FEDERAL COURT OF AUSTRALIA

SZOTK v Minister for Immigration & Citizenship [2011] FCA 1461

THE COURT ORDERS THAT:

1.    The Refugee Review Tribunal be added as a respondent.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant is an Indian national. He first travelled to Australia in 1999 on a short stay business visa. Soon after his arrival he applied to the first respondent (“the Minister”) for a protection visa. To secure such a visa he had to show first and foremost that he had a well-founded fear of persecution for one of the reasons mentioned in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol (collectively, “the Convention”): Migration Act 1958 (Cth) (“the Act”), s 36. The appellant claimed to fear persecution in India on political grounds because of his alleged involvement with the Babbar Khalsa party, a militant Sikh separatist organisation, which is banned in India. A delegate of the Minister rejected the application, an appeal to the Refugee Review Tribunal (“RRT”) was unsuccessful and, although he applied to this court for judicial review of the tribunal’s decision, he discontinued the application and returned voluntarily to India.

2    More than three years later, on 5 February 2003, the appellant returned to Australia as the dependant of the holder of a long stay business visa (subclass 457), which was cancelled in September 2004. His wife, from whom he is now estranged, was the principal visa holder. The appellant and his wife unsuccessfully appealed the cancellation of the 457 visa to the Migration Review Tribunal (“MRT”).

3    Then on 1 March 2009 the appellant made another application to the Minister for a protection visa. It was identical to the claim that was rejected in 1999, save in one respect. He claimed that since he had separated from his wife he was afraid she would inform on him to Indian police.

4    The RRT considered the appellant was untruthful in his account of his activities and events in India. It found that documents he presented to corroborate his case were fabricated for the purpose of securing a protection visa. The appellant then applied to the Federal Magistrates Court for constitutional writs to quash the RRT’s decision and require it to reconsider his application.

The federal magistrate’s decision

5    The application before the federal magistrate pleaded that the tribunal failed to take evidence into account (though the relevant evidence was not particularised) and that there had been a miscarriage of justice. In oral submissions the appellant told his Honour that the tribunal had failed to take into account his medical or psychologist’s reports, a statement received from Germany concerning his membership of the Babbar Khalsa International, the situation of his children, the “activation” in India of a list of people who went to Pakistan for military training and the fact that his wife would inform on him to Indian authorities in order take revenge against him.

6    His Honour noted that the appellant did not contest the accuracy of the tribunal’s summary of the evidence. He said that the tribunal had either expressly or implicitly considered each of the matters he had raised. In particular, it had express regard to the medical evidence, which his Honour inferred included the report of the psychologist.

7    The federal magistrate referred to a submission by the appellant that he had been in bad shape at the time of the tribunal hearing which his Honour took as an implication that he was not able to properly make his case. He correctly observed that, had that been so, the tribunal would have failed to give the appellant the kind of hearing to which he was entitled under s 425 of the Act. Nevertheless, his Honour noted that the tribunal was aware of his condition, referred to his medical evidence, and said that it had formed the view that his medical condition did not preclude him from being able to participate meaningfully in the hearing, giving evidence or presenting arguments. Moreover, the tribunal noted that the appellant appeared to have no difficulty understanding and answering the questions put to him. Indeed, it described his answers as “responsive and comprehensive”. Consequently, his Honour found that there was no breach of s 425.

8    At the hearing before the federal magistrate the appellant also submitted that the fact that the tribunal member was female might have made her more sympathetic to his wife than to him. His Honour found nothing to suggest prejudgment or a predisposition to disbelieve the appellant.

9    The federal magistrate dismissed the application for want of jurisdictional error, the only available basis to set aside a decision of the tribunal.

The appeal

10    Before I deal with the substance of the appeal, I must attend to a matter of form. The appellant neglected to name the RRT as a respondent. The tribunal nonetheless filed a submitting appearance. I will therefore make an order that the tribunal be added as a respondent.

11    In the notice of appeal the appellant pleads that he is “illiterate cannot read and speak proper English” and has been suffering from severe depression. He contends, in effect, that he was denied natural justice when the federal magistrate declined to adjourn his application in circumstances where he had not received the Minister’s submissions, had no interpreter and no legal representation. He claims it was a miscarriage of justice for the federal magistrate to proceed with the case without him having a legal representative or an interpreter.

12    The federal magistrate’s reasons make no reference to any application for an adjournment, although the Minister did not dispute that the appellant made such an application. The transcript of the hearing on 3 June 2011 was not included in the appeal book and no evidence was placed before me to enable me to know why his Honour refused the adjournment. For this reason I ordered a copy of the transcript myself and gave the parties the opportunity to make submissions on it.

13    To understand the federal magistrate’s decision on the adjournment application some further background is required.

The history of the adjournment application

14    The application to the Federal Magistrates Court was first mentioned in that court on 6 December 2010, at which time it was listed for hearing on 22 March 2011. On that day the appellant did not appear. A friend appeared in his place and applied for an adjournment, submitting to the Court two doctors’ certificates, neither of which contained any opinion to the effect that the appellant was unable to attend himself. In the circumstances the federal magistrate refused the adjournment and dismissed the proceeding for the appellant’s non-attendance.

15    The appellant then applied to have the order made on 22 March 2011 set aside. That application was listed for hearing on 9 May 2011. The same day the appellant filed in court an application in the same terms, together with an affidavit in support. The affidavit was in English and was sworn in the presence of a justice of the peace. In it the appellant deposed to having suffered from severe depression and high blood pressure for three years which led to the breakdown of his marriage and a custody dispute with his wife. He said he was very sick and unable to attend court on 22 March 2011, so he asked his friend to appear on his behalf. He annexed a further medical certificate which attested to both medical conditions and confirmed that he was unable to attend the hearing on the previous occasion.

16    On 9 May 2011 the appellant sought an adjournment to obtain further funds and legal advice. The federal magistrate refused the request but when the appellant said he was depressed and needed more time, his Honour changed his mind and stood the matter over until 3 June 2011.

17    On that occasion the appellant made a further application for an adjournment on the same grounds but, this time, it was refused.

18    I now turn to consider the appellant’s arguments. The appellant submitted that:

(a)    He was greatly disadvantaged because his friend was present to argue his case on 3 June 2011 but he was prevented from speaking.

(b)    The federal magistrate misunderstood his statements because his English is not good;

(c)    He was on strong medication for mental illness on the day of the hearing;

(d)    The federal magistrate refused to adjourn (for a second time), even though he explained that he needed legal assistance because of his mental health and “to properly answer questions”, and needed more time to seek that assistance; and

(e)    He was denied natural justice because he did not have any legal assistance at the previous hearing.

19    The appellant urged me to go through the transcript. I have done as he requested.

Proceeding with the case without an interpreter

20    There is no suggestion in the transcript of any concern that any deficiency in his language skills inhibited the appellant from presenting his argument. He did not ask for an interpreter. He put his submissions and answered his Honour’s questions. The answers he gave were not always responsive but, when he was pressed to give a responsive answer, he did. While his English is far from perfect, having read the transcript I am not satisfied that he did not understand what was said or could not make himself understood. He appeared before me without an interpreter and I had no difficulty understanding him or, it seemed, he me.

21    Furthermore, in his application for review, the appellant ticked the “no” box beneath the question “Does the applicant require an interpreter?”. For the following reasons this could not be said to have been inadvertent. In his application for a protection visa the appellant nominated English (above Hindi and Punjabi) as his preferred language, indicating he could speak, read, and write it. The letter the RRT sent to him on 4 August 2010 inviting him to attend the tribunal to give evidence and present arguments asked him to advise immediately if an interpreter was required. No such request was apparently made. When the RRT acceded to a request that the hearing be postponed, it sent another letter advising him of the new hearing date and again asking him to advise immediately if he needed an interpreter. Again the material before the Court indicates no such request was made. The tribunal member in her account of the hearing makes no mention of any request and does not hint at any difficulties in communication, quite the contrary in fact.

22    The appellant submitted that “it is very hard to live without children” was misunderstood as “it is very hard to leave without children”. This was the only matter to which the appellant pointed as indicating any misunderstanding.

23    This appears to be the exchange to which the appellant was referring:

[APPELLANT]: … if I go myself back and I think they will be – I will get my daughter back, I will go back, doesn’t matter what circumstances I will face if I not get my children, your Honour. It will be very hard, maybe impossible for me to leave.

HIS HONOUR: Yes, I’m sure it would be. I just don’t think that I can take that into account. …

24    There is no evidence that the appellant said “live” rather than “leave”. Even if his account should be accepted, the inference is at least equally available that the error is a transcription one. I am not persuaded, in any event, however, that his Honour’s recorded response supports the contention that there was any misunderstanding.

25    In all the circumstances I do not consider there has been a denial of procedural fairness in proceeding with the hearing in the absence of an interpreter.

The appellant’s state of health

26    The federal magistrate took into account the appellant’s mental health when he decided to adjourn the hearing on the previous occasion. But the adjournment application made on 3 June 2011 was not supported by any medical evidence. The appellant told his Honour that he had been very sick during the tribunal hearing and his health was still “not in proper condition”. There is no evidence, however, to support the inference that he could not participate in the hearing before the federal magistrate because he was too ill to do so.

27    For completeness I note that the appellant complained in oral submissions that the tribunal did not take into account a submission he made to it that if he were allowed to stay in Australia he would get treatment for his problems. This is not a matter raised in the notice of appeal. It is, in any event, entirely without merit. First, the tribunal referred to the submission in the decision record. Secondly, however, and more importantly, it was not a relevant consideration in the Peko-Wallsend sense: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. In other words, the tribunal was not obliged to take it into account. The claim for protection was based on fear of persecution on political grounds. As the federal magistrate observed, the humanitarian considerations to which the appellant was referring are of no significance unless he can demonstrate he held a well-founded fear of persecution for a Convention reason. Even so, there is no reason to believe that he would not get the treatment he wants or requires in India.

The absence of legal representation

28    At the outset of the hearing on 3 June 2011 the appellant told the federal magistrate that he had been unable to obtain a lawyer and had brought a friend, Mr Khan, to represent and help him. His Honour informed the appellant that Mr Khan would be allowed to sit at the bar table and speak with the appellant but not to address the Court.

29    As Mr Khan was evidently not admitted to practice law, he had no right to represent the appellant. Whether or not he could appear, therefore, was entirely within the federal magistrate’s discretion. There is nothing to indicate that the discretion miscarried.

30    I am not satisfied that the absence of representation, or the refusal of the adjournment to enable the appellant to secure it, vitiates the proceeding. The transcript reveals that it was only at the end of the appellant’s submissions in reply and then only in response to a question from his Honour that the appellant said that he needed a lawyer to put his own case “properly”, and, I infer, to respond to the submissions put by the Minister. He complained that he had had insufficient time to secure a lawyer to represent him. He said the “two weeks period was too short”.

31    His Honour refused the application because he considered that the appellant had had more than enough time to obtain legal representation. He noted that the proceeding had been adjourned once before (on 9 May), which was nearly three and a half weeks earlier, not two, and that the appellant had already started making inquires about a lawyer over a week before that.

32    A failure to grant a request for an adjournment may amount to procedural unfairness (or a breach of the rules of natural justice): Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ. Whether or not it will depends on whether the party seeking it is denied a fair opportunity to present his or her case. In the particular circumstances of the present case I am satisfied that the appellant had that opportunity and there has been no denial of procedural fairness.

33    The federal magistrate was not obliged to grant the adjournment. He had already given the appellant two opportunities to obtain legal assistance. On 6 December 2010 the appellant was given the chance to participate in the legal advice scheme for matters of this kind administered by the Federal Magistrates Court. I note parenthetically that in his application to participate in that scheme, the appellant ticked the box beside the words “I do not need an interpreter”. He availed himself of that opportunity and a barrister was assigned to assist him. He informed me, however, that, after receiving the papers, the barrister declined to represent him and, despite a number of attempts to obtain assistance elsewhere, he was unable to obtain legal representation, or at least free legal representation. On 9 May 2011 the federal magistrate acceded to the appellant’s application for an adjournment to enable him to try again to find legal representation. The rules of natural justice do not require legal representation in civil proceedings: New South Wales v Canellis (1994) 181 CLR 309 at 329-331; Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [24]; and Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J.

34    The Minister’s written submissions were purportedly served on the appellant as early as 16 March 2011. Before me the appellant claimed that he received the letter serving them but not the submissions themselves. Nevertheless, he accepted that he had an opportunity to read them at the hearing before the federal magistrate.

35    The decision to refuse the adjournment was an exercise of the federal magistrate’s discretion. Courts are slow to interfere with the exercise of discretion on a matter of practice and procedure: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170. In any case the appellant would have to show error of the kind described in House v The King (1936) 55 CLR 499 and he did not. The federal magistrate gave the appellant some leeway on account of his situation but he was not bound to accede to multiple applications for adjournment.

36    In order to succeed in his appeal the appellant had to show error on the part of the federal magistrate: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. He has failed to do so. Consequently, the appeal must be dismissed. The appellant should pay the Minister’s costs.

Associate:

Dated:    19 December 2011