SZTAI v Minister for Immigration & Border Protection

Case •

[2014] FCCA 1405

•

23 June 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAI v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1405
Catchwords:
MIGRATION – PRACTICE & PROCEDURE – No appearance by the applicant – medical certificate unsatisfactory – applicant’s application for an adjournment of scheduled final hearing refused – application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)
NAKX & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559
Applicant: SZTAI
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1510 of 2013
Judgment of: Judge Emmett
Hearing date: 23 June 2014
Date of Last Submission: 23 June 2014
Delivered at: Sydney
Delivered on: 23 June 2014

REPRESENTATION

No appearance by or on behalf of the applicant.
Solicitors for the Respondent: Mr Andrus Markus
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1510 of 2013

SZTAI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

  1. By facsimile to the Registry of the Court dated 20 June 2014, the applicant requested what I understand to be an adjournment of today’s scheduled hearing on the basis of an attached medical certificate. The terms of that facsimile were as follows:

    “Dear sir/madam,

    My name is [redacted]. My hearing dated is on 23/6/2014. I am unfit to attend the hearing. I am also sending you my medical certificate. Can u give me an extension for some time.”

  2. The medical certificate is dated 6 June 2014 and appears to be signed by a general practitioner and is in the following terms:

    “ Medical Certificate

    Certified that [redacted] is/was suffering from Anxiety + Severe Depression for the past 18 months and is/was unfit for usual work 6.6.2014 to 6.7.2014 inclusive.”

  3. The application for adjournment is opposed by the first respondent. I accept the submissions of the solicitor for the first respondent that the medical certificate does not state the basis for any diagnosis, does not indicate how often the doctor saw the applicant, does not indicate whether the diagnosis was based only on the applicant’s history to the doctor, does not indicate whether the doctor, and knew that the medical certificate was intended to be used by the applicant to support an adjournment application to the court today.

  4. I note that the medical certificate is dated 6 June 2014, yet it was not sent to either the Court or the first respondent until 20 June 2014, being the last day before today’s scheduled hearing. The medical certificate asserts that the applicant is suffering from anxiety and severe depression for the past 18 months. However, it does not indicate why he is particularly unfit for work between 6 June 2014 and 6 July 2014. The applicant was able to commence this proceeding during that 18 month period on 3 July 2013 and attended a directions hearing before me on 4 September 2013. The applicant made no complaint at that directions hearing of being unwell.

  5. At the directions hearing, the applicant was given leave to file and serve an amended application and any further evidence in support by way of affidavit, and submissions in support of his application. The matter was set down for hearing today at 10.15am. The directions informed the applicant that if he failed to attend today’s hearing his application may be dismissed without further notice.

  6. At the directions hearing on 4 September 2014, the applicant elected to participate in the then operating Courts Legal Assistance Scheme. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language. Other than the facsimile received by the court last Friday, there has been no document filed prior on behalf of the applicant either in accordance with the Court’s directions or otherwise. Nor has there been any other communication received from the applicant by the court in relation to the proceeding.

  7. The terms of the medical certificate are entirely insufficient to explain why the applicant is unable to participate effectively in a hearing today. They do not address the critical question of whether, and if so, why the medical condition would prevent the applicant from travelling to court and participating effectively in the court hearing (see NAKX & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCA 1559 per Lindgren J).

  8. The applicant should have notified the Court and the first respondent as soon as possible if he was unable to attend today’s scheduled hearing. There has been no opportunity for the first respondent to indicate to the applicant that the deficiencies in his medical certificate and the reasons why they would oppose an adjournment, nor has there been any opportunity provided to the first respondent to ask questions of either the applicant or the general practitioner who signed the medical certificate or who issued the medical certificate.

  9. Further, I note that the first respondent’s Response, filed on 15 July 2013, contends that the application filed by the applicant on 3 July 2013 does not raise an arguable case.

  10. The grounds for judicial review relied upon by the applicant are as follows:

    “1. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not the applicant in India was at real risk of harm from his ex-wife family members, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.

    2. The applicants satisfy the key elements of Convention definition as detailed in page 2,3 and 4 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

    3. The Tribunal failed to investigate applicants claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 13 May 2013 was effected by actual bias constituting judicial error.”

  11. Whilst I make no final determination in relation to whether or not the decision of the tribunal is affected by jurisdictional error for the sake of completeness, I refer to written submissions filed by the first respondent on 13 June 2014 in respect of those grounds and I set those submissions out in full as follows:

    “10. The grounds of the application (verbatim) are:

    1. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not the applicant in India was at real risk of harm from his ex-wife family members, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.

    2. The applicants satisfy the key elements of Convention definition as detailed in page 2,3 and 4 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

    3. The Tribunal failed to investigate applicants claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 13 May 2013 was effected by actual bias constituting judicial error.

    11. When the matter came before the Court on 4 September 2013, the applicant was granted leave to file and serve an amended application and/or any affidavit evidence by 16 October 2013. The applicant was also directed to file and serve written submissions 14 days before the hearing. TO date, no amended application, affidavit evidence or written submissions have been served on the first respondent.

    SUBMISSIONS

    Ground 1

    12. Contrary to what is contended in ground 1, the Tribunal did clearly consider whether the applicant would face harm from his ex-wife’s family members and expressly found that he would not. The Tribunal reached this conclusion on the basis of an absence of evidence of any continued interest in him by her family since his divorce. This finding was plainly open to it. Insofar as ground 1 attempts to cavil with the factual findings of the Tribunal, it seeks impermissible merits review of the Tribunal’s decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; MIAC v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 at [20].

    13. Ground 1 should be rejected.

    Ground 2

    14. The complaint in ground 2 appears to be no more than a disagreement with the facts as found by the Tribunal. The Tribunal was not satisfied that the applicant met the relevant elements of the Refugee Convention, in particular if [sic] found that the applicant’s claim to fear harm was not well founded. Again, the Tribunal’s findings were open to it for the reasons which it gave.

    15. Ground 2 should be rejected.

    Ground 3

    16. There are 2 complaints in ground 3. The first is misconceived and the second is without substance.

    17. The first part of ground 3 complains that the Tribunal failed to investigate the applicant’s claims. It is well established that there is no general obligation on a tribunal to investigate an applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sunberg and Bennett JJ. Nor was there in the present case any failure by the Tribunal to make an obvious enquiry about a critical fact, the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Ground 3 does not identify any such enquiry, nor is any such enquiry apparent from the facts.

    18. The second part of ground 3 asserts the decision of the Tribunal was affected by actual bias. There is no evidence to support a claim of either actual or apprehended bias and ground 3 provides no particulars of the bias alleged. As to apprehended bias, there is nothing on the face of the material that would cause a fair-minded lay observer to reasonably apprehend that the Tribunal member did not bring an impartial mind to the proceedings: Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]-[32]. As to the assertion of actual bias arising from prejudgment, such a complaint must be ‘distinctly made and clearly proved’: Minister for Immigratoin and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 at [69] per Gleeson CJ and Gummow J, at [127] per Kirby J and this complaint is neither.

    19. Ground 3 should be rejected.”

  12. In the circumstances, to the extent that the applicant was seeking to adjourn today’s hearing by way of his email sent to the court last Friday, for the reasons above such application is refused.

  13. The matter has been called outside on at least two occasions. The matter was set down for hearing today at 10.15am. It is now 10.58am. I am satisfied on the material before me that the applicant is aware of today’s scheduled hearing and has chosen not to attend.

  14. In the circumstances, the first respondent’s application that the matter be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) is appropriate.

  15. Accordingly, the proceeding before this Court, commenced by way of application filed on 3 July 2013, should be dismissed with costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  3 July 2014

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