SZLBE v Minister for Immigration and Citizenship

TRIBUNAL DECISION 4 On 5 April 2007 the Tribunal invited the appellant to attend a hearing to present evidence in support of her claims. The appellant failed to attend this hearing, but wrote to the Tribunal on 30 May 2007 stating that, due to illness, she had been unable to attend the hearing on 9 May 2007. She did not submit any medical evidence to substantiate her claim. The Tribunal did not accept that the appellant's letter, sent some three weeks after the scheduled hearing date and containing no medical evidence, established that the appellant was unable to appear before it on 9 May 2007. In these circumstances, and pursuant to s 426A of the Migration Act 1958 (Cth) ('the Act'), the Tribunal proceeded to make a decision on the review without taking any further action to enable the appellant to appear before it. 5 The Tribunal made the following comments in this regard: On 5 April 2007 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 May 2007. On 27 April 2007 the Tribunal received a completed Response to Hearing Invitation form from the applicant advising the Tribunal that she wanted to give oral evidence. However the applicant did not attend the hearing. On 29 May 2007 the applicant contacted the Tribunal to enquire about the status of her application. She was advised that the Tribunal was proceeding to make a decision on the review as she did not attend the hearing. She was also advised that she should provide, in writing and as soon as possible, any further information she wished the Tribunal to consider, including any explanation of why she did not attend the hearing. On 30 May 2007 the applicant wrote to the Tribunal stating that she had been unable to attend the hearing on 9 May 2007 because she was sick. The applicant did not submit any medical evidence to substantiate her claim with the letter. The Tribunal does not accept that the applicant's letter, sent some 3 weeks after the scheduled hearing date and containing no medical evidence, establishes that the applicant was not able to appear before the Tribunal on 9 May 2007. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 6 In dealing with the merits of the application, the Tribunal found that the appellant's claims were lacking in crucial details, such as the circumstances in which: · the family house was broken into; · the appellant and her mother were abducted and raped; · her father was killed; and · incidents were reported to the police and how the police dealt with the matters. 7 The Tribunal, therefore, did not accept that there was a real chance of the appellant being persecuted for a Convention reason in Thailand in the reasonably foreseeable future.

the federal magistrates court 8 Before the Federal Magistrate the appellant claimed that the Tribunal: · constructively failed to exercise jurisdiction in accordance with the Act by not considering the substance of the appellant's claims and/or merits of the case; · committed a jurisdictional error of law by not affording the appellant procedural fairness in accordance with s 425(1) of the Act; and · committed jurisdictional error by failing to take into account a relevant consideration. 9 The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellant, dismissed the application. His Honour found that the Tribunal's decision record revealed that the particular social or ethnic group to which the appellant claimed she belonged, and the related persecution alleged by the appellant, were both identified by the Tribunal. The Tribunal was under no obligation to make findings of fact: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]. Consequently, the fact that the Tribunal did not make findings on the matters asserted by the appellant to be important did not amount to jurisdictional error. Further, whether or not the Thai Yai are persecuted in the fashion asserted by the appellant was irrelevant unless the Tribunal had accepted the applicant's personal claims to fear persecution, and to fear that persecution by reason of her Thai Yai ethnicity. 10 His Honour accepted that the appellant had been too unwell to attend the Tribunal hearing. However, his Honour found that this did not amount to a breach of s 425 of the Act. In relation to whether the appellant had been afforded a 'real and meaningful' invitation to the Tribunal hearing, his Honour found that the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 did not help the appellant, stating that (at [26]): In Minister for Immigration & Multicultural & Indigenous Affairs v SCAR(2003) 128 FCR 553, the Full Court of the Federal Court held that s 425 required the Tribunal to extend an objectively meaningful invitation to the [appellant] to attend the Tribunal's hearing which could not be achieved if the respondent was not in a fit state to represent himself at the hearing. The court said that s 425 imposed an objective requirement on the Tribunal to provide a "real and meaningful" invitation whether or not the Tribunal was aware of the actual circumstances which would defeat that obligation. However, in SCAR, the s 425 invitation had been issued in the period prior to the commencement of s 422B and its codification of the natural justice hearing rule for proceedings before the Tribunal. In relation to s 422B, and its equivalent provisions in other parts of the Act, the Full Court of the Federal Court said in Minister for Immigration & Multicultural & Indigenous Affairs v Lat(2006) 151 FCR 214 at 225 [66], that such provisions have the effect that those sections found in div 4 of pt 7 of the Act provide a comprehensive procedural code containing detailed provisions for procedural fairness which exclude the common law natural justice hearing rule. The application of that reasoning to s 422B was expressly adopted by the same full court bench in SZCIJ v Minister for Immigration & Multicultural Affairs[2006] FCAFC 62. 11 His Honour also distinguished this case from that of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. In Bhardwaj, under the former wording of s 360 of the Act (the Migration Review Tribunal equivalent of s 425), the Tribunal was held to be in jurisdictional error for failing to consider a request for an adjournment because of the applicant's ill health and then proceeding to make its determination on the review application. 12 His Honour further found that while some issues were not raised in the s 425A notice, this did not vitiate that notice or demonstrate jurisdictional error on the part of the Tribunal. To the extent that the appellant submitted that some notification by the Tribunal was required in respect of issues which were not decided adversely to her by the delegate, the appellant misconceived the Tribunal's decision; the Tribunal made no findings on any matters other than the appellant's nationality. Thus, it could not be concluded that anything which the delegate had considered favourably for the appellant was decided differently by the Tribunal as, relevantly, no findings were made by the Tribunal. His Honour found that, in this case, the Tribunal exercised its discretion by not rescheduling the hearing and by proceeding to make its decision. When considering how to exercise its discretion under s 426A, the Tribunal considered the appellant's letter advising the Tribunal of her alleged indisposition, but found it unconvincing. In light of that conclusion, his Honour found that the Tribunal did not accept that the appellant had demonstrated an inability to attend the hearing, and exercised its discretion not to reschedule the hearing. 13 As I have indicated, there was a positive finding by the Federal Magistrate, after hearing evidence, that the appellant was too unwell to attend the Tribunal hearing. 14 Prior to making this finding his Honour set out the details of the appellant's account as follows at [22]-[23]: 22. The second matter arising in respect of this asserted ground of review turns on the applicant's claim to be too unwell to attend the Tribunal hearing listed for 9 May 2007. Her evidence to the Court was that she had food poisoning which manifested as severe diarrhoea and exhaustion. She said that she was staying at a friend's home but the friend had gone away with her boyfriend leaving the applicant alone and speaking no English. She said that she was unable to make contact with her friend or with another friend and was too ill to leave the flat. The applicant said that she was able to speak to the second friend the next day and asked her to make contact with the Tribunal to advise them that she had been ill and to ask for a postponement of the hearing. The applicant said that it was not easy to make contact with this friend who would not always ring her back promptly and that a couple of weeks after this conversation her friend told her that contact had been made with the Tribunal, although the applicant was not told what her friend had said to the Tribunal. 23. The applicant was cross-examined closely as to how her illness could be so bad as to prevent her from attending a hearing which she conceded was very important and might save her life. She insisted that she was severely incapacitated by the food poisoning and spent the day running between the bedroom and the bathroom and not being able to communicate with anybody because of her lack of English. It should also be noted that the applicant did not provide to the Tribunal or to the Court a medical certificate confirming her illness on the day. However, it should also be observed that her counsel had been unaware until the night before the hearing that her medical condition on the day of the Tribunal hearing was a matter of vital significance in these proceedings. The applicant had not explained this to him even though she had given evidence on the subject at a show cause hearing on 19 November 2007.

PRESENT APPEAL 15 In the amended notice of appeal filed on 18 August 2008, the appellant essentially contended that his Honour erred in law by: · not following the Full Court decision in SCAR (2003) 128 FCR 553 when construing the obligation of the Tribunal under s 425 of the Act to provide a 'real and meaningful' invitation, whether or not the Tribunal was aware of the circumstances that would defeat that obligation; · upholding the Tribunal's decision in circumstances where his Honour sought to distinguish the High Court decision in Bhardwaj 209 CLR 597 on the basis that the s 360 invitation (which is equivalent to a s 425 invitation) now provides different rights; and · upholding the second respondent's decision where the Tribunal committed jurisdictional error in circumstances where its exercise of discretion under s 426A of the Act miscarried by reason of its failure to: (i) give the appellant a real and meaningful invitation under s 425(1) of the Act; (ii) take into account a relevant consideration (that is, regarding the appellant's letter dated 30 May 2007); and (iii) explain why, without medical evidence, there was no 'good reason' for seeking an adjournment.

First Respondent's Notice of Contention 16 At the outset, I turn to consider the first respondents application for leave to rely upon a proposed notice of contention dated 31 July 2008 as follows: To the extent (if any) that the Federal Magistrates Court accepted that the Appellant was unfit to attend the hearing of the Refugee Review Tribunal on 9 May 2007 for the purposes of Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, such a finding was not open in the absence of medical evidence to that effect. 17 It is important to appreciate that the appellant's severe incapacitation and illness were, in the circumstances, adequately described by the appellant, whatever the cause or description of the medical condition involved. The Federal Magistrate obviously accepted the symptoms were such that the appellant could not attend the hearing. 18 Assuming there to be an evidentiary onus on the appellant to prove the reason for the non-attendance, I do not accept that this could only be proved before the Federal Magistrate by the provision of medical evidence to the Court. I do not read the comments of Gilmour J in SZLTI v Minister for Immigration and Citizenship [2008] FCA 1274 at [18] and SZMBU v Minister for Immigration and Citizenship [2008] FCA 1290 at [20] as standing for any contrary proposition. 19 In the circumstances of this case at least, where there was severe incapacitation as described by the appellant and accepted by the Federal Magistrate, there was no need for any medical opinion to be tendered as to the cause or description of that incapacitation. The appellant could give evidence as to her symptoms, and as to the causal connection between those symptoms and her inability to attend the scheduled hearing date. The fact that medical evidence was not adduced may impact on the acceptance of the appellant's version of events, but this was considered by the Federal Magistrate as demonstrated by the passages of his Honour's reasons referred to above. I do not accept that the circumstances of an applicant being unfit to attend a hearing will necessarily, in all cases (and in this case), entail a medical judgement or opinion. 20 In my view, the Federal Magistrate was entitled to reach the view that he did, and the finding was made after consideration of the cross-examination of the appellant and should not be disturbed: see generally, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118 at [26]. 21 I propose to refuse leave for the first respondent to rely upon the proposed notice of contention dated 31 July 2008.

consideration 22 I have come to the view that this case can be determined by a consideration of the facts, assuming in favour of the appellant the applicability and correctness of SCAR 128 FCR 553 and applicability of Bhardwaj 209 CLR 597. 23 I make the assumption as to the correctness of SCAR 128 FCR 553 even though SCAR has not met with universal approval: see, eg, Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365; SZJZY v Minister for Immigration and Citizenship [2008] FCA 280; SZGWN v Minister for Immigration and Citizenship [2008] FCA 238. 24 I assume that any requirement for an invitation be 'real and meaningful' is a necessary precondition to the exercise of the Tribunal's decision making power. The content of the s 425 invitation was explained by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572, 585 at [58] to not simply involve common law procedural fairness: The affording to an applicant of an opportunity to attend a hearing and the duty to consider what is put at the hearing are elements of the review mandated by Div 4 of Pt 7. If a hearing is not afforded where it should be provided, then the duty to conduct a review is not fulfilled and the decision in such a case is infected by jurisdictional error. This is not simply a matter of procedural fairness at common law. A necessary condition for the decision-making power, mandated by the statute, will not have been satisfied. (Emphasis added) 25 Recently, Gray J (with whom Gyles J agreed) in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 confirmed that, despite the codification of procedural fairness rules by virtue of s 422B of the Act, the process rights contained in Div 4 (which include s 425 of the Act) remain important to the exercise of the Tribunal's substantive powers. His Honour said at [5]: Section 425, like other provisions found in Div 4 of Pt VII, represents Parliament's expression, in terms appropriate for the task of reviewing decisions refusing to grant protection visas, of an aspect of the requirements of procedural fairness. If this proposition were ever doubted, it is now confirmed by the presence of s 422B, enacted subsequently to most of the other provisions in Div 4. Like the rules of procedural fairness in other contexts, the rights given to an applicant by Div 4 are rights relating to the process by which decisions are made, rather than to the substantive content of those decisions. To say this, however, is not to diminish the importance of those rights. It has long been recognised that a statutory power, the exercise of which may affect adversely a person's interests, is impliedly subject to a requirement that the decision-maker afford procedural fairness to that person. The fact that, in the context of the Tribunal's task of reviewing decisions to refuse protection visas, Parliament has chosen to make the exercise of the Tribunal's substantive powers depend expressly upon the process rights contained in Div 4, and to spell out for that purpose what constitutes procedural fairness, does not diminish the importance of those process rights. Thus, it is recognised that the requirement of an invitation to a hearing, found in s 425(1), will not be met if what is actually afforded to the applicant is not a hearing at which the applicant is able to give evidence and present arguments relating to the issues arising in relation to the decision under review. See, for instance, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [37]. 26 Turning then to the facts, the important sequence of events in this case are that: · the appellant was advised on 29 May 2007 (after the original scheduled hearing date that she failed to attend) that she should provide any further information she wished the Tribunal to consider, including any explanation of why she did not attend the original scheduled hearing; · by letter dated 30 May 2007 the appellant informed the Tribunal she was sick on the original scheduled hearing date (9 May 2007), and (as the parties accept) the appellant requested that the Tribunal reschedule the hearing; · no further information was provided by the appellant; and · thereafter, on 31 May 2007, the Tribunal proceeded to consider the application by the appellant without any further communication with the appellant. 27 Therefore, the operative decision of the Tribunal on 31 May 2008 occurred after the appellant was given the opportunity to explain her absence at the original hearing, to provide any further material in support of her application, and after the Tribunal exercised its discretion to proceed despite being aware that the appellant was sick on the original scheduled hearing date. This is clearly not a situation where, on the scheduled hearing day, the Tribunal proceeded to immediately decide the matter without knowing of an appellant's inability to attend, or without providing the appellant the opportunities as outlined above. 28 In my opinion, this is not a situation where the operative decision arose from the failure to give any 'real or meaningful' invitation. Rather, the situation arose after a consideration of the appellant's letter of 30 May 2007 requesting a rescheduling, and the failure of the appellant to provide any basis acceptable to the Tribunal not to proceed to hear and determine the matter pursuant to s 426A of the Act. 29 The circumstances for my consideration are not dissimilar to the circumstances that arose in NALQ [2004] FCAFC 121 and the principles discussed therein (at [35]-[36]). As in that case, the failure to reschedule and hear the matter after giving the appellant the opportunity to provide material to the Tribunal, arose from the appellant's failure to provide sufficient information to the Tribunal to explain her inability to attend on the original hearing date. As I have indicated, the appellant was advised on 29 May 2007 (after the original scheduled hearing she did not attend) that she should provide any further information she wished the Tribunal to consider, including any explanation of why she did not attend the original scheduled hearing date. 30 In these circumstances, the focus must be upon the material the Tribunal had before it in deciding on 31 May 2007 whether to proceed under s 426A or to reschedule: see, eg, NALQ [2004] FCAFC 121, [35]-[36] and SZBQG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1858, [13]-[15]. 31 I now turn to the contention that the exercise by the Tribunal of its discretion to proceed under s 426A miscarried. 32 In the exercise of the Tribunal's direction to proceed under s 426A, and not re-schedule the hearing, the Tribunal considered the appellant's letter dated 30 May 2007. The Tribunal was unpersuaded by that letter. As a result, the Tribunal did not accept that the appellant had sufficiently demonstrated her inability to attend the hearing and, consequently, the Tribunal exercised its discretion by refusing to reschedule the hearing. 33 The Federal Magistrate found at [32] that the Tribunal's discretion had not miscarried when it decided to proceed to its decision without permitting the appellant to appear before it. I agree with that conclusion. 34 The appellant's letter of 30 May 2007 was properly considered by the Tribunal. There was no obligation on the Tribunal to call for medical evidence, or to otherwise investigate the allegation of the appellant that she was sick on the original hearing day. The Tribunal was entitled to reject the explanation for non-attendance. 35 In my view, the Tribunal's decision to proceed under s 426A was not capricious, nor did it fail to take into account the material submitted to it: see NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592, 598 at [21]. I do not regard it as incumbent on the Tribunal in this case to inform the appellant of the reason for not rescheduling the hearing, or allowing the appellant the opportunity to present argument on whether the Tribunal should proceed under s 426A, prior to the Tribunal so deciding. 36 The Tribunal, having been apprised of the appellant's position on the original scheduled hearing day, considered a rescheduling, but ultimately decided to proceed with its decision. It did so in light of its rejection of the appellant's explanation of her inability to attend on the original scheduled hearing day and due to the fact that no further information was forthcoming. Nothing in the Tribunal's approach indicated that it failed to provide the appellant with an opportunity to be heard, once apprised of the situation. The appellant was given all the opportunity to be heard as is required by the Act, and the appellant received (if at all required) a real and meaningful invitation prior to the operative decision made by the Tribunal on 31 May 2007. 37 The above reasoning disposes of all the contentions of the appellant, assuming the Federal Magistrate fell into error in not following and applying SCAR 128 FCR 553, and in distinguishing Bhardwaj 209 CLR 597. 38 I propose to order that:

1. The appeal be dismissed.
2. The first respondent be refused leave to rely upon the proposed notice of contention dated 31 July 2008.
3. The appellant pay the costs of the first respondent except those costs incurred in connection with the proposed notice of contention dated 31 July 2008.
4. The first respondent pay the costs of the appellant incurred in connection with the proposed notice of contention dated 31 July 2008. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate: Dated: 27 November 2008 Counsel for the Appellant: Dr J Azzi

Solicitor for the Respondents: Australian Government Solicitor