SZDQO v Minister for Immigration [2005] FMCA 326

The Tribunal has not received a response to this letter [I am referring to the letter of invitation to a hearing on 29 March].

However, the fact that you forwarded a medical certificate on

26 March 2004 suggests that you may have wished to attend the hearing, but was[sic] not well enough to do so. A new hearing has been scheduled for 8 April 2004.

The letter then went on to provide details of the hearing, being at

2 pm on Thursday, 8 April on Level 29 of the Pacific Power Building, 2001 Elizabeth Street Sydney. That letter was sent by express post.

The hearing did in fact take place on 8 April 2004. The Tribunal had not received any response to its earlier letter and the applicant did not attend the Tribunal on the day of the hearing. The Tribunal member stated that she was satisfied that the Tribunal had fulfilled its obligation to provide the applicant with an opportunity to provide oral evidence. The Tribunal then went on consider the details of the applicant's claims from the material that was before the Tribunal. There was a discussion of the dispute over the family land, land being occupied by some two hundred farmers. The Tribunal member expressed some difficulty in understanding why the applicant had to flee India because his life was in danger whilst his father, who apparently owned the land in dispute, appears to have been able to remain at home without facing problems. The Tribunal also made the point that from the evidence before the Tribunal, it appeared that the dispute related exclusively to the possession of land and had little or nothing to do with the political opinion of those involved.

The Tribunal went on to say at page 74 of the Court Book that if the applicant had attended the hearing it would have been possible to investigate his claims more thoroughly. However, on the evidence currently before the Tribunal the Tribunal did not accept that he was at risk of persecution for reasons of political opinion or for any other reason contained in the Convention. The Tribunal affirmed the decision not to grant a protection visa.

The applicant in his application sets out a number of grounds for review. They are as follows:

1)

The Tribunal made his decision in bad faith.

2)

The Tribunal deprived me of the natural justice.

3)

The Tribunal denied the evidentiary proof of my claim.

4)

The Tribunal's decision did not reflect the material facts of my claim.

5)

The Tribunal has given a decision which was preset in the back of its mind.

6)

The Tribunal mixed up many facts with this decision which affected the decision.

7)

The Tribunal concentrated in particular fact while ignored many other facts in this condition.

8)

The Tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine Convention based refugee claim.

9)

I will provide more details and grounds later.

The applicant, in fact, has prepared a document called "Applicant's Written Argument" and that document has been filed. It was dated on 17 December 2004.

The respondent has prepared and filed an outline of submissions and the respondent has also tendered two affidavits. The first of which, which was sworn by Jonathon Christian Willoughby-Thomas on

4 March 2005, was admitted into evidence and marked as exhibit 1. Mr Willoughby-Thomas is a district registrar of the Refugee Review Tribunal, and he was able to give evidence about the case management system that applies at the Refugee Review Tribunal and the applicant's Refugee Review Tribunal file. In his affidavit, Mr Willoughby-Thomas confirmed that a letter had been sent on

9 January 2004 to the applicant inviting him to attend a hearing at the Tribunal at 9.30 am on 29 March 2004.

He went on to confirm that on 26 March 2004 the Tribunal received by facsimile transmission a medical certificate, which is the medical certificate to which I have referred, saying that the applicant was ill and would require five days leave from work commencing on

27 March. He further says that on receipt of the medical certificate, the RRT decided to postpone the applicant's hearing until 8 April 2004. On 30 March 2004 a letter containing the new hearing details was sent to the applicant at his home address. And he goes on to say that that was sent by express post. And the RRT's case management system contains a record of a letter having been sent on that day. And I note that in the copy of the letter there has been attached and has been photocopied, the tear-off sticker from the express post envelope.

Exhibit 2 was an affidavit from Zac Chami, sworn 16 December 2004. He was a solicitor employed by the solicitors for the respondent. He annexes documents downloaded from the internet, from the Australia Post website, concerning dispatch of mail by express post. No objection has been taken to this material, and I am also satisfied that express post is a well established feature in commercial life in Australia today.

Mr Potts of counsel who appeared for the respondent drew the Court's attention to the rescheduled hearing. In the applicant's written argument at page 2 and the second paragraph, the applicant says:

The Tribunal did not consider medical certificate. I refer Court Book page 59 and fixed the hearing within one week so Tribunal made her decision in bad faith.

Well, the evidence certainly indicates that the Tribunal did consider the medical certificate. The hearing was rescheduled from 29 March to 8 April, which is not within one week, it is in any year, a period of approximately ten days. The medical certificate covered the applicant for five days from 26 March. It is difficult to see how that could be bad faith.

In any vent, Mr Potts has drawn the Court's attention to the length of time required to reschedule a hearing. I understand that there is no authoritative decision except that there have been some observations made by Sackville J in NBBU v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCA 767. The observations by his Honour purely related to a consent order, I understand, remitting the matter to the Tribunal.

The question of a notice of an invitation to appear is covered by first of all, s.425A of the Migration Act. If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which it appears. Section 425 refers to the situation whereby the Tribunal invites the applicant to appear to give evidence and present arguments relating to the issues arising and relating to the decision under review. Section 425A sets out the information that must be included, including the period of notice, which must be at least the prescribed period or if no period is prescribed, a reasonable period. The prescribed period is set out in regulation 4.35D and unless a person is in immigration detention the period prescribed is within 14 days.

What happened here, however, is that the original invitation was sent well outside the period of 14 days, but the hearing was 'adjourned', to use the court term, or more correctly, rescheduled, as set out in s.426A to a period some eleven days away.

Section 426A of the Act says that if the applicant is invited to appear before the Tribunal and does not appear, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it. But subsection (2) says that this section does not prevent the Tribunal from rescheduling the applicant's appearance before it or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled. Section 427(1) (b) permits the Tribunal to adjourn the review from time to time.

To my mind, the words 'adjourn' and 'reschedule' can be seen to be similar, although in my view, a rescheduling is listing a hearing on another day when the hearing has not been commenced. And adjournment would be more popularly understood to refer to proceedings that had been commenced but for some reason could not be completed, so that they may in fact be part heard. I note that s.427(1) (a) says that the Tribunal can also take evidence on oath or affirmation at a hearing.

So to my mind, the Tribunal has the power to commence a hearing and then adjourn it, or, a power to reschedule a hearing, certainly in the situation where an applicant does not appear. Does this mean that the period of notice as prescribed in regulation 4.35D and referred to in s.425A applies? To my mind it does not. The notice of hearing to be sent out to the applicant, or the notice of invitation under s.425A, relates to the first and possibly the only hearing that is going to be held; the first date. If for some reason the proceedings are adjourned or rescheduled, I see nothing in the Act or the regulations that would preclude the Tribunal from putting the matter over to a date within

14 days. It may well be that an applicant arrives on one day and for some reason the hearing cannot be completed on that day and the Tribunal may adjourn the proceedings until the following day. It may well be that the applicant has only been delayed for a day or two and a vacancy could arise within two or three days. If there is sufficient time to give the applicant reasonable notice of that rescheduling, then the Refugee Review Tribunal clearly has that power.

I am satisfied that the period of notice referred to in s.425A (3) only applies to giving notice of the originally scheduled application. An adjournment or a rescheduling may take place at any reasonable time, provided of course that the applicant is given reasonable notice.

I hope that will make my view clear, because I am of the belief that that is exactly the clear meaning of the legislation.

Having dealt with that procedural point, I will look at the other matters that are contained in the applicant's written argument.

The applicant has said that someone prepared this document for him. I note for instance, that in the final paragraph on page 1 when he refers to the second hearing, the written argument says:

The applicant says that that is not so, that was never his argument. Someone else prepared the document and his explanation was that he was ill, as had been proven by the medical certificate, but that he remained ill, he had not recovered from his illness. He was under the belief, however, that an applicant only gets one adjournment and that someone had told him this, certainly not the Tribunal, and he was not aware that he could seek another adjournment. He did receive a letter inviting him to the handing down of the decision and was not aware that he could have made further written submissions to the Tribunal before the handing down of the decision. It is the handing down as opposed to the making of the decision that is the operative date, but the applicant, who was not legally represented, was not aware of that.

The applicant had been represented by a migration agent but the migration agent is no longer acting for him. The applicant says that the migration agent disappeared, the migration agent in fact sent a letter to the Department indicating that he no longer acted for the applicant, saying that the applicant had failed to make contact, or he had failed to make contact with the applicant after a reasonable and lawful effort, and he had not obtained instructions. So he said:

Accordingly, there exists no client related obligation on our part towards the applicant, with effect from 24 December 2003.

Mr Potts of counsel has drawn my attention to that and the date of notification by the agent. That does not, of course, provide any proof that that information was conveyed to the applicant on that date or indeed on any other date. What it means, however, is that quite clearly the migration agent was not acting for the applicant.

Looking at the particulars, there is a claim of the decision being made in bad faith. In the written argument there is a reference to actual bias. Well, the decision of von Doussa J in the Federal Court in the matter of SCAA v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 is one where his Honour said:

It is a rare and exceptional case where actual bias appears on the papers.

I see no example of actual bias at all. As I said, the Tribunal did consider the applicant's medical certificate, the Tribunal adjourned or rescheduled the proceedings to a date well past the time of the applicant's incapacitation according to the medical certificate, and the Tribunal conducted another hearing and gave the applicant, to my mind, reasonable notice bearing in mind that his address was a suburb of Sydney. So as far as bad faith is concerned, I am not satisfied that that has been made out.

As far as the deprivation of natural justice is concerned, I do not see how that has been made out. The applicant said that:

The Tribunal did not give an opportunity to provide my oral evidence to support my claims.

They gave him two hearings, they asked him to come, he was ill so they adjourned it, or they rescheduled it, and again, he did not attend. Nor did he send them any further written submissions. The opportunity was there for him to attend and give oral evidence and he did not take it or did not seek a further adjournment. I am not satisfied that there has been shown any deprival of natural justice.

Ground number three was that the Tribunal denied the evidentiary proof of the applicant's claim. Number four, the Tribunal's decision did not reflect the material facts of the applicant's claim. To my mind, that is nothing more than a review on the merits and it is trite law that in a judicial review the Court does not reconsider the merits of the application. So those grounds must fail.

Ground five refers to the Tribunal having given a decision which was:

That again, is an allegation of bias or prejudice and I am satisfied that that has not been proven. There is just no evidence.

The Tribunal mixed up many facts with this decision which affected the decision.

That again, is an application for merits review and it is impermissible for a Court conducting a judicial review to undertake a review on the merits.

The Tribunal concentrated in particular fact while ignored many other facts in this condition.

That again, is the same claim and similarly, it must be rejected.

The Tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine Convention based refugee claim.

There is no obligation on the Tribunal to go beyond the evidence presented by the applicant. There is no obligation on the Tribunal to make its own independent inquiry. The fact that the Tribunal did not believe the applicant's claim is a matter that is totally within the province of the Tribunal, provided that the Tribunal was acting reasonably and had considered the material that was presented. I note that in the decision of the Refugee Review Tribunal the Tribunal member says at the final paragraph on page 74 of the Court Book that, somewhat regretfully perhaps:

That if the applicant had attended the hearing, it would have been possible to investigate his claims more thoroughly.

The Tribunal went on to point out that the Tribunal did not accept the applicant's claim on the evidence currently before the Tribunal. But it may well have been possibly for the applicant to give oral evidence or provide more details, had he appeared. I have said many times in this court that applicants who do not attend a hearing by the Refugee Review Tribunal do not do themselves any favours. The Tribunal holds a hearing when it finds itself unable to make a favourable decision to the applicant on the papers before it. That is why it gives the applicant the opportunity to attend and present evidence. On many occasions the applicant attends, provides oral evidence, and is able to clarify matters or convince the Tribunal that the application should succeed. Applicants who do not attend a Tribunal hearing do themselves a disservice.

The applicant, in his written submissions, says that this case is very similar to the decision of the High Court in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal [2002] HCA 30. Mr Potts has submitted it is not. It can be distinguished on its facts, in that in that famous decision there was an agreed statement of facts.

The applicant refers me to the Hickman principles when dealing with a privative clause decision, particularly the fact that a privative clause will not prevent review if the decision maker acted in bad faith. Page 4 in the applicant's written submission at the second last paragraph or the last full paragraph, the Court's attention is referred to the claim that the decision maker acted in bad faith. There is a somewhat confusing sentence following, saying:

This is very easy to find the RRT decision dated 11 June 1998 in my refugee application.

I do not know where that came from, because the applicant had not arrived in Australia on 11 June 1998, he arrived in Australia on

13 October 2002. So whatever RRT decision that refers to it clearly cannot refer to one about the applicant because he was not here to have an RRT decision. And it is certainly not the RRT decision which is the subject of review today.

The written argument goes on to define acting in bad faith in this way:

This means that the decision maker got the facts wrong, took into account irrelevant matter, did not take certain matters into consideration.

That is just wrong. That is not the law that is not what bad faith means.

The definition goes on to say in the written argument:

And the decision maker did not make an honest attempt to come to the right decision. Also the decision maker intentionally made a wrong decision, in other words, acted in bad faith.

That part of the definition does apply. But as I said, there is just no evidence of bad faith. There is no evidence of a denial of natural justice, there is no evidence of actual bias, there is no evidence of imputed bias, there is no evidence of a prejudice against the applicant. All that remains is the fact that the applicant applied to the Tribunal, he was not able to attend on the original hearing day, he sent in a medical certificate saying that he would be unable to attend work for five days and the Tribunal rescheduled the hearing for eleven days outside the time. The applicant did not attend and the Tribunal member, as I said, regretfully expressed the opinion that if the applicant had attended it would have been possible to investigate his claims more thoroughly. That is certainly correct.

There is no reviewable error, the application is dismissed.

There is an application for costs. The applicant has said that he is not in a position to pay legal costs, if he was in a position to pay legal costs then he would have had a barrister appear for him today. The situation is that the proceedings were before the Court on

17 December. I adjourned the proceedings for hearing today to give the applicant the opportunity to obtain legal advice.

Mr Potts of counsel has submitted that as it turns out, the adjournment was to no purpose because the applicant, for whatever reason, did not obtain the legal advice which he sought. That may be so, but I am now satisfied that the applicant has had the opportunity to obtain that legal advice. The Court does not force people to have legal advice. The Court will, in the interests of fairness, give people the opportunity to obtain legal advice if they wish. And there is a scheme where barristers and solicitors provide that advice on a pro bono basis, at no cost to an applicant. And they receive some payment for it which is not nearly as great as obviously it would be in other circumstances.

I have heard the case today. It is a matter where in the normal course, costs follow the event, and costs will follow as a result of this decision. Having decided that it is appropriate for a costs order to be made, I now look at the quantum of the costs.

Mr Potts has pointed out to me that the proceedings had to be adjourned and the matter has gone over to another day and extra time has been allocated to it. And that is true. As I said, I disagree that it was an empty adjournment in that it did give the applicant the opportunity to obtain the legal advice which I considered was appropriate.

There were two affidavits prepared, one relating to express post, and one the affidavit of Mr Willoughby-Thomas, which were used in these proceedings. Clearly that would involve the respondent's legal advisers and extra expense.

This is a matter where I would take into account the fact that the Federal Magistrates Court usually sets costs in a fixed amount and in my view, it is appropriate to do so today.

Costs will be set on the basis of the schedule contained in the Federal Magistrates Court Rules. On a lump sum basis, if the matter had been dealt with on the original day in my view the costs would have been set in a lump sum which would not have exceeded $5000.00. The fact of the adjournment, the fact that the respondent came prepared to hear the case on the last occasion and has done extra work to meet the applicant's case, means that a higher figure should be awarded. Counsel for the respondent seeks the sum of $7000. In my view, that is perhaps a little bit optimistic, but I propose to order, and do order, that the applicant pay the Respondent's costs in the sum of $6,250.00.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM