SZSIW v Minister for Immigration
[2013] FCCA 499
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSIW v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 499 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – whether three days notice of resumption of hearing, where applicant missed earlier resumed hearing, was reasonable in the circumstances – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 425A, 441C, 476 Migration Regulations 1994 (Cth), r.4.35D |
| Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51 Minister for Immigration& Multicultural & Indigenous Affairs v SZFML& Anor [2006] FCAFC 152; (2006) FCR 572 SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 251 SZFKF v Minister for Immigration [2005] FMCA 1152 SZQCQ v Minister for Immigration and Citizenship [2011] FCA 1385 SZBZO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 494 |
| Applicant: | SZSIW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2887 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 22 April 2013 |
| Date of Last Submission: | 22 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2013 |
REPRESENTATION
| Appearing for the Applicant: | Mr R Kessels |
| Solicitors for the Applicant: | Fragomen |
| Appearing for the Respondents: | Ms S Given |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 6 December 2012, amended on 13 March 2013 and further amended on 8 April 2013, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2887 of 2012
| SZSIW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 6 December 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 13 March 2013, and further amended on 8 April 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 12 November 2012, which affirmed the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”) (Court Book – “CB” – CB 3). She applied for a protection visa on 16 December 2011 (CB 1 to CB 25). She included with her application a statement in which she claimed to fear persecution for reason of her Falun Gong beliefs and practices (CB 27 to CB 28). The applicant’s protection visa application was refused by the delegate of the respondent Minister on 1 June 2012 (CB 48 and CB 69).
The Tribunal
On 27 June 2012, the applicant applied to the Tribunal for review of the delegate’s decision (CB 70 to CB 80). In her application, she gave her residential address, and indicated that that was the postal address at which she wished to receive correspondence (CB 71 and CB 73).
By letter dated 28 August 2012 (“the first invitation notice”), the Tribunal invited the applicant to appear at a hearing on 21 September 2012 (CB 91). On 7 September 2012 the applicant accepted the Tribunal’s invitation (CB 98 to CB 99).
The applicant attended the hearing on 21 September 2012 and was assisted by an interpreter in the Mandarin language (CB 100 and [36] at CB 147). After three hours of hearing, the interpreter advised the Tribunal that he had another commitment and needed to leave ([73] at CB 154). As a result, the Tribunal adjourned the hearing and told the applicant that it would notify her of the resumed hearing details ([75] at CB 154). The applicant stated that she wanted any “mail” to be sent to a “new” PO Box address, not the postal address she had previously supplied ([75] at CB 154). The applicant also “updated”, in writing, her postal address (to record the PO Box address) on the same day (CB 108 to CB 109).
I note that that adjournment was also given in circumstances where the Tribunal provided the applicant with a fourteen day period in which she was to provide medical evidence for conditions that she claimed affected her memory, and ability to demonstrate Falun Gong activities ([74] at CB 154).
By letter dated 24 September 2012 (“the second invitation notice”), the Tribunal invited the applicant to appear at a resumed hearing on 8 October 2012 (10 business days later) (CB 110 to CB 111). As at 5 October 2012, the second invitation notice was still awaiting collection at the post office (having been there since 26 September 2012) (CB 122).
The applicant failed to appear at the hearing on 8 October 2012 (CB 123).
On 24 October 2012, the applicant telephoned the Tribunal’s registry and informed it that she that not received the second invitation notice until 24 October 2012 (CB 125). On the same day, the applicant wrote to the Tribunal and requested that the hearing be resumed on another date (CB 126).
By letter dated 29 October 2012, the Tribunal invited the applicant to appear at a resumed hearing on 1 November 2012 (three business days later) (CB 127) (“the third invitation notice”). That letter was sent by registered post to the PO Box address provided by the applicant at the first occasion of the hearing (CB 127). Further, on 29 October 2012 a Tribunal officer telephoned the applicant’s mobile telephone number and left a “voicemail” message in which he advised the applicant of the rescheduled hearing and that a letter had been sent to her (CB 134).
The applicant did not appear at the resumed hearing on 1 November 2012 (CB 135).
On 12 November 2012, the Tribunal affirmed the decision of the delegate to refuse the applicant’s protection visa application ([97] at CB 160).
Application before the Court
The sole ground of the further amended application is as follows:
“1. The Second Respondent fell into jurisdictional error by failing to comply with s425A of the Migration Act 1958, because it did not provide the Applicant with a reasonable opportunity to appear before it and give evidence.”
Relevant Legislation
Section 425 of the Act obliges the Tribunal to:
“…invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 425A of the Act provides the manner in which the Tribunal is required to notify the applicant of any hearing, or resumed hearings. It provides that:
“(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.”
Regulation 4.35D of Migration Regulations 1994 (Cth)
(“the Regulations”) provides that the prescribed period:
“(b) … starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.”
A note to r.4.35D states that:
“If the Tribunal gives a person a document by a method specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method.”
Pursuant to s.425A of the Act, notice can be provided by prepaid post or by other prepaid means. Section 441C(4) provides that, where notice is sent by prepaid post (as was the case with each of the three invitations sent by the Tribunal), the person is taken to have received the document:
“(a) if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or
(b) in any other case – 21 days after the date of the document.”
The Arguments
The application before the Court relates to the third invitation notice and whether, in the circumstances of this matter, three days notice of the resumed hearing constituted “reasonable” notice.
Before the Court, it appeared to be accepted by the parties that the Tribunal had complied with the “prescribed notice period” specified by s.425A of the Act with its first invitation notice and that it was not again required to provide the prescribed period of notice with respect to the adjourned, or resumed, hearing (with reference to Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51 (“Ogawa”) at [27] per Flick J; Minister for Immigration& Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152; (2006) FCR 572 (“SZFML”) at [82] per Spender, French and Cowdroy JJ and SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 251 (“SZDQO”) at [29] per Conti J). Rather, the issue was whether, in the circumstances of this case, the period of notice of the resumed hearing afforded to the applicant in the third invitation notice was “reasonable”.
The applicant’s contention was that, with reference to a number of circumstances in the current case, three days notice was not “reasonable” notice. First, the first occasion of the hearing had been adjourned not at the applicant’s request, but because the interpreter had another commitment and could not continue to assist. In those circumstances, the applicant submitted that it was clear that she and the Tribunal wished to continue with the hearing and that she wanted to give further evidence.
Second, while the applicant had sought the opportunity to attend a resumption of the hearing (having missed the resumed hearing scheduled for 8 October 2012), that request was only made after she missed the resumed hearing because she did not receive the second invitation notice. That was, on the applicant’s submission, evidence of her clear wish to attend a second occasion of the hearing. That is, to continue the hearing which stopped because of the unavailability of the interpreter.
Third, while the applicant had missed the earlier scheduled resumption of the hearing (8 October 2012) due to her failure to collect the second invitation notice in a timely fashion, the Tribunal had acceded to her request to have a further opportunity to attend a hearing. While the Tribunal was not required to accede to that request, having done so it was obliged to afford the applicant a reasonable opportunity to attend the hearing. In the applicant’s submission, there was no evidence as to why the Tribunal “shortened” the notice period to such a degree given the applicant’s clear desire, and intention, to attend a resumed hearing.
Further, in oral submissions before the Court, the applicant submitted that reference could, and should, be had to the “deeming provisions” in the Act regarding the receipt of correspondence. The applicant did not contend that it was erroneous to give less than seven days notice of a resumed, or adjourned, hearing. Rather, in determining what was “reasonable” notice, it was important to consider whether the notice afforded the applicant a reasonable period of time to attend to collecting the letter. That was said to be particularly so when the letter was sent to a PO Box.
Even further, with regard to the “voicemail” message left on her mobile phone, the applicant noted that that was not a means by which notice of a hearing could be given. Further, that the voicemail was only left at 12.08pm on 29 October 2012 (CB 134) and that no assumption could be drawn, given the applicant’s use of an interpreter in the Mandarin language at the Tribunal hearing, that, if the applicant received the telephone message, she had understood the message (see [36] at CB 147).
In support of her contention that three days notice was not reasonable, the applicant noted the decision of Judge Barnes in SZFKF v Minister for Immigration [2005] FMCA 1152 in which her honour held that a period of notice of three days was not reasonable.
The Minister’s position was that it was significant that the resumed hearing was rescheduled at the applicant’s request, and because of her failure to attend the earlier scheduled resumed hearing date (8 October 2012). That is, the applicant was “seeking an indulgence”, and that that was very relevant to the question of whether the period of notice was “reasonable”. In particular, because the resumed hearing was rescheduled at the applicant’s instigation and convenience, not the Tribunal’s, no legal error was revealed by the period of notice afforded by the Tribunal. Further, given it was at her instigation, the applicant should have been, and was, awaiting an answer from the Tribunal as to her request.
Before the Court the Minister submitted that the period of notice afforded in the second invitation notice was not “of moment”. Rather, with regard to the second invitation notice, the Tribunal provided notice of a resumed hearing because of “a procedural matter”, being the unavailability of the interpreter. Further, that that period of time was also so as to ensure “procedural fairness” to the applicant to provide further documents. However, in relation to the third invitation notice, the Tribunal was “granting the applicant an indulgence”. [I note that in written submissions the Minister observed that the applicant had already had a “half day” hearing, and that “…there should be no suggestion that the hearing was unfairly truncated by the interpreter having an afternoon booking elsewhere” ([18] of the Minister’s written submissions).]
It was the Minister’s position that, in circumstances where the applicant had missed the hearing on 8 October 2012 due to her failure to collect the letter and she had requested the opportunity to attend a resumed hearing, she ought to have been applying herself with “significant diligence” to the collection of her letters. Particularly, when the applicant was on notice that the Tribunal sent correspondence to her PO Box address (per her request at the first occasion of the hearing), and she was waiting to hear from the Tribunal as to whether it would refuse, or grant, her request for a further opportunity to attend a resumed hearing. In those circumstances, the Minister submitted that it was “incumbent” upon the applicant to take “every step” to ensure that she was aware of the Tribunal’s decision.
The Minister submitted that it was open to Court to infer that the applicant had not been diligent in the collection of her mail in relation to the third invitation notice as she had not contacted the Tribunal prior to it making its decision on 12 November 2012. That was despite the applicant contacting the Tribunal three weeks after she missed the earlier resumed hearing scheduled for 8 October 2012.
With regard to the “voicemail” message left on the applicant’s mobile phone the Minister submitted that that was “just another attempt” by the Tribunal to put the applicant on notice.
In support of the proposition that the period of notice was reasonable the Court was referred to ([27] of the Minister’s written submissions):
1)Ogawa at [36] – [43] where Flick J found a notice period of 6 business days was reasonable notice of a rescheduled hearing.
2)SZDQO in which Conti J found that a period of 6 business days constituted reasonable notice of a rescheduled hearing.
3)SZQCQ v Minister for Immigration and Citizenship [2011] FCA 1385 (“SZQCQ”)at [16] where Cowdroy J, on appeal, accepted the finding of Judge Barnes that a period of 6 days notice between when the applicant was deemed to have accepted the notice and date of the rescheduled hearing was reasonable notice.
4)SZBZO v Minister for Immigration & Multicultural and Indigenous Affairs [2006] FCA 494 (“SZBZO”), where Jacobson J found no error where deeming provisions rendered a letter to have been received on the date of the hearing, noting that it did not follow that the letter was not received before that date and that there had been several unsuccessful attempts to contact the applicant in that case by telephone.
For the sake of clarity, I note that the applicant did not rely on, or contend, that the period prescribed in s.425A(3) of the Act applied to the Tribunal’s third invitation notice. Rather, the argument was that the prescribed period could assist in informing whether the period given by the third invitation notice was reasonable in the circumstances of this case.
Consideration
The issue therefore is whether the period of notice given in relation to the third invitation notice, pursuant to s.425A(3) of the Act and where the prescribed period was no longer applicable, was a reasonable period.
In this, what was said in SZFML at [79] and [82] is of direction in the current proceedings:
“[79] …notification of a rescheduled hearing does not involve a fresh invitation for the purposes of s 425A(1). But where the hearing is rescheduled, then it is implicit in the obligation imposed on the Tribunal under s 425A(1) that the Tribunal must give the applicant notice of the amended day on which, and time and place at which, the applicant is scheduled to appear
…
[82] 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 425A.”
The issue in the current proceedings is therefore not the exercise of the Tribunal’s discretion of whether to further adjourn the hearing, but once the discretion was exercised by the Tribunal in favour of the applicant, whether the period of notice was a reasonable period.
What is reasonable must derive from the circumstances of the particular case under consideration.
I am obviously directed by what Flick J said, relevantly, in Ogawa (at [37]):
“In determining whether ‘reasonable’ notice was in fact given of any rescheduled hearing, reference may be made to (inter alia):
· the period ‘prescribed’ for the giving of notice in respect to any initial proposed hearing date;
· the complexity of any legal and factual issues to be canvassed at the rescheduled hearing;
· any opportunity previously extended to an applicant to assemble factual materials in support of any claims made and any opportunity to marshall such legal arguments in support of those claims;
· any need to obtain further materials or evidence that may not have been available in time for the initial scheduled hearing;
· whether the opportunity previously extended to an applicant to prepare any claim to be advanced was prejudiced or rendered nugatory for reasons peculiar to an applicant or by reason of changed circumstances;
· whether any request was made for a rescheduled hearing to be further postponed or adjourned and, if so, the basis upon which the applicant sought to support that request; and
· any assessment by the Tribunal member as to the adequacy of the period of notice given.”
The Tribunal’s account of the hearing that it held with the applicant on 21 September 2012 (which was not completed), relevantly, states ([73] at CB 154 to [75] at CB 155):
“[73] The mandarin interpreter said she had another commitment and would have to leave the hearing.
[74] I asked whether she had ever practised Falun Gong in Australia. The applicant said she had been meaning to but there was some trouble with her joint. I noted that earlier in the hearing I had indicated the applicant had 14 days to provide medical evidence to the Tribunal. I noted I had put to the applicant that I was concerned that she could not remember certain events and about inconsistencies in her evidence. I noted I was also concerned she could not recall the names of any of the Falun Gong exercises or demonstrate the Falun Gong exercises. I noted the applicant had suggested she had medical issues that were causing her memory loss and meant that she was unable to perform the Falun Gong exercises. I said I had therefore provided the applicant with 14 days to provide medical evidence form a doctor about these conditions. I noted the hearing would be resumed because the interpreter had another commitment. I noted the Tribunal would write to the applicant providing a date with the hearing to be resumed.
[75] The applicant asked when she would receive the notice for the adjournment of the hearing. I said the Tribunal would write to her providing her with notice of the resumed hearing date. The applicant said the mail needed to be sent to an address and showed me a receipt that recorded her PO box address. I confirmed the address with the applicant. I noted the applicant had previously provided a different address. The applicant said last time the correspondence to that address was lost and she didn’t receive the previous letter. The applicant confirmed she wanted mail sent to the PO box and I advised the applicant to update her details in writing. Immediately after the hearing the applicant updated her postal address details. The hearing was adjourned to another date.”
It must be said that, as a general proposition, it is difficult to see many circumstances in which a period of three days would constitute reasonable notice. However, we are not concerned here with some arbitrary notion of what is reasonable in all circumstances. In the current case, while, as the applicant submits some regard can be had to the prescribed period as a measure of what may be reasonable, the question must ultimately be resolved with reference to the actual circumstances of each case. In that light and for the reasons that follow, I agree with the Minister that the relevant period of notice was reasonable in the circumstances.
Here the following is relevant. First, the applicant’s hearing before the Tribunal had already commenced and proceeded for some time. The prescribed, and therefore the statutorily endorsed, “reasonable” period had already been met in relation to the invitation to the hearing. In this light, the applicant had a reasonable opportunity to prepare for the hearing initially. Further, she would have been generally on notice, as a result of her participation at the hearing (albeit part heard), of what to generally expect at any resumption.
Second, while it is the case that the hearing was adjourned to be resumed on a date to be notified because the interpreter was unable to stay, the adjournment was also of benefit to the applicant.
The applicant had told the Tribunal that her inability to perform relevant Falun Gong exercises at the hearing, and her memory loss were due to her medical condition. The adjournment of the hearing therefore also gave the applicant the opportunity to provide medical evidence to support this assertion. An opportunity which the applicant took advantage of when she provided medical documents to the Tribunal on 2 October 2012 ([76] at CB 155 and CB 113 to CB 121).
Third, and importantly, not only was the applicant on notice that she would receive a letter notifying her of the date of the resumption of the hearing, she specifically asked the Tribunal that it be sent to a particular address, a PO Box address, which she provided to the Tribunal at that time (immediately after the hearing).
In my view, it is relevant to expect that the applicant, in these circumstances, should bear some responsibility in ensuring collection of the correspondence from the Tribunal. After all, the correspondence was specifically addressed to a destination which she proposed at the conclusion of the hearing on 21 September 2012.
In this regard, it is also important to note the following. The letter notifying the applicant of the date of the resumed hearing was addressed to the PO Box address specifically nominated by the applicant. It was dated 24 September 2012 and it was sent by registered post on 25 September 2012 (CB 110).
There is evidence (from Australia Post) before the Court that the second invitation notice was available for collection at the relevant post office (CB 122):
“26/09/12 08.30 Awaiting Collection at HURSTVILLE POST SHOP…”
The applicant rang the Tribunal’s registry, much later, on 24 October 2012 (CB 125):
“Date & Time: 24/10/2012 12:43:00PM
…
Comments:
The applicant rang to say she had only just received the letter inviting her to a resumed hearing. She apologised for that. I advised that if she wanted that hearing to be rescheduled she should write a request to the Tribunal as soon as possible explaining why she did not attend the previous hearing, and the Tribunal member would decide whether she wanted to grant the request. She said she would fax something today and asked that I make the Tribunal member aware it was coming.”
The applicant explained in writing (received by the Tribunal on the same day) (CB 126):
“…
My case number is 1209326. I am writing to you in regard to our telephone call today. I am very sorry that I just received your letter on 24/09/2012 for hearing on 8 October.
I checked my mail box very regularly, however I never received any notice before, I only received the final notice yesterday and I got the letter today and found out I missed the hearing.
I am very sorry about it and I sincerely hope you can give me another chance for hearing. I hope you can help me.”
The applicant did not give evidence before the Court. The only explanation available therefore is that contained in the Court Book and as set out above. In the circumstances, I understood the reference to “final notice” (in the applicant’s letter – at [49] above) to be a reference to the notice from the postal service notifying her that a registered article was available for collection. That notice would have been placed in the PO Box.
In the same letter to the Tribunal, the applicant stated that she “checked her mail box regularly”. It is difficult to reconcile this with the postal record report which showed that the article was available for collection from 26 September 2012. The difficulty is compounded by the applicant’s reference in her letter to “final notice”. This does not explain whether other notices had been placed in the PO Box and she had not retrieved them earlier.
It is of course possible that the relevant postal employees at Hurstville post office did not put the appropriate notice in the PO Box until the “final notice” which the applicant says she received on 23 October 2012 (CB 126 – “yesterday’). Some care therefore must be taken in this regard, particularly in the absence of further evidence.
However, before the Court, the applicant conceded the distinction between the provision of the notice by relevant postal authorities and the applicant’s collection of the letter. In submissions and in this context, the applicant also conceded to the Court that she was not “as diligent” in collecting her post as she should have been.
Fourth, the thrust of the applicant’s attack on the Tribunal’s decision was, it must be said, in all, simply that the third invitation notice (of 29 October 2012 – CB 127) contained an inadequate period of notice (3 days – 2 full working days) and was therefore unreasonable for that reason.
This approach depends, in great part, on taking the view that the third invitation notice should be viewed in isolation of the circumstances surrounding the sending of the notice and the context of what relevantly occurred. In essence, the applicant’s argument is, solely, that the Tribunal sent a letter notifying her of a hearing date. It gave three days notice. That is, that period cannot be reasonable in any circumstances.
I can see there is some attraction to the applicant’s argument that three days is not reasonable notice in circumstances where, as the applicant submitted, it was open to the Tribunal to have declined to exercise its discretion to give the applicant another opportunity to resume the hearing. It may be allowed as an argument that, in electing to give the applicant another opportunity and in sending the third invitation notice, the Tribunal chose not to contest the applicant’s explanation for her failure to attend on the earlier occasion.
In this regard I understood the applicant’s position to be that, at that point, the Tribunal “drew a line” with the past, and the focus as to the reasonableness of the notice fell on the actual period given in the letter (that is, from some time on Monday, 29 October 2012 to 8.30am on Thursday, 1 November 2012) and not to the circumstances arising up to that point.
However, there is a distinction to be drawn between the actual period of notice given in the third invitation notice and the circumstances that inform whether the period of notice was reasonable. It is with that latter additional element that the applicant’s argument, on balance, is not to be preferred to that of the Minister.
In my view, the three days notice given in the third letter was reasonable in circumstances where the applicant was put on notice (at the hearing) that she would be contacted by letter to be notified of the date for the resumption of the hearing and was insistent in giving a particular address to which that notice was to be sent. Further on her submission before the Court, she was “not diligent” in collecting the relevant letter. A letter that, on the evidence otherwise before the Court, was awaiting her collection at that preferred location. In my view, that history assists in informing whether the actual period given in the third invitation notice was reasonable.
Further, in the same vein, once the applicant had communicated with the Tribunal’s officer on 24 October 2012, and sent her letter on the same day requesting a new hearing date, she would have been on notice by that time that the Tribunal, if it agreed to her request for a resumed hearing date, would again notify her by letter sent to her PO Box address.
Given the history surrounding the second invitation notice, the applicant would have been on notice of the need to check her PO Box regularly from at least 25 October 2012 (the day after her letter to the Tribunal). In these circumstances and contrary to the applicant’s position now, statutory or regulatory “deemed” periods relating to the receipt of correspondence, to be derived from s.441C(4) of the Act, are of lesser informative value as to what is reasonable notice.
Sixth, references were made in submissions to various authorities and the periods of notice that were found to be reasonable. By and large, each of the periods was in excess of three days (Ogawa at [36] – [43] per Flick J, SZDQO per Conti J, SZQCQ at [16] per Cowdroy J and SZBZO).
To the extent that the applicant relied on Ogawa, that judgment, being that of a superior court on appeal from a judgment of this Court, is obviously binding on, and directive to, this Court. However, in my respectful view, some distinction needs to be drawn between the circumstances in that case which gave rise to the list of considerations that the Court found might be taken into account when determining whether the notice period was reasonable, and the circumstances in this case. The “list” of considerations, from Ogawa at [37], is set out above at [38].
In Ogawa no hearing had taken place. The circumstances involved the rescheduling, or the postponement, of the hearing date (see Ogawa at
[7] – [10]). In the present case, of course, the hearing had not only commenced but a substantial hearing ensued (over three hours, with a short adjournment – CB 100).In the current case therefore, and for example, such considerations, as set out in Ogawa, as “the complexity of any factual or legal issues….” and “an opportunity previously extended…” must be considered in a different light. The applicant already had those opportunities. Further, the “need to obtain further materials…” was already addressed.
Before the Court there were no substantive submissions from the parties on an important set of circumstances relevant to the consideration of whether the period of three days notice was reasonable. These circumstances involve what was discussed at the hearing with the Tribunal, the point at which that hearing was adjourned and what issue, or issues, in the review were extant at that point, which after all, with s.425 of the Act in mind, would be the focus of the resumption of the hearing.
The applicant claimed to fear harm if she were to return to China because of her claimed Falun Gong practice from the Chinese authorities. In her initial statement accompanying her protection visa application the applicant set out a number of factual assertions in support of her claimed fear (CB 27 to CB 28).
It was clear from the delegate’s decision that the credibility of the applicant’s claims, including assertions made by her as to factual events in China, were at issue (see, in particular, CB 66).
It is also clear from the Tribunal’s decision record that the issue dispositive of the review was the Tribunal’s rejection of the applicant’s claims to fear harm and the factual assertions underpinning that claimed fear. The Tribunal found that the applicant was not a credible witness. It gave reasons for this probative of what was before it.
The applicant has not put a transcript of the hearing before the Court. Therefore the only evidence before the Court of what occurred at the hearing is the Tribunal’s own account ([36] at CB 147 to [75] at CB 155). This account reveals a number of relevant elements. First, the applicant’s factual account of claimed events in China was discussed. Second, the Tribunal explored the character and nature of the applicant’s Falun Gong practice. Third, and importantly, the Tribunal plainly indicated to the applicant the various concerns that it had with her evidence. This included some inconsistency with country information (see, for example, [52] at CB 150), but included the unsatisfactory nature of her own evidence.
When the Tribunal began to ask her about inconsistencies in her evidence ([43] at CB 148), the applicant said ([43] – [45] at CB 149):
“[43]… her mind was a bit messy. The applicant said she recently had an endocrinological disorder.
[44] I asked how this condition might impact her memory. The applicant said she was anxious. I said I understood it could be a nerve-racking experience coming to the Tribunal. The applicant said she was anxious because she came to the Tribunal but because of the endocrinological disorder her memory became poor and her knee joint was swelling. I asked whether the applicant could provide the Tribunal with evidence about how this disorder might impact upon her memory. The applicant said this is the result of her medical consultation. I asked the applicant what was the result of her medical consultation. The applicant said endocrinological disorder in thyroid.
[45] I provided 14 days to the applicant to provide evidence (for example a letter from her doctor) about the impact of this condition on her memory. I asked whether the applicant was in a position to provide this evidence. The applicant indicated that she was. When asked whether she felt able to continue the hearing, the applicant said yes. I reminded the applicant to let me know if she required a break.”
The Tribunal continued to put its concerns to the applicant (see, for example, [54] at CB 151 to [58] at CB 152). The applicant’s reaction can be seen ([59] – [61] at CB 152):
“[59] I put to the applicant that she had indicated that she didn’t know the name of any of the five Falun Gong exercise. I put to the applicant that the reason she could not demonstrate Falun Gong exercises was because she was not a genuine Falun Gong practitioner. The applicant said she was willing to demonstrate an exercise but she was dizzy; she had done her best to sit and she was dizzy. When asked whether she required a short break, the applicant said since she sat here she felt dizzy.
[60] The hearing was adjourned for a short break.
[61] When the hearing was resumed, I asked the applicant how she was feeling. The applicant said a bit better…”
The Tribunal returned to this matter at [63] (at CB 152):
“I asked the applicant when she started having problems with her memory. The applicant said after she came to Australia she was anxious and home sick. I asked if either of the doctors said anything to her about what was causing her memory loss. The applicant said anxiety. The applicant said she had a lot of mental pressure and she was anxious. I asked the applicant whether she felt able to continue, the applicant said she hoped she could continue. I indicated if she needed a break she should let me know.”
It is clear that by the end of the hearing, and in light of the Tribunal’s subsequent “Findings and Reasons”, the only matter outstanding was the provision of medical documents, from a doctor, in relation to the applicant’s claimed medical conditions which she said caused her memory loss and explained the inconsistencies and other difficulties with her evidence (see [43] above and [74] at CB 154).
In its “Findings and Reasons”, the Tribunal stated ([82] at CB 155 to CB 156):
“I find that the applicant is not a credible witness and that she has not been truthful in relation to her experiences in China, the reason she left China, and her fears about returning to China. In making this finding on credit, I have had regard to significant inconsistencies within the applicant’s evidence, the vague and contradictory character of her evidence at the hearing, the fact she departed China on a valid passport without any apparent difficulties, her failure to provide any corroborating documentation that supported her claims to suffer from memory loss and sustained joint pain despite having indicated that she was able to do so, and her failure to avail herself of the opportunity to expand upon her claims at the hearings scheduled on 8 October 2012 and 1 November 2012. I am unsatisfied by the applicant’s explanations for the deficiencies and inconsistencies in her evidence and her claims are not otherwise credible by reason of corroborating evidence, internal logic, consistency over time, or persuasive or relevant detail.”
[Emphasis added.]
In context therefore, the Tribunal’s reference to “opportunity to expand on her claims…” could only have meant the opportunity to explain the deficiencies in the presentation of her evidence. That is, as derived from the applicant’s “suggestion” at the end of the hearing that “her medical issues…were causing her memory loss…” (see [74] at CB 154).
There was no indication from the applicant, either before the Tribunal or before the Court now, that there was any other matter about which she wanted to give evidence. Nor, on any plain reading of the material before the Court, including the Tribunal’s decision record, can I see that the adjourned hearing was intended to pursue any other matter. As set out above, the applicant did subsequently provide the medical documents. In terms of s.425 of the Act, therefore, there was no extant issue dispositive of the review such as to necessitate a further hearing opportunity. The reasonableness of the notice period is also informed by this. After all, the statutory objective of the invitation to a hearing before the Tribunal is (s.425(1) of the Act): “…to give evidence and present arguments relating to the issues arising in relation to the decision under review…”.
These circumstances also support the view that the period of notice given in the third invitation notice was a reasonable period. It is of note that the second invitation notice was sent by the Tribunal before the receipt of the medical documents. By the time of the third invitation notice, the documents were available to inform the Tribunal as to, amongst other things, what was a reasonable period of notice to give to the applicant.
In circumstances where the applicant had already participated in a lengthy hearing, raised one outstanding matter in explanation to the concerns put by the Tribunal, was given the opportunity to support that matter with documents which were subsequently given to the Tribunal, I am of the view that the period of notice given in the third invitation notice was reasonable.
Conclusion
The sole ground of the further amended application is not made out. It is appropriate that the application be dismissed. I will make an order accordingly.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 14 June 2013
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