SZJZY v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court of Australia, given on 4 September 2007, in which that court dismissed applications for orders in the nature of judicial review in its jurisdiction under s 476 of the Migration Act 1958 (Cth) ("the Act") in relation to a decision of the Refugee Review Tribunal ("the Tribunal"), given on 20 November 2006. In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellants Protection (Class XA) Visas under the Act. 2 The appellants arrived in Australia from India on 27 March 2006. Before the delegate and the Tribunal, the first appellant, who is the husband of the second appellant, claimed to have a well-founded fear of persecution at least by reason of his religion and possibly also, depending upon the view one takes of his contentions, by reason of his political opinion. His wife, the second appellant, made no separate claim to fear persecution in her own right. Her application for a protection visa was dependent on that of the first appellant, and her claims would stand or fall on the success of his. Although she is apparently aware of the hearing in court today, she has not attended and her husband has informed me that she is prepared to have her claims abide the outcome of his own appeal. In those circumstances, I shall focus upon the case of the first appellant and refer to him as "the appellant". 3 The appellant's Notice of Appeal in this court has two grounds. The first is as follows: His Honour failed to hold that the Refugee Review Tribunal made jurisdictional error when adopted harsh approach to well-founded fear. The RRT misapplied the express and implied meaning of term "Well-founded fear and Refugee from the UN Convention especially in relation to applicant's fear of persecution from the Muslim fundamentalists in Gujarat. It failed to assess the cumulative effects of separate incidents related with his claim for Protection Visa. This ground seems to have two elements. The first is that the Federal Magistrate ought to have held that the Tribunal erred in point of jurisdiction by adopting a harsh approach to the concept of a well-founded fear under the Convention, and by misapplication of the terms "well-founded fear" and "refugee". A ground, at least in those terms, was not contained in the appellant's initiating application in the Federal Magistrates Court. A reading of his Honour's reasons for judgment does not disclose that a ground in those terms was agitated before him. The appellant relied upon written submissions this morning, but nothing in them makes clear exactly what this element of the first ground is about. Having read the decision of the Tribunal, there is nothing at all obvious that may have been referred to in the appellant's ground of appeal. To the contrary, it seems to me that the Tribunal properly instructed itself as to the meaning of the terms with which it was concerned as contained in the Convention. The present proceedings are not at first instance. They are an appeal from the Federal Magistrates Court, and it is inappropriate for this court to have to attempt to identify some basis of error on the part of the Tribunal without the matter having been dealt with by the Federal Magistrate at first instance. I consider that there is no substance in what I have identified as the first element of the appellant's first ground of appeal. 4 The second element of the first ground of appeal is to the effect that the Tribunal failed to assess the cumulative effects of separate incidents related to the appellant's claim for a protection visa. Inferentially, I suppose it is also said that the Federal Magistrate erred in not holding that the Tribunal made that error. This was something that was agitated before his Honour, and he dealt with the point in his reasons for judgment. He said: The applicant claims that the Tribunal failed to assess the cumulative effects of incidents like his warehouse being burnt. The Tribunal accepted the evidence that the applicant's warehouse had been damaged as a result of fires … but stated that On the basis of the available information and in consideration of the evidence as a whole, the Tribunal does not accept that any harm that the applicant suffered as a result of the fire after the 27 February 2002 was essentially and significantly related to any Convention ground including but not limited to his religion and/or political activities... That finding of fact was properly open to the Tribunal. 5 Mr Foreman, who represented the respondent Minister this morning, drew my attention to a passage in the Tribunal's decision in which it said: The Tribunal has considered the applicant's claims independently and cumulatively. In consideration of the evidence as a whole, the Tribunal does not accept that the applicant has a political, ethnic/racial or a religious profile that means that he has suffered any persecution as contemplated by the Convention or that there is a real chance of this occurring to the applicant in the reasonably foreseeable future. The proposition, therefore, that the Tribunal failed to assess the cumulative effects of the separate incidents upon which the appellant had relied is also without substance. 6 The appellant's second ground of appeal is as follows: The applicant was denied natural justice and Procedural fairness when the applicant was forced to participate and continue the haring despite the fact that the applicant was having serious pain in stomach because of Gas problem and long hour journey from the place of living of the applicant (Tooleybue). The member always insisted to have medical certificate which was not possible in a short time before hearing. The applicant had no time to see the medical doctor to get a certificate before he went to the place of hearing in Sydney. The applicant had a legitimate expectation from the Tribunal that it will act impartially and naturally. This ground relates to an issue which arose at the outset of the hearing before the Tribunal on 10 November 2006. The Tribunal referred to that issue in its decision, as follows: The Tribunal noted that prior to entering the hearing room, the Tribunal was advised by the hearing officer that the applicant had told her that he was feeling unwell. The Tribunal asked the applicant about his illness and he stated that he has gas and that he has an appointment for x-rays. The Tribunal indicated to the applicant that without a medical certificate, the Tribunal cannot be satisfied that any illness that he suffers from could impact on his ability to give evidence in the course of this hearing. However, the Tribunal indicated to the applicant that if in the course of the hearing he becomes unwell, an adjournment would be considered. The matter was agitated before the Federal Magistrate, and his Honour dealt with it in the following terms: The applicant claims that he was ill at the hearing before the Tribunal and was denied natural justice when he was forced to continue the hearing. The Tribunal considered the applicant's claim he was unwell, but stated that, "without a medical certificate the Tribunal cannot be satisfied that any illness that he suffers from could impact on his ability to give evidence in the course of the hearing". The Tribunal indicated that, "if in the course of the hearing he [the applicant] becomes unwell, an adjournment would be considered". The Tribunal therefore considered its discretion to grant an adjournment and decided not to do so. The applicant was not denied natural justice. 7 There are two things which I would say about the way in which the Federal Magistrate disposed of this point. First, as his Honour recognised elsewhere in his reasons, this was a case which was covered by s 422B of the Act, by the terms of which, Division 4 of Part 7 of the Act must be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. Questions of whether a party is denied natural justice, therefore, present rather differently in the context of a review by the Tribunal under Division 4 from the way they would present at common law. It seems that s 425 of the Act, under which the Tribunal must invite an applicant to appear before it to give evidence and to present arguments relating to the issues arising in relation to the decision under review, has been construed as a requirement that such an invitation be real and meaningful. In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at 300 [37], the Full Court referred to s 425 in those terms and continued: Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health…. Their Honours referred to Applicant NAHF of 2002 v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 in which the court said (at [36]): To invite the wife to a hearing which she is unable to attend because of ill health would be an empty gesture, and a denial of procedural fairness. Refusal of an adjournment can amount to a denial of procedural fairness, although whether or not to grant an adjournment of proceedings is a matter which is ordinarily within the discretion of the person charged with the conduct of the proceedings. The second observation I would make about the Magistrate's disposition of this issue is that it may not always be satisfactory to deal with a point of this kind - that is to say an allegation that there has been a denial of natural justice - as no more than something which may be decided one way or the other in the discretion of the Tribunal before which the question arises. At common law, although the matter is always one of judgment, the better view is, I consider, that natural justice either has been afforded or has been denied in the circumstances of a particular case. If the correct position is that natural justice has been denied, I do not believe that it makes any difference that that denial occurred by way of a discretionary refusal by the Tribunal to grant an adjournment where one was, as a matter of procedural fairness, manifestly required. 8 Returning to the facts of the present case, it was not one in which the appellant was unable to attend because of ill health, or in which the Tribunal's invitation under s 425 was no more than an empty gesture for that reason. The Tribunal did invite the appellant to attend and he did attend. It took note of his protest that he was feeling unwell, but it appears to have taken the view, particularly in the absence of a medical certificate, that the proceeding could go ahead without any injustice to him. It noted that it informed him that if, in the course of the hearing, he became unwell it would consider an adjournment. It is not entirely clear to me what the Tribunal meant when it referred to the appellant "becoming" unwell as distinct from then "feeling" unwell. However that may be, this does seem to be a case in which the question of the appellant's ability to do justice to himself in the hearing before the Tribunal was fairly raised and compassionately considered. 9 A reading of the Tribunal's written decision discloses that many questions were asked by the Tribunal were answered by the appellant. Although there is no transcript of the hearing, from what appears in the written decision it seems that the appellant was able to do justice to his claim that he had a well-founded fear of persecution for a Convention reason. Nothing mentioned in the written decision suggests that the appellant was labouring under any difficulty at any stage. 10 Although, as I have said, the presence or absence of natural justice is generally an objective matter, I consider that the issue presents rather differently in a circumstance such as this where the Tribunal in question has had an application for an adjournment put to it on specific grounds and where it has been obliged to consider and determine that application by reference to the material before it. If the matter before the Federal Magistrate were an appeal from an inferior court, rather than an application for judicial review, a matter of this kind would fall within the principle to which the High Court referred in Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177, namely that a court of appeal would exercise great caution before interfering with the exercise of a discretion on a point of practice or procedure by an inferior court. 11 Where, as in the present case, the appellant's application before the Federal Magistrate was for the remedies referred to in s 75(v) of the Constitution, I do not think that it ought to be held to be any easier for him to disturb an apparently regular exercise of the discretion of the inferior Tribunal than it would have been in the case of an appeal properly so called. In this respect, I refer to the well-known judgment of Jordan CJ in Ex parte Hebburn 47SR (NSW) 416 at 420 and to the judgment of the High Court in Craig v State of South Australia (1995) 184 CLR 163 at 177. Although the matter was not addressed in quite the way that I have done here, I consider that the Federal Magistrate's disposition of this point concerning the Tribunal's refusal of an adjournment was in substance correct. 12 To his Honour's reasons and to what I have said above I will add only the following further observations. The appellant told the Tribunal that he had an appointment for X-rays. When I asked him about that this morning, he told me that his doctor had made that appointment for him about two weeks before the occasion of the hearing in the Tribunal. Had he been so disposed, he could very easily have secured a medical certificate from that doctor; assuming, always, that he or she was prepared to give one. It may be that it never occurred to the appellant that a medical certificate would be required, but that left the Tribunal in the position of having before it a party who claimed to be feeling unwell but providing no professional evidence or documentation to support that claim. The appellant did not support his case in the Magistrates Court with any affidavit or other evidence about his indisposition on the day of the hearing before the Tribunal, and there is still no evidence on the subject, even in this court. 13 The other matter to which I shall refer in this respect is that the constitutional writs of mandamus and prohibition do not exist simply to give parties the satisfaction of arguing about points of jurisdictional error in the abstract. They exist to control the exercise of the authority of officers of the Commonwealth, but with a view to achieving realistic outcomes and to delivering sensible justice in practical situations. With that in mind, I asked the appellant this morning whether he was able to indicate to me how he would have conducted himself differently, or what answers he would have given to the Tribunal that were different from those that he did give, if he had been feeling well. That is to say, the question essentially is: was the appellant able to identify how his indisposition had a practical, as distinct from a theoretical, impact upon the justice which he was able to achieve at the Tribunal? 14 The appellant said that there were two things that he would have said to the Tribunal and which he claims he did not say to the Tribunal. The first related to the burning down of his warehouse. According to the decision of the Tribunal, in his statement in support of his application for a protection visa, the appellant claimed that on the evening of 27 February 2002 riots broke out in the area where he lived and a curfew was in place. On 4 March 2002 the appellant discovered that his office had been looted, machinery had been damaged and set on fire. He and those who worked with him lodged a report with the police and they also received telephone threats. With respect to the matter of the fire, the Tribunal related the course of the hearing before it in the following terms: The Tribunal asked the applicant about what happened to his family on 4 March 2002. The applicant stated that his warehouse was burnt. The Tribunal indicated to the applicant that whilst it is plausible that his warehouse was burnt at that time, it is plausible that this was a random act of violence. The applicant stated that this occurred during the Hindu-Muslim conflict. The applicant said that a lot of other properties at that time were destroyed. He told the Tribunal that he had no insurance and did not receive any compensation. He said that this happened to a lot of other businesses at the time. He said subsequently he had nothing left and he could not start again as he had no money to do so. The Tribunal asked him if he reported the incident to the police. He stated that after the curfew calmed down on the 7th of March 2002, he reported the incident to the police but they did not take any action because the Muslims were intimidating police at the time. He said the police were not taking any action against the Muslims. 15 In response to my questions this morning, the appellant said that had he been feeling well he would have informed the Tribunal that the warehouse was burnt down because of problems which a friend of his had with a third party with whom the friend was in partnership. He would have told the Tribunal that it was this third party that procured the warehouse to be burnt down and that somehow it related to problems within that partnership. As Mr Foreman pointed out on behalf of the Minister, had the Tribunal been given that evidence, it would not have advanced the appellant's case for a protection visa. 16 The other thing the appellant informed me this morning that he would have told the Tribunal, was that there were some documents in India that might have supported his claim, and that he needed further time to get those documents. I was left with a strong sense of doubt as to how the appellant in fact conducted himself before the Tribunal in relevant respects, because he also told me that he did ask the Tribunal for more time to provide documents. But in his favour I shall assume that his indisposition on the day of the hearing before the Tribunal at least impaired to some extent his ability to make an application for an adjournment upon the ground that he needed to obtain documents. It seems that the appellant made a similar application before the Federal Magistrate. In his reasons for judgment, his Honour referred to the matter in these terms: The applicant then sought an adjournment to enable him to obtain documents to put before the Court. The applicant agreed that the documents were new material that was not put before the Tribunal. The Court declined to grant the adjournment as the material could not assist it to determine whether the Tribunal had erred. Also, the applicant had been on notice since 8 July 2006 … that he should "immediately send us any documents, information or other evidence you want the Tribunal to consider" and the Tribunal hearing did not occur until 10 November 2006. The applicant claimed that he did not have that letter interpreted to him, or the s.425 invitation of 21 September 2006 … which again invited him to send "documents or written arguments you want the Tribunal to consider". The fact that the applicant failed to have interpreted to him letters obviously from the Tribunal is the applicant's fault and not the fault of the Tribunal. There was no good ground for an adjournment and it was refused by the Court. 17 In his Notice of Appeal in this court, the appellant takes no point about the Federal Magistrate's disposition of that application for an adjournment. I consider the point not as a protest against the way in which the Federal Magistrate disposed of that application, but rather from the perspective of whether, had he been able to articulate such an application better before the Tribunal, the appellant would have been better able to support his case for a protection visa or, in other words, whether the appellant has suffered an injustice as a result of not being able to articulate his claim properly at that level. I have no evidence about the nature or the purpose of the documents to which the appellant referred. His need to obtain those documents is not, as I say, referred to in the Notice of Appeal in this court; nor is it referred to in the written submissions upon which he relied this morning. Notwithstanding what I take was a concern on his part to get those documents when the Tribunal proceeded in November 2006, and notwithstanding the fact that the appellant sought time to obtain the documents when he appeared before the Federal Magistrate in September 2007, and notwithstanding the passage of more than five months since the hearing before the Federal Magistrate, the appellant has still not obtained the documents and, indeed, made an application to me this morning for a further adjournment of what is described as some three to four months so that he might produce the documents. 18 The appellant has comprehensively failed to establish as a matter of evidence that there are any documents that might have assisted his case before the Tribunal, or that he was impaired to any extent by being unable, possibly by reason of his indisposition, to articulate a clearer case at the hearing before the Tribunal why those documents would be of some assistance to him. I take the view that the appellant was not the subject of any injustice on this account. 19 For those reasons I propose to dismiss the appeal. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.