ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 744
Federal Circuit and Family Court of Australia
(DIVISION 2)
ACN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 744
File number: PEG 4 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 6 September 2022 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the applicant was properly invited to appear before the Tribunal at a hearing – whether the Tribunal erred by proceeding to determine the application pursuant to s 426A(1A)(a) of the Migration Act 1958 (Cth) – whether the Tribunal failed to give adequate reasons for its decision – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 425, 425A, 426A, 441A, 441C & 476
Migration Regulations 1994 (Cth), reg 4.35D
Cases cited: Abebe v The Commonwealth [1999] HCA 14
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 1 September 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 4 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACN22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
6 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
Background
The applicant is a citizen of the People’s Republic of China (Court Book (“CB”) 26 & 51-54). He arrived in Australia in July 2017 as the holder of a visitor visa (CB 33 & 73).
On 29 August 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 13-50). With his visa application, the applicant provided a copy of his Chinese passport (CB 51-54).
In his visa application, the applicant claimed to fear harm from an “evil” branch secretary who had occupied his farming land for illegal mining activities (CB 44). The applicant further claimed to have sought assistance from the police but they did not assist him because the secretary was “in collusion with them”. The applicant also claimed that he was thereafter arrested for 14 days and “beaten by local gangsters”. The applicant further claimed that he “tried to send a letter of accusation to the government”, but that letter was intercepted by the secretary and the applicant was again beaten and “threatened with harsher things” (CB 45).
On 9 November 2017, the then Department of Immigration and Border Protection (the “Department”) requested that the applicant attend an interview at its Sydney office on 23 November 2017 to discuss his visa application and claims (CB 66-68).
The applicant did not to attend that interview (CB 75).
On 23 November 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 73-80). As the applicant did not attend the protection visa interview, the delegate was only able to consider written information provided by the applicant. The delegate did not consider that the written material provided a sufficient basis to be satisfied that the applicant met the criteria for the grant of the visa (CB 75).
On 24 November 2017, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 81-88). In that application, the applicant provided an email address and a postal address for correspondence in relation to his review application (CB 85).
On 25 October 2021, the Tribunal wrote to the applicant (via email) advising him that, due to the COVID-19 pandemic, the Tribunal was proposing to schedule a hearing before it via Microsoft Teams. The Tribunal asked the applicant to advise, within seven days, if he did not have the appropriate technology or if there were other barriers which would prevent the applicant from participating in an electronic hearing (CB 97).
The applicant did not provide any response to the Tribunal.
On 24 November 2021, the Tribunal invited the applicant (via email) to attend a hearing before it, via Microsoft Teams, scheduled on 10 December 2021 (CB 98-110). Importantly, that letter stated (CB 100):
What will happen if you don’t appear
If you do not appear at the scheduled hearing, including not appearing by video conference using Microsoft Teams at the scheduled time, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
The information sheet (CB 102-106) provided with the invitation letter also notified the applicant of what would happen if he was unable to attend the hearing, as follows (CB 105):
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, or you would prefer that the hearing take place in a different way (e.g. at an AAT office instead of by video or telephone), you must advise us of this as soon as possible. Please note that we will only make changes if we are satisfied that it is reasonable and there are good reasons for doing so.
If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. Not appearing at the scheduled hearing means:
•if you were invited to appear at an AAT office (including by video from an AAT office), you do not attend the AAT office at the scheduled time;
•if you were invited to appear by video conference using Microsoft Teams, you do not appear via Microsoft Teams at the scheduled time;
…
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide a convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
On 3 December 2021, the Tribunal sent an SMS hearing reminder message to the applicant’s mobile number (as provided in his review application). That message provided (see the affidavit of Jonathon Papalia affirmed on 16 August 2022 and filed on 17 August 2022 (“Papalia affidavit”), p 4):
Reminder - Your AAT hearing is on 10/12/21. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
On 5 December 2021, the applicant sent an email to the Tribunal as follows (CB 111):
Thank you for you email.
Attached is the form you may want for my hearing.
On 9 December 2021, a further SMS hearing reminder message was sent to the applicant. That message read as follows (see Papalia affidavit, p 4):
Reminder - Your AAT hearing is on 10/12/21. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
The applicant did not attend the Tribunal hearing on 10 December 2021 (CB 113-116).
That same day (on 10 December 2021), the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 119-125). It did so pursuant to s 426A(1A)(a) of the Migration Act 1958 (Cth) (the “Act”).
On 24 December 2021, the applicant filed an application for judicial review in this Court (CB 1-7). That application was supported by an affidavit deposed by the applicant on 23 December 2021 (and filed on 24 December 2021) (CB 8-12). The application for judicial review is filed pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s decision
The Tribunal’s decision is seven pages long and spans 22 paragraphs. The final three pages of the decision contain extracts of relevant legislative provisions.
The Tribunal began by confirming that the applicant, a citizen of China, had applied for the visa on 29 August 2017 and noted that the visa had been refused by a delegate of the Minister on 23 November 2017. The Tribunal also extracted the applicant’s claims for protection (at [1]-[2]), noting that they provided as follows (without alteration):
I was a farmer in my small city and lived a fair happy life until the new party branch secretary came. China is running collective contract system in farms where each household owns equal amount size of land to grow crops. However, the secretary occupied the farm land of my family, including the land to grow crops for feeding the family. They used our land for illegal mining, which resulted in that my land were no longer suitable for crops. I tried to call the police but he was too powerful to be challenged, so the police did nothing at all and left us alone against the secretary helplessly. I did tried to resist, but he colluded with not only the police, but also local gangsters, who came to my place and beat my family very badly, and smashed nearly all the furniture and appliances in my family. I tried to send a letter of accusation to the government, but turned out that he intercepted the letter, beat me again and asked the police to arrest me for 14 days. I was threatened that the thing was never going to be over, worse things were going to be happened to me. I am a farmer and all my land was occupied by the evil secretary, which left me nothing to make a living. With later threaten and treatment they did to me, I had no choice but to run away to Australia.
The Tribunal confirmed that it had written to the applicant on 24 November 2021 and, noting that it was unable to make a favourable decision on the information provided in his review application alone, had invited him to appear at a hearing before it on 10 December 2021. The applicant was advised (in that letter) that if he did not attend the Tribunal hearing (and no postponement was granted), a decision may be made in his matter without further notice. The Tribunal further confirmed that the applicant had returned a blank hearing response form (at [4]).
The Tribunal continued:
5.The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. There was no reason provided from the applicant as to the applicant's failure to appear and there is nothing before the Tribunal to suggest that he was ill. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal then outlined the criteria for the grant of a protection visa and the relevant legal principles, including mandatory considerations (at [6]-[14]).
The Tribunal detailed that the applicant had claimed (in his visa application) to fear harm in China because his land was taken and, as a result of his complaints in that regard, “he had suffered” (at [15]).
The Tribunal continued:
16.The claims before the Tribunal are lacking in essential detail. While the applicant has stated that he fears harm in China because his land was taken, there is little detail in his application as to when this allegedly occurred.
17. The applicant was invited to appear before the Tribunal but did not do so.
18.As a consequence, the Tribunal has been unable to question him further as to the veracity of any of his claims, leaving his claims unclarified and the Tribunal's questions unanswered. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of his membership of a particular social group if he returns to China in the foreseeable future.
The Tribunal was ultimately not satisfied that the applicant met requirements set out in ss 36(2)(a) or s 36(2)(aa) of the Act. On that basis, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [19]-[22]).
Application to this Court
The application for judicial review, filed by the applicant on 24 December 2021, contains three “grounds of review” as follows (without alteration):
1.I FACED SIGNIFICANT HARM WHEN I WAS IN CHINA AND I WILL NOT BE SAFE IF I HAVE TO RETURN THERE
2.I WLL ONLY BE SAFE IN AUSTRALIA, AND AWAY FROM CHINA, AS THERE IS NO ONE CAN PROTECT ME THERE
3.THERE ARE INTERNATIONAL PROTECTION OBLIGATIONS THAT I MUST BE PROTECTED BY
The applicant also filed an affidavit in support of his application for review. That affidavit annexed a copy of the Tribunal’s decision and associated notification letter and information sheet.
On 15 March 2022, procedural orders were made by Registrar Carney of this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 24 December 2021, a Court Book numbering 128 pages (marked as Exhibit 1), written submissions filed by the Minister on 17 August 2022, the Papalia affidavit and the affidavit of Madisen Anne Scott affirmed and filed on 29 August 2022 (“Scott affidavit”). The three affidavits were taken as read and in evidence at the hearing.
This matter was heard by this Court on 1 September 2022. The applicant appeared without legal representation and was assisted by a Mandarin interpreter. Ms Scott appeared for the Minister. The Court queried whether the applicant had received a copy of the Court Book, the Minister’s written submissions, the Papalia affidavit and the Scott affidavit. The applicant confirmed that he had received a hard copy of the Court Book and explained that he had received some material via email but, as he could not read English, was not sure which documents he had received. In this regard, the Court noted the Scott affidavit, the annexures to which were tendered and referenced as Exhibit 2. On the basis of that material, the Court was satisfied that the applicant had been properly served with the relevant materials.
The Court noted that the application for judicial review filed by the applicant only seeks relief by way of an order quashing the Tribunal’s decision. It does not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act is not properly invoked. The Minister was agreeable to the applicant “amending his application orally at the hearing to claim the required relief”. The Court explained this issue to the applicant and, with his agreement, made an order amending the application for judicial review to include seeking a writ of mandamus.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visa that the applicant now seeks. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant initially stated that he had “nothing to say at this time”. Having heard from Ms Scott (who outlined the Minister’s submissions in detail), although not entirely clear, the applicant emphasised that his English was poor and seemed to suggest that his application for judicial review had been prepared by “an agent”. Understandably, this made it difficult for the applicant to address his grounds of review as articulated.
Consideration
Oral submissions and grounds of review
Unfortunately, the applicant’s oral submissions to this Court do not address the issue of jurisdictional error.
Further, the applicant’s grounds of review do not raise any issues which can be addressed by this Court. They simply express disagreement with the Tribunal’s findings and ask the Court to engage in impermissible merits review.
Otherwise
In its duty to the applicant as an unrepresented litigant, this Court has remained astute to error in the Tribunal’s decision and, to the extent that this decision reveals any material error, the Court will address that error accordingly: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
The Court considers that, in assessing the Tribunal’s decision, it ought to consider the following issues:
(a)whether the applicant was properly invited to appear before the Tribunal at a hearing;
(b)whether the Tribunal erred by proceeding to determine the application pursuant to s 426A(1A)(a) of the Act; and
(c)whether the Tribunal failed to give adequate reasons for its decision.
Issue 1: whether the applicant was properly invited to appear before the Tribunal at a hearing
As outlined above, the applicant did not attend the Tribunal hearing which was scheduled to take place on 10 December 2021 (CB 113-116).
In those circumstances, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 119-125) and it did so pursuant to s 426A(1A)(a) of the Act.
Before considering whether the Tribunal erred by doing so, it is first necessary to consider whether the applicant was properly invited to appear before the Tribunal.
In that regard, the Court notes that the Tribunal is required to invite the applicant to attend a hearing before it pursuant to s 425 of the Act, which provides as follows:
425 Tribunal must invite applicant to appear
(1)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.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The Court notes that on 24 November 2021, the Tribunal invited the applicant (via email) to attend a hearing before it (via Microsoft Teams) scheduled on 10 December 2021 (CB 98-110).
Section 425A of the Act sets out the necessary requirements of such an invitation and, relevantly, provides as follows:
425A Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
Here, the invitation to attend the hearing:
(a)was addressed to the applicant (CB 99);
(b)clearly indicated the date, time and means by which the applicant could attend that hearing (being on 10 December 2021 at 2.00pm (NSW time) and noting that the hearing would be conducted using Microsoft Teams) (CB 99): s 425A(1) of the Act;
(c)was sent to the applicant via email (a method approved by s 441A(5)(b) of the Act) to the applicant’s nominated email address on 24 November 2021 (CB 98) and, as a result of s 441C(5) of the Act, the applicant was taken to have received the notice at the end of that day: s 425A(2)(a) of the Act;
(d)was given to the applicant 16 days prior to the scheduled hearing, exceeding the minimum notice period prescribed by reg 4.35D of the Migration Regulations 1994 (Cth) (being 14 days after the day the person receives the notice): s 425A(3) of the Act; and
(e)contained a statement describing the effect of s 426A of the Act and what would happen if the applicant did not attend the hearing (CB 100) and attached an information sheet which also set out that information in further detail (CB 105-106): s 425A(4) of the Act.
For completeness, the Court notes that, where a document was sent to an applicant by one of the methods specified in s 441A of the Act (as was the case in this matter where the invitation was sent via email), the applicant is “taken to have received that document” at the time specified in s 441C of the Act (in this case at the end of the day it was transmitted), regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36].
The Court is satisfied that the Tribunal complied with the requirements set out in s 425A of the Act and that the applicant was properly invited to attend the hearing.
No error arises in relation to issue 1.
Issue 2: whether the Tribunal erred by proceeding to determine the application pursuant to s 426A(1A)(a) of the Act
Before the Tribunal can exercise its discretion under s 426A of the Act, an applicant must have been invited (under s 425 of the Act) to appear before it. Further, ss 425 and 425A of the Act are to be read together: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39]. If s 425A has not been complied with, a valid notice of invitation has not been sent and the Tribunal’s powers under s 426A of the Act will not be enlivened.
As outlined above in relation to issue one, the Court is satisfied that the applicant was properly invited to appear at the Tribunal hearing as required by ss 425 and 425A of the Act.
Having been invited to attend a hearing, and having failed to appear at that hearing, s 426A of the Act was enlivened. Relevantly, that section provides:
426A Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
Note 1:Under section 430A, the Tribunal must notify the applicant of a decision on the review.
Note 2:Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.
The applicant did not attend the Tribunal hearing on 10 December 2021 (CB 113-116).
In those circumstances, the Tribunal could proceed to either determine the matter without any further action (pursuant to s 426A(1A)(a) of the Act) or dismiss the application without any further consideration (pursuant to s 426A(1A)(b) of the Act).
Here, the Tribunal proceeded to determine the application without taking any further steps to hear from the applicant (as it was entitled to do by virtue of s 426A(1A)(a) of the Act).
The decision to exercise a discretionary power must be made “reasonably”. In the circumstances of this matter, the Court is satisfied that the Tribunal’s actions in this matter were reasonable. Relevantly, as emphasised by Ms Scott for the Minister:
(a)the visa application filed by the applicant contained minimal information and no additional material was provided by the applicant in support of that application (save for a copy of his passport);
(b)the applicant did not engage with the Department during the assessment of his visa application and did not attend the protection visa interview (and no adjournment request or any further contact was made to the Department by the applicant);
(c)after filing his application for review with the Tribunal on 24 November 2017, the applicant made no contact with the Tribunal except for a brief email communication on 5 December 2021 (which simply thanked the Tribunal for the email correspondence and said “[a]ttached is the form you may want for my hearing”) (CB 111);
(d)no further information or material was provided to the Tribunal ahead of the scheduled hearing in support of the applicant’s review application;
(e)the applicant was sent two SMS hearing reminder messages (on 3 December 2021 and 9 December 2021) (see the Papalia affidavit, p 4);
(f)the applicant did not appear at the hearing at the scheduled time of 2.00 pm (NSW time) (CB 113-116); and
(g)the Tribunal waited until 2.30pm (being a period of 30 minutes) before it determined that the applicant was not going to appear at that hearing.
As correctly submitted by the Minister (at [25] in written submissions filed in this Court on 17 August 2022), the circumstances in this matter are analogous to those in the matter of Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”). In that matter, the High Court determined that the Tribunal’s decision to proceed pursuant to s 426A of the Act was reasonable. As was the case in SZVFW, there was nothing in this matter which would take the applicant’s “application for review into the realm of the extraordinary”: SZVFW at [70].
On the basis of the above, the Court is satisfied that the Tribunal acted reasonably in proceeding to determine the applicant’s application pursuant to s 426A(1A)(a) of the Act.
No error arises in this regard.
Issue 3: whether the Tribunal failed to give adequate reasons for its decision
As submitted by the Minister (at [27]-[28] in written submissions filed in this Court on 17 August 2022), the Tribunal’s written reasons in this matter are “brief”. While arguably unusual given the nature of the claims made, brevity does not amount to jurisdictional error in and of itself. Context matters.
In this regard, the Court references the decision of the Full Court of the Federal Court in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 which relevantly provides:
In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
It is clear that the Tribunal in this matter understood the criteria required for the grant of a protection visa (outlined at [6]-[14] of its written reasons) and that the Tribunal considered whether the applicant met that criteria in light of the quite limited information provided by the applicant in his visa application.
It is for the applicant to make his case and adduce evidence in support of his case. Further, the applicant is required to satisfy the Tribunal that the visa criteria have been met: Abebe v The Commonwealth [1999] HCA 14. As noted by the Tribunal in this matter, the applicant’s claims were lacking in essential detail and, because the applicant had failed to attend the hearing before it, the Tribunal was unable to question him about any of those claims. Further, the applicant had not attended a protection visa interview with the Department and did not provide any further supporting material or evidence to the Department or to the Tribunal. The relevant background evidence was skeletal at best.
Here, the Tribunal determined that, on the limited evidence before it, that it could not be satisfied of the applicant’s claims or that he met the criteria for the grant of the visa.
In the circumstances of this matter, the Court is satisfied that the Tribunal provided adequate reasons for its decision.
No error arises in relation to issue 3.
Conclusion
The application for judicial review filed by the applicant on 24 December 2021 (and orally amended on 1 September 2022) has failed to identify any jurisdictional error. The Court has otherwise been unable to identify jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 6 September 2022
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