FEDERAL COURT OF AUSTRALIA

SZOIG v Minister for Immigration and Citizenship [2012] FCA 1250

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

1    This appeal was commenced by the filing of a Notice of Appeal on 20 July 2012. In circumstances which I shall shortly explain, the parties were notified some months ago that the hearing of the appeal would take place at 10.15 am this morning before me at the Court in Sydney.

2    On Monday of this week, the first appellant initiated an exchange of correspondence with staff in the Registry of the Court which appeared to be designed to secure an adjournment of this morning’s hearing. Towards the end of that exchange of correspondence, the first appellant was informed that he might make application to the Court to appear at the hearing of the appellants’ appeal by telephone. That is to say, that he might apply to appear before the Court today by telephone although the legal representative of the other active party to the appeal would be present in Court in Sydney.

3    In the circumstances which obtained as at the close of business yesterday, I instructed Court staff to telephone the first appellant this morning at 10.15 am in order to ascertain whether he had any applications to make. In particular, I wanted to know whether he wished to apply to appear at the hearing of the appeal by telephone and whether he wished to apply for an adjournment of that hearing in any event.

4    Upon establishing contact with the first appellant by telephone in Court this morning, it became clear to me that, first of all, he wished to apply to be heard this morning upon the basis that he be permitted to make whatever submissions he wished to make by telephone and, second, that he wished to apply for an adjournment of the appeal because he claims to be too ill to come to Sydney and too ill to deal with his appeal.

5    Before dealing with the appeal itself, I propose to give some short reasons in relation to the two applications made by the first appellant this morning to which I have referred.

The Application to Appear by Telephone

6    In discussions with Registry staff this week, the first appellant appears to have been led to believe that he might appear this morning by telephone or, at the very least, make application to the Court this morning to appear by telephone.

7    The expectation of this Court is that parties will ordinarily appear in person or be represented by a qualified lawyer, especially when the occasion in question is a substantive hearing. It is not the norm for litigants to be afforded the privilege of appearing by way of telephone hook-up to the courtroom or by way of videoconference link to the courtroom. There are many reasons why this is so. It is not necessary for me to traverse those reasons in this judgment.

8    The Court will only permit appearances by telephone or videoconference link if appearance by one or other of those means is justified in all the circumstances of the case. The decision as to whether a party will be permitted to appear in this fashion is a matter for the judge to whom the matter has been allocated. Litigants can have no expectation that, as a matter of ordinary practice, requests to appear by telephone or videoconference link will be routinely acceded to.

9    In the present case, the question of whether or not the first appellant would be permitted to appear this morning by telephone arose at the end of an exchange of correspondence and other communications between him and staff in the Registry during the course of this week, pursuant to which the first appellant sought an adjournment of the appeal on the ground that he was unwell. During that exchange, the first appellant was informed on more than one occasion that an adjournment of the appellants’ appeal would not be granted based upon the material which he had supplied to Registry staff.

10    For the same reasons that he was informed that no adjournment would be allowed upon the basis sought, if the first appellant had made an application to be heard by telephone earlier than this morning, that application, too, would have been refused. In essence, it would have been refused because the material supplied by the appellant in support of his assertion that he is not sufficiently well to travel to Sydney is unconvincing.

11    However, in the circumstances with which I was confronted at 10.15 am this morning, and thinking that the first appellant may be under the impression that he had some entitlement to appear by telephone this morning, I reluctantly permitted him to do so, although I wish to make very clear that, if he had applied for such an indulgence at an earlier time, I would have refused his application. Applications to appear by telephone or by videoconference link should be made to the docket judge as soon as the party who intends to seek that indulgence becomes aware of the circumstances which that party contends justify the grant of that indulgence. Such applications should not be left to the day before, or the morning of, the hearing.

The Adjournment Application

12    In the present case, the decision of the Federal Magistrate was delivered on 3 July 2012 (SZOIG v Minister for Immigration [2012] FMCA 600). On 20 July 2012, the appellants filed their Notice of Appeal in this Court.

13    On 23 July 2012, the Appeals Registrar made the usual pre-trial directions made by the Court in matters of this sort. Those directions included important information for the appellants relevant to the way in which their appeal would be dealt with by the Court. In particular, they were informed that they were required to file an Outline of Submissions in support of their appeal by no later than 10 business days before the hearing of the appeal. In fact, they did not file any Written Submissions at all.

14    On 2 August 2012, the Appeal Book was filed as directed.

15    On 14 August 2012, the Court forwarded a formal letter to the parties in which those parties were informed that the matter had been listed for hearing before me this morning. They were also provided with details of the Sydney address of the Court and informed that, if a party declined to attend personally or to arrange to be represented by a lawyer at the hearing of the appeal, orders (including orders for costs) might be made against that party in that party’s absence. The terms of this letter made clear that, subject to any order of the Court allowing a departure from the norm, the Court expected the appellants to attend the hearing of their appeal in person or to be represented by a qualified lawyer at that hearing.

16    On Monday of this week, 5 November 2012 at 11.15 am, the first appellant, or someone on his behalf, faxed to the Registry of the Court a four page facsimile transmission which comprised a copy of the Invoice for hearing fees which the Court had sent to the appellants, a medical certificate dated 3 November 2012 in respect of the first appellant apparently signed by a medical practitioner and a two-page document which appears to be a discharge referral in respect of the first appellant given by a medical practitioner at Griffith Base Hospital in respect of the first appellant’s admission to that hospital on 1 November 2012 and his discharge therefrom on 3 November 2012. The bundle of documents transmitted by facsimile transmission at this time did not include any covering letter or covering note. There was no other indication in the material of the purpose for which the material was being conveyed to the Registry of the Court. It appears that the fax may have originated from a machine owned or operated by a company called Surana Enterprise Pty Limited based in Griffith. I will mark the bundle of documents sent by facsimile transmission to the Registry of the Court on 5 November 2012 as Exhibit A in the appellants’ application for an adjournment of their appeal.

17    On its face, the medical certificate relates to the first appellant only and indicates that the medical practitioner who signed it saw the first appellant at Griffith Base Hospital on 1 November 2012. The certificate states that the first appellant was seen “for a medical condition”. The certificate goes on to state that the first appellant “is unfit for work from 01/11/2012 to 14/11/2012 inclusive”. The only other arguably substantive content to the certificate is in the section marked “Remarks”. In that section, the following appears: “Unwell. Not well enough to take any strenuous physical activity”.

18    The discharge referral document suggests that the first appellant was admitted to Griffith Base Hospital with pleuritic chest pain and that he was suffering from Pleuritis. Tests were carried out on the first appellant which indicated that there were no serious problems with his health. The only treatment suggested was a minor adjustment to certain medication already being taken by the first appellant.

19    After receiving the facsimile transmission which I have described at [16]–[18] above, the Court sent a letter to the parties. I will mark that letter as Exhibit B in the appellants’ adjournment application. In that letter, the Court confirmed the listing for today and, in particular, informed the parties that the date fixed for hearing could only be changed by direction of the Court (meaning a direction made by a judge).

20    At 5.15 pm on 5 November 2012, the Court received a further facsimile transmission. That transmission was in precisely the same terms as the transmission which had been received at 11.15 am on the same day. I will mark the bundle of documents comprising that facsimile transmission as Exhibit C in the appellants’ adjournment application.

21    On 6 November 2012, the Court sent a further letter to the parties, on this occasion by Express Post. I will mark that letter as Exhibit D in the appellants’ adjournment application. That letter reinforced the fact that the hearing of the appeal would definitely go on today and that the hearing date could only be changed by direction of the judge allocated to hear the matter. On 6 November 2012, the first appellant telephoned the Court and spoke with a Registry officer with the assistance of an interpreter. He was informed that I had directed that the matter not be adjourned based upon the material which he had supplied. Apparently, he was also told that he might make an application to appear this morning by telephone. He was told that if he wished to take this latter course, he should furnish appropriate contact details to the Court.

22    After the conversation to which I have referred at [21] above, the first appellant sent yet a further facsimile transmission. This facsimile transmission was received at 5.27 pm on 6 November 2012. It comprised a handwritten covering letter together with the medical certificate, discharge referral document and Invoice for fees previously sent to the Court. The letter did not provide any contact details beyond what appeared to be the first appellant’s residential address in Griffith. I will mark the bundle of documents comprising this facsimile transmission as Exhibit E in the appellants’ adjournment application.

23    The covering letter was in the following terms (omitting formal parts but leaving untouched spelling and syntax errors):

Hello Madam, I am [first appellant]. I am sick and I was in hospital for two days. There was my hearing on 8th Nov. 2012. But because of serious sickness I am unable to attend this hearing. Please give me two–three weeks time more the my health will be good and I can come to see you. Please help me.

24    On 7 November 2012, a further letter was transmitted to the Registry by facsimile, on this occasion at 12.05 pm. That letter was an exact copy of the covering letter which I have extracted at [23] above save that a mobile telephone number was added to it. That letter will become Exhibit F in the appellants’ adjournment application.

25    In the face of that communication, I instructed Registry staff to telephone the first appellant to inform him yet again that the matter would go on this morning. That instruction was complied with on 7 November 2012. Unfortunately, the first appellant may have been given the impression that he had some entitlement to appear this morning by telephone. As I have explained at [7]–[11] above, he had no such entitlement.

26    When consideration is given to the terms of the medical certificate and the discharge referral document supplied by the first appellant, it is clear that, even if I were to accept these documents at face value (a prospect about which I have serious reservations), the first appellant is not so unwell as to be unable to attend the hearing of his appeal in Sydney this morning. Furthermore, it is also perfectly clear that, whatever illness he may be suffering at the moment, that illness does not prevent him from making appropriate submissions in support of his appeal.

27    In light of the above matters, I rejected the application for an adjournment of the appeal made this morning by the first appellant on behalf of both appellants.

28    I invited the first appellant to support the appellants’ appeal with submissions but he has declined to do so, pleading that he is too ill. The Court is therefore left to do its best to understand what it is that the first appellant considers justifies upholding the appeal that has been lodged on behalf of him and his wife.

Background

29    There are two appellants in this case. The first appellant is the husband of the second appellant. The second appellant did not make an independent application for a protection visa and does not mount an appeal independently of her husband. Her entire case depends upon the outcome in his.

30    The appellants appeal from a decision of a Federal Magistrate delivered on 3 July 2012 (SZOIG v Minister for Immigration [2012] FMCA 600). By that decision, his Honour dismissed an application for judicial review from a decision of the Refugee Review Tribunal (the Tribunal) which affirmed the decision of a delegate of the first respondent (the Minister) refusing to grant a protection visa to either of the appellants.

31    The first appellant is a citizen of India born on 15 September 1967 who arrived in Australia on 4 July 2009 with his wife, who is the second appellant. On 17 August 2009, the appellants applied for protection visas. A delegate of the Minister made a decision to refuse the appellants’ application for protection visas on 25 November 2009. The appellants applied to the Tribunal for a review of the delegate’s decision on 21 December 2009.

The Appellants’ Claims

32    The first appellant claimed that he is a Sikh from Haryana province. At the Tribunal hearing, he claimed that he worked as a truck driver in India, operating his own truck. He claimed that he participated in political rallies once or twice in support of the political party known as Lok Dal. He claimed that, once trouble arose between Lok Dal and the Congress Party, he ceased participation in political activities. He stated that he did nothing in any political rallies and simply walked around with others who were involved in such rallies. He said that his involvement had been quite limited and had been for what he described as “the MLA election”. He claimed that members of the Congress Party had swerved their cars in front of him in order to run him off the road. He claimed that he had avoided the accident and that his truck had not been damaged, although he was afraid. He also claimed that members of the Congress Party had threatened his wife and children but had not actually carried out any threats against them. The first appellant also stated that he had not suffered any problems because of his religion.

33    In a written statement attached to his application for a protection visa, the first appellant had made more detailed and substantial claims for persecution. In that statement, he said that he had been attacked and injured by Hindus when they attacked a Sikh religious congregation. In that statement, he also claimed that Congress Party operatives had believed that he had led the attack on behalf of the Lok Dal Party and that they had substantially damaged his truck while it was parked in the market place. At the Tribunal hearing, the first appellant recanted these latter claims.

The Tribunal’s Decision

34    The Tribunal found significant inconsistencies between the first appellant’s written claims to the Department and his oral evidence to the Tribunal. Nonetheless, taking into account the fact that the first appellant appeared to be illiterate, the Tribunal gave him the benefit of the doubt and drew no adverse inference from these inconsistencies. The Tribunal proceeded to consider the first appellant’s case based upon the claims made by him at the hearing before the Tribunal.

35    The Tribunal accepted that the first appellant had supported Lok Dal in elections and found that he was involved in politics at a very low level. The Tribunal took the view that, although this may have angered members of the Congress Party, no particular action had been taken against the first appellant which caused him harm.

36    The Tribunal concluded that, even if threats had been made against the first appellant’s family, those threats did not give rise to any real chance of persecution.

37    At [78]–[82] of its Reasons, the Tribunal said:

78.    It is a well-known fact that India is a longstanding multiparty, federal, parliamentary democracy where members and activists of all political parties can freely engage in political activity. While it is not up to the Tribunal to recommend appropriate destinations for internal relocation, it notes that in the neighbouring state of Punjab Sikhs are the majority community, making up around two thirds of the population. A 2006 article in The Hindu notes that the Punjab police force is largely Sikh (Swami, Praveen 2006, ‘Bias and the Police’, Frontline, 2 December

http://www.frontlineonnet.com/fl2324/stories/20061215002503300.htm).

In addition, Punjab is governed by a coalition consisting of the BJP and Akali Dal (Badal) (often referred to as SAD) “a moderate Sikh party controlled by the dominant Jat Sikh farming community of Punjab” (UK Home Office 2002, India Assessment, April – Link; ‘Badal sworn in as Punjab CM’ 2007, Rediff com website, http://in.rediff.com/news/2007/mar/02punpoll.htm). The Tribunal has found no information to suggest that ordinary members and supporters of Lok Dal who are engaged in politics at the level the applicant was in his home state are being targeted for harm by members and supporters of the Congress.

79.    The Tribunal is satisfied that if the applicant relocated to a different part of India and continued to engage in political activity at the same level as he has in the past there is no real chance that he would face harm from the Congress Party for the reason of his political opinion. On the basis of the evidence before it and having regard to the applicant’s circumstances overall, the Tribunal finds that it would be reasonable and practicable for the applicant to safely relocate to a different part of India.

80.    At the hearing, the applicant expressly denied having experienced any difficulties in India for the reason of his Sikh religion and did not claim to fear harm for that reason. The Tribunal finds that there is no real chance that the applicant will face serious harm in India for the reason of his religion.

81.    For the reasons outlined above, the Tribunal is satisfied that the applicant’s fear of persecution in India for the reason of his political opinion, religion or any other Convention reason is not well-founded. He is not a refugee.

CONCLUSIONS

82.    The Tribunal is not satisfied that any of the applicants is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

The Proceeding in the Federal Magistrates Court

38    On 12 April 2010, the appellants made application to the Federal Magistrates Court for judicial review of the Tribunal’s decision. The grounds of review advanced by the appellants in their application were in the following terms:

1.    The Tribunal made jurisdictional errors to find that I, the first named applicant was not persecuted for my political belief and my fear of persecution in India for the reason of my political belief, religion, or any other Convention reason is not well-founded. I shall not be persecuted if I return back to India

2.    The Tribunal did not consider me as a credible witness and decided not to approve our claim for a protection visa and made errors of jurisdiction.

3.    The Tribunal did not give me opportunity to place my explation [sic] before the Tribunal of the adverse information and also the country informaiton [sic] which suggested the Tribunal that a person like me was not persecuted or discriminated for his political or religious belief and all othre [sic] related informaiton [sic] the Tribunal considered at the time of refusing my application for a protection visa and the Tribunal made jurisdictional error.

39    As is apparent from a consideration of those grounds, grounds 1 and 2 merely restate the findings of the Tribunal. Ground 3 contains an unparticularised assertion that the first appellant had not been afforded an opportunity to explain matters.

40    At [1]–[8] of his Reasons for Judgment, the Federal Magistrate summarised the history and background of the appellants’ claims. As far as ground 1 was concerned, the Federal Magistrate concluded that the appellants were unable to identify the jurisdictional error that they claimed had caused the Tribunal to make the findings to which the appellants referred in respect of ground 1. His Honour noted that the Tribunal had found that, whatever persecution had been suffered by the appellants, it did not amount to serious harm under the Migration Act 1958 (Cth) (the Migration Act).

41    As far as the second ground was concerned, the Federal Magistrate correctly concluded that the first appellant has misunderstood the finding of the Tribunal. The Tribunal did not ultimately make an adverse credibility finding against the first appellant, but nonetheless considered that his concerns were not sufficient to justify a conclusion that he was a person to whom Australia owed protection obligations.

42    As far as ground 3 was concerned, the Federal Magistrate found that there was no evidence at all that the first appellant had been prevented from giving a full explanation of his claims.

43    The appellants did not produce a transcript of the hearing before the Tribunal or any other evidence that could conceivably support the general allegation made under the rubric of ground 3. The Federal Magistrate found that the Tribunal had complied with Div 4 of the Migration Act in relation to the natural justice hearing rule.

44    At the hearing before the Federal Magistrate, the first appellant took issue with the Tribunal’s conclusion on relocation within India. His Honour found that the Tribunal had applied the correct test and that, in any event, the question of relocation would only arise if the Tribunal were to make the assumption that the Tribunal’s fundamental finding that the alleged persecution did not amount to serious harm were regarded as incorrect.

The Appeal in this Court

45    In the Notice of Appeal filed by the appellants in this Court, the following grounds of appeal are relied upon:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

46    As far as ground 1 is concerned, it is very difficult to understand what contention is being advanced as part of ground 1. It appears to be attempting to pray in aid some doctrine akin to Wednesbury unreasonableness. That principle is a principle applicable to administrative decisions, not to judicial review decisions made by a Federal Magistrate. Ground 1 is misconceived and I reject it.

47    Ground 2 is impossible to come to grips with. Taking the kindest view of ground 2, it seems to require a wholesale merits review of the Tribunal decision. Such an approach is not permissible in a judicial review proceeding in the Federal Magistrates Court nor is it permissible in an appeal from such a proceeding in this Court.

48    The first appellant has been unable to articulate any error on the part of the Federal Magistrate that could conceivably constitute appealable error.

49    For these reasons, I will dismiss the appeal with costs. There will be orders accordingly.

50    The orders of the Court are:

(1)    That the appeal be dismissed.

(2)    That the appellants pay the first respondent’s costs of and incidental to the appeal.

Associate:

Dated:    13 November 2012