FEDERAL COURT OF AUSTRALIA

SZOQA v Minister for Immigration and Citizenship [2011] FCA 907

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants are to pay the first respondent’s costs to be agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.

REASONS FOR JUDGMENT

1    This is an appeal against the decision of a Federal Magistrate which dismissed the first and second appellants’ application for judicial review of the decision of the Refugee Review Tribunal. The appellants are husband and wife.

2    The appeal was listed today for hearing by video-link from Darwin, at 9.45 am Darwin time, which is 10.15 am Sydney time. The appellants have not appeared. The Court Officer in Darwin has, at my request, called the matter outside the Court, and the appellants have not responded to that call.

3    There has been evidence as to the correspondence and communications which ensued between the first appellant on behalf of the appellants, the solicitors for the first respondent and also officers of the Court in relation to this hearing. Mr Mitchell Gardner, an officer in the Appeals Unit in the New South Wales Registry of the Court, gave oral evidence.

4    The appeal was originally listed for hearing at 10:15 am today in Sydney.

5    By a letter dated 27 June 2011, the solicitors for the first respondent sent the first appellant, a letter, addressed to a Post Office box in Mildura, advising that the hearing would be at 10:15 am at this location in Sydney, on 2 August 2011.

6    On 26 July 2011, there was received in the New South Wales District Registry of the Court in Sydney, a facsimile transmission from the first appellant. The facsimile was dated 21 July 2011.

7    In that facsimile, the first appellant recognised that the appeal was listed to be heard in Sydney on 2 August 2011. However, he went on to state that he was not in Sydney, but he was working in Darwin; and requested that the Court give him a new date for a hearing in October 2011. The first appellant went on to state:

I have no enough money because my one of the friend spend all the money on me. So I went to give back also and most thing I don’t know English very much and I have no experience about to come Sydney to Darwin and Darwin to Sydney. When I put my case in this Court that time I have no money so you give me a compensation. If I attend this hearing with my wife my actual expenditure to up and down is about $2000 to $2500 so it’s a big amount for me regarding this matters and about this case I bringe the documents after hear of this document to present as witness. So if you give me more time so I collect money as well as my documents also.

8    The appellant did not, in his facsimile, provide an address in Darwin to which mail could be sent, or where he may be contacted. However, the first appellant did invite the Court to contact him on a mobile telephone number which he gave.

9    After the first appellant’s facsimile was received by the Registry, a copy was forwarded to the solicitors for the first respondent. They advised the Court that they did not consent to an adjournment, but would not oppose the appellants being permitted to appear at the hearing by way of a video-link from Darwin.

10    The Court then arranged for a video-link to be established to the Supreme Court in Darwin for the conduct of this hearing.

11    On 27 July 2011, the Registry sent a letter advising the appellants that the hearing would take place today at 9:45 am Darwin time (10:15 Sydney time), that it would be conduct by way of a video-link and that they were required to attend the Supreme Court premises in Darwin at 9:45 am Darwin time in order to attend the hearing. That letter was addressed to the Post Office box address in Mildura, being the only address that the appellants had provided to the Court.

12    On Friday 29 July 2011, a Court Officer telephoned the mobile telephone number provided by the first appellant in his facsimile dated 21 July 2011. The first appellant did not answer the telephone. The telephone call went to a message bank, and the Court Officer left a message advising of the time and location of the hearing and that it would be by way of a video-link from the Supreme Court in Darwin.

13    On 1 August 2011, the Court received a facsimile dated 29 July 2011, from the first appellant advising that he had received the letter from the first respondent dated 27 June 2011, but had not received any letter from the Court in relation to the hearing of this appeal. He stated that he was not able to come to the hearing in Sydney on 2 August 2011. Again, the first appellant did not give an address in Darwin to which the Court should respond, or where he could be contacted. The first appellant again provided a mobile telephone number (being the same number previously provided) and said the following:

If you tell me something about hearing you can call me on this my phone.

14     On 1 August 2011, Mr Mitchell Gardner telephoned that mobile number on a number of occasions. However, on each occasion, the telephone was not answered. Each call went to a message bank. Each time, Mr Gardner left a message advising of the time of the video-link hearing of the appeal from the Supreme Court in Darwin.

15    It is apparent that the Court took steps to communicate to the first appellant, on behalf of the appellants, the time and place of the hearing of this appeal, by writing to him and by telephoning the mobile telephone number he nominated and leaving messages for the first appellant.

16    I am satisfied that the Court has taken sufficient steps to accommodate the appellants and to bring this hearing to the attention of the appellants.

17    There is evidence that letters addressed to the appellants at the Mildura Post Office box to which the Court sent its letter of 27 July 2011, came to the attention of the first appellant. However, as the Court’s letter was only sent on 27 July 2011, it is possible that the appellants have not seen the contents of that letter. Nevertheless, the applicants absented themselves from Sydney knowing that their appeal was due to be heard here in Sydney today. Then they applied for an adjournment by a facsimile letter which arrived at the Court only a week or so before the hearing, and did not disclose a contact address in Darwin. The Court has, nevertheless, communicated with the appellants by the means nominated by the first appellant as the appropriate means by which to communicate with them; namely, telephoning the mobile telephone number. On no occasion did the first appellant answer the telephone and the Court Officers left messages advising the appellants of the video-link hearing time and place. There was, in my view, nothing more that the Court could, in the circumstances, reasonably do to bring the place and time of the hearing to the attention of the appellants.

18    In those circumstances, I would dismiss the appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) and also r 36.75 of the Federal Court Rules 2011, by reason of non-appearance of the appellants.

19    In any event, I will also consider the merits of the appeal.

20    The ground of review on which the appellants relied before the Federal Magistrate is as follows:

The Tribunal failed to provide the applicants with an opportunity to appear before it, and thus failed to comply with the mandatory requirements of s 425(1)

Particulars:

(i)    Section 425 mandates an oral hearing at which the applicant and Tribunal are physically present (giving the word “before” its natural English meaning, in the context, “in front of”) in the one place, in order that the Applicant may present their case.

(ii)    The Tribunal was not physically present at the hearing, because the Tribunal was in Sydney and Applicant was in Griffith, and thus the Applicant did not “appear before” the Tribunal.

21    The appellants’ ground of review was founded on the fact that the Tribunal hearing was conducted by way of video-link from Griffith. The Federal Magistrate dismissed the ground of review on the basis that s 425 of the Migration Act 1958 (Cth) (which provides that the Tribunal is to invite an applicant for review “to appear before” it), was not to be construed in such a way as to preclude the Tribunal from conducting a hearing by way of video-link. The Federal Magistrate found that s 429A empowered the Tribunal to conduct a hearing by video-link. The Federal Magistrate, therefore, dismissed the ground of review.

22    I observe that the Federal Magistrate also mentioned that the second appellant had not attended the Tribunal hearing. The first appellant said at the hearing before the Tribunal that his wife was sick and, therefore, could not attend. The Federal Magistrate recorded that the Tribunal had considered the appellants’ claim in absence of the first appellant’s wife because no medical certificate was provided and she had not seen a doctor.

23    The appellants’ grounds of appeal are as follows:

(1)    The Hon. Federal Magistrate failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.

(2)    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

(3)    The Hon. Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

24     The only ground of appeal which could reasonably be construed as being addressed to the ground of review considered by the Federal Magistrate is part of the second ground of appeal; namely, that the Federal Magistrate dismissed the case without considering the legal error made by the Tribunal. The only error allegedly made by the Tribunal referred to in the ground of review before the Federal Magistrate, was the failure of the Tribunal to conduct a face to face hearing. This gave rise to the legal question of whether the hearing was a proper hearing within the meaning of s 425 because it was conducted by way of video-link.

25    In support of her rejection of the appellants’ contention, the Federal Magistrate referred to the case of SZAOR v Minister for Immigration and Citizenship [2010] FCA 777. In my view, the Federal Magistrate did not err in rejecting the appellants’ contention, and applying the SZAOR decision.

26    None of the other complaints made in the grounds of appeal was a complaint which arose from the ground of review before the Federal Magistrate. It is only in circumstances where it is expedient in the interests of justice that leave will be given for grounds to be raised on appeal which were not raised in the Court below.

27    In my view, this is not a case where leave should be given to raise these complaints as grounds of appeal for two reasons.

28    First, there is no explanation given by the appellants as to why these matters were not raised before the Federal Magistrate.

29    Secondly, the complaints in the grounds of appeal do not disclose any reasonable prospects of success, in any event.

30    The proposed grounds of appeal have no prospects of success because it is apparent from a perusal of the decision of the Tribunal, that the Tribunal gave a detailed consideration to the claims to fear persecution, which were made by the appellants, and particularly the first appellant, but dismissed those claims on the grounds that it did not believe the evidence which was given by the first appellant. In particular, there is a very detailed analysis of the first appellant’s evidence at [124]-[136] of the Tribunal decision where the Tribunal sets out its reasons for not accepting the evidence of the first appellant, in relation to the events which he said gave rise to his fear of persecution.

31    This is a case where the Tribunal dismissed the appellants’ claims for credibility reasons. The determination of an applicant’s credibility is a matter which is plainly within the jurisdiction of the Tribunal. It was plainly open to the Tribunal to come to the findings that it did in relation to the first appellant’s credibility for the reasons which it set out.

32    Save for the matters referred to in [24]-[25] above, I, otherwise, refuse leave to rely on the three grounds of appeal set out in the notice of appeal.

33    I, therefore, dismiss the appeal.

Associate:

Dated:    9 August 2011