MZAHI v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(REVISED FROM TRANSCRIPT) 1 The appellant has appealed the decision of the Federal Circuit Court of Australia dismissing his application to review a decision of the Refugee Review Tribunal ("Tribunal") which refused to grant the appellant a Protection (Class XA) Visa. 2 The Tribunal determined that application in the absence of the appellant, exercising its powers under s 426A of the Migration Act 1958 (Cth) ("Migration Act"). Part of the reasons given by the Tribunal included the rejection of medical evidence provided by the appellant which the Tribunal considered was wholly inadequate to explain his inability to attend at the hearing. Having considered the claims and evidence before it, the Tribunal was not satisfied that the appellant met the criteria for the grant of a Protection (Class XA) Visa and refused the application. 3 The appellant made application to the Federal Circuit Court to review the decision of the Tribunal. The sole ground of appeal was that the Tribunal erred jurisdictionally by not allowing the appellant to appear and present arguments before the Tribunal on his application for a protection visa. The Federal Circuit Court held that there was no jurisdictional error in the Tribunal proceeding with the hearing notwithstanding the medical certificate provided by the appellant. 4 The Federal Circuit Court also dealt with other issues raised by the appellant in the hearing before it. The Tribunal's reasons for decision record that the appellant referred to his two trips to India which occurred after he claimed to have fled India for reasons of persecution. Although not specifically stated, it appears that the appellant was seeking to challenge the Tribunal's decision in which the Tribunal rejected the appellant's evidence in his statement in support of his application as to what happened to him after he returned to India in 2012 as constituting reason supporting the grant of a protection visa. The Federal Circuit Court held that the Tribunal was entitled to assess this matter as it did and that the merits of the application were a matter for the Tribunal. The Federal Circuit Court concluded that no jurisdictional error on the Tribunal's part was shown. 5 On appeal the appellant has raised three grounds. The first ground appears to be an ambit claim that is not in intelligible form. The second ground is that the appellant was not given a clear explanation about what was required for the medical certificate and I infer from his submissions today that he did not understand that the medical certificate that he obtained was inadequate. He submitted that had he been told what the certificate should look like, he would have obtained such a medical certificate. 6 The third ground of appeal seeks to challenge the Tribunal's conclusion concerning its findings in relation to the appellant's two trips to India. The appellant has claimed that the "judge/court" failed to note his reasons for returning to India as mentioned by him in his statement supporting his application for the protection visa. 7 No error has been demonstrated in the conclusion of the Federal Circuit Court that the Tribunal did not deny the appellant procedural fairness. The medical certificate which the appellant furnished to the Tribunal was in the following form: In my opinion, he/she will be unfit for his/her normal work from 27/5/14 to 28/5/14 inclusive. (medical condition) The medical certificate was plainly inadequate to justify any further adjournment of the Tribunal hearing. The medical certificate merely stated that the appellant was unfit for work and provided no meaningful detail about the nature of the appellant's illness, or any meaningful content which would enable the Tribunal to conclude that the appellant could not participate at the Tribunal hearing. Given the absence of any meaningful content in the medical certificate it was open to the Tribunal to reject that certificate as sufficient proof that the appellant was unable to participate in a Tribunal hearing on that day. As the Federal Circuit Court correctly stated at [18]: The authority of the Federal Court indicates that a medical certificate of the type provided by the [appellant] would not, in the Federal Court, be an adequate justification for an adjournment. 8 In NAKX v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1559 at [5], Lindgren J rejected, as unsatisfactory, medical certificates which stated as follows: 'This is to certify that on 13/12/2003 I examined the above person. In my opinion he/she is suffering from Dermatitis atopic and will be unable to attend court from 13/12/2003 to 01/01/2004 inclusive.' [and in respect of the female appellant:] 'This is to certify that on 13/12/2003 I examined the above named person. In my opinion he/she is suffering from Anxiety disorder/Depression and will be unable to attend court from 13/12/2003 to 13/01/2004 inclusive.' His Honour held that the certificates did not address the critical question of whether, and if so why, the medical condition would prevent the appellants from travelling to the Court and participating effectively in a court hearing. His Honour also stated at [8] that: If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect. 9 There is other Federal Court authority to similar effect: MZZGY v Minister for Immigration and Border Protection [2014] FCA 488; Singh v Minister for Immigration and Border Protection [2014] FCA 538. The obligation was on the appellant to provide a medical certificate that sufficiently explained why his medical condition prevented him from attending the Tribunal hearing. There is no merit in his claim that his certificate was wrongly rejected because he was not given a clear explanation as to what was required. 10 Nor is there any substance in the ground that there was jurisdictional error in the Tribunal not scheduling a further hearing. The Tribunal's reasons disclose its reasons for exercising its power under s 426A of the Migration Act and proceeding to make a decision on the review without taking any further action to allow or enable the appellant to appear before it. The reasons provided by the Tribunal set out the procedural history of the matter and the opportunities afforded to the appellant to attend and give evidence. The appellant was invited to attend an earlier hearing on 17 April 2014, and despite him being aware of the hearing and returning the Response to Hearing Invitation form indicating that he intended to appear, he did not do so. 11 On 22 April 2014, the appellant called the Tribunal and claimed he had misread the Tribunal's hearing invitation and had not been aware until that day that he had missed his Tribunal hearing. Despite being unconvinced by the appellant's excuse, the Tribunal acceded to his request to schedule another hearing for the sole purpose of providing him with opportunity to make his claims. The Tribunal invited him to a further hearing on 27 May 2014. On the morning of 27 May 2014, the appellant advised he would not be attending the hearing because he was unwell and said he would provide a medical certificate. 12 The appellant provided a medical certificate, which the Tribunal considered was wholly inadequate. The Tribunal accordingly concluded that in the circumstances where the appellant had failed to attend two scheduled Tribunal hearings, and proffered inadequate explanation or inadequate evidence for both instances, there was little reason to believe that he would attend if a further hearing was scheduled for him. The Tribunal's decision to proceed was not unreasonable given the procedural history of the matter and the inadequacy of the medical certificate produced. 13 There is also no substance in the ground that the Court or Tribunal failed to note his reasons for returning to India. I take that to be a ground that the Tribunal failed to take into account relevant evidence. As the Federal Circuit Court correctly stated, the Tribunal did consider the evidence concerning the two trips to India, but found that the appellant's claims were vague and lacked detail, and concluded on the evidence that the appellant's voluntary returns strongly suggested that the appellant never faced a prospect of harm if he were to return to India, or that he no longer faced such a prospect, noting that the appellant did not explain why he had elected to return to his home region from Australia voluntarily on the two occasions after claiming to have fled the prospect of harm. 14 The Federal Circuit Court did not err in concluding that no jurisdictional error by the Tribunal was shown. For those reasons the appeal must be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.