SZOBU v Minister for Immigration
[2010] FMCA 206
•17 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOBU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 206 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – whether applicants had satisfactory explanation for non attendance based on medical certificate – whether applicants’ application for judicial review has any, or any reasonable, prospects of success – applicants’ adjournment application refused dismissal pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 by reason of the failure of the applicants to appear. |
| Migration Act 1958 (Cth), s.424A Federal Magistrates Court Rules 2001 (Cth), r.13.03C(1)(c) |
| Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| First Applicant: | SZOBU |
| Second Applicant: | SZOBV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3121 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 17 March 2010 |
| Date of Last Submission: | 17 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2010 |
REPRESENTATION
| No appearance by the applicants |
| Solicitors for the Respondent: | Mr J. Pinder, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3121 of 2009
| SZOBU |
First Applicant
| SZOBV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The applicants have failed to attend today’s scheduled hearing. The first named applicant is the husband of the second named applicant whose claims are dependent on those of her husband. On 15 March 2010, the Court received from the first named applicant (“the Applicant”) a fax annexing a medical certificate. The terms of the fax are as follows:
“To, Federal Magistrates Court Sydney
Dear Sir/Madam
Re: Medical Leave
My name is [Applicant] my file no. is SYG3121. This is to inform you that as I am under medical treatment due to back injury I will be not able to attend my hearing on 17th March 2010. As I have been informed to take five days of bed rest. So I am sorry for missing your schedule and providing a medical certificate with this letter. Thanking you.
Yours Faithfully
[Applicant]”
The Court understands from that fax that the Applicant is seeking an adjournment of today’s hearing by reason of a medical condition that the Applicant says prevents him from attending today’s hearing. That application is opposed by the first respondent.
In order to put the Applicant’s application in context, it is necessary to have brief regard to the history of this proceeding. The applicants’ application seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”), dated 26 November 2009, was filed on 22 December 2009. The application identified the following grounds:
“1. The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in S424A which relevantly states:
424A applicant must be given certain information
1. Subject to subsection (3), the Tribunal must:
a) Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider would be the reason, or a part of the reason, for affirming the decision that is under review; and
b) Ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review and
c) Invite the applicant to comment on it.
It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission and the credibility problems in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
3. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicants circumstances and the consequences of the claim.
4. The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
5. The RRT has failed to investigate applicants claims, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 27 November 2009 was effected by actual bias constituting jurisdictional error.”
The Applicant attended a directions hearing before me on 12 February 2010 and, on that occasion, was given leave to file and serve an amended application by 1 March 2010 and any evidence upon which the applicants intended to rely by way of affidavit by 1 March 2010, including any transcript of the Tribunal hearing.
The directions also provided that if the applicants were intending to rely on recordings of the Tribunal hearing, then they must give notice to the Court and the first respondent by 1 March 2010. The applicants were also directed to file and serve written submissions in support of the application by 9 March 2010. Other than the document referred to below, no documents were filed by or on behalf of the applicants in accordance with those directions, or otherwise.
On 12 March 2010, the Registry received a document from the Applicant annexing a submission given to the Tribunal by the applicants for the purposes of their review. The covering letter annexing that document is in the following terms:
“To, Federal Magistrates Court Sydney
Dear Sir/Madam
Re:- To Draw Your attention
My name is [Applicant]. My file no. is SYG 3121. This is to inform you that I mailed (sic) at letter to RRT court on 9th Nov 2009 which I am sending a copy to you aswell (sic).
So, the only objection of mine is that RRT court made a decision before I Provide any evidence of the matter indicated in the letter and did not gave me any chance of providing the evidences. So, I guess the RRT court did not hear me fully.
Thanking you.
Yours faithfully
[Applicant]”
I understand the substance of the letter to be particularising a new complaint in support of the Applicant’s contention that he was not provided a sufficient opportunity to provide to the Tribunal the further evidence to which he had referred in his post hearing written submission.
On 10 March 2010, a fax was received by my chambers from the Applicant seeking an adjournment of his hearing or that his matter be transferred to Kununurra in Western Australia, where he claimed to be working. The terms of that fax are as follows:
“To, Federal Magistrates Court Sydney
Dear Sir/Madam
Re:- Request For Change of hearing place.
My name is [Applicant]. My file no. is SYG 3121 of 2009. I have a hearing on 17th March 2010 at 10.15am at court 5C, Level 5, John Maddison Tower, 88 Goulburn Street, Sydney. But now I am in Kununurra, W.A. So I am not able to come there as I have found a two to three month work of grapefruit picking in here. And I am working with ALPER harvesting contractors Pty Ltd from 3rd of March. Its not that I am not willing to come there but the distance from here is about four to five thousand KM approximately. So that it will be too expensive for me at the moment as I started working last week.
So, it is my kind request to you, Please transfer my hearing place to Kununurra or the nearest place possible to Kununurra or on my new mobile no. 0420770741 or give me time of two to three months for the same place at Sydney. Whatever is convinent (sic) to you.
So please consider my request and let me inform in written at the address below:
CARE PO
KUNUNURRA WA 6743.
My Temporary residential address is 383, Packsaddle Road, Kununurra WA 6743.
Thanking you.
Yours Faithfully
[Applicant]”
A copy of that fax, was sent by my chambers to the first respondent and a response received, dated 12 March 2010, from the first respondent opposing both applications for the following reasons:
“We refer to your email of yesterday's date and the attached correspondence from the Applicant. The Applicant appears to request that these proceedings be transferred to Western Australia or, failing that, that they be adjourned for a period of 2 or 3 months while he works in Western Australia.
We have now received instructions and can advise that the First Respondent opposes both requests. In case it is of any assistance, we note that the following considerations which we regard as relevant:
· These proceedings are significantly advanced - it listed for final hearing before Federal Magistrate Emmett on 17 March 2010 at 10.15 am. As such, any transfer to another jurisdiction would lead to significant costs for the Minister and ultimately to the unsuccessful party.
· Moreover, the Applicant has been aware of this hearing date since the directions hearing which he attended on 12 February 2010, and presumably when he made arrangements to move to Western Australia.
· We note that the requests are not supported by any evidence to confirm the Applicant's location or his reason for being there.
· There is of course also a general interest in the Court dealing with applications efficiently which weighs in favour of refusal of the Applicant's requests.”
Following receipt of the response from the first respondent, my chambers sent a letter to the Applicant dated 12 March 2010 in the following terms:
“Dear [Applicant]
SZOBU & Anor v Minister for Immigration & Anor SYG3121 of 2009
Your applications for transfer and adjournment are opposed by the First Respondent (see attached letter).You should note that any correspondence you send to the Court should also be sent to the First Respondent.
If you wish to pursue your applications you will need to do so before the Court on 17 March 2010 before Federal Magistrate Emmett.
The hearing date is otherwise confirmed for 17 March 2010 at 10.15am at Court 5C, John Maddison Tower, 88 Goulburn Street, Sydney.
If there is no appearance by you at the hearing on 17 March 2010 your proceeding may be dismissed without further notice.”
The solicitor for the first respondent, Mr Pinder, submitted that the only evidence of the inability of the applicants to attend today’s hearing is the medical certificate provided by the Applicant, which does not say whether the Applicant is fit or unfit. It states that the Applicant is:
“fit/unfit for work as from 5 days for 13/3/2010 days until 18/3/2010.”
The medical certificate does not purport to explain why it is that a medical certificate was necessary. It certainly does not address the Applicant’s capacity to attend a hearing. I accept the submission of Mr Pinder that it is a higher threshold to satisfy a Court that a person may be unfit to attend Court than may be necessary for a person to be unfit for work, depending upon the nature of the work duties. The Applicant’s letter says that he has been told to take five days of bed rest and is receiving medical treatment due to a back injury. However, the medical certificate makes no mention of any back injury or the necessity for 5 days of bed rest. As well as the medical certificate, there is a copy of a script in the name of the Applicant for some medication. There is no evidence to explain the nature of the medication or the purpose for which it was given. In my view, there is insufficient information before the Court to satisfy the Court that the Applicant is unfit to appear at today’s hearing.
The Applicant gave no indication to the Court on 12 February 2010 that he was intending to move to Western Australia. Whilst it may be entirely coincidental, it is somewhat curious that the application for an adjournment follows immediately the confirmation to the Applicant that the hearing date today would proceed in Sydney, subject to any transfer application made at the hearing.
However, in finally considering whether or not it is in the interests of justice that an adjournment be granted, I have regard to the utility in making such an order in considering the grounds of the applicants’ application to this Court for judicial review.
The first respondent filed an outline of written submissions on 11 March 2010. Those submissions accurately summarise the background and the decision of the Tribunal as follows:
“3. The first and second named applicants, who are both citizens of India, arrived in Australia on 8 April 2009 as holders of Tourist (Subclass 676) Visas.[1] They are married to one another.
4. The applicants applied for Protection (Class XA) Visas on 14 May 2009.[2] Only the first named applicant (the husband) submitted his own claims to be a refugee while the second named applicant (the wife) applied as a member of his family unit.[3] The first named applicant will hereafter be referred to as 'the Applicant.'
4.1 The Applicant claimed to fear persecution by an influential member of the Congress party because he discovered that the member had defrauded his employer.[4] He claimed that he was threatened and accused of being a fundamentalist.
[1] CB 37 and 40
[2] CB 1-41
[3] CB 27-32
[4] CB 33-35
5. The Applicant was interviewed by a delegate of the First Respondent on 31 July 2009.[5] The visa applications were refused by a decision dated 3 August 2009 on the basis that the motivation for the harm[6] and the applicants sought review by the RRT on 28 August 2009.[7]
6. The applicants were invited to appear before the RRT to give evidence and present arguments on 20 October 2009 in Sydney.[8] At the behest of the Applicant the hearing was first postponed[9] and then the venue was changed so that he could appear via video link.[10] Only the Applicant attended.[11]
7. At the hearing, inter alia, the RRT put to the Applicant information which it considered could be a reason or part of the reason for affirming the delegate's decision in purported compliance with s. 424A of the Act.[12] Following the hearing the RRT received a letter from the Applicant which addressed the issues raised by it.[13]
8. The RRT affirmed the decision under review refusing to grant the applicants protection visas. It signed its decision on 27 November 2009.[14]
[5] CB 44-45
[6] CB 46-56
[7] CB 57-60
[8] CB 63
[9] CB 66
[10] CB 69
[11] CB 71
[12] CB 84 at [50]
[13] CB 74
[14] CB 89
The decision of the Tribunal
9. The RRT accepted that the Applicant was a Hindu, that he supported the BJP and that he worked as an accountant as claimed.[15] However, it rejected the Applicant's claims to have been the victim of a fraud, threats and violence.[16]
10. The RRT found that the Applicant's evidence lacked details,[17] was embellished over time to respond to perceived weaknesses,[18] and was changeable and unreliable.[19] The RRT also concluded that the applicants' "unhurried" departure from India indicated that they did not fear persecution.[20]
11. The RRT considered the Applicant's claim that he was 'mentally disturbed' and that he had been diagnosed with high blood pressure which he attributed to stress. The RRT accepted that the Applicant may have been stressed but that it did not accept that he had any mental condition which impaired his ability to present his refugee claims.[21]”
[15] CB 86 at [57]
[16] CB 86 at [59]- 89 at [65]
[17] CB 86 at [59]
[18] CB 86-87 at [59]
[19] CB 87
[20] CB 99 at [59]
[21] CB 85-86 at [56]
Ground 1 asserts that the Tribunal member failed to honour his undertaking and appears to assert that the Tribunal breached its obligations under s.424A of the Migration Act 1958 (Cth).
Ground 1 states that the Tribunal ignored its undertaking to give the applicants an opportunity to make written submissions about the credibility problems in the Applicant’s evidence and therefore denied procedural fairness. The Tribunal record does not appear to bear out such an assertion and, as stated above, no other evidence has been provided by the applicants to support such an assertion. The only suggestion in the decision record of any such “undertaking” to give further time was the Tribunal’s agreement to receive any further submissions within two weeks of the end of the hearing.
Otherwise, a fair reading of the Tribunal’s decision record suggests that the Tribunal put to the Applicant at the hearing concerns it had about his evidence, and noted the Applicant’s responses. In particular, the Tribunal put to the Applicant that the timing of his departure from India and the presentation of his new claims at the hearing could lead the Tribunal to consider that the Applicant was creating new claims and that he lacked credibility. The Tribunal told the Applicant that the consequences of that information may lead it to disbelieve some or all of the Applicants’ claims and affirm the decision under review.
The Tribunal noted that it explained to the Applicant that he could request additional time to comment or respond in writing or orally. The Tribunal noted that the Applicant gave some oral response and in addition requested a further month to submit further material. However, the Tribunal noted that the Applicant did not specify whether or not the material related directly to the adverse information that the Tribunal had put to him. As stated above, the Tribunal told the Applicant that it would give him a further 2 weeks following the hearing to provide anything further.
The Tribunal noted that it received a post hearing submission from the Applicant, dated 9 November 2009, in which the Applicant suggested that he would get proof of his alleged injuries and hospitalisation from India. The Tribunal noted that, as at 26 November 2009, the Tribunal had not received any further material. In any event, the Tribunal accepted that the Applicant may have received medical treatment. However, the Tribunal noted that evidence of such treatment was not capable of establishing whether or not any such injuries were as a result of Convention-related violence. The Tribunal stated that the mere fact of the Applicant having received medical treatment did not displace the Tribunal’s serious concerns about the Applicant’s refugee claims.
In the light of the way in which the Tribunal dealt with the Applicant’s request for further time in his post hearing submission, dated 9 November 2009, it would appear that the Tribunal understood the request being made by the Applicant. The Tribunal did not make any representation to the applicants about whether or not any such further time would be given beyond the further two weeks that the Tribunal had already agreed to give to the applicants following the hearing. The date of the Tribunal hearing was 27 October 2009. The decision was not made until 26 November 2009 and handed down on 27 November 2009. From a practical point of view, the applicants had a further 17 days to provide further material from the date of the post hearing submission. In any event, as stated above, the Tribunal was prepared to accept that the Applicant may have received medical treatment in India for injuries.
The Applicant’s letter to this Court, received on 12 March 2009, appears to do no more than repeat the complaint made by the Applicant in ground 1 of his application but particularises with greater clarity the nature of that complaint. In my view, the applicants have no, or no reasonable, prospects of establishing that the Tribunal’s response and conduct with respect to the Applicant’s request for further time to provide material, amounts to jurisdictional error.
Otherwise grounds 2, 3 and 4 make bare assertions that do not disclose any error capable of review by this Court and, as pleaded, would have no, or no reasonable, prospects of success of establishing jurisdictional error by reason of those bare assertions alone.
Ground 5 of the application appears to assert that the Tribunal failed to investigate the applicants’ claims and thereby approached its decision-making with actual bias. It is well established now that the Tribunal has no duty to investigate or inquire. The duty imposed on the Tribunal is to review (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Further, the applicants do not identify an obvious inquiry about a critical fact, the existence of which is easily ascertained, that the Tribunal could have pursued. A fair reading of the Tribunal’s decision record does not suggest that there was any such obvious inquiry or any such inquiry about a critical fact that should have been obvious to the Tribunal.
The allegation of bias in ground 5 appears to be particularised in the failure of the Tribunal to investigate the applicants’ claims. Otherwise, the allegation of bias is unsupported by particulars, evidence or submissions.
To the extent that ground 5 alleges bias by the Tribunal against the applicants, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
A fair reading of the Tribunal’s decision does not appear to disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not appear to suggest that the Tribunal approached its task other than open with a mind open to persuasion. There does not appear to be any evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly, the allegation of bias or apprehended bias is rejected.
A fair reading of the Tribunal’s decision record suggests that the Tribunal understood the applicants’ claims, accurately summarised the applicant’s written material, explored with the Applicant at a hearing the applicants’ claims and put to the Applicant matters of concern that it had arising from his evidence.
Ultimately, the Tribunal rejected the applicants’ claims as a result of its adverse credibility findings. Indeed, the Tribunal found that the Applicant had, “embellished his views over time to respond to perceived weaknesses, such as the delegate’s concern that they lacked convention nexus.”
The Tribunal’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave including its adverse credibility findings. It’s well established that credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
A fair reading of the Tribunal’s decision record suggests that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law. The Tribunal’s decision record suggests that the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
In the circumstances, none of the applicants’ grounds have any, or any reasonable, prospect of success in establishing that the Tribunal’s decision record is affected by jurisdictional error and no other error by the Tribunal is apparent to this Court from the Tribunal’s decision record.
In the circumstances, having regard to the fact that the Court is not satisfied that the Applicant was unfit to appear in Court today, and having regard to the lack of prospects in the applicants’ application for judicial review, the Applicant’s application for an adjournment today is refused.
In the circumstances, the applicants have failed to attend this morning’s scheduled hearing. The applicants were plainly aware of the scheduled hearing. For the reasons referred to above, the Applicant’s adjournment application has been refused. The Applicant has not satisfied the Court that he has a reasonable explanation for his failure to appear this morning or that the application for judicial review has any, or any reasonable, prospects of success.
Accordingly, pursuant to r.13.03(c)(1) of the Federal Magistrates Court Rules 2001 (Cth) the proceeding before this Court, commenced by way of application filed on 22 December 2009, should dismissed with costs by reason of the failure of the applicant to appear at this morning’s scheduled hearing.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 24 March 2010
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