 58.3) and to the applicants’ home address (Registered Post number DL6419882 – CB 59.7).

   
   

   The letter relevantly stated:

   1)The applicant informed the Tribunal “by fax on the evening of 20 August 2007” that the applicant wished to attend the hearing, but could not afford to travel to Sydney to attend at the time scheduled.

   2)The Tribunal did not accept that the “cost of travelling from Griffith to Sydney for a hearing is a valid reason for rescheduling your hearing and organising a video hearing”.

   3)The Tribunal noted, however, that as the applicant confirmed that he wished to attend a hearing, a “new hearing” was scheduled for him at 12pm on 30 August 2007.

   4)The letter explained that the decision was not to hold a hearing via videoconference, and that the applicants’ attendance was “requested in person” at the Tribunal’s Sydney offices.

   5)The applicants were advised that their inability to attend may not be “accepted” by the Tribunal.

10. The applicant responded, again, by facsimile communication sent on 30 August 2007 at 12.15pm (see CB 60) in the following terms:

    “I am writing about my RRT application.  I was keenly willing to appear my hearing.  I wrote you in my previous letter to reschedule my hearing in Griffith Town.  I live in this town.  I am casual seasonal worker/Labor and work in farm Agriculture.  Currently due to draught affected area, I am not getting job, and currently unemployed and in financial hardship. This is my situation and I am not able to attend this hearing today. Pleas do favorable decision in my matter.”

[Errors in the original]

1. Not surprisingly, neither of the applicants appeared at the rescheduled time for the hearing (see CB 61).

2. The Tribunal then proceeded, pursuant to s.426A of the Act (CB 70.7), to make a decision on the review without taking further action to enable the applicants to appear before it. The Tribunal found that on the evidence before it could not be satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention (CB 71.7). As a result, the applicant could not be granted a protection visa. It followed that the applicant wife also could not satisfy the alternative criterion set out in s.36(2)(b) of the Act, and also could not be granted a protection visa (CB 71.10).

Hearing before the Court

1. The applicant husband appeared in person. He was assisted by an interpreter in the Gujarati language. The applicant wife did not appear. The applicant explained that he would “speak for her”. He submitted that he relied on the amended application (“the second one”). [I note that the applicant did access the Court’s Legal Advice Scheme and was given advice by a lawyer on that panel].

2. Mr G Johnson of Counsel appeared for the first respondent. I note that the first respondent has filed written submissions in this matter.
   The Court also has before it the affidavits of Jonathan Willoughby-Thomas, District Registrar, employed by the Tribunal (sworn on 7 May 2008).

3. Before the Court the applicant claimed that he could not afford to travel to Sydney to attend the hearing at the Tribunal’s office (“financial hardship”). He complained that while the Tribunal agreed to another hearing date, it did not provide him with a “video link hearing” so that he could stay in Griffith.

4. I should note that the amended application is in wording and style similar (almost identical) to a number of other applications often seen in this Court).

Ground One

1. Ground one in the amended application is as follows:

   “1.The tribunal has wrongly applies the law to the facts as found in relation to the seriousness of the harm that constitutes persecution as a member of the particular social group and due to his political opinion persecution the applicant claims.

   Particulars: Section 91R(b) & (c) of the Act requires the persecution to be of serious harm and systematic and discriminatory.

   The tribunal failed for not providing more opportunities to the applicant and therefore generalize the applicants claim and therefore failed to apply direct test in accordance with section 424(1) of the Migration Act. Ref. SAAP Vs Minister for Immigration and Multicultural Affairs HCA.”

2. The first part of this ground asserts that the Tribunal “wrongly applied the law to the facts as found”. This is said to be in relation to the “seriousness of harm”.

3. I can only agree with Mr Johnson that the ground as stated does not sensibly explain that contention, or indeed make any link to the Tribunal’s reasons. Nor was the applicant able to assist the Court.

4. Plainly, as referred to above (at [20]), the reason that the Tribunal affirmed the decision under review was that on the evidence before it could not reach the requisite level of satisfaction such that protection visas “must” be granted.

5. The relevant statutory scheme (s.65 and s.36(2)) of the Act provides that a protection visa must be granted if the Tribunal reaches a requisite level of satisfaction that, in effect, the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention.

6. If such a level of satisfaction is not reached, then a refusal decision is mandated (see United Nations Treaty Series Volume 189 page 137). (See SJSB v Minister to Immigration Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5] and Minister for Immigration Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

7. To the extent that this ground makes reference to a particular social group and the applicant husband’s political opinion, the Tribunal had plainly put the applicant on notice that on the material that was before it (plainly this was a reference to the protection visa application, his statement and the delegate’s decision), that it could not be satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.

8. I also agree with Mr Johnson that, in the circumstances, the Tribunal’s decision did not turn upon any matter which could give rise to any doubt as to whether the Tribunal correctly understood, or applied, the effect of s.91R(1)(b) and (c) of the Act. The parts of the Act specifically referred to in the particular to this ground.

9. In all, this complaint does not succeed.

10. The second part of this ground asserts that, with reference to SAAP v Minister for Immigration and Multicultural Affairs (2005) 228 CLR 294; [2005] HCA 24, the Tribunal failed to apply the “correct test” in accordance with s.424A(1) of the Act. It would appear from the wording, that the complaint (the applicant was unable to assist before the Court) is that the Tribunal should have provided an opportunity to the applicant to comment (“not providing more opportunities”), but it is not clear exactly what the Tribunal should have provided to the applicant for comment pursuant to s.424A(1) of the Act.

11. In any event, I cannot see that the obligation in s.424A(1) of the Act was enlivened in the circumstances of this case. There was no “information” that could give rise to such an obligation. The Tribunal’s decision was based on the view that it took of the information that was put before it by the applicants’ application for review. The Tribunal’s view, to the extent that it was adverse to the applicants, is not “information” within the meaning of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18], and Minister for Immigration and Citizenship v SZHXF [2008] FACFC 36 at [12], VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477).

Ground Two

1. Ground two also asserts a breach of s.424A(1) of the Act. But again, apart from a reference to “adverse informations”, the ground does not particularise to what the applicants refer. Nor was the applicant able to assist the Court at the hearing. For the reasons already stated above, this ground also does not succeed.

Ground Three

1. Ground three is in the following terms:

   “3.    The tribunal has importantly dealt with the aspect of the applicant’s claim relating to state tolerance and complicity of the applicants religion and membership of a particular religion or social group and as result of all he faced financial hardship, to whom the australia has protection obligation as a member of such group.  and therefore the tribunal’s decision was involved jurisdictional error and failure of jurisdiction or mis application of law and procedure.  The tribunal conclude that the applicant can relocate in other parts of India.  And therefore did not apply correct test of relocation principles.  The applicant is currently residing in Australia and the Australia has protection obligation under the UN convention and therefore relocation principles is not the correct test by the tribunal.  therefore mis applying the law is in fact failure of the tribunals jurisdiction.  The matter should be remitted to the tribunal for further determination and to decide in accoudence with the law and procedures.”

2. I can only agree with Mr Johnson that the ground as stated does not make sense. It appears to be a confused application of language that bears no relationship to the Tribunal’s decision. To the extent that there is a reference to “state tolerance” it may be that the applicant seeks to complain that the Indian authorities tolerate and condone the harm claimed by the applicant. The reference to relocation, may be a complaint that the Tribunal did not properly consider the applicants’ relocation to another part of India.

3. The Tribunal’s decision did not turn on any issue relating to state protection or relocation. As set out above, simply, the Tribunal, on what was before it was unable to reach the requisite level of satisfaction such that protection visas must be granted. This ground also does not succeed.

Ground Three of the Originating Application

1. Given that the applicants were unrepresented before the Court, I did consider whether the grounds in the originating application could be of assistance to them.

2. The originating application (ground three) also asserts, without particulars, a breach of s.424A of the Act. This issue has already been dealt with.

Ground Two of the Originating Application

1. To the extent that ground two in the originating application makes reference to a lack of procedural fairness in the Tribunal’s decision, I note that this is a matter to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).

1. Ground two asserts a lack of procedural fairness. When read with ground one:

   1.That the tribunal made denial of natural Justice.  Because it failed to provide an opportunity to appear hearing as per applicant’s request before the tribunal.”

   This led me to consider whether the applicant were denied an opportunity to appear before the Tribunal pursuant to the obligation upon the Tribunal to invite the applicants to such a hearing pursuant to s.425 of the Act.

2. The Tribunal did invite the applicants to a hearing (CB 50). In relation to the Tribunal’s obligations pursuant to ss.425, 425A and 426, noting what is to be provided in the notice of invitation to appear and relevant prescribed notice periods (when read with reg.4.35D(b) of the Migration Regulations 1994 (Cth)), I cannot see any error in what the Tribunal has done in relation to the letter sent on 10 July 2007.

3. In relation to the rescheduled hearing date, the letter was dated 22 August 2007. It provided for a hearing date of 30 August 2007 at 12pm. It was sent to the address for service (CB 58 and the applicant’s home address (CB 59) by express post (see the affidavit of

   
   

   Ms Forsythe at paragraph [3]).

4. Given the applicant’s communication to the Tribunal on 29 August 2007 (CB 52 to CB 53), the reference in that communication to: “I am keenly willing to appear …” (CB 52.4), and the timing of that advice (the night before the scheduled hearing) I am satisfied that the rescheduling of the hearing was done at the instigation of the applicant and not the Tribunal.

5. In these circumstances the prescribed notice period does not apply (see SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78, SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251 and Minister for Immigration and Multicultural and Indigenous Affairs v SZFML & Anor [2006] FCAFC 152 at [76] to [83] (“SZFML”).

6. The period, however, must be reasonable (see SZFML at [82] and the references (particularly at [81]) to SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251 and SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78. See also at [83] that “[t]he approach taken by Conti J and Bennett J in SZDQO and SZEFM was correct”).

7. I am satisfied in all the circumstances, however, that the time allowed for the rescheduled hearing was reasonable in all the circumstances.

8. I note first, in this regard, that the rescheduled hearing date was, in the circumstances, done at the request of the applicant, given that he plainly stated that he did wish to attend a hearing, and (plainly, given that this wish was conveyed on the eve of the first scheduled hearing date) he, nonetheless, did not attend that date. In all the circumstances, it was open to the Tribunal to reschedule the hearing date to comply with the applicants’ request in that regard.

9. Second, given that there is no minimum time period fixed by either the legislation, or regulations, for the purposes of a rescheduled or adjourned hearing date, and that what is reasonable in the circumstances should be applied, in my view, given the evidence provided by the Minister that the applicant received this letter on 23 August 2007 (see the affidavit of Ms Forsythe at paragraph [3]), the period made available (seven days) was in my view a reasonable period of notice. The applicant had already had a long period of notice that a hearing was required in his case. The adjourned hearing date still provided a further period between 23 August and 30 August 2007. In these circumstances, I agree with Mr Johnson that the time provided for the “second” hearing date was reasonable.

10. The issue however is whether the Tribunal adequately, or properly, dealt with the applicant’s request set out first in his letter of 20 August 2007, and then his communication of 30 August 2007, in terms of providing the applicant with a meaningful opportunity to attend the hearing such that the invitation to the hearing was meaningful and could not be said to be a hollow or empty shell (Mahzar v Minister for Immigration and Multicultural Affairs (2002) 183 ALR 188; [2000] FCA 1759 at [31]).

11. In his first letter (CB 52 to CB 53) the applicant emphasised that he wanted to appear at the hearing. He gave as his reasons for not being able to appear, as first scheduled by the Tribunal, that he had financial difficulties and was not able to travel to Sydney. The applicant requested that the Tribunal conduct a hearing in his town of residence (in Griffith, New South Wales).

12. The Tribunal’s letter of 22 August 2007 (CB 58) does not appear to have expressly addressed the applicant’s request for a hearing to be conducted in Griffith. Nor does the Tribunal’s decision record make any reference to this. That is, that the Tribunal member should travel to Griffith and conduct a hearing there. Plainly, by way of its letter of 22 August 2007, and what is contained in the Tribunal’s decision record (at CB 70), the Tribunal saw this request as a request for a rescheduled hearing time and date, and that the hearing be organised to be conducted by way of video communication.

13. In submissions, the Minister appears to concede that the applicant’s letter could be read as a request for the Tribunal to travel to Griffith to conduct the hearing (see the last item of paragraph [4], on page 4 of written submissions). The Minister’s position is that the Tribunal impliedly rejected that suggestion by its subsequent letter.

14. In its letter of 8 June 2007 (CB 47), in which the Tribunal set out the process by which it was to conduct the review, the Tribunal plainly put the applicants on notice that the place of the hearing would be at the Tribunal’s offices in Sydney or Melbourne. However, it also said: “but in some circumstances hearings may be conducted by video or telephone links” (see CB 48.3).

15. In my view, having put this possiblity to the applicants, and, importantly, there is no expectation that can be said to arise from that letter that the Tribunal would, in addition, travel to Griffith, or indeed anywhere else outside of Sydney or Melbourne, it was open to the Tribunal to read the applicant’s request of 20 August 2007 as a request for a videolink hearing, rather than, as suggested by the Minister now in submissions, that the Tribunal travel to Griffith.

16. I note, in this regard, the evidence of Mr Willoughby-Thomas, that since April 2004 he was unaware of any Tribunal member having travelled to Griffith to conduct hearings in person with applicants. Further, that the “usual” procedure allows for a hearing by “video link.”

17. Further, the applicant’s concern, plainly, was that he not be put to the expense of travelling to Sydney. In light of what the Tribunal had already told him (and in the absence of any thing to the contrary) the applicant’s letter can, in my view, properly be read as requesting a hearing by “video link”. This could have achieved his desire not to have had to travel to Sydney. Presumably, the applicant’s reference to the Tribunal giving him another hearing at his “near residence place” is a reference to a hearing where he could attend at a place where video communication facilities were available.

18. In light of the Tribunal’s very clear advice in its letter, if the applicant’s request is to be read as a request for the Tribunal to travel personally to Griffith, then the applicant’s letter, beyond saying that “as per my knowledge many people getting hearing at Griffith”, does not address why the Tribunal should personally travel to Griffith instead of conducting the hearing by videolink, which, in any event, was the only method of which the Tribunal squarely put to the applicant was available which would have achieved his request that he not have to travel from Griffith to Sydney.

19. Relevantly, the legislation provides that (s.425A(1) of the Act), in giving notice of the invitation to appear at the hearing, the Tribunal must give the applicant, amongst other things, notice of the place at which the applicant is scheduled to appear. Other than the necessity to provide the place for the hearing to the applicant in the invitation letter, there is nothing in the Act which mandates where that place is to be.

20. Section 429A(b) of the Act provides that the Tribunal for the purposes of the review may allow the appearance by the applicant before the Tribunal to be by “closed circuit television”.

21. The Tribunal was correct in assuming that what the applicant was seeking was to remain in Griffith, and to participate in the hearing. That is, to be present at the hearing by way of the television link.

    
    

    A reading of the applicant’s request which, given the Tribunal’s earlier advice, and even looking at the language used by the applicant, it was open to the Tribunal to make. There is nothing in the legislation that compels the Tribunal to agree to the applicant’s request. Plainly, having discharged its statutory obligation to provide the applicant with a place for hearing (and there is nothing in the legislation that compels the Tribunal to exercise its discretion to provide a hearing by closed circuit television, or for that matter telephone – see s.429A(8)).

22. But even if it can be said that the applicant’s request was for the Tribunal to travel to Griffith, despite the Tribunal’s notifications to him that hearings take place in person at the Tribunal’s offices in Sydney or Melbourne (or in some circumstances, by video or telephone links), in those circumstances, I agree with Mr Johnson’s submissions that while the Tribunal does not appear to expressly answer the applicant as to why it was not going travel to Griffith, in all the circumstances, its response (on 22 August 2007), at least impliedly, can be seen to have dealt with this issue. That is, that as a prerequisite to considering whether it would travel to Griffith, the Tribunal would have been required to have addressed the applicant’s stated inability to travel to Sydney. It was open to the Tribunal to not accept that the applicant’s explanation for his inability to attend in Sydney was a valid reason. In these circumstances, it was not necessary for the Tribunal to then go on and consider the possibility of its travelling to Griffith. I agree therefore that the Tribunal adequately dealt with the applicant’s request, if indeed that is what the applicant was requesting.

23. Further, in my view, it cannot be said that it was unreasonable for the Tribunal, in any event, to refuse the request for a video hearing. Plainly, the Tribunal had put to the applicant that a hearing was important. It was the applicant’s opportunity to give evidence to support the application (see CB 47.10).

24. Given the importance to the applicant of the hearing, particularly in circumstances where the Tribunal had already considered that on the material before it, it was unable to make a favourable decision, it was open to the Tribunal to require a face-to-face hearing, in person, with the applicant such as to provide the applicant with the best opportunity to put forward his evidence and submissions.

25. Importantly, given the delegate’s finding that there was no Convention nexus to the applicant’s claims, it was open to the Tribunal to insist on a face-to-face hearing as providing a more appropriate medium for establishing the extent, and character, of the applicant’s claims.

26. In circumstances where the Tribunal had already told him it had a preliminary view that, on what was before it, it was unable to make a favourable decision and, further, that the Tribunal’s ability to properly assess an applicant’s evidence is plainly an integral part of the review that it was jurisdictionally empowered and required to conduct the decision to insist on a face-to-face hearing was not in itself unreasonable.

27. The timing of the applicant’s request is also, in my view, relevant in this regard. The applicant was deemed to have received the letter of 10 July 2007 (on the best evidence available to the Court it was sent by registered post) seven working days after the date of the document. That is, by 19 July 2007. The applicant does not explain, and has not explained, why he waited until a month later, on 20 August 2007, on the eve of the scheduled hearing date, to tell the Tribunal that he could not travel to Sydney.

28. Further, I agree with submissions by Mr Johnson that the applicant’s communication of 30 August 2007 (CB 60) is devoid of detail, explanation and evidence in support. He made reference to “financial hardship.” But this term can cover a wide spectrum of situations.

    
    

    It does not necessarily mean he could not afford to travel to Sydney, or could not obtain the funds to do so.

29. The applicant put nothing before the Tribunal by way of evidence to support his claim of financial difficulty. I note, in particular, in light of the Tribunal’s rescheduling of the hearing, it made the time of the hearing at 12pm, which presumably would have enabled the applicant to travel to Sydney, and return, on the same day, thus obviating the need for overnight accommodation costs. The applicant provided no evidence to the Tribunal that he was unable to afford even this. In these circumstances, it was open to the Tribunal to not accept that the cost of travelling from Griffith to Sydney was a valid reason for the absence from the hearing.

30. Further, by his communication of 30 August 2007, while the applicant again reiterates his willingness to appear at a hearing, it appears that this was an intention that was in the past (“I was keenly willing”), and in relation to the rescheduled hearing, the applicant does not appear to be seeking any further adjournment, but merely to be explaining his inability to attend (“this is my situation and I am not able to attend this hearing today”), and appears to then seek that the Tribunal make a decision (“please do favourable decision in my matter”).

31. In these circumstances, I am satisfied that the Tribunal provided a proper opportunity for a hearing, was reasonable in the period of notice given for the rescheduled hearing and did not act unnecessarily in setting the place of the hearing as being in Sydney and requiring the physical presence of the applicant.

32. In all, I cannot discern jurisdictional error in what the Tribunal has done, whether as it is said to arise in the applicant’s application or amended application, or otherwise. This application is therefore dismissed.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  31 July 2008