SZOST v Minister for Immigration - [2011] FMCA 196

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOST v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 196

MIGRATION – RRT decision – Indian claiming refugee status – failure to attend rescheduled Tribunal hearing – no material defect in Tribunal’s procedures - no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth), ss.426A, 427(1)(b)

Minister for Immigration & Citizenship v SZFML (2006) 154 FCR 572

Applicant:

SZOST

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2353 of 2010

Judgment of:

Smith FM

Hearing date:

18 March 2011

Delivered at:

Sydney

Delivered on:

18 March 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms E Warner Knight

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2353 of 2010

SZOST

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia on a one-month visitor’s visa in March 2010, and on 7 April 2010 he lodged an application for a protection visa without any apparent assistance. A brief statement set out his claims to fear harm if he returned to his country of nationality, India.
He said that he had been put in a difficult position by his girlfriend who was a Muslim, he being a Hindu, as a result of her becoming pregnant and falsely telling her family that he was responsible. In fact, he said, his girlfriend told him that she was in love with another man, who was the father of her baby. This caused him to become unhappy with the girl and with his life in India and, according to his statement, it also caused her family to search for him “to kill me”. For those reasons he came to Australia seeking refuge.
A delegate of the Minister interviewed the applicant on 1 June 2010, and the applicant maintained his story. He told the delegate that there was no problem about the different religions of the two families, and that his fears all arose from his girlfriend’s false accusation that he was responsible for her pregnancy.
The delegate made a decision on 5 July 2010. The delegate said:
In essence therefore, the applicant claims to fear harm at the hands of the family members of his ex-girlfriend seeking to kill him because he now refuses to marry the girl. The mistreatment that the applicant claims to fear does not arise because of his race, religion, nationality, membership of a particular social group, or political opinion.
I find the harm feared is not for any Convention reason.
The applicant then appealed to the Refugee Review Tribunal. The Tribunal invited him to a hearing at 11 am on Monday, 7 September 2010.
According to the Tribunal, the applicant did not attend at that time, and was “over an hour late for the hearing”. The Tribunal told him that it would commence the hearing, but that it would have to be adjourned until 3.30 pm the same day. It then followed that procedure, taking only brief introductory evidence from the applicant before adjourning. The applicant agreed to return at 3.30 pm, but he was not there at that time.
When he was telephoned by an officer of the Tribunal at about 5 pm, he told them that “he was feeling sick and had to go to a doctor’s appointment. He asked if he could come in to continue the hearing on another day next week”. After consulting the member, the officer told the applicant that he would need to provide a medical certificate, and the applicant said that he understood.
The next day, the applicant told the Tribunal officer that he could not obtain a medical certificate, because he would have to pay the doctor for another consultation. The officer then spoke to the member, and phoned the applicant again. According to the file note of the ensuing conversation:
I called the RA back and informed him that the Member had scheduled a resumption of the hearing for 13 September 2010 (ie. this Monday) at 12:00pm. I advised that an invitation would be sent to his address today however it was important he write down the date and time in his diary now and attend the hearing on time. He confirmed that he would be attending.
A letter was then posted to the applicant by registered post at his nominated address for correspondence on the same day, confirming that his hearing would resume on the following Monday, 13 September at 12 pm. The letter concluded with a statement to the applicant:
The Tribunal will only change this hearing date for good reason. Please contact the Tribunal immediately if you are unable to attend the hearing on this date. Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.
The applicant did not attend on that day at that time, nor at any other time, and did not contact the Tribunal to explain his absence.
The Tribunal then proceeded to make a decision on 27 September 2010. In its statement of reasons, the Tribunal narrated the course of its proceedings, and said:
The applicant did not attend before the Tribunal on 13 September 2010. Under these circumstances, and pursuant to Section 426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal then considered the applicant’s refugee claims. It said:
There are a number of issues requiring more detailed evidence the Tribunal would like to discuss with the applicant before it could be satisfied that he holds a genuine fear of persecution, or that any fear that he claims to have, in this regard, is well founded.
The Tribunal said that, without the opportunity to ask the applicant more questions, it was unable to make findings of fact upon which it could be satisfied as to a well founded fear of persecution for a Convention reason. It said that it was not so satisfied, and upheld the delegate’s decision.
The applicant now applies to the Court to set aside the Tribunal’s decision and to remit the matter to the Tribunal to give him another opportunity to present his case to it. I have power to make these orders only if the Tribunal’s decision was affected by jurisdictional error.
The grounds of his application have been completed as follows:
1.RRT not listen my full story because she told me to come later. I don’t no why she take my half interview and then asked me to come at 3.30. If she can take my half interview, she can take my full interview also on a same date.
In short, the applicant invites the Court to examine the legality of the Tribunal’s procedures in relation to rescheduling his hearing and then making a decision due to his absence from the rescheduled hearing.
There were at one time some differences of opinion in this Court, and to some extent among single justices in the Federal Court, whether the full procedures governing the notification to applicants of hearing dates were applicable to rescheduled hearings, and as to the consequences of those procedures not being followed strictly. This debate was settled by the Full Court’s decision in Minister for Immigration & Citizenship v SZFML (2006) 154 FCR 572. The Full Court concluded that the formal notification provisions applied only to the first appointment of a hearing where this was required by s.425, and were inapplicable to any rescheduling of the hearing. The Full Court identified in s.427(1)(b) of the Migration Act, the Tribunal’s power in relation to rescheduling. It concluded that there were no statutory requirements as to notification of a rescheduled hearing, but it said:
[82] It is implicit in the statutory scheme that the Tribunal’s invitation to a person to appear, where it has been accepted, cannot be compromised by rescheduling the appointed hearing to another date on unreasonably short notice. However it is not suggested that that occurred here. It is open to the Tribunal in the conduct of a hearing to adjourn it from time to time. If express authority were necessary it would be provided by s 427. In any event there is an implied incidental power for the Tribunal to do so in order to give practical effect to its obligation to provide a hearing. The power of the Tribunal to reschedule a hearing of which notice has been given is of the same character. Provided the notice of the rescheduling is reasonable there is no requirement, applicable to that procedure, for the application of the minimum prescribed period applicable to the notice required by s 425 A.
Considered in those terms, in my opinion the present Tribunal’s conduct in relation to rescheduling the applicant’s hearing was clearly reasonable. The applicant was given, in effect, three chances to attend appointed times for a hearing. His reasons for not taking those opportunities were never satisfactorily explained to either the Tribunal or to the Court.
Thus, he was late on the first occasion by a substantial time, which was not explained by him. He was then absent from the continuation of the hearing into the afternoon, for reasons which were never corroborated. He was then given a third opportunity to attend an appointment given to him in a period which he requested, and on a time and date which he explicitly accepted.
In those circumstances, the SZFML test of reasonable exercise of the Tribunal’s discretionary powers in relation to the rescheduling of the hearing was, in my opinion, clearly satisfied.
I raised with the representative for the Minister the fact that the Tribunal’s reference to its power to make a decision without taking further action under s.426A(1) does not accord with the opinions of the Full Court in SZFML in relation to its powers after non-attendance at a rescheduled hearing. However, in my opinion, the Tribunal’s mistaken reference to that section is of no material consequence, since the procedures actually followed by the Tribunal were procedures undoubtedly authorised by the Act, and the Tribunal exercised its procedural discretions in a way which was consistent with its relevant statutory powers.
The applicant today complained that he had lost the opportunity to show the Tribunal his documents and to explain his case. He suggested that his reason for not attending on 13 September 2010 was that he was ill. However, he conceded that he had not sent any information about this to the Tribunal before it made its decision. He also had no corroboration of this assertion to show the Court, and I am not satisfied that it was true.
Taking into account all that he said to me today, I am not persuaded that he has identified any jurisdictional error affecting the Tribunal’s decision on his protection visa application. In that circumstance, I have no alternative but to dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 28 March 2011