FEDERAL COURT OF AUSTRALIA SZBQG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1858 MIGRATION – Appellant notified of inadequacy of information before the Tribunal – non-appearance at Tribunal hearing as appellant was incapacitated – Tribunal proceeded to make a decision without giving the appellant a further opportunity to appear before it – whether breach of procedural fairness and failure to accord natural justice – question of compliance with requirements of s 425 Migration Act 1958 (Cth) – appeal dismissed Migration Act 1958 (Cth) ss 424, 424A, 424B, 424C, 425, 426A Abebe v Commonwealth of Australia (1999) 197 CLR 510 cited Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 359 distinguished Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 cited Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 cited Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 cited Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 cited SZBQG v Minister for Immigration & Multicultural & Indigenous Affairs NSD 1494 of 2005 JACOBSON J 2 DECEMBER 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1494 of 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZBQG APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: JACOBSON J DATE OF ORDER: 2 DECEMBER 2005 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 NSD 1494 of 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZBQG APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: JACOBSON J DATE: 2 DECEMBER 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a decision of Driver FM given on 4 August 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ('the RRT') handed down on 17 September 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. 2 The appellant is a citizen of India who claims to have a well-founded fear of persecution by reason of his political opinion. He claims to be a member of the National Congress Party which was involved in campaigns against the BJP and the Shiv Sena, which were in power in his home state and at the national level, and that as a result in early 2002 he was arrested, detained and verbally abused to prevent him from taking part in protests. The appellant also claims that his shop was set alight and that although he reported it to the police no action was taken. He and his family were also harassed and a false case was brought against him. 3 The RRT wrote to the appellant to advise him that it had considered the papers relating to his application but was unable to make a favourable decision on that information alone. Accordingly, the RRT invited the appellant to a hearing to give oral evidence. Despite indicating by letter his intention to attend the hearing, the appellant failed to appear. The RRT proceeded, pursuant to s 426A of the Migration Act 1958 (Cth) ('the Act'), to make a decision without taking any further action to enable the appellant to appear before it, finding that it was not satisfied that the appellant had a well-founded fear of persecution. In his application for judicial review the appellant indicated that he did not attend the hearing because he was ill. 4 The appellant's grounds of review before Driver FM centred around complaints that the RRT failed to provide him with a further opportunity to argue his case, failed to take reasonable steps to obtain information from the appellant, and failed to investigate the appellant's claims properly. The appellant also argued that the RRT relied upon 'presumptions' to reach its findings and that it failed to put adverse information to the appellant for comment. 5 At the hearing before Driver FM the appellant asserted that he had been unable to attend the hearing because he was assaulted on the day of the hearing. Whilst Driver FM accepted that the appellant was injured as a result of the assault on the day of the RRT hearing, his Honour found that as the RRT was not put on notice that the appellant could not attend the hearing it was entitled to proceed. There was nothing to indicate to the RRT that a further hearing might be required or that the RRT was obliged to investigate the appellant's claims further. His Honour also found no breach of s 424A of the Act, observing that the assertion is misconceived as the problem confronting the appellant before the RRT was not adverse material, but an insufficiency of material. Driver FM concluded that there was no jurisdictional error in the RRT's decision. 6 A notice of appeal was filed in this Court on 24 August 2005. The notice sets out generalised claims to the effect that Driver FM erred in failing to find that the RRT breached the rules of procedural fairness and natural justice. The appellant makes reference in the notice to ss 424, 424A and 424B of the Act, but does not provide any details as to how it is said that the RRT failed to comply with these sections. Further grounds are that the RRT erred in proceeding to make a decision without sufficient information, that it failed to carry out its proper function of 'fact finding', that the RRT's decision was infected by Wednesbury unreasonableness, and that the RRT failed to consider the reasonableness of relocation within India. No particulars are provided of any of the grounds upon which Driver FM was said to be in error. 7 The appellant has made what I take to be an application for leave to file an amended notice of appeal and I grant leave to the appellant to file the amended notice. The grounds of appeal in the amended notice of appeal are essentially the same as those that were propounded in the original notice of appeal and agitated before Driver FM. However, there is some attempt at particularisation in the amended notice of appeal. The particulars consist of variations on one principal theme, namely, an assertion that Driver FM erred in failing to find jurisdictional error on the part of the RRT in proceeding to make a decision despite the appellant's non-appearance at the hearing and despite the consequential paucity of information relating to the appellant's application for review before the RRT. In particular, the appellant argues that the RRT failed to carry out its duty as required by s 425 of the Act and that there was a 'constructive failure to exercise jurisdiction' pursuant to s 424C of the Act as well as pursuant to the common law. 8 The appellant has filed written submissions which helpfully distil the arguments he wishes to put to the Court. In his written submissions the appellant repeats the assertions made in the amended notice of appeal that the RRT failed to carry out its duties which he submits are required by ss 424C and 425 of the Act. 9 Subsection 425(1) of the Act requires the RRT to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. There is no question that the RRT invited the appellant to attend a hearing, an invitation which he accepted. There is no suggestion that the invitation amounted to what a Full Court described in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 at [33] as an empty gesture. However, the appellant submits that the fact of his non-appearance as a result of his injury amounts to a constructive non-compliance by the RRT with s 425 of the Act. 10 In Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 359 ('Applicant NAHF'), Hely J considered an application in which a husband communicated with the RRT seeking a postponement of a hearing date due to his wife's medical condition. The husband requested that the hearing be delayed until both he and his wife could attend. The RRT granted an adjournment but did not reschedule the hearing at a date far enough into the future to allow the wife to attend. The hearing proceeded before the RRT and the husband attended with his migration agent but without his wife. 11 Hely J considered, commencing at [26] of his judgment, the authorities on the current form of s 425(1) of the Act. His Honour observed at [28] that the evident purpose of s 425 of the Act is to ensure that the applicant has an opportunity to appear before the RRT to give evidence and present arguments in cases where the RRT cannot decide in favour of an applicant 'on the papers'. 12 His Honour considered, at [35], that failure to give the applicant wife an opportunity to attend the hearing would give rise to a breach of the rules of natural justice, even if the procedural requirements of s 425 had been complied with. His Honour said, at [36], that to invite the wife to a hearing which she was unable to attend because of ill health would be an empty gesture and a denial of procedural fairness. 13 However, it seems to me that the position here is quite different from that which was considered by Hely J in Applicant NAHF. In the present case the evidence indicates that the appellant had a certificate from his medical practitioner which was accepted by Driver FM and which stated that the appellant was required to rest until 23 July 2003. 14 The hearing before the RRT was scheduled to take place on 16 July 2003, but the appellant did nothing after 23 July 2003 to ensure that steps were taken to obtain a new hearing date in the RRT or at least to inform the RRT of the reason for his non-attendance on 16 July 2003. In particular, on 25 August 2003 the appellant was advised in writing that the RRT had made its decision and proposed to hand it down on 17 September 2003. It must have been clear to the appellant from that time that a decision had been made in his absence. The RRT's decision was made on 21 August 2003. The decision was handed down on 17 September 2003, yet the appellant did nothing between 25 August 2003 when he was advised that a decision had been made, and 17 September 2003 when the decision was handed down to inform the RRT that he wished to appear and give evidence. 15 In those circumstances, I do not consider that there was a failure by the RRT to provide a real opportunity to the appellant to give evidence and present arguments. Rather, the position seems to me to be that having missed the hearing date, albeit apparently through no fault of his own, the appellant did nothing to ensure that he could give evidence and present arguments prior to any decision being handed down. The appellant waited until the RRT handed down its decision before raising the issue of the assault and injury. In Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, Gleeson CJ said, at [37], that natural justice is essentially practical. It would be an inversion of that principle to suggest that there was a denial of procedural fairness in the circumstances to which I have adverted. 16 In Applicant NAHF at [29], Hely J refers to a decision of Wilcox J in Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 ('Xiao'). In that case, Wilcox J indicated that he did not subscribe to the view that the condition of non-appearance which enlivens the application of subs 426A(1) of the Act is necessarily satisfied by an applicant's failure to present personally before the RRT (see in particular [28] and [36] of the decision in Xiao). It was not argued before me that the provisions of s 426A of the Act were of any relevance in the disposition of this appeal. In any event, in the circumstances to which I have referred above, namely, the failure of the appellant to take any steps to obtain a substituted hearing date after 16 July, I do not consider that the approach to which Wilcox J referred in Xiao could have any relevance to the present appeal. 17 What is essentially alleged on the appeal is a breach of procedural fairness and a failure to accord natural justice. For the reasons that I have mentioned I do not consider that there was any such breach or any such failure. 18 As to the ground which alleges that the material before the RRT was sparse, it seems to me that the short answer is that the proceedings before the RRT are inquisitorial. As Gummow and Hayne JJ said in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]: 'It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.' 19 It is only in the rarest of cases that an obligation to make further inquiries is imposed upon the RRT. In the written submissions made in support of the amended notice of appeal the appellant contends that the RRT abandoned its fact-finding mission and relied excessively on country information. However, the position to which Driver FM referred at [3] of his reasons for judgment seems to me to be correct, that is, that the RRT is under no general duty to make inquiries or investigate the appellant's claims: see Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155. 20 Section 424 of the Act allows the RRT to obtain any information that it considers relevant to the conduct of the review. It is clear that the country information to which the RRT referred was preferred over that provided by the appellant but the appellant was given an opportunity to attempt to provide more information at the oral hearing and he did not exercise that opportunity. What weight the RRT gives to the country information is a matter for it: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. 21 The final issue raised by the appellant in his amended notice of appeal and written submissions is that of relocation. The appellant submits that the RRT failed to consider the question of the reasonableness of relocation within India. However, the RRT found that the question of relocation did not arise given its finding that the appellant did not face a real chance of persecution on return to India. Accordingly, I reject that ground of appeal. 22 I have taken into account the fact that the appellant appears for himself without the benefit of legal representation, although the appellant's written submissions were plainly enough prepared by a person possessing some familiarity with the Act and the relevant authorities. However, in my view it is plain that there is no jurisdictional error on the part of the RRT, nor error in the decision of Driver FM. Accordingly, the orders I will make are that the appeal be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 16 December 2005 The Appellant appeared in person Counsel for the Respondent: Ms P Sibtain Solicitor for the Respondent: Clayton Utz Date of Hearing: 2 December 2005 Date of Judgment: 2 December 2005