ADY17 v Minister for Immigration
[2018] FCCA 2977
•26 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADY17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2977 |
| Catchwords: PRACTICE AND PROCEDURE – Application made orally for adjournment on day of hearing – principles in relation to consideration of adjournment applications – availability of legal representation – whether merit in substantive judicial review application. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42 Migration Act 1958 (Cth), ss.36, 420, 422B, 425, 425A, 426A, 441A, 476, 499 Migration Regulations 1994 (Cth), reg.4.35D(3) |
| Cases cited: AJY16 v Minister for Immigration & Anor [2017] FCCA 565 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 |
| Applicant: | ADY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 19 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 19 March 2018 |
| Date of Last Submission: | 19 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 26 October 2018 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms K La |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the applicant’s oral application for adjournment be dismissed.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 19 of 2017
| ADY17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 6 January 2017 the applicant seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision dated 16 December 2016 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Class XA protection visa (“Protection Visa”) to the applicant. The Tribunal Decision appears in the Court Book (“CB”) at CB 207-217.
At the hearing of the Judicial Review Application the applicant effectively made an application for an adjournment of the hearing, without notice, on the basis that he wanted to be represented by a lawyer and was prepared to have his parents take out a loan, which had not yet been applied for, in an endeavour to raise the fees to fund his legal representation. The Court indicated at hearing that it did not propose to grant the adjournment and that it would provide written reasons for that refusal in conjunction with the written reasons on the Judicial Review Application proper. Reasons in both respect appear hereunder: for the adjournment at [10]-[20] below and for the Judicial Review Application proper at [21]-[40] below.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a Punjabi citizen of India, arrived in Australia on 29 September 2009 as the holder of a student visa which subsequently expired in 2012: CB 209 at [11];
b)an application for a new student visa made in February 2012 was refused by a delegate who found the applicant had provided false and misleading information in relation to that student visa application: CB 209 at [12];
c)in May 2012 the applicant sought review of the decision to refuse him a student visa, but the decision to refuse was affirmed by the Migration Review Tribunal in March 2014 at a hearing which, without explanation, was not attended by the applicant: CB 209 at [13];
d)the applicant then appears to have applied for a visa under the Regional Sponsored Migration Scheme in June 2012 which was refused in July 2012: CB 209 at [14];
e)the applicant then applied for Ministerial intervention in relation to the refusal of the student visa, which was again refused on 24 March 2015: CB 153-154;
f)on 24 April 2015 the applicant lodged an application for a Protection Visa making the following claims:
i)he had a fight with a group of shopkeepers as they had not paid their rent on time and for a few years they had not paid any rent to the applicant, and he will get attacked if he goes back to his area in India and he feels unsafe, unsecure and very scared because of this: CB 31-32;
ii)the authorities are not much help in disputes, they do not care for it, they are corrupt and it costs money if you want action taken, and he does not have much money to spend on that: CB 31;
iii)he has never lived elsewhere in India but he is scared “those people” will find him, and he was so scared that he chose to leave India: CB 31; and
iv)as his student visa has ended he has nowhere to go but back to India, he does not know anyone in another part of India, and he feels safe and secure in Australia so needs some protection: CB 31;
g)on 14 December 2015 the Delegate’s Decision was to refuse the applicant a Protection Visa: CB 153-163;
h)on 23 December 2015 the applicant applied for review of the Delegate’s Decision by the Tribunal: CB 165-166;
i)on 21 October 2016 the applicant was invited to attend a hearing before the Tribunal on 12 December 2016 (“Tribunal Hearing”): CB 179-180;
j)on the day of the Tribunal Hearing the applicant emailed the Tribunal stating he was unable to attend and attaching a “medical certificate”. The “medical certificate” was a medical report dated 11 December 2016 from an after hours general practitioner referring the applicant to Sir Charles Gardner Hospital to rule out appendicitis: CB 192-195 and 211 at [24]-[28];
k)the Tribunal emailed the applicant documents indicating that the Tribunal considered the applicant had provided insufficient evidence to justify an adjournment, namely that the document provided was a report as opposed to a medical certificate, and did not indicate why he could not attend the Tribunal in person, or via telephone, and therefore the Tribunal informed the applicant that it intended to proceed with the Tribunal Hearing: CB 196;
l)having unsuccessfully endeavoured to contact the applicant, the Tribunal proceeded with the Tribunal Hearing, and declared the applicant a “no show” upon his non-appearance: CB 197-198 and 212 at [31]-[32]; and
m)the Tribunal affirmed the Delegate’s Decision: CB 207 and 214.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)identified s.36(2)(a) and (aa) of the Migration Act and the necessary corresponding definitional provisions of the Migration Act, and explained the criteria that the applicant was required to satisfy in order to be granted a Protection Visa, and referred to the policy guidelines to be taken into account under Ministerial Direction No.56 by reason of s.499 of the Migration Act: CB 208 at [3]-[7];
b)outlined the applicant’s history of visa applications, including the findings of the respective delegate and Migration Review Tribunal (as it then was) regarding the status of those visa applications, and noted in the period since his first visa in 2009 that the applicant had returned to India once in 2011 for a period of six weeks and also travelled to Bali for one day in 2012: CB 209 at [9]-[16];
c)referred to the applicant being granted a series of Bridging E visas since May 2014, which were granted on the basis that he was making plans to depart Australia, but that he instead applied for the Protection Visa on 14 December 2015: CB 208 at [1]-[2] and 209 at [15];
d)noted the scant and vague detail of the applicant’s claims for a Protection Visa, transcribing them verbatim at CB 209-210 at [18] (footnote omitted) as follows:
18. In this applicant [sic], he set out his claims as follows:
Why did you leave [India]?
I left for my better future career. I came to Australia on student visa.
What do you fear may happen to you if you return to [India]?
I had dispute with the shop tenants which are on rent. They were dispute for non paying rent on time and from few years they haven't paid any money to us. When I ask them to pay the rent then they started dispute over non payment for the rent.
Did you experience harm in [India]?
Yes. I had fight with a group of shopkeepers. They were dispute for non paying rent on time and form [sic] few years they haven't paid any money to us.
Did you seek help with [India] after the harm?
No. I was so scared and threatened by that group and then I decided to leave the country. Now if I go back they can harm me again because we have home still in that area.
Did you move, or try to move, to another part of [India] to seek safety?
I moved to Australia since then. But now my visa is finishing and have to leave country. I have nowhere to go except India. I also don't know anyone in my [sic] other part of country where I can live and stay. I feel secure in Australia and seeking help from Australia.
Do you think you will be harmed or mistreated if you return to [India]?
I can get attacked again if I go back to India in my area. I am scared and not feeling safe and secure to go back to India.
Do you think the authorities of that country can and will protect you if you go back?
Authorities are not much helpful in this type of disputes. They don't care for this. The authorities are corrupt over there and took money to take any action and we don't have that much money to spend on this.
Do you think you would be able to relocate within [India]?
I never lived and stayed any other part of in India. I am scared too if those people found me in India.
e)referred to the applicant’s non-attendance at the interview with the Delegate: CB 210 at [19]-[20];
f)addressed the applicant’s request for an adjournment of the Tribunal Hearing, noting that the applicant did not specifically ask for the matter to be postponed or adjourned, and finding that the medical report tendered by the applicant did not indicate any medical reason why the applicant could not participate in the Tribunal Hearing as scheduled: CB 211-212 at [27]-[30];
g)the Tribunal further noted that it had responded to the request for adjournment via email, and telephoned the applicant to advise him the Tribunal Hearing was going to proceed, though the call went to a message bank where the Tribunal left a message requesting that the applicant call back urgently: CB 212 at [31]-[33];
h)upon there being no appearance by the applicant (either in person or by telephone) the Tribunal proceeded to convene the Tribunal Hearing and make a determination pursuant to s.426A of the Migration Act on the basis that:
i)the Tribunal was satisfied that the applicant received the Tribunal’s acknowledgment of his application for review, and that he demonstrated this by his response to the invitation to appear before the Tribunal; and
ii)the applicant's previous visa proceedings, particularly in relation to the review hearing relating to his student visa application, and the interview before the Delegate relating to the Protection Visa application, demonstrated a pattern of non-participation in proceedings: CB 212-213 at [37]-[38];
i)noted that the events forming the applicant’s claims occurred, on his evidence, prior to his arriving in Australia in 2009, yet the applicant did not apply for a protection visa until April 2015, after he had been without a substantive visa for more than three years and after all other options were exhausted, which led the Tribunal to not accept that the applicant could not have applied for a Protection Visa earlier, and to draw an adverse inference that the applicant did not lodge a Protection Visa application until he had run out of other options, and to make adverse credibility findings based on his delay in seeking protection: CB 213 at [39]-[40];
j)again noted the applicant’s Protection Visa claims, which were “vague and lacking in meaningful detail”: CB 213 at [43], and noted the questions it wished to ask the applicant had he attended the Tribunal Hearing in order to provide him a real and meaningful opportunity to make his claims: CB 213 at [43]-[45];
k)given the applicant's non-attendance at the Tribunal Hearing and the paucity of detail in the claims made, the Tribunal concluded that there was no evidence that the applicant's claims for protection came within the ambit of complementary protection: CB 213 at [46];
l)stated overall, the applicant's claims were mere assertions which the Tribunal had not had the opportunity to test at the Tribunal Hearing, and without the opportunity to test the truthfulness of his claims, the Tribunal was not prepared to accept them and was not satisfied that the applicant subjectively feared harm from "shopkeepers", or anyone else, because of events prior to 2009, or for any other reason, and thus concluded that the applicant was not a person with a well-founded fear of persecution for a Convention reason in the reasonably foreseeable future, and is not a person to whom Australia has protection obligations under the Refugee's Convention: CB 213-214 at [47]-[49];
m)was not satisfied that it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm, as it did not accept that the applicant would face significant harm in India: CB 214 at [50]-[53]; and
n)affirmed the Delegate’s Decision not to grant the applicant the Protection Visa: CB 214 at [54].
Judicial Review Application
The “Grounds” in the Judicial Review Application are as follows:
1. I was born in … [name of district deleted] district in the state of Punjab in India on … [day and month deleted].
2. I came to Australia as a holder of Student Visa (Class TU) on 29th September 2009. My visa was due to expire on 15 March 2012.
3. In Feb 2012 I applied for the subsequent student visa and unfortunately my application was refused by Department of Immigration and Border Protection.
4. After that I applied for Merit Review of the case with Migration Review Tribunal and my appeal was denied by Tribunal.
5. Afterwards, I asked for a request for Ministerial Intervention, and my request was declined by Minister of Immigration and Border Protection.
6. Later I applied for Protection Visa application on 14 December 2015 and the visa application was refused by Department of Immigration and Border Protection.
7. After the refusal of Protection Visa, I applied for a review of Decision with Refugee Review Tribunal and the decision was affirmed by Tribunal.
8. I own commercial properly back in my home country, and after my father had passed away the properties were rented, and that was the sole source of income for Myself and my family.
9. After sometime tenant's stopped paying rent and when I approached them to pay rent they denied and the issue was raised to a significant dispute.
10. When I visited my home country last time in 2011, the issue became more severe and ended up in a fight.
11. The issue became so severe that I have to leave home and come back to Australia.
12. In point 35 of the decision maker considered that all these events are pre-dated to my arrival in Australia but all these events were dated during my last visit to India.
13. I would like to state that I fulfil the criteria for Protection visa as set out in s 36 of the Migration Act and Schedule 2 of the Migration Regulation 1994.
14. The decision maker has not correctly assessed the period of the events
Together with the Judicial Review Application the applicant filed an affidavit (“Applicant’s Affidavit”) which is in the same terms, verbatim, as the Grounds stated in the Judicial Review Application. The Court notes that the applicant failed to annex the Tribunal’s written record of decision, which is the Tribunal Decision, to the Applicant’s Affidavit. The Tribunal Decision formed part of the Court Book, which was marked as Exhibit 1.
On 29 March 2017 a Registrar of the Court made orders (“Registrar’s Orders”) to progress this matter to hearing, allowing the applicant the opportunity to:
a)file and serve any amended application;
b)file and serve additional supporting affidavits; and
c)to file and serve written submissions,
as well as listing the Judicial Review Application for hearing almost a year later on 19 March 2018.
The applicant filed no further materials pursuant to the Registrar’s Orders.
In accordance with the Registrar’s Order the Minister filed written submissions setting out the basis for the Minister’s opposition to the Judicial Review Application. It is not necessary to set out the Minister’s written submissions in any detail, and it suffices to observe that the Court has had regard to them for the purposes of determining the Judicial Review Application.
Adjournment application
At the hearing of the Judicial Review Application the applicant indicated at Transcript at pages 2-5 that:
a)he had not complied with the Registrar’s Orders because he did not have the required paperwork at the time, or any witnesses, and he needed a lawyer, but could not afford one because he did not have work rights;
b)he had asked his family to arrange some money so that he could obtain the services of a lawyer;
c)he did not know of any error in the Tribunal Decision “but the decision was not in my favour and I just need some help that I can be provided here in Australia”;
d)he cannot pursue the matter on his own, and that this is the first time he has been involved in such proceedings, is nervous and did not know what was happening;
e)the enquiries that he had made with lawyers (whom he was unable to name) indicated that he would need to raise $10,000 to $15,000 “for my case to be taken up”;
f)his family in India was going to apply for a loan, but had not yet applied for a loan, because they were collecting the required documents, and consequently there was presently no loan approval; and
g)the applicant proposed that if the Court were to grant an adjournment the Minister’s costs of the adjournment would be met from the proposed loan.
The Minister opposed the adjournment application submitting at Transcript at page 6 that:
a)the matter had been on foot for 14 months and the applicant had had sufficient time to obtain a lawyer;
b)this was not the first time that the applicant had been involved in review proceedings, he having been engaged in proceedings before the Migration Review Tribunal from 2012 to 2014 in relation to his student visa, and proceedings before the Administrative Appeals Tribunal in relation to the Protection Visa, and was therefore not unfamiliar with review proceedings;
c)there was no right to obtain legal representation for proceedings in this Court;
d)there was no guarantee that his parents would obtain a loan, and they are still to obtain relevant documents; and
e)an adjournment would be “just putting off the inevitable”.
The Court indicated at hearing that the adjournment sought was not granted, and the reasons would be published later. Those reasons follows hereunder.
The Court has a broad discretion in relation to whether or not it adjourns a hearing: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev. The primary consideration remains the interests of the administration of justice, which includes taking into account issues associated with case management and wastage of public resources: Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“Aon Risk Services”). The principles in Aon Risk Services have been adopted by this Court in migration proceedings: see, by way of example, EBB17 v Minister for Immigration & Anor [2018] FCCA 48 at [14]-[20] per Judge Lucev; BHG16 v Minister for Immigration & Anor [2017] FCCA 2745 (“BHG16”) at [27]-[28] per Judge A Kelly.
The applicant has not been able to retain a lawyer to act on his behalf. In circumstances where the applicant was afforded the opportunity to file further affidavit evidence there is no evidence that the applicant has endeavoured to retain a lawyer, or that any lawyer will come, or consider coming, on the record for the applicant, or that any lawyer has been consulted concerning, or considered whether there is, any possible jurisdictional error in the Tribunal Decision. Were the Judicial Review Application to be adjourned on the basis that a lawyer might come onto the record for the applicant, it would be very difficult to find another hearing date within a reasonable period of time, and certainly not until well into 2019 at the earliest. The Court notes that there would be wastage of public resources by having to have the Court reconvene and have the Minister’s lawyers reappear, all at public expense, at any reconvened hearing: BHG16 at [28] per Judge A Kelly. In the circumstances an adjournment would be contrary to the objects of the Federal Circuit Court of Australia Act 1999 (Cth), s.3 (see also s.42).
The applicant also provided no evidence as to his financial situation, or that of his “family” who are said to be intending to apply for the loan to fund the lawyer. Without that evidence there is no evidence of financial capacity to obtain a loan, such as to warrant the Court granting the adjournment sought by the applicant in any event. As noted in Singh v Minister for Immigration & Border Protection [2018] FCCA 369 at [25] per Judge Dowdy, it is unfortunate the applicant could not attain sufficient funds in time to instruct a lawyer for the final hearing, however, he had had ample time to raise funds, and his situation is otherwise not dissimilar to many other applicants.
It is well accepted there is no right to legal representation in migration proceedings in the federal courts: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ; SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; WZASY v Minister for Immigration & Anor [2017] FCCA 1623 at [20]-[21] per Judge Lucev. It is not a requirement of procedural fairness for an applicant to have publically funded legal representation, nor is it a reasonable ground for an application or proceeding to be stayed because an applicant does not have such representation: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68, (2016) 241 FCR 30; (2016) 338 ALR 551 at [51] per Flick, Griffiths and Perry JJ. In Timu v Minister for Immigration & Border Protection [2018] FCA 214 (“Timu”) at [67] per Barker J the Federal Court stated:
While the applicant suggests that if he were to be granted an adjournment and obtained legal advice and representation, a lawyer might discover further grounds of review in order to found a jurisdictional error, that speculative approach to the grant of an adjournment is not appropriately adopted. A court will often grant an adjournment, in the interests of justice, where there is no prejudice to any party of any great note, where there appears to be some reason to think that there may be proper grounds to be identified in advancing a case. Here, the submission for an adjournment of the applicant simply amounts to a request for further time to see if he can find a lawyer in the hope and eventuality that some further ground or grounds for setting aside the Assistant Minister's decision can be articulated.
The Court notes that an appeal from Timu which included a ground of appeal related to the failure to afford Mr Timu an adjournment at first instance, has since been dismissed: Timu v Minister for Immigration & Border Protection [2018] FCAFC 161, in particular at [20] per McKerracher, Farrell and Banks-Smith JJ.
The applicant is yet to secure legal representation, and there is no assurance any legal representative will in fact come onto the record, and the applicant does not know what jurisdictional error, if any, might affect the Tribunal Decision. Further, the Court, having read the Tribunal Decision and the other relevant papers, examined the Grounds of the Judicial Review Application, and endeavoring to remain vigilant to any possible jurisdictional error which might arise on the face of the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [100] and [112] per Mortimer J, does not consider that it is sufficiently arguable that the Tribunal Decision is affected by jurisdictional error, or that there is “some reason to think that there may be proper grounds to be identified in advancing a case”: Timu at [67] per Barker J, so as to warrant any adjournment of the hearing (and the reasoning in that regard essentially follows the reasoning set out at [25]-[39] below).
The applicant having raised the application for an adjournment at the last possible moment, and seemingly without notice to the Minister, does not weigh in favour of it being in the interests of justice to grant the adjournment. Furthermore, the applicant has failed to comply with the Registrar’s Orders regarding the filing of material in support of his case, and while this is not uncommon in migration proceedings, the applicant has been aware for almost one year of the date that the matter was listed for final hearing, and in that time was not able to obtain legal representation, or the funds to enable him to be legally represented.
The Court does not consider it in the interests of justice, or the administration of justice, to grant an adjournment particularly in circumstances where there is no assurance of future legal representation for the applicant, nor any merit, or at least sufficiently arguable merit, in the Grounds, and the adjournment application was made late, without notice, and in circumstances where the applicant had not complied with the Registrar’s Orders. For the above reasons, the application for adjournment was refused at hearing, and the Court proceeded to hear the substance of the Judicial Review Application.
Consideration – Judicial Review Application
The requirement for jurisdictional error
The Tribunal Decision is liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Jurisdictional error may also arise:
a)by reason of the Tribunal denying procedural fairness to which an applicant is entitled under the Migration Act: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [18] per French CJ and at [48] per Hayne, Kiefel and Bell JJ; Migration Act, ss.420 and 422B; and
b)if the Tribunal Decision is affected by legal unreasonableness: Li; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50, and see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
It is for the applicant to make out his case and establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15] per Jagot J.
The Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for the Protection Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1, CLR at 35-36 per Brennan J.
Grounds 1-7
Grounds 1-7 are background facts (largely undisputed) regarding the applicant’s visa history and as such those Grounds do not identify or establish any jurisdictional error in the Tribunal Decision.
Grounds 8-11
Grounds 8-11 are assertions of fact. Save for the applicant’s assertion concerning the date of “fight” with the shopkeepers (as to which see Grounds 12 and 14) nothing turns on these assertions of fact, which were all matters before the Tribunal
No jurisdictional error is identified or established by Grounds 8-11.
Grounds 12 and 14
Grounds 12 and 14 essentially contend that the Tribunal made an error as to the timing of the alleged fight or dispute with the shopkeepers by dating it to pre-2009, that is before the applicant first left India for Australia, rather than in 2011 when the applicant returned to India for about six weeks.
The applicant refers to the Tribunal Decision at CB 212 at [35] which is as follows:
35. The applicant claims that if he returns to India he faces persecution from a group of shopkeepers, with whom he and his family had a dispute. The applicant's family apparently owned the shops and leased then to the shopkeepers. At some point, the shopkeepers stopped paying rent. The applicant's family tried to recover the rent and "a dispute' occurred. The applicant claims to fear the revenge of the shopkeepers. I note that these events all appear to have pre−dated the applicant's arrival in Australia in 2009.
At CB 213 at [39]-[40] the Tribunal states:
39. The Tribunal notes the applicant's delay of six years prior to making a protection visa application. The Tribunal noted that the events forming his claims occurred, on his evidence, prior to arriving in Australia in 2009. The applicant did not apply for a protection visa until April 2015, after he had been without a substantive visa for more than three years and after all other options were exhausted.
40. Given the fact that he has applied onshore for a [sic] further visas, I do not accept that the applicant could not have applied for a protection visa earlier. I draw an adverse inference from that fact that he did not lodge a protection visa application until he had run out of other options and I note that the stated triggers for protection occurred prior to 2009. I make adverse credibility findings based on his delay in seeking protection.
The Court makes the following observations:
a)it was a finding of fact for the Tribunal to make regarding the dispute with the shopkeepers, including when that dispute occurred, and the Tribunal, on the material it had before it made the finding the applicant experienced difficulty with shopkeepers in 2009. There is no error of law, including jurisdictional error, in the Tribunal making a wrong finding of fact: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [52]-[54] per Black CJ, French and Selway JJ;
b)based on the information in the applicant's Protection Visa application, the dispute with shopkeepers in India over unpaid rent did commence prior to his arrival in Australia in 2009. This is based on the applicant’s responses referring to the dispute going back "a few years", and when asked if he tried to move to another part of India to seek safety the applicant's response was that he had moved to Australia since those disputes: “I moved to Australia since then”: CB 79. Therefore there does not appear to be any error on the Tribunal’s part in its assessment of the relevant period over which the events that form the basis of the applicant’s claims took place;
c)the period of the dispute with the shopkeepers was considered by the Tribunal to assess the applicant’s credibility. The applicant applied for the Protection Visa more than five years after he arrived in Australia in circumstances where at least some of the events giving rise to the applicant's claim pre-dated that arrival. The applicant only applied for the Protection Visa after he had exhausted other visa options: CB 213 at [39]-[40]. The Tribunal did not accept that the applicant could not have applied for the Protection Visa earlier: CB 213 at [40], and, accordingly it was open to the Tribunal to make adverse credibility findings against the applicant;
d)even if the Tribunal made an error as to the time of the event the applicant claimed to fear harm as a result of (but in the Court’s view no such error was made: see [31(e)] below), it is nothing but an example of misconceiving the applicant’s evidence: WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [46]-[47] and [58]-[63] per Marshall, Mansfield and Siopis JJ, and not of the Tribunal misconceiving the applicant’s claims, as the Tribunal still assessed the applicant’s claim of having a fear of harm from “shopkeepers” and did not accept the claim;
e)it is not open to the Court on a judicial review application to consider material which the applicant did not put into evidence before the relevant administrative decision-maker: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J. Because the applicant failed to attend the interview with the Delegate, failed to make any written submission to the Tribunal, and failed to attend the Tribunal Hearing, the only material before the Tribunal on which it could base the Tribunal Decision was the applicant’s claims as set out at [4(d)] above. Those claims do not assert that the relevant events occurred in 2011, and are indeed remarkable for their lack of any detail as to the dates of the relevant events. The Court considers the assertion now made by the applicant (that the relevant events occurred in 2011) to be new material which it cannot consider on judicial review;
f)the applicant had an opportunity to put more material, or indicate to the Tribunal he wished to put more material, before the Tribunal regarding the timing of relevant events prior to the Tribunal Hearing, in the form of a written submission or documentary evidence which he was invited to provide to the Tribunal prior to the Tribunal Hearing: CB 181-184, but did not do so. Even if one accepts the events the subject of the applicant’s claim for protection occurred in 2011, there is still a delay, significant in the Court’s view, of four years in applying for the Protection Visa, during which time the applicant was in Australia. There is no error in the Tribunal rejecting an applicant’s claims as the claims were not made at the first opportunity, or where there was a delay in seeking protection: Selvadurai vMinister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J, provided the Tribunal, as it plainly did in this case, exercises care before doing so and considers the material it has before it in support of the applicant’s case: WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [30] per Lee and Moore JJ; and
g)finally, the Court must not engage in an overzealous review of the Tribunal Decision, rather it must read the Tribunal Decision as a whole: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ. When reading the Tribunal Decision in its entirety it is clear the Tribunal did not reject the applicant’s claim solely because the harm he alleged occurred prior to 2009, rather the Tribunal rejected the claim based on previous findings of adverse credibility by the Delegate and the Migration Review Tribunal in previous visa application refusals, the history of visa applications the applicant had made to remain in Australia, the vagueness and paucity of the claims suggesting he feared harm, and his lack of participation in the review process to reinforce his claim, which were all indicative of the applicant not subjectively fearing “harm from shopkeepers”, or anyone else, because of events occurring more than six years ago, or for any other reason”: CB 214 at [48].
In all of the above circumstances, no jurisdictional error is established by Grounds 12 and 14.
Ground 13
Ground 13 does not take the form of a fact or a ground of judicial review, but is rather a conclusion on the ultimate question the Court is required to determine. As such no jurisdictional error is established by Ground 13.
Possible further ground – denial of procedural fairness
Consistent with the Court’s obligation to consider whether there might be a further ground of judicial review available to a litigant in person not considered or raised by the litigant in person: MZAIB at [100] and [112] per Mortimer J, the Court has considered whether it is possible that the applicant was denied procedural fairness by reason of the Tribunal’s refusal to adjourn the Tribunal Hearing upon the provision of the medical report to the Tribunal on the day of the Tribunal Hearing: see [3(j) and (k)] above.
By letter dated 21 October 2016, the Tribunal invited the applicant to attend the Tribunal Hearing scheduled for 12 December 2016. The invitation complied with the requirements of ss.425 and 425A of the Migration Act and was given to the applicant, as required by s.425A(2)(a), by one of the methods specified in s.441A of the Migration Act, namely transmission by email in accordance with s.441A(5). The invitation was sent to the applicant’s email address which was the address provided to the Tribunal by the applicant in connection with the review.
The invitation also complied with the requirements of s.425A(3) of the Migration Act by giving more than the prescribed period of 14 days notice required by reg.4.35D(3) of the Migration Regulations 1994 (Cth).
The Tribunal Hearing invitation included information which stated, amongst other things, that if the applicant sought to adjourn the hearing for a medical reason, he had to provide a doctor's certificate which stated that he was unable to attend the Tribunal Hearing. The applicant was provided with a leaflet titled "Information about hearings - MR Division" containing information about hearings, dismissals and rights which satisfied the requirements of s.425A(4) of the Migration Act. In addition to the Tribunal Hearing invitation, the Tribunal sent two SMS reminders to the applicant about the hearing on 5 December 2016 and 9 December 2016 respectively: CB 192.
On the day of the Tribunal Hearing the applicant emailed a medical report to the Tribunal. The medical report did not provide that the applicant was unable to appear at the Tribunal Hearing. The Tribunal replied and notified the applicant of the inadequacy of the medical report and its intention to proceed with the Tribunal Hearing. The adequacy of the medical report, and whether it indicated that the applicant was able to appear at the Tribunal Hearing was a matter of fact to be determined by the Tribunal. There is no jurisdictional error in the Tribunal proceeding with the Tribunal Hearing in circumstances where it has determined that the medical report provided does not provide that an applicant is unable to appear at the Tribunal Hearing: BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 at [35] per Perry J; Singh v Minister for Immigration & Border Protection [2016] FCA 108 at [2] per Pagone J; AJY16 v Minister for Immigration & Anor [2017] FCCA 565 at [38] per Judge Lucev (and the other cases there cited). At the Tribunal Hearing the Tribunal telephoned the applicant, but there was no response. In circumstances where the applicant was validly invited to attend the hearing Tribunal Hearing under s.425 of the Migration Act and failed to appear, it was not unreasonable for the Tribunal to exercise its discretion under s.426A(1A)(a) of the Migration Act to make a decision without taking any further action to allow the applicant to appear.
The Tribunal did not act unfairly, but rather acted in accordance with the statutory requirements under the Migration Act.
In all of the above circumstances, the Court does not consider that there was a denial of procedural fairness by the Tribunal in proceeding with the Tribunal Hearing on 12 December 2016.
Conclusion and Orders
The Court finds that:
a)there is no proper basis for an adjournment of these proceedings, and the adjournment application must be dismissed; and
b)the Tribunal Decision was not affected by jurisdictional error, and it follows that the Judicial Review Application must be dismissed,
and the Court orders accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 26 October 2018
35
4