SZORQ v Minister for Immigration
[2011] FMCA 138
•28 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZORQ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 138 |
| MIGRATION – RRT decision – Indian fearing persecution from Hindu extremists – did not attend Tribunal hearing – did not provide medical evidence or submission to justify absence – no material error vitiating Tribunal’s decision not to reschedule hearing – application dismissed. |
| Migration Act 1958 (Cth), s.426A |
| Applicant: | SZORQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2235 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 28 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2235 of 2010
| SZORQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in March 2010 on a visitor’s visa. On 9 April 2010 he lodged an application for a protection visa. The application did not identify any assistance received, and attached a short statement explaining why he feared persecution if he returned to India.
In essence, he said that he feared that he would be harmed as a result of events which had occurred in his home town after he proposed a marriage which was contrary to Hindu customary requirements. The girl’s family initially did not oppose the marriage, but after a priest declined to conduct it, and the local panchayat prohibited it, he and his fiancée “decided to run from our home without informing anyone”. He claimed that at the railway station “the panchayat people … caught us and hit us very badly…that I lost (his fiancée) who was being killed by panchayat people”. His statement said that her family and the panchayat people had “joined their hands and is searching me like ….to kill me”. He said his family had helped him to run away from these people, and sent him to Australia.
No corroborative documents in relation to these claims were presented to the Department or the Tribunal, but the applicant attended an interview by the delegate on 1 June 2010.
The delegate made a decision refusing the visa application on 12 July 2010. The delegate had “serious concerns regarding the credibility of the claims” made by the applicant, due to the absence of substantiating documents and inconsistencies between the applicant’s evidence at interview and the history given in the visa statement. They included a discrepancy whether the fiancée had been staying with him in his home town, or had been living in another city. The delegate also thought that Australia did not owe protection obligations to the applicant, because independent country information did not support a finding that Indian authorities would harm the applicant due to his attempt to marry within his own “gotra”. The Indian government provided laws facilitating marriage outside community-specific marriage laws. The delegate also thought that the State of Uttar Pradesh was taking specific action to protect persons in the applicant’s position, and that therefore the applicant would not be denied protection from government authorities in India.
The applicant appealed to the Tribunal. He did not appoint an agent and requested that correspondence be sent to his residential address at Greystanes. He gave a mobile telephone number, but no other contact number.
The Tribunal sent to his address an invitation to attend a hearing on 10 September 2010 at 1 pm. The letter told the applicant that “the Tribunal has considered the material before it, but is unable to make a favourable decision on this information alone”. The applicant was asked to respond to the invitation by confirming his attendance. He did not do so, but it is clear that he did receive the invitation.
On the morning of the hearing, an officer of the Tribunal received a telephone call from the applicant at 11.45 am. The officer’s note says:
Call from (applicant’s name). He has a hearing at 1.00pm would like to ask for a new date. He is sick. He advises he is unable to send a fax with the request as he has no fax and no job. He does not have a medical certificate. Call transferred to John Macleod.
The call was transferred to a presumably more senior officer, who later in the day noted the following conversation with the applicant:
Received call put through by Helen (see previous case note). I confirmed with the applicant that the Member would need to see a medical certificate and a written submission as to why he could not attend the hearing scheduled for today before she considered rescheduling the hearing to a later date. The applicant repeated that he was feeling too sick to leave the house and had no means of faxing or emailing us anything in writing to this effect. I said I would talk to the Member and call him back on the number that he called me on, ie. (number noted). He said he would be waiting for the call.
The mobile telephone number was the same mobile telephone number as it appeared on the application to the Tribunal. The officer indicated in his file note that, after speaking to the applicant:
I spoke to the Member who said to ask the applicant when he thought he would be able to provide something in writing. She also indicated that if it was not possible for him to submit anything today then he must submit a medical certificate and a written submission requesting a postponement and detailing why he could not attend the hearing on the 10/09/10 by Wednesday 15/09/10 or she will proceed to make a decision.
I called back at 12:30, 1:30 and 2:30pm and the RA did not answer. I left a message twice asking him to call me back.
10 September was a Friday. On the following Monday, 13 September 2010, the officer noted receiving a telephone call from the applicant at 11.38 am:
Received a call this morning from the RA who wanted to know when the date of his next hearing will be. I informed him that the Member is waiting until he provides a medical certificate or a submission in writing as to why he cant obtain one and an explanation of why he did not attend his hearing on 10 September 2010. The RA again repeated that he could not afford to go to the doctor as he doesn’t have a job and it will cost money. I advised that he must put this information in his written submission. I also advised that his submission must be received by the Tribunal by Wednesday 15 September 2010 otherwise the Member would proceed to make a decision. I offered to give him the fax number again however he confirmed that he still had the hearing invite letter with the fax number on it. He said he understood what was required and he would submit something in writing by this Wednesday (15/09/10).
The Tribunal made a decision on 17 September, which was posted to the applicant under cover of a letter dated 20 September 2010. The Tribunal recounted the history of contact from the applicant as follows:
On 2 August 2010 the Tribunal wrote to the applicant at the address for correspondence that he provided in his application for review, advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 10 September 2010 at 1.00pm. He was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The applicant did not return the Response to Hearing Invitation form which was enclosed with the letter dated 2 August 2010 from the Tribunal and he did not attend the Tribunal hearing on 10 September 2010. On 10 September 2010 at 11.45 am however the applicant telephoned the Tribunal and asked for another date for hearing because he was sick. He told the Tribunal officer who took the call that he could not send a fax with a request for a postponement as he had no fax and no job. He said that he did not have a medical certificate. On 10 September 2010 at about 2.40 pm the applicant telephoned the Tribunal again and was requested to send in a medical certificate in support of his request for a postponement and/or to write to the Tribunal explaining why he could not attend the hearing. He was informed that the Tribunal member allowed him until 15 September 2010 to send the Tribunal a medical certificate and/or a letter setting out why he was prevented from attending the hearing. The applicant was informed that if he did not send any further information to the Tribunal in support of his application for a postponement the Member would proceed to make its decision about his case. On 13 September 2010 the applicant again telephoned the Tribunal and the Tribunal officer explained to the applicant again that he had until 15 September 2010 to send a medical certificate or a written submission to the Tribunal explaining why he could not attend his hearing; he was again informed that if he did not do so the Tribunal would proceed to make its decision about his application. The applicant told the Tribunal officer that he understood what was required and that he would submit something in writing by 15 September 2010.
It will be noted that this history is inaccurate in that, in fact, the applicant did not speak to any person at the Tribunal on 10 September, after his first and only call to the Tribunal on the day of the hearing. The Tribunal appears to have misread the second file note in this respect. The Tribunal’s narration of the history is therefore inaccurate by misapprehending that the applicant had been contacted and given a date for submitting a medical certificate or submission in a conversation which occurred on the day of the hearing. The Tribunal also appears not to have appreciated that the applicant had failed to respond to his mobile telephone on the day of the hearing, to allow the Tribunal officer to tell him that the member had instructed that a certificate or submission should be submitted by 15 September.
The Tribunal, in its statement of reasons, explained its decision made on 17 September not to reschedule a hearing, pursuant to its powers under s.426A(2). That section provides:
426AFailure of applicant to appear before Tribunal
(1)If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
The Tribunal said:
As at the date of this decision the Tribunal has received no medical certificate or written submission from the applicant explaining what was wrong with him on 10 September 2010 so that he was prevented from attending the Tribunal hearing on that date. In these circumstances, and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal then set out its findings and reasons explaining why it affirmed the delegate’s decision. It did so because, in the absence of more information from the applicant, it was not satisfied that there was a real chance that he would face serious harm for the purposes of the Convention if he returned to India.
The applicant now applies to the Court to set aside the Tribunal’s decision and to remit the matter. I have power to make these orders only if the Tribunal made a jurisdictional error. I do not have powers myself to decide whether the applicant qualifies for a protection visa or any other permission to stay in Australia. I do not have a discretion to allow the applicant another opportunity to present himself to the Tribunal, unless I am satisfied that the Tribunal made a procedural error amounting to jurisdictional error vitiating its substantive decision, when declining to reschedule the hearing.
The applicant’s application to the Court sets out the following grounds:
1.Not satisfied with RRT decision.
2.RRT has not given me next hearing date.
3.I am ongoing proof to submit.
The applicant has filed an affidavit in support, which maintains his desire to submit proof to the Tribunal. The applicant has not filed an amended application or evidence in an affidavit or supportive documents, although he was given that opportunity under orders I made at the First Court Date. He has not submitted any medical or other independent evidence confirming that, in fact, he was medically unfit to attend the appointed hearing, nor any sworn evidence explaining or challenging his contacts with the Tribunal recorded in the three file notes. I accept that those case notes accurately recount telephone calls and attempted telephone calls with and to the applicant.
The applicant today made unsworn statements about his absence from the hearing. He said that he went to visit a doctor on an unspecified date after the hearing, and the doctor refused to give a retrospective certificate. The applicant said that he later tried to tell this to the Tribunal, and made one or more telephone calls to the Tribunal to do so. But the first of these calls occurred on the day which he received the Tribunal’s decision. He did not identify the date when that happened but on the documents before me, it must have been no earlier than 20 September 2010, that is, some days after the Tribunal became functus officio. He did not dispute that on 13 September he was told to submit before 16 September medical evidence or a submission explaining his absence, and that he undertook to do so.
The applicant has not challenged the legality of the Tribunal’s decision, except in relation to its procedural decision not to reschedule a hearing. However, on the evidence before me, I am not satisfied that the Tribunal’s exercise of discretion not to reschedule a hearing has miscarried in point of law or jurisdiction.
I do not consider that the Tribunal’s error when recounting the events of 10 September recorded in the case notes materially vitiated its reason for deciding not to reschedule a hearing. It did so essentially because it had received no medical or written submission from the applicant before 17 September. The applicant had been warned that the Tribunal was likely to require that evidence when he telephoned on the 10th, and the need for such evidence was then confirmed when he next contacted the Tribunal on the 13th. In the course of that conversation he was given clear warning that he needed to submit urgently a medical certificate by the following Wednesday, and he said that he “understood what was required and would submit something in writing by this Wednesday”. He did not do so, and did not contact the Tribunal to explain why not, before it made its decision.
In those circumstances, in my opinion, there was a proper basis for the Tribunal to decide to proceed to exercise its discretion under s.426A(1) to dismiss summarily rather than reschedule a hearing. The reason given by the Tribunal for doing this was based upon a correct appreciation of the essential fact, that the Tribunal had not received the certificate or written submission as promised by the applicant. I do not consider that its discretionary decision not to exercise the power under s.426A(2) miscarried.
Moreover viewed from the perspective of common law procedural fairness, on the evidence now before me I do not consider that the applicant has established any material unfairness attending the Tribunal’s decision on 17 September 2010 to proceed pursuant to s.426A(1), rather than (2).
No other contention of jurisdictional error is made by the applicant, or raised in the material before me.
I am not persuaded that jurisdictional error vitiating the Tribunal’s decision has been established. I must therefore dismiss the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 9 March 2011
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