BHJ20 v Minister for Immigration
[2020] FCCA 3065
•12 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHJ20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3065 |
| Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal provided procedural fairness and acted reasonably in proceeding pursuant to s.426A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 351, 360, 424A, 425, 425A, 426A, 430, 441A, 441C, 476 |
| Cases cited: Andaraj Subramaniam v Minister for Immigration & Multicultural Affairs [1998] FCA 305 DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 |
| Applicant: | BHJ20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 89 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 11 November 2020 |
| Date of Last Submission: | 11 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 12 November 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 89 of 2020
| BHJ20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of North Macedonia. He arrived in Australia on 19 May 2011 on a student visa (Court Book (“CB”) 54).
On 22 August 2012, the applicant applied for a further student visa (CB 1). On 25 October 2012, a delegate of the first respondent (the “Minister”) refused to grant the applicant the student visa (CB 2-11). The applicant appealed that decision to the then Migration Review Tribunal. On 16 June 2014, the Migration Review Tribunal affirmed the decision and refused the visa (CB 12-14).
On 4 July 2014, the applicant requested Ministerial Intervention pursuant to s.351 of the Migration Act 1958 (Cth) (the “Act”). On 15 July 2014, the applicant was advised that the Minister had decided not to intervene (CB 15-16).
On 17 August 2014, the applicant applied for a Protection (Class XA) visa (the “visa”) (CB 20-100). The applicant claimed to fear harm because he was a Christian. He claimed that he had previously been attacked by Muslim Albanians for this reason. The applicant provided various courses of country information, explained that he had not been aware that he was able to apply for a protection visa and had not been given any assistance when he lodged his various visa applications.
The applicant attended an interview with a delegate of the Minister on 21 October 2015.
On 31 October 2016, the delegate refused to grant the applicant the visa (CB 114-132). The delegate was not satisfied that the applicant’s claims were credible and, as such, found that he did not meet the criterion to be granted the visa.
On 23 November 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 133-135).
On 16 January 2020, the applicant was sent an email by the Tribunal inviting him to attend a hearing scheduled for 25 February 2020 (CB 140-141). The applicant did not attend the hearing on
25 February 2020: Affidavit of Ellen Lucy Goldsworthy Tattersall affirmed 28 October 2020.
On 28 February 2020, the Tribunal affirmed the decision to refuse the applicant the visa. It did so pursuant to s.426A(1A)(a) of the Act (CB 144-151).
On 13 March 2020, the applicant emailed the Tribunal. He advised that he did not receive the hearing invitation and asked for “a second chance” (CB 152).
On 23 March 2020, the Tribunal advised the applicant that it had no power to reopen his case (CB 154).
On 24 March 2020, the applicant filed an application for judicial review of the Tribunal’s decision in this Court. That application is filed pursuant to s.476 of the Act. To obtain assistance, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 8 pages long and spans 48 paragraphs. One page ([44]-[48] of the Tribunal’s decision) provides a summary of the relevant legal principles relating to protection visas.
The Tribunal began by identifying the type of visa the applicant had applied for and noted that it was reviewing a decision of a delegate dated 31 October 2016 (at [1]-[2]).
The Tribunal confirmed that the applicant had been invited to attend a hearing (at [3]). It noted that the applicant did not acknowledge the Tribunal’s invitation and did not appear at the scheduled time (at [4]). The Tribunal then referred to s.426A of the Act which allows the Tribunal to determine an application without taking steps that enable an applicant to appear (at [5]). Having satisfied itself that the applicant was properly invited to the hearing, the Tribunal proceeded to make a decision on the information before it and without allowing the applicant to appear (at [6]).
The Tribunal then set out the evidence that was before it from the Department file (at [8]-[20]). This included the applicant’s claims, his migration history, the country information that he had provided to the Department and the explanation for why there was a delay in lodging the visa application.
The Tribunal accepted the applicant’s identity and found that the Republic of North Macedonia was his receiving country (at [21]).
The Tribunal then noted that it was for the applicant to satisfy the Tribunal that he met the relevant criterion and, as he had not appeared, the Tribunal was unable to explore important aspects of his claims (at [22]-[23]).
The Tribunal accepted that the applicant was an ethnic Christian Macedonian and that he claimed to fear serious harm by non-state agents for reasons of his ethnicity and religion (at [24]-[25]).
The Tribunal noted that the applicant had claimed that as a Christian Macedonian he was attacked and seriously harmed by Albanian Muslims in Kicevo. This occurred when the applicant tore up a Quran. He did so because his attackers had previously torn up his bible, taken his candles and humiliated him. Further, the police were unsympathetic and unwilling or unable to protect him (at [26]). While the applicant claimed that he lived in Kicevo, without further information the Tribunal was not satisfied that the applicant did live there (at [27]).
The Tribunal then stated:
28. Information provided in the ‘Handbook on Policing in Central and Eastern Europe’ indicates that in 2011 Macedonia’s National Police force had a total of 11,195 employees. They comprised of 8813 Macedonians and 1888 Albanians, 182 Serbs, 70 Turks, 72 Roma, 28 Bosniaks and 92 Others. The Law on Police, enacted in 2006, contains detailed provisions on supervision and control over police. There is an Ombudsman for oversight of the police and a unit within the Ministry of Police, the ‘Unit for Internal Control and Professional Standards’ to investigate cases of abuse of police powers or conduct. Whilst I accept that that Kicevo is a town with a majority ethnic Albanian population, in light of the independent evidence, without further evidence from the applicant, I do not accept that the police in Kicevo were majority Muslim who were unsympathetic or who refused to protect the applicant. Without further information from the applicant I do not accept that the applicant attended a church in Kicevo and was harmed on his way home from church by ethnic Albanians who tore up his bible and took his candle.
Without further information from the applicant, the Tribunal determined that it could not accept that the delay in applying for the visa was because the applicant came to Australia to study and was scared to talk with anyone. Nor did the Tribunal accept that the applicant did not know that he could apply for a visa, that he was struggling with money or that his English was not good enough to talk to an agent or lawyer (at [29]).
The Tribunal continued:
30. Nor do I accept, without further information from the applicant, that a reason for delay in applying for a PV was because the applicant was scared of Albanian Muslims who had been fighting in Syria and Iraq for ISIS and would come back home to Macedonia, find him and hurt him or kill him and he was planning to solve his problem through studies. I have read the independent information provided by the applicant to the Department. That information indicates that in 2015 the police arrested suspects of terrorism and some were killed fighting against rebels wanting the creation of an independent Muslim state. These incidents occurred in 2015, after the applicant applied for a PV. Further I have found no independent evidence to suggest that returned Albanian Muslims fighters for ISIS have attacked or harmed minority ethnic Christian Macedonians in Kicevo.
31. The applicant’s delay applying for a PV for over four years raises serious concerns in relation to the credibility of the applicant and the veracity of his claims. I am satisfied that a four year delay indicates a lack of a subjective fear of persecution.
The Tribunal was satisfied that the applicant departed the Republic of North Macedonia as the holder of a student visa to come to Australia (at [32]). It further found that the applicant did not suffer serious harm in the Republic of North Macedonia prior to his departure (at [33]).
The Tribunal then extracted two portions of country information reports related to ethnicity and religion in Macedonia (at [35]-[36]).
The Tribunal concluded:
37. I accept that Kicevo is a majority ethnic: Albanian town. I accept that in 2015 there have been various clashes with the police and terrorist group in the Republic of North Macedonia. I am satisfied, in light of the evidence before me, that the State of the Republic of North Macedonia has put in place reasonable, measures to protect the lives and safety of its citizens, including appropriate criminal law and the provisions of a reasonably effective and impartial police force and judicial system.
38. I have considered the claims of the applicant individually and cumulatively. For the above reasons; I find that the applicant faced no serious harm in the past for a Convention related reason and I am not satisfied the applicant faces a real chance of serious harm upon return to the now Republic of North Macedonia for a Convention related reason in the reasonably foreseeable future, I am satisfied that t11e applicant does not have a profile that would cause him to be of any interest to the authorities.
39. The available information also does not indicate that there is a real chance that in the reasonably foreseeable future, the applicant, an ethnic Christian Macedonian, would be subjected to violence or significant physical harassment or ill-treatment, or have his life or liberty threatened, or denied access to basic services or the capacity to earn a livelihood or suffer economic hardship that would threaten his capacity to subsist. I am of the view that, were it the situation, it would be known to independent sources such as US State Department and the OSCE who monitor the situation in the Republic of North Macedonia.
40. Having considered these circumstances, singularly and cumulatively, I do not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Republic of North Macedonia, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act. I am not satisfied that there is a real risk that the applicant would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment
41. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
The Tribunal affirmed the decision not to grant the applicant the visa (at [42]-[43]).
Proceedings in this Court
In his application for judicial review dated 24 March 2020, the applicant raises three grounds of review, as follows:
1. Decision maker was unreasonable - As an invitation for the hearing was only sent to me via email, it went to my spam’s emails. I have contacted the AAT to give me a second chance and allow me a second hearing. However, the AAT refused.
2. The decision maker failed to consider my claims, as I was not afforded a second chance to attend the hearing due to the fact the AAT email invitation went to spam’s email.
3. The decision maker considered irrelevant material in assessing my protection claims
The applicant also filed an affidavit dated 24 March 2020 which provides:
2. On or around 02 March 2020, I was cleaning my spams inbox email and I have noticed there were two emails from the AAT one of which was a refusal notice of my protection visa.
3. After seeing that decision I have called the AAT and asked them if I can have another chance, as I did not see the AAT invitation for the hearing which took place on 25 February 2020.
4. I have been waiting for 3 years for a hearing date with the AAT. However, due to their notification been sent to my spam’s email I could see it.
5. The officer at the AAT told me that the AAT cannot reverse the decision and I needed to appeal the Federal Circuit Court;
6. I have also emailed the AAT in relation to the refusal. However, no response yet.
7. I believe I was not afforded a procedural fairness by allowing me to explain my protection claims, as I was not effectively being notified of the AAT invitation.
8. My protection claims are genuine, and my fears is genuine, hence me waiting for 3 years for a hearing date. However, the notice went to my spam’s emails. I did not receive a mail, text or a phone call from the AAT in relation to the hearing.
9. I want to attend a hearing as the member at the AA T could not engage with my evidence or ask me relevant questions in relation to my protection claims.
The applicant was given an opportunity to file any amended application, supporting affidavits and an outline of written submissions. No further materials were filed.
The materials before the Court thus include those identified above, a Court Book numbering 154 pages (marked as Exhibit 1), an affidavit of Ellen Lucy Goldsworthy Tattersall affirmed 28 October 2020 and an outline of submissions filed by the Minister on 28 October 2020.
The applicant appeared before the Court without legal representation. He was assisted by a Macedonian interpreter. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & 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”.
To assist the applicant, the Court explained that it needed to determine whether the Tribunal had made a jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that for migration decisions of this sort 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 (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
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: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 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 applicant the visa he now seeks. Rather, the Court can only undertake an analysis of whether the Tribunal made a material error in coming to the conclusion that it did.
Against this background, the applicant advised the Court that he had been waiting a long time for a decision from the Tribunal and the decision was made without advising him properly. The applicant stressed that he was not “consulted” and was not asked to attend a hearing. He also noted that the Tribunal could have contacted him by post, rather than or as well as by email. He concluded by saying that “he just wanted a chance” to advance his case before the Tribunal.
The Court will address the applicant’s oral submissions below when assessing the applicant’s grounds of review.
Consideration
Grounds 1 and 2
Grounds 1 and 2 of the application overlap. They provide:
1. Decision maker was unreasonable - As an invitation for the hearing was only sent to me via email, it went to my spam’s emails. I have contacted the AAT to give me a second chance and allow me a second hearing. However, the AAT refused.
2. The decision maker failed to consider my claims, as I was not afforded a second chance to attend the hearing due to the fact the AAT email invitation went to spam’s email.
The applicant’s affidavit appears to provide particulars, or submissions, in relation to these grounds of review.
In effect, by grounds 1 and 2 (and in the applicant’s affidavit) the applicant takes issue with the fact that the Tribunal decided his application pursuant to s.426A(1A)(a) of the Act. In effect, the applicant appears to be arguing that, by proceeding as it did, the Tribunal acted erroneously. Relevantly:
a)it was unreasonable to proceed as it did as the applicant had only been advised by email and he was not called or texted about the hearing in circumstances where he had waited over three years to attend (the “Reasonableness Ground”); and
b)the Tribunal denied the applicant procedural fairness as it only sent the invitation by an email which went to his spam email box and he was not properly notified (the “Fairness Ground”).
The Court notes that in the applicant’s affidavit (at [3] and [5]) and in ground 2, the applicant says he contacted the Tribunal and asked it to schedule a second hearing. It is noted that the Tribunal did not do so.
To the extent that the applicant is suggesting that the Tribunal’s refusal to schedule another hearing constitutes an error, the Court does not agree.
The applicant sent his request to the Tribunal after the Tribunal’s decision had been made. The Tribunal’s review was complete on 28 February 2020 at 8.05am. The Tribunal could not invite the applicant to a hearing after this time as, noting that the Tribunal considered it had made a decision under the Act, it had no power to take any further action.
Accordingly, no error arises from the failure to invite the applicant to attend a hearing after a decision was made.
The Fairness Ground
It is appropriate to first consider the Fairness Ground because, if the Court is satisfied that the Fairness Ground is allowed, then the Reasonableness Ground will similarly be allowed.
The Fairness Ground focuses upon the validity of the invitation to attend the hearing.
The Court notes that at [3] of the Tribunal’s decision, it states that the applicant was invited to a hearing pursuant to s.360 of the Act. This is incorrect. Section 360 of the Act has no application in the context of this case. Section 425 is the relevant provision. While an error, it is of no bearing on the Tribunal’s decision as a whole. The Tribunal later refers to s.425 as the appropriate section (see [5]).
Any incorrect reference (to a provision in the same terms) is no more than a typographical error. It does not amount to jurisdictional error.
The applicant states that he did not receive the invitation as it went to his “spam” email folder. He says that he was not properly notified. He also says that the Tribunal only invited him by email (i.e., it did not contact him by phone or by text or by post). At the hearing, the applicant stated that the Tribunal should have sent him the invitation by post. He said he knows of others who have been sent the invitation by post.
The invitation in this case is dated 16 January 2020. It was sent via email to the applicant on 16 January 2020. The email address that the invitation was sent to was the same email address the applicant had provided in the application for review that he filed at the Tribunal on 23 November 2016.
A valid invitation issued pursuant to s.425 of the Act must satisfy the requirements of s.425A of the Act.
Here, there is no issue that the invitation stated the day, time and place of the hearing: the Act, s.425A(1). There is also no issue that the period of notice exceeded the prescribed minimum period: the Act, s.425A(3). The invitation also included a statement to the effect of s.426A: the Act, s.425A(4).
The “error” that the applicant seeks to address in relation to the Fairness Ground relates to s.425A(2) of the Act, which provides:
(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
The Tribunal was required to give the invitation to the applicant by one of the methods specified in s.441A of the Act.
Section 441A(5) of the Act states:
(5) Another method consists of a member or an officer of the Tribunal transmitting the document by:
(b) email; or
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
Section 441A(5) of the Act specifies that the Tribunal can send the invitation to the applicant via email to the last email address provided in connection with the review. Here, the Tribunal did so. Section 425A(2) of the Act was thus satisfied.
The applicant was properly notified of the invitation in accordance with the Act.
The applicant refers to the fact that the Tribunal did not mail or text or call.
The method the Tribunal uses to ensure that an applicant receives the invitation is was a matter for the Tribunal: Minister for Immigration & Border Protection v Kim (2014) 220 FCR 494 (“Kim”). Here, the Tribunal chose to send the invitation via email. It was open to the Tribunal to do so.
Having sent the invitation by email (a method specified in s.441A), there was no obligation imposed on the Tribunal to communicate or provide the invitation to the applicant via any other method. While the Tribunal could have also sent the invitation by post (which, the Court accepts, it has done for other applicants), there was no obligation for it to do so once it had sent the email invitation.
The applicant also refers to the fact that the relevant email went “to his spam folder” and that, as such, he did not see it until 2 March 2020.
While unfortunate, the fact that the applicant did not find the email or have the email brought to his attention (because it went into his spam folder) is irrelevant. Section 441C(5) of the Act creates an irrefutable presumption that the applicant received the invitation at the end of the day on 16 January 2020: Kim.
The applicant also refers to the fact that the Tribunal did not give him a “second chance”. The Tribunal had no power to give the applicant a “second chance”. Once it had made its decision, the Tribunal could not vary or set aside what had been determined: the Act, ss.5(9A) and 430(2).
The applicant was not denied procedural fairness. Nor can it be said that he was not properly notified of the Tribunal’s invitation to attend a hearing.
The Fairness Ground is, accordingly, dismissed.
The Reasonableness Ground
Having found that the applicant was properly invited to the Tribunal’s hearing, and noting that there is no dispute that the applicant did not appear at that hearing, the Tribunal’s power in s.426A was enlivened.
Relevantly, s.426A provides that in these circumstances:
(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.
Section 426A(2) also provides:
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
The Tribunal proceeded under s.426A(1A)(a) of the Act. The Tribunal had the power to do so. The issue raised by this ground relates to whether it was “reasonable” for the Tribunal to do so.
The Court notes that the Tribunal refers to the fact that “on the information before” it, it could not be satisfied of certain matters. The Tribunal also notes that the fact that the applicant did not attend the hearing meant that the Tribunal was unable to explore “important aspects” of the applicant’s claims.
What emerges from these statements is an inference that had the Tribunal had the opportunity to discuss matters with the applicant and hear his evidence, then this may well have assisted the applicant in establishing his claims.
The Court has considered whether it was reasonable to proceed under s.426A(1A)(a) in these circumstances (as opposed to adjourning the hearing for another time as per s.426A(2)).
The Tribunal is not obliged to give reasons for the exercise of the discretion under s.426(1A): SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295 at [60]. Here, however, the Tribunal did note as follows:
3. The applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 25 February 2020 at 10.00 am. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
4. The applicant did not acknowledge the Tribunal correspondence. The applicant did not attend the scheduled Tribunal hearing on 25 February 2020 at 10.00 am. In addition, the Tribunal finds that the applicant is aware of the issues before the Tribunal, as the issues were set out in the delegate’s decision provided by the applicant to the Tribunal, and the applicant has failed to take advantage of the opportunity to attend the hearing and present evidence and arguments in support of the application for review, or provide any other supporting evidence.
5. Section 426A of the Migration Act provides that if an applicant has been invited under s425 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
6. I find the hearing invitation, was sent to the applicant’s email address, was sent to the email address that was given by the applicant in the applicant’s application for review. I am satisfied the hearing invitation was given to the relevant person by one of the methods in s.441A and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given. In these circumstances, pursuant to s.426A of the Act, I proceed to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
When considering whether the exercise of a discretion is unreasonable, the Court should have regard to the subject matter, scope and purpose of the statute and the particular provision.
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, which considered the reasonableness of the exercise of s.426A(1A)(b), Chief Justice Kiefel stressed that “clearly enough s.426A is directed to the aims of efficiency contained within” the statutory “objective of providing a mechanism of review that is fair, just, economical, informal and quick”.
In SZHSQ, the Federal Court explained that:
56. Obviously decisions concerning whether or not a person had established his or her claim to the entitlement of a protection visa are of the utmost importance to the individual concerned. In a very real sense the decision can mean the difference between life and death. If the decision to refuse a visa be wrong, but not affected by jurisdictional error, its consequence can be the return of the applicant for review to the place where persecution is feared and, because of the error, the realisation of the very fear, which can be, in some cases, death.
57. The seriousness of the possibility that a consequence of a decision to proceed to affirm a decision under s 426A(1) that the persecution feared could be suffered is in my opinion part of the subject matter, scope and purpose of the legislation and conditions the way in which the discretion in s 426A(1) falls to be exercised. It is therefore a serious step for the Tribunal to decide, when the applicant has been asked to appear and, as in this case, has said that she wanted to appear, simply to rely on her non-attendance without more.
Bearing in mind these statements, the Court is satisfied that the Tribunal’s decision to proceed under s.426A(1A)(a) was not unreasonable.
Here, the applicant was properly invited to attend the hearing. He did not respond or advise that he would or would not be attending the hearing. The applicant had not demonstrated any engagement with the Tribunal after he lodged his application (i.e., three years prior to the hearing). He had not asked for any updates or provided any further information to the Tribunal. He had, in effect, completely disengaged from the proceedings.
The applicant says that the fact that he waited three years for a hearing demonstrates that he is “genuine”. The Court disagrees. It is open for a reasonable person to consider that the level of disengagement the applicant showed was not what would be expected of an individual who feared for his safety and who was heavily reliant on a positive decision.
The applicant had not provided a telephone contact number in his review application. Accordingly, to the extent that he now states that he was not telephoned and did not receive a text message, that did not occur because he never provided the mobile telephone number that would have allowed the Tribunal to do so. Further, there was no obligation on the Tribunal to text or phone the applicant prior to proceeding under s.426A(1A)(a) or upon his non-attendance at the hearing.
Unlike in SZHSQ, the applicant did not respond to the invitation or indicate that he wished to appear before the Tribunal. Further, given his lack of engagement, it cannot be said that there was any indication that, had the Tribunal adjourned the hearing, the applicant would have attended at a later date. There was nothing before the Tribunal to suggest that the applicant was pursuing his application.
Taking into account the substantive period during which the application had been on foot and the lack of any engagement with the Tribunal throughout that period, it was open to the Tribunal to proceed under s.426A(1A)(a). The Tribunal did not rely on the fact of non-attendance alone. It specifically noted that the applicant was aware of the issues on the review and had not taken advantage of the opportunity to attend a hearing. Nor had he provided any other supporting evidence. Further, there was nothing to suggest that the applicant intended to attend or engage with the Tribunal.
While the Court accepts that the potential consequences of the Tribunal proceeding under s.426A are quite serious (and that this consideration may well play into any assessment of “reasonableness”), the Court does not consider (in the specific circumstances of this case) that the Tribunal’s decision here falls outside of the Tribunal’s area of decisional freedom or exceeds the “degree of latitude” that the Tribunal has in relation to discretions of this sort.
While the Court may have decided differently, that is not the test on review.
The Reasonableness Ground is, accordingly, dismissed.
Ground 3
Ground 3 states:
The decision make considered irrelevant material in assessing my protection claims
The applicant has not identified what “irrelevant material” was considered.
Here, the Tribunal had regard to the information the applicant had provided to the Department in relation to his application and relevant country information. Both are “relevant” when assessing an applicant’s protection claims.
To the extent that the applicant is suggesting that the country information referred to was not relevant, it is well accepted that the use and assessment of country information is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
For completeness, the Court also notes that the Tribunal was not required to put the country information to the applicant: the Act, s.424A(3)(a).
As noted, the only other “material” that the Tribunal had regard to was the information that the applicant himself had provided in relation to his application. If the applicant believes that information is irrelevant, he should not have provided it for consideration. In any event, there is nothing to suggest that that information was, in fact, irrelevant.
The Court notes that the Tribunal also had regard to “the delay in the applicant applying for the visa”. Insofar as the applicant is now saying that this is “irrelevant”, delay is recognised as a relevant factor when considering protection claims: Andaraj Subramaniam v Minister for Immigration & Multicultural Affairs [1998] FCA 305.
The Court is satisfied that the Tribunal did not have regard to any “irrelevant materials” or any irrelevant considerations.
Ground 3 is, accordingly, dismissed.
Conclusion
The applicant has failed to identify any jurisdictional error in the Tribunal’s decision. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 November 2020
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