FEDERAL COURT OF AUSTRALIA Hossain v Minister for Immigration & Multicultural Affairs [2000] FCA 842 MOHAMMAD S HOSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 159 OF 2000 MANSFIELD J 7 JUNE 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 159 OF 2000 BETWEEN: MOHAMMAD S HOSSAIN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 7 JUNE 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay to the respondent costs of the application to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 159 OF 2000 BETWEEN: MOHAMMAD S HOSSAIN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 7 JUNE 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 2 February 2000, affirming a decision of a delegate of the respondent made on 12 March 1998. The delegate refused to grant to the applicant a protection visa under the Migration Act (1958) (Cth) ("the Act"). 2 The applicant is a Bangladesh national. He claims that in November 1996, he fled to India because of persecution in Bangladesh. He arrived in Australia on 4 November 1997 on an illegally obtained Indian passport and under an assumed identity. On 3 December 1997, he applied for a protection visa. As I have noted, his application for that visa was unsuccessful, both before the delegate of the respondent and before the Tribunal. 3 The applicant was given leave to file and serve a fresh amended application for review at the hearing. It identified one ground only upon which the application for review by the Court is pursued. That is that the Tribunal failed to give to the applicant a proper hearing, as required by s 425 of the Act. The applicant asserts that he was unable to attend the hearing of the Tribunal scheduled for 9 November 1999 because of illness, and he provided the Tribunal with a doctor's medical certificate to that effect on 8 November 1999. 4 Section 425(1) of the Act provides: "The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review." 5 I accept that the failure to comply with s 425(1) of the Act constitutes a failure to observe a procedure in connection with the making of the decision, so as to give rise to the ground of review available under s 476(1)(a) of the Act: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, where Gummow J at 600 agreed with the reasons of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (6 May 1997, unreported). It is acknowledged by the respondent for the purposes of this matter that those two provisions together have the effect that a failure to give a genuine opportunity to appear before the Tribunal to give evidence provides a ground of review. 6 The issue therefore turns upon whether the Tribunal gave to the applicant the opportunity to appear before the Tribunal to give evidence as required by s 425 of the Act. 7 On 7 October 1999, the Tribunal wrote to the applicant indicating that it was not prepared to make a favourable decision on the information then before it: see s 425(2)(a). It therefore invited the applicant to come to a hearing of the Tribunal to give evidence and to present arguments in support of his claims. It also specified that he was entitled to ask the Tribunal to obtain oral evidence from another person or persons. It nominated 9 November 1999 as the date of the hearing, and specified the time and place of the hearing. It is not disputed that, on its face, that letter constitutes an invitation made in accordance with s 425(1) and it is also accepted that it complies with the requirements as to the period of notice required by s 425A of the Act. A copy of that letter was sent to the applicant's adviser, as notified in the application for review to the Tribunal. 8 On 21 October 1999, the applicant, through his adviser, responded to the Tribunal indicating that he would attend the hearing and that he wished the Tribunal to take oral evidence from two other persons. He gave notice that he required a Bengali interpreter at the hearing. 9 The next event of significance occurred on the day preceding the hearing date fixed by the Tribunal. On 8 November 1999, the applicant by facsimile wrote to the Tribunal saying that he was unable to attend the hearing the following day due to sickness. He enclosed a doctor's certificate. He invited the Tribunal to contact him if it had any queries. The enclosed medical certificate was dated 8 November 1999 and certified that the applicant was suffering from bronchitis and fever and was "unfit for work" from 8 to 10 November 1999 inclusive. 10 The applicant did not then attend the hearing on the following day. The Tribunal proceeded to hear and determine his matter on his application on the basis of the material then before it. In doing so, it was apparently proceeding in accordance with s 426A(1) of the Act. It considered the applicant's claim and the material before it, including his signed statement submitted by his adviser to the Tribunal on 5 November 1999 and it made findings and gave reasons for those findings. 11 It decided that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, (using those terms as defined in the Act) and that therefore the applicant did not satisfy the criterion set out in s 36(2) of the Act for a protection visa. 12 The applicant's simple point is that, in the circumstances, s 425(1) of the Act was not complied with because he was not given a genuine or real opportunity to appear to give evidence before the Tribunal. Capitly v Minister for Immigration & Multicultural Affairs (Burchett J, 24 September 1998, unreported), is a decision where, in somewhat similar circumstances to the present, a finding such as that the applicant now seeks was made. 13 However, the factual background to the Tribunal deciding to proceed in the manner in which it did is more complex. It is recorded in the Tribunal's reasons at length. Rather than paraphrase those reasons, I will set them out: "The day before the scheduled hearing, the Applicant sent a FAX copy of a medical certificate under cover of a short note. The Applicant stated that he would be unable to attend the 9 November 1999 hearing due to sickness. The Tribunal examined the medical certificate and saw that the doctor had diagnosed bronchitis and what appeared to be a mild fever. The Tribunal noted that the Applicant was said to be "unfit for work" on 8, 9 and 10 November 1999. The Tribunal considered the contents of the certificate and came to the view that a hearing of one or two hours' duration need not be as exhausting as "work". The Tribunal also took into account the fact that the Applicant had been able to attend and wait at a doctor's surgery on 8 November 1999, and that he had been in a position to state to the doctor what concerned or ailed him. The Tribunal took the view that in similar circumstances it should also be reasonable for the Applicant to attend RRT premises on 9 November 1999 and, in response to questions, talk to the Tribunal about his claims. The Tribunal spoke to the Applicant in a minuted telephone conversation in the afternoon of 8 November. It advised the Applicant that it intended for the hearing to commence the next day as scheduled and that it would itself assess the Applicant's ability to continue with a hearing and answer relevant questions about his claims. The Applicant said to the Tribunal that he was still sick and that he could not come to the hearing. He asked the Tribunal to postpone the hearing until he was well again, but when asked when that might be he said he did not know. The Tribunal asked the Applicant if he had been prescribed any drugs for his condition and he alternately said "No", then "I don't know" and then "I don't know what they are". The Tribunal referred to the Applicant's having travelled to the doctor's and said that if he was strong enough to do this, he ought to be able to come to the RRT premises. In reply, the Applicant said that he was still so sick that he thought he would have to go back to the doctor on 9 November 1999 in order to get some medicine. This struck the Tribunal as somewhat disingenuous: the Applicant had just been to the doctor only a few hours earlier on that very same day to obtain a certificate excusing him from three whole days' work; it seemed absurd that he should think he needed to return to the doctor the next day simply because, a mere few hours later, he was not already cured. The Tribunal asked the Applicant, who demonstrably spoke quite fluent English (refer primary application form Q.8) to describe his condition. He said he could not say what was wrong with him except that he felt a bit dizzy. His description of his condition did not sound like bronchitis. He told the Tribunal to speak to his doctor and gave the Tribunal the doctor's name and telephone number. It is important to note that when the Tribunal told the Applicant it would contact his doctor, it also clearly stated to him that at this stage the hearing would definitely proceed. The Tribunal said that the Applicant should attend. The Tribunal advised that postponement should not be assumed to have occurred unless the Tribunal expressly advised the Applicant himself of this in a further telephone call. The Tribunal called the Applicant's doctor, who took the liberty to discuss the Applicant's condition. He said the Applicant was not particularly unwell. He said that the Applicant was certainly well enough to attend a hearing before the Tribunal, even well enough to sit for "hours and hours" answering questions. He acknowledged that in this case the demands of a hearing or medical examination would not be as serious as the demands of a full day's work, and said that the only reason he prescribed the Applicant three days' absence from work was to ensure that any bacteria the Applicant might be carrying were not spread to other workers. The Tribunal called the Applicant's home twice again on 8 November 1999 but was advised that he was not at home. The Tribunal weighed this information against the Applicant's claims about being too sick to go out. The Applicant did not return these calls. The Tribunal called the Applicant's home again the next morning at 8:30am. The person who took the call said that the Applicant was again not home. The Tribunal also weighed this information against the Applicant's claims about being too sick to go out. The person speaking to the Tribunal said that the Applicant might have gone out of the house in order to telephone his doctor. The Tribunal considered two things: the fact that the Applicant's claimed indisposition was not kept a secret from his cohabitant, and the obvious fact that there was a telephone inside his home. Weighing these facts, the Tribunal came to the view that there appeared to be no good reason why the Applicant, if sick, could not call the doctor from home; it therefore dismisses this explanation for the Applicant's absence as unreliable. The Tribunal came to the view that the Applicant had some business on the day of the hearing that had little or nothing to do with illness, for as the day passed, his absence from home did not lead to any attendance on his part at the RRT: he failed to appear at the scheduled hearing. In the course of its 9 November 1999 call to the Applicant's house, the Tribunal left a message for the Applicant to return its call. The Applicant has not contacted the Tribunal since." 14 The Tribunal also noted that, thereafter, neither the applicant nor his adviser made any contact with the Tribunal between 9 November 1999 and 2 February 2000, when the decision was published. 15 The respondent's contention is that, in the light of those circumstances, the applicant was given a genuine opportunity to appear before the Tribunal and failed to do so and that the Tribunal has complied with its statutory obligations. It places emphasis upon the Tribunal's entitlement to proceed in the manner set out by reason of s 426A(1) of the Act. 16 At the hearing, counsel for the applicant contended, amongst other things, that it was "unreasonable" for the Tribunal to have proceeded as and when it did. Counsel did not identify any provision of Div 4 of Pt 7 of the Act, which imposes upon the Tribunal the obligation not to proceed unreasonably in relation to that process beyond that which s 425(1) itself imposes. 17 To the extent to which the submission seeks to invoke the provisions of s 420 of the Act, it is clear that the failure of the Tribunal to comply with s 420 of the Act does not itself constitute a failure to observe a procedure required to be observed in the making of the decision so as to give rise to the ground of review under s 476(1)(a) of the Act: Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300. The applicant's claim in my judgment must be determined by reference to the terms of s 425(1) of the Act, the content in which it appears including the supporting sections ss 425A, 426 and 426A of the Act. I do not consider that the applicant's contention is enhanced in the present circumstances by attributing to the Tribunal's decision the epithet "unreasonable". I do not therefore consider it necessary to make any finding about whether the Tribunal was unreasonable in the manner it acted. I am not to be taken as accepting that that is, or could be, an appropriate way to characterise its proceeding as it did. 18 Counsel for the applicant also submitted that the Tribunal was mistaken, as a matter of fact, in some respects in its findings which I have quoted above. It was submitted that the applicant had difficulty communicating effectively with the Tribunal on 8 November 1999 because of language difficulties. It was further submitted that the applicant understood, from his discussions with the Tribunal on 8 November 1999, that there was no need for him to attend the Tribunal hearing on 9 November 1999. It was also submitted that he did not answer the telephone later on 8 November 1999 when the Tribunal called his home on two occasions, or on 9 November 1999, not because he was out but because he was too sick to answer the telephone. I am not, on an application such as this, able to act on matters which are put forward by way of instruction and without evidence. It may be that evidence could have been given to demonstrate that some one or more of the particular findings of fact made by the Tribunal, giving rise to its conclusion that it was appropriate to proceed under s 426A(1) of the Act because the applicant did not appear before it, could be shown to be particular facts which did not exist. For instance, the Tribunal inferred, from information given to it, that the applicant was not at home on 9 November 1999. If it was shown that that particular fact did not exist, it is possible that the ground of review available under s 476(1)(g) and s 476(4)(b) of the Act might have been made out. However, no such attempt was made. I am therefore not persuaded that I should do other than act upon the findings of fact and matters recorded by the Tribunal in its reasons for it deciding to proceed to hear and determine the application without taking any further action to allow or enable the applicant to appear before it: s 426A. 19 It was further submitted that s 426A did not entitle the Tribunal to proceed with the review on 9 November 1999 because s 426A(1)(b) comes into operation only when the Tribunal is satisfied that a visa applicant has abandoned the application or abandoned the desire to give evidence before the Tribunal. In my judgment, that is reading more into the plain words of s 426A(1)(b) than is warranted. The plain words indicate that the section empowers the Tribunal to proceed to make a decision on the review without taking further action to allow or enable the applicant to appear before it. 20 If the applicant has been invited under s 425(1) to appear before the Tribunal to give evidence, as was the case in this instance, and the applicant does not appear before the Tribunal on the day on which and at the time and place at which the applicant is scheduled to appear, an issue may arise as to whether the Tribunal can proceed whatever the reason for that non-appearance. The expression "does not appear" in s 426A(1)(b) may require further judicial exposition in other cases. For instance, it may be that there is clear evidence that a visa applicant is unable to attend although he has expressed a desire to attend. He may be hospitalised. There may be many explanatory circumstances. No doubt the issue has not arisen because the Tribunal responds appropriately to true cases of hardship. 21 I am not to be taken as accepting that non-appearance, whatever the Tribunal may know about the reason for non-appearance, will suffice to enable the Tribunal to proceed to determine the review without taking further action to allow a visa applicant to appear before it. Whether it may do so under s 426A(1) may depend upon the circumstances. But I do not think it is necessary or appropriate to take the extra step which the applicant contended for, namely that the Tribunal must be satisfied that the visa applicant has abandoned the opportunity to appear to give evidence before the Tribunal can proceed under s 426A. 22 In my judgment, it then becomes a matter of considering the circumstances in which the Tribunal determined to proceed to assess whether the Tribunal complied with s 425(1) of the Act and s 426A(1) of the Act. As the Tribunal's reasons record, the medical certificate did not indicate that the applicant was unfit to attend the Tribunal on 9 November 1999. It was limited to him being unfit for work. The Tribunal identified that feature and then took it up with the applicant. It made it clear to the applicant that, subject to the Tribunal speaking to the applicant's certifying doctor with the applicant's approval and then telling the applicant that he did not need to attend on the following day, he was to attend the hearing on 9 November 1999. With the applicant's approval, the Tribunal contacted his doctor. As it records, the doctor did not indicate that the applicant was then unfit to attend the Tribunal hearing on the following day. Quite the contrary. The situation at that point was, therefore, that the Tribunal had available to it medical evidence that the applicant was fit to attend the Tribunal on 9 November 1999, notwithstanding the applicant's claim that he felt himself that he was unable to attend. The Tribunal had told the applicant that he should attend on that day, despite him having requested a deferral and having sent the medical certificate. The subsequent efforts of the Tribunal after it had consulted the applicant's doctor, to reassert to the applicant that he should attend on 9 November 1999, were unsuccessful. 23 In those circumstances, in my judgment, it has not been shown that the Tribunal failed to invite the applicant to appear before the Tribunal to give evidence in accordance with s 425(1). If there is an ongoing obligation (which in a sense was assumed by the respondent for the purposes of the submission) to provide a genuine opportunity to appear before the Tribunal to give evidence, or if that obligation arises by the combination of ss 425(1) and 426A(1), it has not been shown that the Tribunal in the circumstances failed to give to the applicant a genuine opportunity to appear before it, in the light of the communications from and with the applicant on 8 November 1999. If that obligation be couched in some way by reference only to s 426A(1)(b) of the Act, it has been shown that the applicant did not appear before the Tribunal on the day on which, and at the time and place at which, he was scheduled to appear in circumstances where, to the knowledge of the Tribunal, he was aware of that obligation. That obligation had been reaffirmed to him by the Tribunal on 8 November 1999, notwithstanding his claim that he was unable to attend. The Tribunal had taken steps to satisfy itself that he was not medically unfit to attend on that day. 24 In those circumstances, in my judgment, the ground of review which has been argued must fail. The application is dismissed. 25 In the circumstances, I see no reason to depart from the normal order for costs. I order that the applicant pay to the respondent costs of the application to be taxed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 22 June 2000 Counsel for the Applicant: Ms M Dudhee Counsel for the Respondent: Mr M Allatt Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 7 June 2000 Date of Judgment: 7 June 2000