FEDERAL COURT OF AUSTRALIA

MZXLW v Minister for Immigration and Citizenship [2007] FCA 912

MZXLW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 299 OF 2007

MIDDLETON J

4 June 2007

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs, including reserved costs, of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of a federal magistrate delivered on 27 March 2007 dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) dated 31 July 2006.  The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.  The Tribunal had previously considered the matter and made a decision dated 24 January 2006; however this decision was set aside and declared invalid by consent orders made by the Federal Magistrates Court.  The Tribunal reconsidered the matter and it is the Tribunal’s latter decision (dated 31 July 2006) with which I am concerned today.

PROCEDURAL BACKGROUND AND THE APPELLANT’S CLAIMS

2                     The appellant is a citizen of Sri Lanka who arrived in Australia on 17 October 2004.  On 12 November 2004, the appellant lodged an application for a protection visa, claiming that he had suffered political persecution in Sri Lanka as a result of his support and involvement in the United National Party (‘UNP’). 

3                     In his application to the Tribunal, the appellant claimed that he was repeatedly threatened and harassed following the UNP’s defeat in the 1994 political elections.  The appellant also claimed he was the target of a number of assassination attempts and had received numerous threats, both personally and against his family.  Furthermore, the appellant asserted that the Sri Lankan police would not assist him despite his requests for help, and he was eventually forced to leave Sri Lanka out of fear for his personal safety.  Since his departure from Sri Lanka, the appellant claimed that his wife had received several phone calls saying that he will be killed should he return.

THE TRIBUNAL’S DECISION

4                     On the scheduled hearing day, the Tribunal proceeded to make a determination in the absence of the appellant pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’). 

5                     While the Tribunal appears to have accepted that the appellant was actively involved in the UNP, it was not satisfied that the appellant had ever been threatened or suffered harm in connection with his political involvement.  In reaching this conclusion, the Tribunal found that the appellant did not appear to have a sufficient political profile within the UNP to make him a target of violence and threats.  The Tribunal further noted that the appellant had “only adduced minimal evidence of harm” and was not satisfied that he was ever assaulted, hospitalised or the victim of any assassination attempts. 

THE FEDERAL MAGISTRATE’S DECISION

6                     In his application for judicial review to the Federal Magistrates Court, the appellant claimed that he had not received a fair hearing and alleged that the Tribunal had breached ss 425 and 425A of the Act by failing to provide him with adequate notice of the hearing.  Furthermore, the appellant claimed that the Tribunal had breached s 424A of the Act by failing to communicate all information that was to be used by the Tribunal in drawing an adverse finding and denying his application.  Lastly, the appellant submitted that the Tribunal had erred by failing to provide reasons for its decision not to accept that the appellant had an active role in the UNP and was persecuted because of his position.

7                     Upon consideration of the claims, the federal magistrate held that the Tribunal had discharged its obligation to send the appellant an invitation for attendance at the hearing, and despite the fact that the appellant’s absence appears to have been a result of miscommunication, it was open to the Tribunal to proceed in his absence pursuant to s 426A of the Act.  In dismissing the appellant’s claim, her Honour stated, at [45] of her reasons for judgment:

The applicant in this case clearly was sent an invitation to attend a hearing on a particular date and at a particular time.  Perhaps due to an unfortunate misunderstanding, he did not do so.  In such circumstances, the authorities indicate that it was open to the Tribunal to proceed to determine the matter in the applicant’s absence.  It is not relevant that this court might have dealt with the matter differently.  The Tribunal acted in accordance with its statutory powers.  It did not make a jurisdictional error in proceeding to determine the applicant’s case in his absence.  This ground is not made out.

8                     In relation to the alleged breach of s 424A, the federal magistrate concluded that the appellant had been provided with a sufficient opportunity to comment on the evidence relied upon by the Tribunal, and in any event, the information in question was actually provided to the appellant and would therefore be excluded from a s 424A notice pursuant to s 424A(3).

9                     Finally, in dismissing the application entirely, her Honour held that the Tribunal had adequately explored each of the claims made by the appellant and had given proper regard to all integers of his claim.

GROUNDS OF APPEAL

10                  By notice of appeal filed in this Court, before me the appellant now only claims error in the Tribunal’s decision of proceeding in his absence, as set out in his written submissions.  The appellant alleges two grounds of appeal raising this claim in the following terms:

a)                 The learned Magistrate has essentially erred and made a mistake when she said that the Tribunal acted in accordance with its statutory powers.  It is strange that the Court did not even consider the fact that the Tribunal’s own records indicate that the interpreter came in at 10.50 am for a 10.30 am hearing.  Also why did the hearing officer come down at about 10.15 am when the interpreter had not come.  It is not in dispute that I came to the Tribunal for the hearing and was ready to face the Tribunal at the scheduled time and therefore it was a mistake for the Tribunal to proceed under section 426A of the Migration Act.

b)                 The notice that the Tribunal gave to me under section 424A, the Court said should not have been given to me.  This is not correct and secondly by the matter not proceeding to a hearing this could not have been discussed more fully and completely, so to the connection between my persecution and political opinion.  I say that this matter be sent back to the Tribunal to examine more closely the events of the day of hearing and why the interpreter was late.  There is no mention of anyone taking a telephone message from the interpreter to say he was late.  The affidavits of the Tribunal’s officers do not mention at all the facts and the Court made a mistake in accepting their evidence.  I do not think this is correct.

I note that no submission was made by the appellant as to the issue agitated before the federal magistrate in respect of the s 424A notice, which was taken to be abandoned.

CONSIDERATION

11                  No error necessarily occurred in the Tribunal proceeding to make a decision in the absence of the appellant and without taking any further action to allow or enable the appellant to appear before it.  The Tribunal may proceed to determine an application for review before it in the absence of an applicant at a Tribunal hearing if the applicant is invited and does not appear at the time and place at which he or she is scheduled to appear: s 426A(1); see also Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73; VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407. 

12                  The important issue is whether the Tribunal properly exercised its discretion to proceed in accordance with s 426A in the absence of the appellant.  In this case the real issue for determination is one of fact, namely, whether the appellant did in fact appear before the Tribunal at the scheduled time of 10.30 am on 28 July 2006.  On the evidence before the federal magistrate, it appears that the Tribunal staff unsuccessfully took steps to locate the appellant when he had left the premises of the Tribunal after arriving on the scheduled day but before the scheduled hearing time.  Further, the Tribunal had no material before it to explain the absence of the appellant at the scheduled time. 

13                  This is not a case where the Tribunal staff effectively rescheduled the hearing time by so informing the appellant.  As the federal magistrate found as a matter of fact at [35] of her judgment:

The applicant said under oath that no one had told him to leave the Tribunal premises, contrary to the unsworn claim in his contentions that he was “told by a staff member that the hearing would be rescheduled due to the non-availability of an interpreter.”  I prefer the evidence of the applicant given on oath and find accordingly.  The applicant left not because anyone told him that he should and not because anyone told him that the hearing would be rescheduled, but because he formed the misapprehension that the hearing would not proceed that day because the interpreter had not arrived before 10.15 am.

14                  The federal magistrate after hearing oral evidence from the appellant and two Tribunal officers found that the appellant had arrived for the Tribunal hearing at approximately 10.00 am for a 10.30 am hearing and that he had been told by a Tribunal officer to wait to be called.  Her Honour further found that the appellant had left the Tribunal premises before 10.15 am (at [34]).  Her Honour found that the appellant left because he formed the misapprehension that the hearing would not proceed that day because the interpreter had not arrived before 10.15 am (at [35]).  Her Honour found that the appellant did not tell anyone at the Tribunal that he was leaving or check whether it was appropriate to do so, even though his level of English would have enabled him to make that enquiry (at [37]).  After hearing from the appellant, in my view the federal magistrate was entitled to make a finding upon his level of English, which could inform the federal magistrate of her conclusions.  Her Honour then proceeded to make the essential factual finding, at [38]:

…I find that the applicant left the Tribunal premises before 10:15am on 28 July 2006, at least 15 minutes before the scheduled hearing time.  He did so contrary to the request that he take a seat and wait to be called.

15                  All these are factual findings based upon the credibility of witnesses, which I must appropriately respect: see generally Fox v Percy (2003) 214 CLR 118 and the cases therein referred to. 

16                  After making these factual findings, her Honour then concluded:

44.       In the present case, it cannot be said that the applicant did not attend the hearing through no fault of his own.  He gained a false impression, and left the Tribunal premises before the scheduled hearing time, without checking with the Tribunal staff and contrary to the request that he wait to be called.  The applicant’s level of English was sufficient to enable him to understand the request to wait and also to check with Tribunal staff before leaving.  However, even if the applicant had been entirely blameless, VSAF and VNAA show that the Tribunal is entitled to proceed in the absence of the applicant, provided that the appropriate invitation has been sent to the appropriate address.

And continued (as I have already indicated):

45.       The applicant in this case clearly was sent an invitation to attend a hearing on a particular date and at a particular time.  Perhaps due to an unfortunate misunderstanding, he did not do so.  In such circumstances, the authorities indicate that it was open to the Tribunal to proceed to determine the matter in the applicant’s absence.  It is not relevant that this court might have dealt with the matter differently.  The Tribunal acted in accordance with its statutory powers.  It did not make a jurisdictional error in proceeding to determine the applicant’s case in his absence.  This ground is not made out.

17                  The appellant submitted that had the interpreter been on time, the hearing would have proceeded “without a hitch”.  The appellant submitted that he did not contribute to the inability of the Tribunal to commence the hearing in view of the late appearance of the interpreter.  However, the federal magistrate found as a fact that the appellant left the Tribunal before 10.15 am.  The hearing was not scheduled until 10.30 am.  Accordingly, if the interpreter arrived at 10.30 am, the appellant would have already left and the hearing would have proceeded in the absence of the appellant. 

18                  The appellant questioned why the hearing officer came to collect him at the Tribunal reception area at 10.15 am for the hearing when the interpreter had apparently not already arrived.  The reason for this seems to be that it was part of the duties of the administrative officer of the Tribunal to go to the reception counter approximately 15 minutes before the scheduled hearing time, which was approximately 10.15 am, to accompany the appellant to the hearing room for the hearing.  This was done so that the appellant in this case would be ready for the scheduled hearing time when the Tribunal could begin.

19                  The appellant also submitted that he or his migration agent could have been contacted by the Tribunal or further efforts could have been made to contact him, or contact him in a more sensible way than merely looking around the premises of the Tribunal.  However, there is nothing in the Act which requires the Tribunal to do so, and s 426A(1) specifically authorises the Tribunal to proceed as it did.  I do not find that the Tribunal made any error in exercising its discretion to proceed based upon the material it had in its possession at the time it made its decision.  Whether it may have undertaken a different course or whether I would have undertaken a different course is immaterial. 

20                  The appellant finally submitted that the federal magistrate erred in engaging “in a fact finding mission surrounding the conduct of the Tribunal”.  However, in order to determine whether the ground advanced by the appellant was made out, and in light of the evidence before her, her Honour was required to make factual findings.  As to the essential finding in this case that the appellant was not present at 10.30 am on 28 July 2006, the scheduled hearing time, I do not regard it as reviewable as no error is shown in the arrival of such finding.  It was a factual finding made by the federal magistrate based upon her assessment of the witnesses and the evidence before her. 

21                  In my view the appeal should be dismissed.

Associate:

Dated:         14 June 2007