ALZ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 77
Federal Circuit and Family Court of Australia
(DIVISION 2)
ALZ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 77
File number: MLG 260 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 10 February 2023 Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – application to adjourn hearing before the Court – application for adjournment refused – application to review dismissed. Legislation: Migration Act 1958 (Cth), ss 424A, 425 and 425A. Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 56
Advocate for the Applicant: In Person Solicitor for the Applicant: None Advocate for the Respondents: Ms Moxey Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 260 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALZ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATVIE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
10 February 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Application filed on 2 February 2018 be dismissed.
3.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $5,000.
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 BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal ('Tribunal') on 10 January 2018 (‘Application’). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) (subclass 866) visa ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Sri Lankan national. The Applicant arrived in Australia on 20 June 2012 as an unauthorised maritime arrival. He completed his Irregular Maritime Arrival Entry interview on 13 August 2012.
The Applicant applied for the visa on 14 November 2012. His application was supported by a Statutory Declaration, declared 6 November 2012, which set out his claims for protection.
On 26 July 2013, the Applicant was invited to attend an interview in relation to his protection visa application. He subsequently attended for the interview on 14 August 2013 (see Court Book pages 119 and 132).
On 9 December 2014, a delegate of the Minister ('delegate') refused to grant the Applicant the visa.
On 6 January 2015, the Applicant applied to the Refugee Review Tribunal (as it then was) ('RRT') for review of the delegate's decision.
On 27 May 2015, Mr Brian Lincoln of the Tamworth Multicultural Inc submitted a supporting statement for the Applicant (Court Book 164).
On 9 June 2016, the Tribunal wrote to the Applicant and invited him to attend a hearing before it on 5 July 2016.
On 26 June 2016, the Applicant wrote to the Tribunal requesting a postponement of the hearing until on or after 29 July 2016 (Court Book 174) on the basis that his support person, Mr Lincoln, was unavailable. The request was refused by the Tribunal (Court Book 177) which indicated that it was prepared to hear from Mr Lincoln either via telephone or in written form.
On 1 July 2016, Mr Lincoln wrote to the Tribunal to provide a supporting statement for the Applicant.
On 5 July 2016, the Applicant appeared before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
On 10 January 2018, the Tribunal affirmed the decision not to grant the Applicant the visa (‘Decision’).
On 2 February 2018, the Applicant filed an Application and supporting affidavit in this Court. Procedural orders to ready the matter for hearing were subsequently made by Registrar Allaway on 14 November 2018.
On 18 March 2020, the Applicant filed a Notice of Address for Service, indicating that he had engaged legal representation.
On 18 November 2022, the Court listed this matter for hearing before me.
On 29 November 2022, the Applicant’s solicitors filed a Notice of Intention to Withdraw. A Notice of Withdrawal was subsequently filed by the Applicant’s former solicitors on 14 December 2022.
On 10 January 2023, the Applicant filed an Application in a Proceeding. The Application was supported by an affidavit of the Applicant. In the Application in a Proceeding, the Applicant sought an adjournment of the hearing set down for 23 January 2023 because he wished to engage a lawyer.
The Minister filed a Court Book and an outline of submissions prior to the hearing. The Applicant did not file any outline of submissions prior to the hearing.
the application for an adjournment
At the hearing before me, the Applicant sought an adjournment. I heard from the Applicant, his support person Mr Lincoln and Counsel for the Minister. I also considered a Psychological Report prepared by Edwin Kleynhans, a Registered Psychologist dated 20 January 2023 (‘Report’). Having heard from the parties and considered the material before me, I refused the application for an adjournment. I indicated at the time that I would provide written reasons for that decision. What follows are those reasons.
The Applicant sought an adjournment on two bases. First, consistent with the Application in a Proceeding, he sought an adjournment in order to engage legal representation. Second, the Applicant sought an adjournment on a ground not foreshadowed in the Application in a Proceeding. He submitted that an adjournment should be granted on the basis of what is contained in the Report. It is convenient to deal with each of these grounds separately.
In his affidavit dated 10 January 2023, filed in support of the Application in a proceeding, the Applicant deposed as follows:
1.I am attempting to engage a lawyer to assist me with this case. I expect to do this in the near future. However, this lawyer will not have sufficient time to prepare my case before the Hearing date.
I invited the Applicant to make any further submissions in relation to his request to adjourn the matter in order to enable him to obtain legal representation. He told me from the bar table that he had engaged a lawyer before, but could not afford the fee. He also indicated that he wished to engage a new lawyer. He said he had spoken to two lawyers in the last week and one was prepared to take his case.
It is always desirable for an applicant in proceedings such as these to have legal representation. I note, however, the following. First, the Application was filed on 2 February 2018. The Applicant has therefore had almost five years in which to organise or obtain representation. It appears he did engage representation for part of that period, however, his representatives apparently ceased to act when he could not afford the fee.
I note that the former representatives of the Applicant took no step in the proceeding, other than filing a Notice of Address for Service on 18 March 2020, and then filing the Notice of Intention to Withdraw on 29 November 2022. The Applicant therefore had all of that time to sort out the fee arrangements with his former lawyers.
Next, the Applicant was on notice that his representatives would not act for him from 29 November 2022 when they prepared and filed a Notice of Intention to Withdraw. He has therefore had approximately 7 weeks to obtain further representation, though I accept that the intervening Christmas period may have slightly shortened the time he had available to him.
Third, the Applicant has not provided to the Court any detailed evidence as to the steps he has taken to obtain representation since 29 November 2022. He told the Court that he had spoken to lawyers last week. It appears the Applicant took no steps before last week to engage representation, despite being on notice since 29 November 2022 that he needed to engage new lawyers.
Fourth, there is no evidence that the Applicant has engaged a lawyer. He told the Court he has found a lawyer who is prepared to take his case. There is no evidence, however, that the Applicant has engaged that lawyer. There is also no evidence as to how the Applicant can meet any fee charged by a lawyer, given that his previous lawyer withdrew because of his inability to pay fees.
Finally, there is no evidence of any lawyer agreeing to represent the Applicant, whether on a fee paying basis, a pro bono basis or otherwise.
I observe that this is not the first time the Applicant has claimed that he needs time to engage a lawyer. A similar claim was made by him in the proceedings before the Tribunal: see paragraph [42] of the Decision.
An applicant does not have a right to legal representation. It is common for applicants in this jurisdiction to appear for themselves. It is doubtful that a lack of legal representation alone would ever warrant a finding of procedural unfairness: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [52].
The Applicant also sought an adjournment on the basis of what he said were his ‘mental problems’. In support of that submission, he handed to the Court the Report. Mr Lincoln told the Court that there were powerful reasons set out in the Report which supported the request by the Applicant for an adjournment.
I stood the matter down to consider the content of the Report. Among other things, the Report contains the following:
(a)the Applicant referred himself to Mr Kleynhans for the first time on 12 December 2022;
(b)the Report sets out a summary of the Applicant’s protection visa history, and his experiences in Sri Lanka that give rise to his claims for protection;
(c)that the Applicant complained about having problems with memory and paying attention to things;
(d)that the ‘reason for the referral’ was because the Applicant ‘fears that he is not ready to appear for a hearing on 23/1/2022 (sic) as he has problems with his concentration, attention span and memory’;
(e)that the Applicant told Mr Kleynhans ‘he would like an extension of his hearing date whilst he receives psychological treatment’. Mr Kleynhans then noted that ‘Based on his current mental status examination, I am of the opinion that he would not make sense at the FCC Hearing on 2/3/2021 due to chronic stress and episodes of depressed mood’;
(f)that Mr Kleynhans was ‘providing a provisional report of his mental state and circumstances but would like him to see me for more sessions before I could provide him with a final review of his mental state’;
(g)Mr Kleynhans expected the Applicant to ‘make mistakes during interviews and would not respond consistently during question time as he has problems with his attention span, concentration as well as memory’. Mr Kleynhans noted that ‘I had to ask him over and over to clarify matters because he does not always make sense when interviewed, and could not remember all details and events given his challenges with severe anxiety and depressed mood;
(h)Mr Kleynhans stated that it was his ‘opinion that he [the Applicant] would currently have problems with his performance and will not make sense when he gives evidence at a hearing on 23/1/21’. Later in the Report, Mr Kleynhans states ‘I am of the opinion that he is psychologically not ready to appear at an FCC hearing on 23/1/2023 as he has problems with his cognitive functions and will not be consistent in giving evidence’;
(i)Mr Kleynhans diagnosed the Applicant with ‘Generalised Anxiety Disorder, PTSD and Persistent Depressive Disorder (Dysthymia)’.
There are a number of matters that arise in relation to the application for an adjournment on the basis of the Applicant’s mental health and what is contained in the Report.
The Application was brought late and without notice. Ordinarily, in a case where an applicant is unrepresented, such an anomaly would pass without comment. The situation here, however, is somewhat different. The Applicant clearly knew how to properly seek an adjournment. After all, he had filed the Application in a Proceeding seeking an adjournment in order for him to obtain legal representation on 10 January 2023. He said nothing in that Application, however, about seeking an adjournment because of the state of his mental health. This, despite the fact that he had first referred himself to Mr Kleynhans on 12 December 2022.
I am prepared, however, to put the issue above to one side. The Report is an important document. It has only been recently prepared and I gave it close consideration. I also weighed the following matters.
The Applicant has apparently suffered from stress for a number of years. Mr Lincoln made that claim on behalf of the Applicant before the Tribunal in his written submission dated 1 July 2016 (Court Book 179). The Tribunal accepted that the Applicant suffered from stress. It also accepted that the Applicant’s short-term memory and capacity to concentrate have been affected, and that he experiences low mood due to the psychological injuries (Decision at [131]). Despite this, however, there is no evidence before the Court of the Applicant doing anything to seek any treatment for his condition since the proceedings before the Tribunal. The Applicant has not deposed to what steps, if any, he has taken to seek help in the period between the Tribunal proceedings and the date of the hearing before me. Nor did he inform the Court of any steps he had taken from the bar table. Mr Kleynhans also says nothing in the Report about any prior history of treatment. Indeed, it seems that the first time Mr Kleynhans had seen the Applicant was on 12 December 2022, some six weeks before this hearing. The inference to be drawn is that the Applicant has not taken any steps to address what he says are his mental health issues, until he received notification of the listing of this matter before the Court, despite having ample time to do so.
It appears that this is not the first time that the Applicant has failed to seek treatment for his mental health issues. At paragraph [131] of the Decision, the Tribunal noted that ‘the applicant has accessed psychological services while he was in Brisbane about three years ago after which the applicant did not take the medication recommended to him’. Despite this, the Applicant now seeks an adjournment to obtain treatment, despite having had ample opportunity to do so.
There is then the content of the Report itself. Mr Kleynhans says in his Report that he would like to see the Applicant for further sessions. He does not specify the number of sessions. He does not say that he has been engaged by the Applicant for more sessions. He does not say that the Applicant has committed to more treatment sessions. In Court, the Applicant did not claim to have engaged Mr Kleynhans or any other psychologist on an ongoing basis to address his mental health issues. At the hearing, Mr Lincoln stated that the Applicant was happy to commence treatment but provided no further details. Accordingly, I am not satisfied that the Applicant has engaged anyone to assist him with his mental health issues. I am also not satisfied that the Applicant intends to seek any further treatment of his mental health issues. I am fortified in that view by the Applicant’s previous failures to engage assistance with his mental health issues as noted by the Tribunal at [131] of the Decision.
Another aspect to note about the Report is that while an adjournment is sought to enable the Applicant to seek treatment, nothing in the Report indicates how long the Applicant may need before the matter can return before the Court. On any reasonable view, any treatment would extend beyond the period of one month, which is the period that the Applicant initially sought to adjourn this matter for, as set out in the Application in a Proceeding. Accordingly, it would appear that I am being asked to adjourn the matter indefinitely (at least on the basis of what is contained in the Report) until such time as Mr Kleynhans is satisfied that whatever treatment the Applicant may receive (which is not specified) has worked.
I have noted earlier, the diagnoses made by Mr Kleynhans and his opinion that the Applicant ‘would not make sense at the FCC hearing on 2/3/2021 due to chronic stress and episodes of depressed mood’. That opinion appears to be based, at least in part, on Mr Kleynhans observations of the Applicant, who he said did not ‘always make sense when interviewed’, and had to be asked over and over to clarify matters. There is nothing in the Report that indicates that the Applicant had the benefit of an interpreter when he met with Mr Kleynhans. Mr Kleynhans at paragraph [67] of the Report says that the report is based on the clinical interviews he had with the Applicant, and on certain documents he referred to. Mr Kleynhans makes no mention of the Applicant being assisted by interpreter. There is no evidence that an interpreter was present at the interviews between Mr Kleynhans and the Applicant. I observe that the Applicant was assisted by an interpreter in the proceedings before me. He was assisted by an interpreter in the proceedings before the Tribunal. It is therefore unsurprising that the Applicant did not always make sense when interviewed and that he had to be asked over and over to clarify matters. That is a natural consequence of Mr Kleynhans proceeding to interview the Applicant without the benefit of an interpreter.
The other matter to observe about the Report is that Mr Kleynhans was under the impression that the Applicant was going to give evidence, and that clearly influenced his opinion that the Applicant was not ready for the hearing. Mr Kleynhans may well have obtained the impression that the Applicant was required to give evidence from the Applicant, who like many unrepresented applicants in this Court, asked the Court to reconsider the merits of his case. The Applicant is not required, however, to give evidence or argue the merits of his case, which he may well have had difficulty doing given the passage of time and any stress he may be under. Rather, the Applicant was required to speak to the terms of his Application and identify any error made by the Tribunal.
Given what I have set out in the preceding paragraphs, I have very serious doubts about Mr Kleynhans opinion that the Applicant will not make sense at the hearing. Those doubts were reinforced when one considers the manner in which this case has proceeded before me. The Applicant knew how to seek an adjournment. He filed the Application in a Proceeding and affidavit supporting that application himself. He appeared before me in Court and was able to articulate what he had done to engage a lawyer. He made a submission on his feet that he was seeking an adjournment because of his mental health problems. He was lucid, and clear, albeit with the assistance of the interpreter and Mr Lincoln. True it is that at one point he told me he could not recall what had occurred, but he subsequently clarified things. It is not at all unusual that he would fail to remember certain things given the time that has elapsed. I did not form the impression from observing him that the Applicant did not make sense. He appeared to me to know what he was doing, though I accept that, like many unrepresented applicants in this area, he did not appreciate the distinction between judicial review and merits review.
The other matters to be weighed in the balance are the case management considerations pertaining to this Court and the use of public resources, including judicial time. This case was filed in this Court nearly 5 years ago. It is well-known that there is a significant backlog of migration matters in this Court, which continues to grow. After five years, this matter was allocated a hearing date. It is not too much to expect an applicant to be ready for his case after that time. After all, it has been allocated Court time and in doing so, it has taken the place of another case that could have been listed. Adjourning the matter would simply waste judicial time and resources that could have been usefully deployed to another case in a very long list of migration cases that are pending in this Court. Moreover, what is being sought (insofar as the Applicant’s mental health is concerned) is in the nature of an indefinite adjournment, with no end in sight as to when any treatment the Applicant may receive will come to an end, or when the matter may be ready for hearing. Adjourning the matter would require the Court to expend resources in, for example, calling the matter on for further mention to assess its readiness for trial, thus taking up more precious judicial time.
I gave the Applicant’s application for an adjournment the most earnest consideration, particularly in light of the Report. Balancing all of the factors to which I have referred, however, in my view, the adjournment should be refused. The Applicant has had plenty of time to engage a lawyer and has not done so. I am not satisfied that the Applicant is incapable of engaging in the hearing process. Indeed, I am satisfied he is able to and did engage in the process as well as any other unrepresented litigant. After five years in the lists and with a significant backlog of cases seeking judicial review of migration decisions, case management considerations also weigh in favour of refusing the adjournment. Accordingly, I refused to adjourn the matter.
the application
The grounds of review in the Application are as follows:
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
2.The applicant has applied for a grant of legal assistance from Victoria Legal Aid and is awaiting a decision.
During the hearing, I asked the Applicant to expand upon the grounds of review set out in the Application. In particular, I asked the Applicant to identify any error in the decision of the Tribunal. The Applicant told me that he could not remember any of the things in the medical report. When I questioned him about this, he told me that he had not told lies, that he had told the truth and he could not understand why he had not obtained a decision from the Tribunal in his favour. Mr Lincoln told me that the Applicant was happy to commence treatment, and if he received treatment and had a lawyer, he would have a fair go.
I have considered the reasons of the Tribunal. In summary, in the Decision, the Tribunal:
(a)summarised the relevant law at paragraphs [4]-[18] of the reasons;
(b)summarised the background and claims made by the Applicant at paragraphs [21]-[32] of its reasons, based on among other things, the Statutory Declaration of the Applicant (see Court Book [66-71]), and a copy of his entry interview (seek Court Book [1-37]);
(c)set out the other information it had available to it at paragraphs [33]-[39] of its reasons;
(d)set out the Country Information it had before it at paragraphs [43]-[46] of its reasons;
(e)accepted that the Applicant is a citizen of Sri Lanka at [49] of its reasons;
(f)accepted that the Applicant was a credible applicant who provided mostly consistent details between his written and his oral claims, though noted it was of the view that the Applicant embellished one aspect of his claims, at paragraph [53] of its reasons;
(g)accepted that the Applicant was ethnically Tamil and belongs to the Hindu faith at [55] of its reasons;
(h)accepted that the Applicant and his wife were visited by the Central Intelligence Division in 2001, their home was searched and that they decided to move residence at [60] of its reasons. The Tribunal accepted that embedded in this dispute were ‘anti-Tamil attitudes’ at [62] of its reasons;
(i)found that the Applicant departed for Malaysia on 30 October 2005 and returned to Sri Lanka on 6 May 2006, and did not make any claim he was detained by authorities in Sri Lanka on his arrival, at [63] of its reasons;
(j)accepted the Applicant’s claim that in 2007, he and his friend were questioned by the police, was slapped, and that the Applicant was struck with a stick and lost consciousness, at [67] of its reasons;
(k)accepted the Applicant’s claim that the Applicant and his friend were harassed, and that the Applicant’s friend died, however, did not accept that the Applicant’s friend had been killed for any direct reason, at [68] of its reasons;
(l)noted that the Applicant did not experience any further harm until 2009, at [69] of the reasons;
(m)accepted that the Applicant was, in 2009, slapped, and threatened while waiting to escort his wife from a college, at [70] of the reasons;
(n)accepted that in 2011, the Applicant was targeted by Sri Lankan army officials, was accused of being a thief, slapped, forced to kneel on the ground for a period, asked uncomfortable questions, humiliated, and subjected to sexual abuse because he had been targeted as a vulnerable Tamil living in Sri Lanka’s Northern Province;
(o)considered the Applicant’s claims regarding an incident in 2012 to be not credible, at [75];
(p)accepted that the Applicant’s wife had been questioned by authorities in Sri Lanka following his departure at [76], but noted that the Applicant did not claim his wife had been threatened in the past, and that she continues to run a business in the absence of the Applicant, at [77]. The Tribunal found that there appears to be an element of embellishment in the Applicant’s claims that local authorities returned to ask questions of his wife and accused her of lying, at [78];
(q)noted that it had made mostly favourable findings in favour of the Applicant, that the incidents occurred over a long period of time, and that the Applicant was entitled to have little confidence in the authorities if he returns to Sri Lanka. The Tribunal also noted, however, that the legal considerations in granting visas are prospective, at [79], and that the Tribunal’s adverse credibility finding in respect of the incident in 2012, when taken into account, significantly undermines the Applicant’s claims to be a person of interest to the authorities in Sri Lanka, at [80];
(r)noted that it put various information to the Applicant to which he responded, including Country Information, at paragraphs [83]-[90] of its reasons, and invited the Applicant’s response to that information which he then provided;
(s)noted the Applicant’s statement that he was not involved in any political movement in Sri Lanka, nor in any Tamil diaspora groups at [91];
(t)accepted the Applicant had some adverse engagement with the authorities prior to his departure, accepted that he was mistreated by the authorities at checkpoints, and that he endured discrimination and bullying, however, did not accept that the Applicant is a person of interest to anyone in the Armed Forces, and did not accept that the Applicant’s interactions with the Army in the past as a Tamil would lead him to have a real chance of serious harm or real risk of significant harm on return to Sri Lanka, at [92];
(u)did not consider that the Applicant is a person whom the authorities will be interested in, for the reasons specified individually or cumulatively, for any imputed anti-government or pro LTTE political opinion, at [93], and that he would not face any systematic discrimination as a Tamil which would amount to serious or significant harm, at [97];
(v)did not accept the Applicant’s claim that all Tamils in Sri Lanka from his home province or those that spent some time in the Northern Province in the past, face harm because of their race, age, skin colour or gender, at [98];
(w)considered that the Applicant did not face a real chance or real risk of being arrested or detained as the Applicant did not have any profile as an LTTE member or supporter, or because of his wealth, at [98]-[99];
(x)concluded that the Applicant does not have a well-founded fear of persecution or face a real risk of significant harm, at [100]-[101];
(y)considered the circumstances of the Applicant’s departure from Sri Lanka including information from DFAT, accepted that the Applicant will be charged on return to Sri Lanka because of his unapproved departure, and faces a period of remand, however, such period will be brief and the chances very remote that the Applicant will be sentenced to any term of imprisonment due to his illegal departure, at [102]-[121];
(z)stated it was not satisfied based on Country Information that there is a real risk the Applicant would face significant harm on arrival in Sri Lanka or after his release into the community as a person who has failed to obtain protection in Australia, at [130];
(aa)considered, inter-alia, the psychological state or injuries of the Applicant, and concluded that they are not so serious as to amount to severe mental torment or other serious harm; at [131]-[134]. The Tribunal also considered the Applicant was able to participate and meaningfully respond to questioning throughout a lengthy hearing and was satisfied that he had meaningfully participated in the hearing;
(bb)weighed all of the considerations individually and cumulatively before concluding that the Applicant does not face a real chance of serious harm, or a real risk of suffering significant harm, at [133]-[138].
In submissions before me, the Applicant told me that he did not give all of the evidence that he had before the Tribunal. He said he had a lot of evidence that he wished to give, and that he was appealing to this Court to give him an opportunity to resubmit that evidence. As I explained to the Applicant at the time, it is not the role of this Court to conduct a review of the merits. The role of the Court is to identify whether there is any jurisdictional error in the reasons of the Tribunal.
Turning then to the grounds of review advanced by the Applicant. The grounds of review are unparticularised. That is a sufficient basis upon which to dismiss the Application: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Ground 1(b) asserts denial of procedural fairness. I have reviewed the Court Book and the Decision. The Applicant was invited to attend an interview for the visa on 26 July 2013 (see Court Book 120). He was subsequently invited to attend a hearing before the Tribunal on 9 June 2016 (see Court Book 171). The invitation complied with the requirements in sections 424A, 425 and 425A of the Migration Act 1958 (Cth).
The Applicant’s support person, Mr Lincoln, was not able to attend the hearing before the Tribunal. The Tribunal refused to adjourn the matter, however, Mr Lincoln submitted a written statement, and that statement was considered by the Tribunal (see Court Book 164 and the Decision at paragraph [37]).
During the hearing before the Tribunal, the Applicant had the assistance of an interpreter. Country Information was put to the Applicant during the hearing, and he was given an opportunity to respond to it. The Tribunal also considered the Applicant’s claims relating to psychological stress and found that he was meaningfully able to participate in the hearing.
It is apparent from a review of the Decision that the Tribunal had regard to the material the Applicant placed before it. It identified the relevant law and went through and considered the Applicant’s claims. It went on to make findings that were open to it on the evidence.
When all of the circumstances above are considered, in my view, the Applicant was not denied procedural fairness by the Tribunal. Nor did the Tribunal commit any other error as to jurisdiction. The Application must be dismissed.
The Minister seeks costs of $5,000. An order to that effect will also be issued.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 10 February 2023
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