SZNJE v Minister for Immigration

[2015] FCCA 3427

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZNJE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3427

Catchwords:
MIGRATION – Protection visa application – whether Tribunal should have adjourned hearing due to applicants’ circumstances – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

First Applicant: SZNJE

Second Applicant: SZNON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 544 of 2015

Judgment of: Judge Smith

Hearing dates: 2 October 2015 & 26 November 2015

Date of Last Submission: 26 November 2015

Delivered at: Sydney

Delivered on: 26 November 2015

REPRESENTATION

The First Applicant appeared in person

Solicitor for the Respondents: Mr A. Keevers, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $6,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 544 of 2015

SZNJE

First Applicant

SZNON

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicants are husband and wife who are citizens of India. They applied for a protection visa on 24 October 2012. They had made an earlier application for a protection visa, but for reasons that will become clear, it is unnecessary to consider the details of that application. When a delegate of the Minister refused to grant the applicants a visa, they applied to the Tribunal for review of that decision. The Tribunal did not believe the applicants and so affirmed the delegate’s decision. The applicants now seek judicial review of that decision.

Consideration

First hearing

1. Initially the grounds of the application contained vague and relatively meaningless assertions. These same grounds have appeared in many applications before this Court and appear to have been directly copied from those other cases. However, when the matter first came on for hearing, the husband applicant, who appeared for both applicants, said that he no longer relied on those grounds. Instead, he said that his wife had been unable to attend the Tribunal hearing and properly give evidence because at the time she was heavily pregnant and in those circumstances the Tribunal should have adjourned the hearing. In light of that claim, I adjourned the hearing in order to allow the applicant time to obtain evidence to support the factual assertions made and for both parties to prepare submissions in respect of this new ground.

Second hearing

1. At the hearing today the husband applicant has said that he has not obtained new evidence and does not propose to rely on any new evidence. He said that the hearing of the Tribunal was held on 7 January 2015 and that his wife gave birth a little over a week later. 

2. The only evidence of the wife’s condition at the time of the Tribunal hearing is contained in two medical certificates and a letter from the applicant to the Tribunal. The first certificate is dated 17 December 2014. It says:

   It is to certify that (the wife applicant) is pregnant at this present time. She has been reviewed by specialist for regular check ups and is due on 28/12015, but likely that she would have earlier delivery. I would be grateful to you if you could assist her in ways possible.

3. The second certificate is dated 23 December 2014 and is in the following terms:

   I wish to advise that the above named has an estimated date of confinement of 28th January 2015. Should you have any questions regarding the above, please do not hesitate to contact the Maternity Ward. …

4. The applicants were initially invited to a hearing to be held on 22 December 2014. Although they initially accepted that invitation, they subsequently sought an adjournment until March 2015. In support of that request, they enclosed the medical certificate dated 17 December 2014. In light of that request, the Tribunal adjourned the hearing until 7 January 2015. 

5. The applicants made a further request for adjournment due to the wife applicant’s medical condition, again asking for the hearing to take place at any time after March 2015. The Tribunal refused that application. In a letter dated 5 January 2015 it explained its reasons as follows:

   On 30 December 2014 the Tribunal received a further request that the hearing be postponed. The Presiding Member has considered the request carefully but has decided not to postpone the hearing. As noted in response to your first request for postponement, the medical evidence does not indicate that [the wife applicant] cannot attend a hearing on 7 January 2015.

6. The hearing proceeded on 7 January 2015. The husband applicant appeared by video conference and the wife applicant gave evidence by telephone. After the hearing, by letter dated 15 January 2015, the applicant wrote to the Tribunal addressing certain matters that arose at the hearing. Amongst other things, the letter stated:

   … when hearing took place on that time my wife was pregnant at last stage. She was not in position to attend the hearing so she was at home, her physical and mental situation was not good, she has blood pressure, diabetes, mental depression, doctor was advised to take bed rest during last period of pregnancy, on that time hearing was occurred in this much stress, it is not possible for her to give answer in conscious mood, she was told before hearing I am not in a position to give answer and I had submitted my wife medical certificates two time, then also she answered, so it was her misunderstanding, and in stress and mentally depression she given wrong answer.

   (Errors in original)

7. Apart from the assertions in that letter, there is nothing before the Court to show that the condition of the wife applicant prevented her from having a real and meaningful opportunity to give evidence and present arguments. In my view, the assertions in the letter, coming from a person not medically qualified and without support from any qualified medical practitioner, must be given little weight. However, in my view, even if accepted, the assertions in the letter do not support the claim that the wife applicant was not in a position to have a real and meaningful opportunity to give evidence.

Conclusion

1. For that reason, there was no breach by the Tribunal of its obligation to invite the applicants to attend a hearing to give evidence and to present arguments. Further, on the state of the material before the Tribunal, it was not unreasonable for it to refuse to grant an adjournment as requested by the applicants. The reason given by the Tribunal for its refusal was that the medical evidence before it did not establish that the wife applicant was unable to attend the hearing.

2. In my view, that was a reasonable basis for the refusal to adjourn the hearing and for that reason, the Tribunal did not fall into the error of unreasonably failing to exercise one of the powers given to it for the purposes of review. The power in this Court to review decisions of the Tribunal under s.476 of the Migration Act 1958 (Cth) is such that the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. The applicants have failed to do that in this case and so the application must be dismissed.

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

Associate: 

Date: 23 December 2015