FEDERAL COURT OF AUSTRALIA

SZOKD v Minister for Immigration and Citizenship[2010] FCA 1335

THE COURT ORDERS THAT:

1.    The application for an extension of time to file and serve a notice of appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an application for the grant of an extension of time in which to file and serve a notice of appeal from the decision of the Federal Magistrates Court refusing the applicant constitutional writ relief: SZOKD v Minister for Immigration [2010] FMCA 639. The applicant is a citizen of the Republic of India. He arrived in Australia in February 2007 and applied for a protection visa in October 2009. A delegate of the Minister refused that application in January 2010. The applicant applied to the Refugee Review Tribunal on 4 February 2010 for a review of the delegate’s decision. On 9 April 2010, the tribunal affirmed the delegate’s decision.

The applicant’s claims

2    The applicant had claimed to be a Shia Muslim and had 15 years of education. He had originally entered Australia on a student visa. In his application for a protection visa he made a lengthy statement that the tribunal set out in its reasons. In substance, he claimed that he was born into a middle-class family and grew up in Hyderabad within a slum area. He claimed that in July 2006 a relative, who lived in another suburb, had been brutally killed by a particular person and his associates who were all Sunni Muslims. The applicant claimed that there were continual conflicts between the Shia and Sunni Muslim communities in Hyderabad. He claimed that the circumstances leading to the death of his relative involved that relative beating a rickshaw driver to death following a dispute about property. He alleged that the victim’s elder brother was the leader of the Sunni Muslims who had attacked and killed the applicant’s relative in revenge. He said that he had tried to stop his relative killing the rickshaw driver but the relative had “gone crazy and killed” the victim. The applicant said that the police thought that he was equally involved in the murder, but he had claimed that he was not.

3    The applicant claimed that because of the continual conflicts between Shia and Sunni Muslims in Hyderabad, he and his family were being threatened with revenge by, among others, those involved in political parties in that city. He claimed that these people had asserted that whenever he returned to India they would kill him and, moreover, the police believed that he was involved in the murder of the rickshaw driver. He claimed that the police were working under the influence of the opposing political party and that its members were seeking to implicate the applicant in the murder.

4    The applicant claimed that he had gone into hiding in another part of India but that within a short time he had been discovered by the persons who were seeking revenge. He claimed his parents had told him to leave India and pursue his studies here because that would enable him to escape from those seeking revenge for the rickshaw driver’s murder. He claimed that, because of his worries and panic, he had discontinued his studies. He claimed to fear, if he returned to India, being put in gaol or murdered because of the false accusation of his involvement in the murder of the rickshaw driver.

The proceedings in the tribunal

5    The Minister’s delegate refused to grant a protection visa to the applicant. After he applied to it to review the delegate’s decision, the tribunal wrote to the applicant on 5 February 2010 at the address he had given it in his application for review. The letter enclosed information explaining the process of review and asked the applicant to send any further information he wished. On 24 February 2010, the tribunal sent to the applicant, by registered post, an invitation to appear before it. That letter explained the process that the tribunal would pursue and invited the applicant to send any further information. The letter advised the applicant that if he did not attend the hearing and a postponement was not granted, the tribunal could make a decision on his application without further notice. He was asked to return a response to the hearing invitation by 12 March. On 11 March 2010, the tribunal received the applicant’s response to the hearing invitation. The applicant provided no further information to the tribunal with that response but indicated that he would attend the hearing that had been fixed for 31 March 2010.

6    However, the applicant did not appear on 31 March 2010 when he was scheduled to appear. The tribunal then exercised its power pursuant to s 426A of the Migration Act 1958 (Cth) and made a decision on the review without taking any further action to enable the applicant to appear before it. The tribunal said that, as the applicant had not attended an oral hearing, his claims could not be tested by it and that it only had the information contained in the written material before it from which to make a determination. It said there were insufficient particulars going to the detail of the applicant’s claims to enable it to establish the relevant facts. The tribunal said that because he had not attended the hearing, it had been unable to explore the detail of those claims or their truthfulness. It found that it was unable to be satisfied that any of the applicant’s claims were true.

7    Accordingly, the tribunal concluded that it was not satisfied, on the evidence before it, that he faced a real chance of persecution should he return to India at that time or in the foreseeable future. The tribunal was also unable to be satisfied on the evidence that the applicant had a well founded fear of persecution for a Convention reason. It affirmed the decision of the delegate.

The proceedings in the Federal Magistrates Court

8    The applicant raised four grounds of review before the Federal Magistrates Court, namely that the tribunal:

    made a jurisdictional error by failing to comply with s 424A of the Act because it had had the opportunity to read his claims and could have asked him for an explanation had it wanted to assist him;

    made a jurisdictional error when it did not use its powers under s 426A(2) of the Act to reschedule the hearing date or seek further information from the applicant before coming to its decision;

    failed to comply with Pt 7 of the Act because it did not make a decision according to s 430 or consider the available information in arriving at its decision;

    made a jurisdictional error because it did not assess the applicant’s claims and had not wanted to use its powers under Pt 7 of the Act.

9    His Honour rejected each of these claims. First, he said that there was no breach of s 424A. This was because the tribunal’s lack of satisfaction about the applicant’s claims was not “information” for the purposes of s 424A. Although his Honour did not refer to it, s 424A(3)(a) provided that the section did not apply to information that an applicant gave during the process that led to the decision that was under review, other than such information that was provided orally by him or her to the Department. Here, the information the tribunal set out in its reasons, that it had considered, consisted only of the applicant’s claims that he had made in his application for a protection visa. His Honour concluded that the tribunal had no general duty to make inquiries to seek an explanation of the applicant’s claims. The trial judge found that the circumstances of the applicant’s case did not suggest that the absence of any inquiries by the tribunal amounted to a constructive failure by it to exercise its jurisdiction and rejected this ground.

10    Secondly, his Honour rejected the ground that s 426A had been breached. The applicant gave oral evidence before his Honour. The trial judge accepted the applicant’s evidence that he had made no contact with the tribunal at any point between the appointed hearing date and the day on which he received its decision. The trial judge found that no other evidence suggested any circumstances that would have made it appear to the tribunal that the applicant had some reason for not attending at the appointed time and day. As he found, in the circumstances, the tribunal had no understanding of why the applicant had not attended at the tribunal hearing. It followed that the tribunal was entitled to proceed as it did.

11    Thirdly, his Honour considered the ground that there had been a failure to comply with s 430 of the Act. He pointed out that a failure to comply with the tribunal’s obligation to prepare a written statement did not itself amount to jurisdictional error, although failure to comply with the requirements of that section may afford evidence from which the jurisdictional error could be ascertained. His Honour found nothing to suggest any failure to comply with Pt 7 of the Act in any other relevant respect. He found that the tribunal had no further obligation under s 425 of the Act to give the applicant another invitation to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

12    The trial judge noted that the applicant gave evidence before him, for the first time, that he had been prevented from attending the tribunal hearing by illness. The applicant’s evidence was that he had been sick on the night before the tribunal hearing and only awoke on the day of the hearing at 10.00 am. The tribunal hearing had been listed for 9.30 am. The trial judge found that the applicant appeared to be fluent in English and, indeed, had given his evidence to his Honour in English. His Honour found that the applicant had received the tribunal’s letter and was aware when he read it that the tribunal could make a decision without taking any further action to allow or enable the applicant to appear before it, if he did not attend without good reason at the date and time the tribunal had fixed for the hearing. In his evidence before his Honour, the applicant said that after his failure to appear at the hearing, he thought the tribunal would write to him again inquiring why he had not appeared. He asserted to his Honour that this was because the tribunal had said that it would only change the hearing date “for good reason”.

13    His Honour found that the applicant had never contacted the tribunal to explain his absence and, by implication, there was no contact between him and the tribunal at all until he received its decision on 13 April 2010. His Honour rejected the applicant’s account of his understanding of the tribunal’s letter. He found that the applicant was aware before the tribunal’s hearing that if he did not attend the hearing the tribunal might make a decision without taking any further action to allow or enable him to appear before it. His Honour found that the account given by the applicant about his illness, which was presented in a very matter-of-fact way, lacked detail and, ultimately, was not convincing. He concluded that the applicant was not prevented from attending the tribunal hearing and that the invitation to the hearing was anything other than a real and meaningful one. His Honour did not accept that on the evening before the tribunal hearing the applicant was ill as he claimed. He did not accept that the applicant only awoke at 10 am on the day of the tribunal’s hearing by reason of any illness.

14    Lastly, his Honour also considered the fourth ground and rejected it. He said that it had been put in two ways: first, because the applicant asserted that the tribunal had not assessed his claims and, secondly, it had erred because it did not want to assess his claims or use its powers. His Honour noted that the applicant acknowledged that he had been invited to a hearing by sending the response form. That satisfied the obligation in s 425(1) of the Act to provide such an invitation. He also found that the applicant’s failure to attend at the hearing enlivened the power of the tribunal under s 425A(1) to be able to proceed to make a decision on the application in the applicant’s absence.

15    The trial judge concluded that the applicant had not established a jurisdictional error on the first asserted basis. He also found that the tribunal’s decision appeared to have been made in a conscientious manner. The fact that the applicant had failed to attend the tribunal’s hearing, so that the tribunal proceeded to make a decision, did not point to any absence of good faith on its part. He found that there was no jurisdictional error in the tribunal not being able to be satisfied, on the material the applicant had provided, that the applicant was entitled to a protection visa. Accordingly, his Honour dismissed the application.

The application for an extension of time

16    The applicant appeared today and presented his own case. He was fluent in English. He argued that he had thought there were 28 days in which to file a notice of appeal in this Court from the decision of the Federal Magistrates Court because he had had 28 days to file the application for review below. The grounds of appeal which he would seek to agitate, were leave to appeal granted, were, in essence, that his Honour erred in failing to find that the tribunal had made a jurisdictional error because:

        it did not exercise the obligation imposed on it under the Act to give the applicant an opportunity to explain his situation. He claimed that the tribunal had many options open to it to test a claim, but it had only relied on one option, which was a jurisdictional error and misuse of its discretion;

        it rejected his claim on the basis of wrong observations and by not assessing his claims logically or properly since it had not given him a further opportunity to appear before it under Pt 7 of the Act. He claimed that the tribunal and his Honour had not understood the circumstances of his case, that the tribunal had not been entitled to proceed without resort to its other options and that his application had been rejected only because he had not appeared.

17    While these grounds do not exactly replicate the applicant’s arguments before his Honour, in substance, I do not perceive there to be any departure from them. In oral submissions, the applicant explained that he wanted the tribunal to review his case, and that because it could have contacted him before proceeding to dismiss his claim, its failure to do so, was an error.

Consideration

18    In considering whether to grant an extension of time the court is entitled to consider an outline of the case or appeal proposed to be made were the extension granted: Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J; and Jess v Scott (1986) 12 FCR 187; and the discussion of these principles that I gave in Prepaid Professional Administration Limited v Deputy Commissioner of Taxation [2010] FCA 173 at [6]-[8].

19    The tribunal had power under s 426A of the Act to make a decision on the review without taking any further action to allow, or enable, an applicant to appear before it, if the applicant had been invited under s 425 to appear before the tribunal, and he or she did not appear on the day on which, or at the time and place at which, he or she had been scheduled to appear. The requirements of s 426A(1) were plainly satisfied in the circumstances which confronted the tribunal on 31 March 2010. Indeed, the applicant did not contend to the contrary. But, he contended that the tribunal should have then used its power under s 426A(2) to make contact with him to ascertain why he had not appeared and then rescheduled the hearing. That argument is unsound and I reject it.

20    The purpose of s 426A(1) is to authorise the tribunal to make decisions where applicants for review do not appear before it. Moreover, in this case, the tribunal hearing was scheduled for 31 March 2010. Not only did the applicant not appear before the tribunal on that day, he did nothing in the days following to alert the tribunal that he had suffered what he claimed to have been a misfortune or illness. Even if his Honour were arguably wrong to have rejected the explanation (and no argument was suggested that he was wrong to do so) it is inconceivable that a person who seriously sought to make an application for review of a rejection of a claim to a protection visa would have done nothing to tell the tribunal why he had not attended at the hearing at which those claims could be assessed. More is this so in this case, where the applicant plainly understood the English language and was able to comprehend fully the meaning of the tribunal’s letter. Had the applicant contacted the tribunal prior to it making its decision on 9 April 2010, he may have been able to persuade it to reschedule the hearing. But as his Honour found, the applicant, knowing the tribunal could make a decision against him once he had not turned up, did nothing to stop that. In my opinion, an appeal on this ground would be futile. No purpose would be served by permitting the applicant to argue that the tribunal had made any error in proceeding to make a decision without allowing or enabling him application to appear before it after his failure to do so on 31 March 2010 pursuant to the invitation given to him under s 425(1).

21    In any event, his Honour found that he was not satisfied that the applicant had any excuse for not attending the hearing. The tribunal was fully entitled to take the view that it was unable to be satisfied that any of the vague and unparticularised assertions in the applicant’s claims were true. Indeed, it is difficult to understand why the tribunal should have been satisfied they could have been true. If, as he claimed, the police suspected him of being involved in a murder, it is difficult to think that he was allowed to leave India on a passport in his own name. Be that as it may, in my opinion, there is absolutely no substance in the applicant’s claims that the tribunal failed to accord him procedural fairness or otherwise to comply with its obligations under the Act by proceeding to make a decision, or in the decision and reasoning process that was employed in arriving at that decision that it made.

22    The applicant forfeited his own right to explain his case to the tribunal, and did so without any explanation. He has only himself to blame for the tribunal’s failure to hear his case. He chose not to appear and he chose not to ask the tribunal for any extension of time or to invite the tribunal to deal with his case once he had failed to attend the hearing. I do not accept his argument that somehow the tribunal had an obligation, or made a jurisdictional error in failing, to take the initiative itself. It was not obliged to take any further step to contact him or to find out why he had not attended at the hearing.

23    In my opinion, the grounds of appeal advanced reveal no error made by his Honour. Having considered his Honour’s reasons and the tribunal’s decision, I am satisfied that his Honour was correct to have rejected each of the grounds advanced before him, as he did. There is no substance in the proposed grounds of appeal.

24    For these reasons, even were I satisfied that with the explanation the applicant had given for failing to lodge a notice of appeal within time, the application for an extension of time should be rejected because the appeal would have been futile.

Associate:

Dated:    2 December 2010