SZAHA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1136

FEDERAL COURT OF AUSTRALIA

SZAHA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1136 SZAHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 884 OF 2003 STONE J 15 OCTOBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 884 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAHA

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 15 OCTOBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. 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 884 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAHA

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 15 OCTOBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate given on 18 July 2003 dismissing an application for review from a decision of the Refugee Review Tribunal ('Tribunal'). In that decision the Tribunal affirmed the decision of the delegate of the respondent ('Minister') not to grant a protection visa to the appellant. The Chief Justice has directed, under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that this appeal is to be heard by a single judge rather than by the Full Court. 2 The appellant is a citizen of Lebanon who arrived in Australia in June 1997 and was detained in June 1999. More than two years later, on 25 August 1999, he applied for a protection visa. In his reasons for decision (2003 FMCA 306) his Honour, Raphael FM outlined carefully and in detail the history of the appellant's attempts to obtain a protection visa and the claims he made to support his application. It is not necessary to repeat that account here. It is sufficient to note that, after many delays the appellant was unsuccessful before the Minister's delegate, the Tribunal and the learned Federal Magistrate. 3 In his application for a review of the Tribunal's decision the appellant stated that contrary to the Tribunal's view, if he were to be sent back to Lebanon he 'would be very seriously punished (death penalty)'. He asked to be deported to Turkey where, he said, he has family friends. In relation to this application his Honour commented: 'It will be seen that this document does not allege any matters upon which review might be granted under s 39B of the Judiciary Act 1903. I asked the applicant what he wished to tell me about the manner in which the Tribunal came to its conclusions. He said (and the transcript will show) quite a lot, but the most significant matter related to a claim that the Tribunal did not give him an opportunity to provide it with documentation that he believed he could obtain. That is not entirely the case.' 4 His Honour then set out the Tribunal's account of the appellant's attempt to provide additional documents. The Tribunal stated that on 17 February the appellant, in a telephone conversation, told the Tribunal that he would have the additional documents by 28 February 2003. The Tribunal advised the appellant, by letter dated 17 February 2003, that it would not make a decision before 5 March 2003 but that if it had not received the documents by that date it would proceed to a decision without further advice to the appellant. The documents were not provided and the Tribunal handed down its decision on 17 March 2003. 5 His Honour commented that it was not unreasonable 'for the Tribunal to have adopted the course which it did and decide the matter on the facts as they were then before it' and held that there was no lack of procedural fairness in the Tribunal's approach. In relation to the other matters raised by the appellant, his Honour observed: 'The other matters raised by the applicant were matters going to the decision itself and the facts upon which that decision was based. It is, of course, not within the power of this court to remake the decision of the Tribunal based upon facts that the court would have found or views as to the applicant's fear of persecution that the Tribunal did not share.' 6 In his appeal to this Court the appellant has expressed his grounds of appeal as follows: 'My court case was cancelled because I did not have counsel represent me. I had no chance to put a case.' 7 The circumstances that give rise to this claim can be gleaned from the decision of the learned Federal Magistrate: 'The applicant sought review of the decision of the Tribunal from this court. The matter was originally set down for hearing in May. Although he at first refused it the applicant later requested assistance under the Minister's scheme for legal assistance to persons seeking review of a decision of the Refugee Review Tribunal. There were difficulties in obtaining that advice because the applicant was indisposed. The original hearing date in May was then adjourned until today, 18 July 2003. The papers reveal that in the meantime the applicant received advice under the scheme. The applicant then employed his own legal advisers to represent him today. On 16 June 2003 a letter and affidavits were filed with the court from those solicitors indicating that they had given certain advice to the applicant which he had rejected and requesting that they no longer be retained by him. The solicitors did not appear today. When this matter was called the applicant indicated that he wished an adjournment. The grounds for that adjournment were twofold. The first was that he no longer had legal representation, and the second was on the grounds of his health. With regard to the latter he showed me a letter from Mr Gary Hardgrave, MP, indicating that an appointment had been made for him to see a cardiologist on 28 August 2003. I declined to grant an adjournment. It seemed to me that the history of this matter was littered with delay. An adjournment had already been given at the applicant's request. There was no assurance that legal representatives would be employed and would appear on the applicant's behalf. I did not consider the existence of a doctor's appointment sufficiently indicative of disability to prevent the applicant from making his own case as so many applicants do.' 8 At the hearing of the appeal, the appellant once more applied for an adjournment so that he could obtain additional documents from Lebanon and also to enable him to obtain legal representation. The respondent strongly opposed the application. 9 I am not satisfied as to the relevance of the documents to which the appellant refers. More importantly I think it is extremely unlikely that these documents will be forthcoming. The appellant promised to have them to the Tribunal by 28 February 2003. It is now almost eight months later and the appellant tells me that he has had no answer from those from whom he has requested the documents. In relation to his attempts to obtain legal representation I am similarly pessimistic. The appellant tells me that he has money to pay for legal assistance but says that the lawyers will not appear for him until he obtains the documents referred to above. He also indicated that there is a difficulty because, without those documents, his case is very weak. Given the length of the period over which the appellant claims to have been pursuing this issue I can have no confidence that an adjournment would serve any purpose. For these reasons I declined to grant the adjournment. 10 Whether or not an adjournment of a scheduled hearing should be granted is a matter peculiarly within the discretion of the presiding judge. An appellate court will not interfere with the exercise of such discretion unless it is satisfied that the exercise of the judge's discretion has resulted in manifest injustice such as a denial of procedural fairness. No such question arises here. Rather, in the circumstances set out by Raphael FM, his Honour's approach seems entirely reasonable. In summary I can discern no error in his Honour's reasons nor have I been able to discern any reviewable error in the reasons of the Tribunal. 11 The appeal is dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.