SZEJB v Minister for Immigration & Anor [2005] FMCA 1430

I have before me an application filed in this Court on 21 June 2005 seeking, pursuant to rule 16.05 of the Federal Magistrates Court Rules 2001 ("the Rules"), that orders made on 3 June 2005, in relation to an earlier application filed by the same applicant, be set aside. The relevant history in this matter is:

1. On 8 September 2004 the applicant filed an application in this Court seeking review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 21 July 2004 and handed down on 12 August 2004 to affirm a decision made by a delegate of the respondent Minister on the 30 April 2004, to refuse a protection visa to the applicant.

2. The applicant is an infant who was born in Australia on

21 February 2004. His application for a protection visa was made on 31 March 2004 (Court Book ("CB") 1 to CB 22). The only claim as put forward by the applicant is:

The application appears to have been made on the applicant's behalf by his father who signed the "Applicant's declaration" on the application form (CB 21).

3. The Minister's delegate refused the application for a protection visa on 30 April 2004 (CB 26 to CB 30).

4. The applicant applied for review by the Tribunal on 27 May 2004 (CB 31 to CB 34). The applicant was assisted by a migration adviser who was also nominated as the authorised recipient for correspondence in relation to this matter, and who was also authorised to act on the applicant's behalf (CB 32).

5. The applicant's claims to the Tribunal are set out at CB 33:

"I am not satisfied with the Departmental delegate's decision. The Departmental delegate overlook relevant issues of my claims. The Departmental delegate did not give me the opportunity to provide oral evidence. I am a genuine refugee applicant. I have no way to return back to my country. I have real chance of persecution if I return back to India. I will provide more statement at the time of interview."

6. The "Applicant's declaration" was signed by the applicant's father (CB 34).

7. On 17 June 2004 the Tribunal wrote to the applicant by letter sent to his migration adviser with a copy sent to the applicant's home address, as provided in the application to the Tribunal. The Tribunal advised the applicant that it had considered the material before it in relation to the application, but was unable to make a decision in his favour on this information alone. It invited the applicant to come to a hearing of the Tribunal to give evidence and arguments in support of his claims. The Tribunal noted that the applicant could also ask the Tribunal to obtain oral evidence from another person or persons. The Tribunal provided a time, date and a place for the hearing and noted that if the applicant did not attend the hearing, and the Tribunal did not otherwise postpone the hearing, it could make a decision on the case without further notice. The Tribunal enclosed a "Response to Hearing Invitation" form for completion by the applicant.

8. The Tribunal's decision record is at CB 42 to CB 48. This decision record, which remains unchallenged before me in this regard shows, at CB 45 and at CB 37, that the Tribunal did not receive any response to its letter and that it contacted the applicant's adviser on two occasions to see whether there would be an attendance at the hearing. The adviser is reported as having stated that he would check and advise the Tribunal, however no advice was received. In any event neither the applicant nor his parents appeared before the Tribunal on the day of the hearing and the Tribunal then proceeded to make a decision pursuant to s.426A of the Migration Act 1958 ("the Act"). The Tribunal concluded (CB 47) that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.

9. On 8 September 2004 the applicant filed the application for review to this Court. The application was signed by the applicant's father. The grounds of the review are in format, content and style almost identical to many others seen in this Court. They are formulaic and are totally devoid of any particulars.

10. On 11 October 2004 the applicant's father appeared at the first Court date in this matter on behalf of the applicant and was appointed as litigation guardian for the applicant pursuant to rule 11.11 of the Rules. The Court also ordered that the applicant file and serve an amended application giving complete particulars of each ground of review relied upon by 22 November 2004.

11. The applicant was given access to the Court's Legal Advice Scheme, and a lawyer on the panel of that scheme provided advice on 10 November 2004.

12. On 17 November 2004 the applicant filed (but as set out below did not serve on the respondent) an amended application which stated as the ground for review, a failure to take into account a relevant consideration. Under the heading of particulars it claims:

i)

The Tribunal did not properly consider the chance of persecution on return to India based on membership of a political party, the Akali Dal, and involvement with politics in India (the amended application is signed by the applicant's father and is clearly a reference to his involvement).

ii)

The Tribunal decision was not based upon reasoning which was rational or logical.

iii)

The Tribunal did not observe Migration Act procedures.

13. At the request of the respondent's solicitors on 31 March 2005 this matter was listed for hearing of an application for summary dismissal on 3 June 2005.

14. The affidavit of Catherine Jane Gray, a solicitor in the employ of the respondent's solicitors, affirmed on 2 June 2005 with annexures, shows:

i)

By letter dated 6 April 2005 the respondent's solicitors wrote to the applicant and referred to the order requiring the applicant file and serve an amended application giving complete particulars, and asserting that as the applicant had not complied with that order, that the respondents would seek summary dismissal of the application pursuant to rule 13.03(2)(b) of the Rules. The letter advised the time, date and place for the hearing of that matter.

ii)

By letter dated 14 April 2005, the respondent's solicitors confirmed the date of that hearing and advised a change in the time from 10:15 a.m. to 10:00 a.m.

iii)

By letter dated 31 May 2005 the respondent's solicitors confirmed that they had received an amended application but that in their view it did not provide any particulars of any legitimate ground for judicial review. They accordingly notified the applicant that the summary dismissal application would proceed. The date, time and place were confirmed.

15. On 13 June 2005, neither the applicant, nor his litigation guardian, appeared to answer the application for summary dismissal.

16. On that day, being satisfied that the applicant (and his parents) had notice of the application for summary dismissal and the time, date and place for the hearing of the matter, I made orders dismissing the application pursuant to rule 13.03A(c) of the Rules for want of appearance. I also made an order that the respondent's solicitors write to the applicant notifying him of the orders made and bringing the applicant's attention to rule 16.05 of the Rules.

17. The application to set aside the orders made was dated 20 June 2005 and filed on 21 June 2005. Also filed on the same day is an affidavit which purports to be the affidavit of the applicant (the infant child) and states that it is sworn or affirmed (this is not specified) by the applicant on 13 June 2005 but is signed, as the deponent, by the applicant's father. This application was not served on the respondent.

18. I also have before me, filed on 9 September 2005, a document headed 'Applicant's Argument for Competency'.

The applicant's father appeared before me on behalf of the applicant and I appointed him litigation guardian pursuant to rule 11.11 of the Rules for the purposes of this application (made on 21 June 2005). The respondents were represented by Ms. C. Gray. The Tribunal was joined as the second respondent in these proceedings. In relation to the issue of the applicant's failure to appear at the hearing for summary dismissal on 3 June 2005, I have before me the affidavit of Catherine Jane Gray, affirmed on 2 June 2005 with annexures, which shows that the respondent's solicitors wrote to the applicant at the address for service provided by the applicant both in the application to the Court and in the amended application and that the time, date and place were clearly set out for the hearing of the summary dismissal application. I have the document which purports to be the affidavit of the applicant, but clearly, given the applicant's age (1 1/2 years) and the signature which was confirmed by the applicant's father before me as being his, there are a clearly some evidentiary problems with the document itself. Putting these to one side, and accepting that the document represents the statement by the applicant's father offering an explanation as to why neither he nor the applicant did not attend on 3 June 2005. I note the document purports to have been sworn or affirmed on 3 June 2005, the same day as the hearing for summary dismissal, but importantly the contents of the document in one regard appear to challenge the Court's records. Taking this material as a statement by the applicant's father it says:

"1. I am the applicant in the above matter. In the fix direction hearing day I was absent. Because lack of my knowledge.

2. After filing my judicial review application I am waiting to receive letter from the registry regarding the hearing day. I am unrepresented. I did not attend the direction hearing intentionally."

The Court's record shows that the applicant's father did attend at the first Court date in this matter on 11 October 2004 and signed short minutes of order, which subsequently, by consent, became orders of the Court. Relevantly, the substantive application was, by order 10, listed for final hearing at 10:15am, 9 August 2005. If this is a statement by the applicant's father that he did not attend the hearing for summary dismissal because he was waiting for a final hearing date from the Court, then even if he had been waiting for a final hearing date, this does not satisfactorily explain the failure to attend at the hearing of the summary dismissal application. In any event, he was unable at the hearing before me now to explain what he meant by this statement.

I am satisfied that the applicant's father did attend at the first Court date relating to the substantive application for judicial review and had notice of the final hearing date and subsequently of the date for the summary dismissal hearing. Further, neither this statement, nor anything that the applicant's father was able to say to me today challenged the evidence put forward by the respondent's solicitors. The respondent's solicitors wrote to the applicant at the address for service on three occasions notifying of the date of the application for summary dismissal. In all the circumstances I am satisfied that the applicant and his father (given that the applicant's father before me today confirmed that his son lived with him at the address for service) had proper and adequate notice of the time, date and place of the respondent's application for summary dismissal. At the hearing before me today the applicant's father indicated that he did not receive the letters sent by the respondent on 14 April 2005 and 6 April 2005 as: "somebody stole my mail". The applicant's father indicated that he received the letter of 31 May 2005, notifying the applicant that the respondents were intending to make an application for summary dismissal, specifying the time, date and place. He indicated to me at the hearing today that he did not attend the hearing on 3 June 2005 as: "My son was sick at that time". I note that there is no evidence of this before the Court, and that in any event, when I asked the applicant's father why he did not call the respondent's solicitors or the Court to alert them of this, he replied: "I have some pressure on my mind, and that's why I didn't think about it". As I have stated, I am satisfied that the applicant (through his father and litigation guardian) was properly notified, and that further, the applicant's father was unable to provide any satisfactory explanation for his failure, as the litigation guardian of the applicant in this matter, to attend the hearing of 3 June 2005.

Further, on all the material before me, I cannot see that the applicant has an arguable case that would justify setting aside the order for dismissal. The applicant's father was unable to add anything further at the hearing before me today in relation to the applicant's claims. The applicant's claims in his protection visa application were simply stated as being the same as his parents' claims. Nothing more was provided. The applicant's statements in his application for review to the Tribunal, if taken as statements by the applicant, could be seen as nonsense. It is difficult to see how a child of three months, as he was then, could claim to not be satisfied with the delegate's decision or that the delegate did not provide him with the opportunity to give oral evidence. Further, the references to returning "back to India" are clearly incorrect if they relate to the applicant, as he has never been in India, and was in fact born in Australia. I also note the applicant's claim that he would provide "more statement" at the time of interview, presumably meaning a hearing before the Tribunal, is similarly difficult to accept. In the circumstances it could be seen that this was an attempt by the applicant's father, who already, having failed before the Tribunal in his own application for review, sought to have his claims reconsidered by the Tribunal by way of the device of using his infant son for this purpose. I note relevantly that this application was made with the assistance of a migration agent.

Nonetheless, taken at the most beneficial level for the applicant, the matter can be viewed as the applicant claiming to the respondent's Department to be a refugee for the reasons advanced by his parents in their own application and that the applicant sought review by the Tribunal by republishing these claims as he stated that he was not satisfied with the Minister's delegate's decision because the delegate overlooked the relevant issues of his claims, and put forward as the basis for the complaint that the applicant (and again with the most beneficial view for the applicant that his representative or his father) was not given an opportunity to provide oral evidence, presumably in support of those claims. The Tribunal clearly responded to that specific complaint when it wrote to the applicant, and his migration adviser, on 17 June 2004 and invited the applicant and clearly in the context of notifying the applicant that he could ask the Tribunal to obtain oral evidence from another person or persons, this would have meant that he had the opportunity to have his father or indeed his mother present the oral evidence on his behalf at a hearing before the Tribunal. The invitation to the hearing was sent to the applicant's authorised recipient for correspondence, his migration adviser, with a copy sent to his home address. The Tribunal received no response. Further, the Tribunal sought through the applicant's migration adviser to confirm whether there would be any attendance at the hearing. Again no advice was received. Neither the applicant nor his parents or for that matter the migration adviser appeared before the Tribunal on the day of the hearing. In all these circumstances it was clearly open to the Tribunal, having put the applicant on notice of the possible consequences, to proceed to make a decision pursuant to s.426A of the Migration Act.

I note that in similar circumstances where an applicant failed to appear before the Tribunal in the face of such a letter as in the case before me, putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant, a Full Federal Court has described rejection of the application as "an inevitable consequence" of the non-attendance: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]. Clearly the applicant was put on notice as to the Tribunal's preliminary view and given the opportunity to provide further material by way of evidence at a hearing before the Tribunal or oral submissions in support of their claims, they chose for whatever reason, as is their right, not to attend.

The Tribunal noted that the only claim to fear persecution put forward by the applicant was that he feared persecution for the same reasons as his parents. The Tribunal looked at those claims as put forward by the applicant's parents and as considered by the Tribunal, differently constituted ("the earlier Tribunal") (see Supplementary Court Book 73 to SCB 82). The Tribunal in the decision currently the subject of the application before me, noted that only the applicant's father had made Refugee Convention related claims, that they had been considered by the earlier Tribunal and that the earlier Tribunal had found that the applicant's father did not have a well founded fear of persecution for a Convention reason. The Tribunal also found that no further evidence was put before it specifically concerning the applicant's father's claims nor was any further evidence put before it more generally concerning the applicant's claims. The Tribunal clearly adopted the findings of the earlier Tribunal when it found that there was nothing in the evidence before it which could lead it to conclude that the Tribunal's decision in relation to the applicant's father was incorrect (CB 47). While carefully noting that the earlier Tribunal decision is not the subject of review before me now, but to the extent that it is relevant to considering the current applicant's claims before the Tribunal, it is clear that the earlier Tribunal, while making a number of findings that it did not accept some critical aspects of the applicant's father's claims, as a separate and distinct finding the earlier Tribunal found that if the applicant's father did not wish to return to his home area because of his local problems, he could reasonably relocate elsewhere in India (SCB 81.7 to SCB 82.1). The earlier Tribunal's consideration of this, and to the extent that these findings were adopted by the Tribunal in relation to the applicant now before the Court, met the test as set out in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 as to the reasonableness of relocation. To the extent that the Tribunal's decision currently before me now accepted the findings of the earlier Tribunal that it was not satisfied that the applicant's father had a well founded fear of persecution within the meaning of the Convention, this was clearly open on the material before the Tribunal. In all the circumstances it was clearly open to the Tribunal to find that it could not reach the requisite level of satisfaction that there was a real chance that the applicant would face persecution for a Convention reason in India on the basis of the claims made by his parents, and in the absence of any other claims before it, of any other reason for the applicant's fear of persecution in India.

The applicant's claims in his amended application, and his claims in the document filed with this Court headed 'Applicant's Argument for Competency' again, if taken as statements made by the applicant, and even in some instances, even if taken as statements made on the applicant's behalf, on their face have elements of the same nonsensical presentation as outlined above. Nonetheless if taken again as complaints arising out of the father's claims and as they relate to the applicant:

1. The complaint that the Tribunal did not properly consider the chance of persecution on the applicant going to India based on the applicant's father's membership of a political party and his involvement in politics in India, clearly fails on the basis of the finding that the Tribunal before me made, in adopting the finding of the earlier Tribunal, which was that whatever the local circumstances it was reasonable for the applicant's father to relocate elsewhere in India. There was nothing to show that the applicant could not go with him.

2. The claim that the Tribunal's satisfaction that the applicant was not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief, in so far as it relates to the decision made by the Tribunal now before me, on the material before it, (that is, the only material referred to by the applicant - being his father's claims to being a refugee), the Tribunal was entitled to make the findings that it did and as nothing further, despite invitation, had been put before the Tribunal then I can see no irrational or illogical approach to the Tribunal's decision. Further to the extent that this is a reference to the earlier Tribunal, again the finding on relocation was open to the earlier Tribunal on the material before it, and the earlier Tribunal approached this finding with the appropriate test in mind.

3. The complaint that the Tribunal did not observe the Migration Act properly is not particularised in any way. Nor was the applicant's father able to say at the hearing before me, in what way the Act was not observed. Relevantly, I note that the Tribunal put the applicant on notice that on what was before it, it was unable to make a favourable decision and invited the applicant (and his representative) to a hearing before the Tribunal. In context, this was an invitation that included the applicant's parents. Without any explanation neither the applicant, his parents nor for that matter their migration adviser attended the hearing, despite the Tribunal's attempts to ascertain whether anyone would attend. The Tribunal was clearly entitled to proceed pursuant to s.426A of the Act to make a decision. Further, to the extent that it may be said that there was some failure to provide information pursuant to s.424A(1) of the Act to the applicant, in the manner set out in s.424A(2), I note the Tribunal in its decision record (at CB 47.3) accepted that the applicant was the child of Indian nationals, and was also an Indian national himself. The Tribunal made reference to the protection visa application (made to the first respondent's Department) asserting that the applicant is a national of India. On its face this may give rise to some consideration of the issue as arises from the majority decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and as seen in the context of the Federal Court decision Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27. However, I note that the finding by the Tribunal that the applicant was a national of India has never been an issue for the applicant or his father to challenge. Further, this finding by the Tribunal was made in the context of determining against which country the applicant's claims to fear persecution would be considered. In this regard the application to the Tribunal at CB 33 clearly identifies India as the relevant country and at CB 32 identifies India as the country of nationality. I also take the view that the claims by the applicant in the application to the Tribunal that he was not satisfied with the delegate's decision because the delegate overlooked relevant issues of his claims, and as this applies to the applicant, can only make sense if the applicant is claiming to be a national of India, and as is stated in the application to the Tribunal, fears to go to India (this is the reference to "return home" as seen as applying to the applicant currently before me). This appears to be a situation where there was little doubt that the applicant (those acting on his behalf) intended the Tribunal should look at these claims, and I refer to: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25], SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 at [5] and SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 at [11]. This finding was clearly beneficial to the applicant because a finding that the applicant was not a national of India, in the absence of any other evidence of any other nationality, would have led inevitably to a finding that the applicant was stateless and with the provisions of Article 1A(2) of the Refugee's Convention in mind, a person not having a nationality would need to be outside the country of his former habitual residence to be able to be considered for refugee status. Clearly the applicant was born in Australia and there was nothing before the Tribunal to show that he was, at the time of the making of its decision, outside the country of his former habitual residence which clearly in all the circumstances had to have been Australia.

The applicant's document filed on 9 September 2005 headed "Applicant's Argument for Competency" again clearly has been written from the applicant's father's perspective, and not from the perspective as it would apply to the applicant's father acting on the applicant's behalf. While there is some reference to the "newborn son's" matter there is nothing directly focused on what the impact on the "newborn son" would be, other than an argument that says that the applicant father believes that he is a refugee and therefore his matter is similar to his son. The document appears to be a cut and paste version of a wide number of complaints and focused on the issue and as if the respondents had filed a Notice of Objection to Competency, which clearly they have not done. The document does not address the failure to attend Court on the date of the hearing of the summary dismissal, and to the extent that it refers to the Tribunal decision:

1. It complains that the Tribunal decision was overwhelmingly dependent on a "DFAT report" (Department of Foreign Affairs and Trade). This is put forward as the basis for making the claim that the Tribunal was biased, or that the decision was made in bad faith. This is clearly not a complaint about the Tribunal's decision currently before me as that decision did not turn on any independent country information provided by "DFAT" or otherwise. Clearly, the Tribunal decision currently before me, turned on the fact that the applicant had not put before the Tribunal sufficient evidence or information to cause the Tribunal to reach the requisite level of satisfaction that a protection visa should be granted. To the extent that it refers to the earlier Tribunal decision involving the applicant's father then clearly the critical aspect of that decision was the finding in relation to the reasonableness of relocation. Clearly, in looking at the decision record of the earlier Tribunal, it is not true to say that it overwhelmingly depended on the "DFAT" report, both in the context that this was not relevant to the finding on relocation, but more generally even in relation to the other findings made by the Tribunal (SCB 73 to SCB 82).

2. The applicant's father's complaints that the decision was biased in relation to the Tribunal decision currently before me, is totally unsupported by anything to show that the relevant tests can be remotely made out, nor for that matter, beyond the assertion relating to the "DFAT" report, does the applicant's father put forward any evidence to make out such claims, even in relation to the earlier Tribunal decision relating to him. I make this comment to the extent that the earlier Tribunal's decision was adopted in the Tribunal decision currently before me. For the applicant's benefit I should set out that allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of actual bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of "prejudgement" by the decision-maker in the sense that he/she is "so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented." (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present evidence of more than just the conclusion reached by the Tribunal to support this claim. Further, to the extent that the applicant may also seek to rely on alleged apprehension of bias this must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of "a fair-minded lay observer or a properly informed lay person" observing the Tribunal processes. (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, [27]-[32]). On what is before me I can see no basis for review of the Tribunal's decision on the basis of actual or apprehended bias.

On all of the material before me the applicant's father, acting on behalf of his son, has been unable to challenge the respondent's solicitor's evidence of the giving of notice of the nature and time and date of the summary dismissal proceedings before me on 3 June 2005. He was unable to satisfactorily or adequately explain why he did not appear on his son's behalf on that date, or having received notice why he took no steps to seek an adjournment. Further, on all the material before me, I cannot see any basis for any arguable case that would justify or require the setting aside of the orders made dismissing the application to this Court in relation to the Tribunal decision of 21 July 2004. The application to have the orders made on 3 June 2005 dismissing the application to this Court to be set aside is not made out and the current application is therefore dismissed.

I note here that the applicant's father made it clear to me today, that his primary concern was also the "merging of this application" (his son's) with his own application, which is currently on foot in this Court. His concern appeared to be that no action to remove his son from Australian be taken while his matter was still before the Court.

I explained to the applicant's father that his son's application had been dismissed, and in all the circumstances, it was clearly not a case where the orders should be set aside pursuant to rule 16.05 of the Rules. However, it would be remiss of me, with respect, not to recommend to the Minister and her advisers that no action should be taken with respect to the applicant infant in the case before me, until the applicant's father's case has been concluded. I ask that the Minister will not see my comments as presumptuous or in any way inappropriate, but I would regard this as a case where a commonsense approach would be to allow the application still on foot to run its course before any action is taken against the applicant child.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Nicholls FM