The Tribunal then set out various questions that it would have asked the appellant had he attended the hearing. The Tribunal said that without answers to these questions it was unable to be satisfied that there was a real chance that the appellant would be persecuted for a Convention reason.
5 The appellant filed an application for review in the Federal Magistrates Court on 13 August 2004. Amongst other things, the appellant claimed that the Tribunal had breached the principles of natural justice by not informing him that it would have granted him an adjournment had he appointed an advisor and requested an adjournment. The appellant did not appear at the hearing before the Federal Magistrate.
6 Pursuant to Rule 13.03A of the Federal Magistrates Court Rules 2001 (Cth), the learned Federal Magistrate proceeded with the hearing on 27 July 2005 in the appellant's absence. In reasons for judgment delivered that day, his Honour found that, as the appellant had been given adequate notice of the hearing before the Tribunal, and had clearly requested that it proceed in his absence, there was no breach of natural justice. The appellant appealed against his Honour's judgment to this Court.
7 In written contentions, the appellant repeated the argument he presented in the Federal Magistrates Court.
8 This matter was listed in this Court for hearing at 10:15 am on 16 June 2006. At 3:00 pm on 15 June 2006, the appellant sent a facsimile to the Court stating that:
"I, [MZWPN], have been sick from the last few days. So, I will be enable to be fit to attend the hearing on 16 June 2006 at 10:15 am." [Sic]
Attached to this facsimile was a medical certificate from Brunswick Central Medical Centre that stated that the appellant had attended the centre on 14 June 2006 and that, because of a respiratory infection, he would be unfit for work from 14 June 2006 to 16 June 2006.
9 Although the appellant's facsimile did not request an adjournment of the hearing, I adjourned the hearing until 28 June 2006 to provide him with an opportunity to attend. However, I directed my associate to write to the appellant informing him that "[t]he Court will not grant any further adjournments of the hearing in this matter without sworn evidence from you (either in the form of a sworn affidavit or sworn oral testimony before the Court) as to why an adjournment should be granted." The appellant's wife telephoned my chambers on 19 June 2006 and confirmed that the appellant had received this letter.
10 At 3.30 pm on 27 June 2006 the appellant sent another facsimile to my chambers. The appellant wrote:
"I, [MZWPN], have been still sick from last few days. Unfortunately I won't be able to attend the hearing on 26th June 2006 at 9:00 am. I would except the outcome of the decision of the hearing in this matter without my presence infront of Chambers of Justice Kenny." [Sic]
No medical certificate or affidavit was enclosed with this letter. Nor has the appellant sought an adjournment of the hearing and no satisfactory basis for one is shown. As he foreshadowed, the appellant did not appear at the hearing this morning. In all the circumstances, pursuant to O 52 r 38A (1)(d) of the Federal Court Rules, it is appropriate to continue the hearing in his absence.
11 The first respondent submitted that there was no breach of s 426A or of natural justice. The first respondent noted that s 426A of the Migration Act 1958 (Cth) provides that, if the applicant is invited to appear before the Tribunal and does not appear, then the Tribunal "may make a decision without taking any further action to allow or enable the applicant to appear before it". The first respondent claimed that the Tribunal invited the appellant to appear before it and that the record showed that the appellant had received this invitation and was aware of the date of the hearing. Further, the appellant had informed the Tribunal that he would not appear and had "implored" the Tribunal to continue in his absence. The first respondent argued that there is no breach of natural justice where the Tribunal proceeds in such circumstances. The first respondent also referred to Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [66] and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [7]-[8].
12 I accept the first respondent's submissions. In S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 ("S58")a Full Court of this Court considered a similar claim. In S58, as in the present case, the Tribunal had informed the visa applicant that it could not make a favourable decision solely on the basis of material then before it. The visa applicant's representative had then informed the Tribunal that the applicant would not appear at the hearing and the Tribunal should proceed "on the papers". The Tribunal proceeded with the hearing in the applicant's absence. In its reasons, the Tribunal had noted that, had the applicant appeared, it would have questioned him in some detail regarding certain documents and their contents. The applicant claimed that the Tribunal had breached procedural fairness by not informing him of its concerns about these documents. The Full Court, constituted by Ryan, Merkel and Conti JJ, held that there was no breach of procedural fairness. The Court said (at [25]):