SZQAX v Minister for Immigration
[2011] FMCA 335
•10 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQAX v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 335 |
| MIGRATION – Application to set aside original orders made by the Court – whether there is any satisfactory or adequate explanation for the failure of the applicant to attend the first Court date – whether the grounds for review have any reasonable prospects of success – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 424A, 426A, 476 Federal Magistrates Rules 2001 (Cth), rr.13.03C, 16.05 |
| NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 |
| Applicant: | SZQAX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 479 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 10 May 2011 |
| Date of Last Submission: | 10 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2011 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr M Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 4 May 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 479 of 2011
| SZQAX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
The applicant before the Court today filed an application on 4 May 2011, pursuant to r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”), to set aside final orders made by me on 6 April 2011 in the applicant’s absence. These orders were made pursuant to r.13.03C(1)(c) of the Rules dismissing an application made by the applicant on 16 March 2011, pursuant to s.476 of the Migration Act 1958 (Cth), which sought review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
For the applicant to succeed today and have his matter reinstated before the Court there are essentially two issues that I must consider. The first is whether he has provided a satisfactory explanation for his
non-attendance on the previous occasion. The second is whether there is any legal merit in the original application to the Court such that it would be appropriate for the Court to reinstate the case to allow the applicant to present his claims.
Before the Court
At the hearing today the applicant appeared in person. Mr M Alderton appeared for the respondent Minister.
At the beginning of the hearing the applicant informed the Court that he would seek “some legal advice” and “will arrange the assistance of a lawyer for that hearing”. I took “that hearing” to mean a final hearing. I asked if the applicant had a lawyer now and the applicant stated that: “There was no need for him to appear today at the Court, because this was only a directions hearing, but at the final hearings, he would actually accompanying me.” I inquired into the name and practicing status of this lawyer. The applicant could only offer that his uncle had arranged for the assistance of this lawyer. Consequently, I granted the applicant a short adjournment to ascertain this information from his uncle.
On resumption the applicant stated to the Court that the “person” to whom he had referred was not a lawyer, but someone whom he trusted who would give “some good advice regarding the re-opening of my case”. In light of this, the applicant requested some time to arrange (another) “proper lawyer”. (See further below.)
The Original Application
The grounds of the original application made on 16 March 2011 are:
“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:
…
It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission in relation to my claim; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue. If I would provide a submission prior to RRT decision, I believe that I would have a fair decision.
2. The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 17 February 2011 was effected by actual bias constituting judicial error.”
[Errors in original.]
Background
What appears to have happened in this case, according to the decision record of the Tribunal (which was filed by way of the applicant’s affidavit made on 29 April 2011, and marked “Respondent’s Exhibit 1”), is that the applicant (an Indian national who arrived in Australia on 25 June 2009) applied for a protection visa on 29 July 2010. He did not attend an interview with the Minister’s delegate when this was offered to him. The application was refused on 21 October 2010 ([20] to [28] of the Tribunal’s decision record).
The applicant applied for review with the Tribunal on 25 November 2010. Following receipt of the application, the Tribunal wrote to the applicant on 12 January 2011 and invited him to a hearing on 17 February 2011 ([30] of the Tribunal’s decision record).
The Tribunal told the applicant that the invitation was issued on the basis that, on what was before it, it could not make a favourable decision for him. The hearing was his opportunity to give evidence and make submissions. He was cautioned that, if he did not attend, the Tribunal may proceed to make a decision without further notice to him ([30] of the Tribunal’s decision).
The applicant responded that he did want to attend the hearing, but, without explanation, he failed to do so. The Tribunal then proceeded to a decision pursuant to s.426A of the Act.
In circumstances where the Tribunal has put the applicant on notice that it cannot make a favourable decision, invited the applicant to a hearing, and without explanation the applicant did not turn up, the result is that the Tribunal remained in a position where it could not be satisfied that he was a refugee as defined in the UN Refugees Convention (see also ss.65 and 36(2) of the Migration Act 1958 (Cth) (“the Act”)) and therefore proceeded (as it is permitted by s.426A of the Act) to make its decision.
It is the case, therefore, that the real reason the Tribunal refused the application to be recognised as a refugee was derived from the fact that, without explanation, he did not turn up to the hearing. In very similar circumstances, a full Federal Court has said that a failure to attend in these kind of circumstances leads to the inevitable consequence that the application would be refused by the Tribunal (NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287).
Before the Court
The Tribunal decision was made on 17 February 2011. The substantive application to the Court was made on 16 March 2011. The applicant was notified that the first Court opportunity was to be on 6 April 2011. I am satisfied that he had adequate notice of that date because he arranged to send a medical certificate to the Court on or about that date.
For all the reasons that Mr Alderton outlined, and for the reasons that I have tried to explain to the applicant, the medical certificate is inadequate in explaining the applicant’s inability to attend at that time. As Mr Alderton, in my view quite correctly, submitted, it does not explain any inability to attend, for example, by telephone. In fact, the medical certificate says: “Unfit to continue your usual occupation.” The applicant has told me that he did not even tell the doctor that he required this medical certificate for Court purposes. That was a mistake on his part, because it may be that the doctor could have then said: “the applicant cannot travel to Court.” But he did not say that.
The applicant has also said, in correspondence that he sent to the Court, that he was sick with constipation for some considerable period. All that the applicant has provided in support is a medical certificate made the day before the Court date, which says only that the applicant is unable to continue his usual occupation for four days, one of which happens to coincide with the date of the Court hearing. There is nothing in the medical certificate to say that the applicant has been ill for months. There is nothing, as Mr Alderton quite correctly submitted, to say that the applicant is on medication and that this might have incapacitated him.
So, in all, the medical certificate, as I noted on the earlier occasion (6 April 2011), is, in itself, an inadequate explanation for the applicant’s inability to attend Court at that time. Nor has any satisfactory explanation otherwise been provided to the Court by the applicant.
What the Court has before it is that the applicant did not attend the Tribunal hearing. There is no legal mistake in the Tribunal then proceeding to make a decision in those circumstances pursuant to s.426A.
In the circumstances, I do not think a lawyer can help the applicant. The applicant said that he did not attend the Tribunal hearing on the advice of his uncle’s friend. Clearly, he made a mistake in not going. But the fact that he made that mistake is not a sufficient reason, under the law, for me to give him yet another opportunity. The law does not provide for endless opportunities to be given to applicants who rely on the advice of, even well-meaning, friends.
Reviewing the grounds put by the applicant, which I understand were drafted with the assistance of his uncle’s friend, there is nothing that would be of any assistance to him. His uncle’s friend, if indeed it was the friend who drafted this for him, has displayed two things. First, a profound misunderstanding of how the Tribunal proceeded to make its decision in law, and, second, an ignorance of the law.
For example, the first ground asserts that the Tribunal breached s.424A of the Act. Section 424A does not apply to the applicant’s circumstances because there was nowhere, in this particular process, where there was “information” that fell within s.424A that would be the reason for refusing the application. The Tribunal’s decision was not based on any such information. It was based on its inability to reach the requisite level of satisfaction such that the visa must be granted.
The application also alleges that the Tribunal made a mistake because it did not give the applicant an opportunity to make written submissions. If this was meant as being a complaint that it should have given him an opportunity to make written submissions in relation to information relevant to s.424A then, as I have said, that section does not apply to this case.
If, however, it is an assertion that the Tribunal made some legal mistake because it did not give the applicant the opportunity generally to make written submissions, then there was no obligation on the Tribunal to do so. There is no breach of procedural fairness in circumstances where the Tribunal invited the applicant to a hearing for the purpose of making submissions. Nor did the applicant seek any such opportunity before the Tribunal.
The grounds also state that the Tribunal failed to investigate the applicant’s claims. If what is meant by this is that the Tribunal should have made some investigation of the applicant’s particular circumstances in India, then there is no general obligation on the Tribunal to make any such investigation or inquiry. The duty to make such an investigation or inquiry is restricted to critical matters. There was no critical matter here in circumstances where the applicant did not turn up to the hearing (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; (2009) 83 ALJR 1123).
But even further, the thing that is grossly misconceived, and in many ways inappropriate, in what has been written here is the assertion that the Tribunal was affected by actual bias in what it did.
To assert bias on the part of an administrative decision-maker, such as the Tribunal member, is an extremely serious matter. That is because an assertion of bias is not just an assertion of some legal error. It is far more than that. What it is is an allegation that goes to the very integrity of the person who dealt with the applicant’s case.
In Australian law, such a serious charge must be clearly made and specifically proven. The applicant needs evidence of such a charge. The mere fact that the Tribunal went ahead and decided the applicant’s case in his absence, and found adversely to him, goes nowhere near allowing a charge of bias to be made, let alone to be made out (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, SZHPD v Minister for Immigration & Citizenship [2007] FCA 157, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and SCAA v Minister for Immigration& Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).
The grounds of the original application have no merit in revealing error, let alone jurisdictional error, in the Tribunal’s decision record. Nor can I otherwise see that there is any other legal error that can be said to arise from the circumstances that have been put before me.
Further Matters
There are two relevant tests, as I said right at the beginning, that I need to focus on today. The first is whether there is any satisfactory or adequate explanation for the failure to attend Court on the first occasion when I made orders dismissing the application. For the reasons that I have already set out, there is no adequate or satisfactory explanation. What I said on 6 April 2011 in that regard still stands.
But second, and in a sense far more important, there is nothing in the grounds of the original application or otherwise before the Court to indicate that there would be any utility, or any useful purpose, in setting aside the orders and allowing the matter to go forward to a hearing.
What we are left with is, in a sense, a plea from the applicant to be given another opportunity. If that plea is for another opportunity for the case to be more fully explored before the Court, then, for the reasons that I have already stated, there is nothing before me that would suggest itself as being worthy of further consideration. As Mr Alderton, in my view correctly, submitted, there is nothing on the face of the Tribunal decision record, nor from the grounds of the application themselves, nor otherwise, to indicate that the applicant has any reasonable prospects of success before the Court. Nor even, on what is before the Court, is there any indication of any reasonable prospects of any ground of review being articulated, let alone being successful.
If the plea for another opportunity was meant as another opportunity before the Tribunal, then that opportunity can only be provided to the applicant if there was some legal error that could be shown in what the Tribunal has done. For the reasons that I have already stated, that is just not the case.
It is the case that the applicant pursued advice from his uncle’s friend. In the circumstances, both before the Tribunal and before the Court, that was poor advice. Unfortunately for the applicant, that is not a sufficient reason for this Court to set aside the orders made previously. I note the applicant’s claimed understanding now that he should have sought proper legal advice. But his failure to do so in the circumstances does not provide a reason to set aside the orders that I have previously made.
As the Minister’s representative, again in my view correctly, submitted, the applicant had ample opportunity to obtain proper legal advice. Clearly, having relied on advice in relation to not attending the Tribunal hearing, it would be expected that the applicant would not have then sought to again rely on advice from the same source in relation to proceedings before this Court given the adverse outcome derived from his failure to attend the Tribunal hearing. The fact that the applicant persisted with this advice, and accepted this advice, is ultimately a matter for him. It is not a matter that would cause the Court to set aside its orders.
Conclusion
For all those reasons, I am going to dismiss the application in a case that has been made to the Court on 4 May 2011.
Costs
There are two issues that I need to consider. The first is whether I should make such an order. In that regard, as I noted with the applicant, what the Minister’s representative has asked for is not unusual. It is in fact the usual before the Court for the successful party to seek an order to recover some of their legal costs. The second issue is whether the amount sought is a reasonable amount in the circumstances, bearing in mind the work that the successful party’s lawyers would have done in responding to the application.
I am going to make the order sought by the Minister. It is appropriate that this order be made in the usual course of events. As to the amount, I am satisfied in the circumstances that it is a reasonable amount, bearing in mind the need for the Minister to respond to the application and the attendance in court today, and submissions made by the Minister’s legal representative.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 2 June 2011
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