Boy16 v Minister for Immigration

[2018] FCCA 3635

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOY16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3635

Catchwords:
MIGRATION – Protection visa application – applicant arrives in Australia in 2009 as holder of School Sector visa – visa cancelled in 2010 – applicant remains in Australia unlawfully – lodges protection visa application in 2013 – claims active involvement with All India Sikh Student Federation – no documentary evidence to support claims – applicant’s claims vague – delegate refuses application – Tribunal affirms decision of delegate – applicant did not attend several scheduled hearings – procedural fairness – Tribunal did not deny applicant opportunity to address issues – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 359A, 422B, 424A, 425A, 426A, 426B,

430, 441A

Migration Regulations 1994 (Cth), reg 4.35D

Cases cited:

AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant: BOY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1365 of 2016

Judgment of: Judge A Kelly

Hearing date: 30 November 2018

Date of Last Submission: 30 November 2018

Delivered at: Melbourne

Delivered on: 18 December 2018

REPRESENTATION

The Applicant: In person

Solicitor for the First Respondent: Ms Ward

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 28 June 2016 be dismissed.

2. The applicant pay the costs of the first respondent fixed at $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1365 of 2016

BOY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 28 June 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 June 2016 affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).

Background

1. The applicant, an Indian citizen aged 27 years, first arrived in Australia on 30 June 2009 as the holder of a TU571 – School Sector visa, which visa was cancelled on 9 June 2010.  The applicant remained in Australia unlawfully until he lodged an application for a protection visa on 9 September 2013.  The applicant was granted a Bridging C visa in connection with his Protection visa application. 

2. The applicant claimed that whilst he was a student in India, he was actively involved with the All India Sikh Student Federation (AISSF) in campaigning for the creation of Khalistan.  The applicant claimed that he was interrogated and tortured by the security agency, and that his family asked him to leave India immediately.  Since arriving in Australia, the applicant claimed that he has not returned to India because he fears harm from the security agency and Hindu Nationalist groups.

3. On 23 April 2015, the applicant was invited to attend an interview with a delegate of the Minister scheduled on 11 May 2015.  It seems that the interview was rescheduled.  On 18 May 2015, the applicant emailed the Department providing notification that he would not be attending the scheduled interview on that date because he was ill.

4. On 25 May 2015, the applicant attended an interview with the delegate.  At the interview the applicant provided more details to his initial claims, but did not provide any documentary evidence to support them. 

5. On 2 June 2015, the Department notified the applicant that his visa application had been refused.  A delegate of the Minister refused the application, concluding that the applicant’s claims lacked detail, were inconsistent, were supported by a paucity of substantive documentary evidence and were undermined by country information.

6. On 10 June 2015, the applicant lodged an application for review of the delegate’s decision with the then Refugee Review Tribunal.

7. On 4 April 2016, the Tribunal invited the applicant to attend a hearing on 13 May 2016 to give evidence and present arguments relating to the decision under review.

8. At 5.10pm on 12 May 2016, the applicant emailed the Tribunal providing notification that he could not attend the hearing scheduled on 13 May 2016 because he was ‘unwell’.  The applicant provided a medical certificate.

9. At 9.40am on 13 May 2016, the Tribunal emailed the applicant providing notification that although the medical certificate provided was inadequate, the hearing would be postponed on the provision that the applicant could provide an adequate medical certificate. 

10. On 16 May 2016, the applicant provided the Tribunal with another medical certificate.

11. On 17 May 2016, the Tribunal invited the applicant to attend a rescheduled hearing on 30 May 2016.

12. At 8.20am on 30 May 2016, the applicant emailed the Tribunal providing notification that he would not be able to attend the hearing scheduled for that day because he was sick with a “sore throat and fever”.  At 8.45am on that day, the applicant provided the Tribunal with another medical certificate.

13. By letter dated 30 May 2016, the Tribunal noted that although the medical certificate provided by the applicant was inadequate, the hearing would again be rescheduled to 31 May 2016.

14. Later on 30 May 2016, the applicant emailed the Tribunal requesting that the rescheduled hearing for 31 May 2016 be postponed because he had a throat infection and had “hardship in talking” which would “take few days to be alright”

15. On 30 May 2016, the Tribunal requested that in order for the applicant’s postponement request to be considered, the applicant would need to provide a medical certificate indicating he was unfit to attend on 31 May 2016.

16. At 4.57pm on 31 May 2016, the applicant provided the Tribunal with another medical certificate.

17. By letter dated 1 June 2016, the Tribunal invited the applicant to attend a further rescheduled hearing on 3 June 2016.

18. On 3 June 2016, the applicant did not attend the rescheduled hearing.

Tribunal’s decision

1. On 7 June 2016, the Tribunal made a decision to affirm the delegate’s decision refusing the visa application.  In a written statement of reasons dated 6 June 2016 (Reasons), the Tribunal noted that the applicant had not contacted the Tribunal to explain his non-attendance.  The Tribunal was also satisfied that the applicant was aware the Tribunal could make a decision on the review if the applicant did not attend the hearing and did not provide an explanation for his non-appearance. 

2. The Tribunal accepted that the applicant was born in India and was a person of the Sikh religion: [36]. The Tribunal made reference to the vagueness of the applicant’s claims, and noted that the applicant’s attendance at the hearing would have given him an opportunity to elaborate on them further. If the applicant had attended the hearing, the Tribunal also would have had the opportunity to seek comment from him about country information provided by DFAT: [37]-[38]. On the information before it, the Tribunal did not accept that the applicant faced serious of significant harm or discrimination as a Sikh in India: [39].

3. The Tribunal also considered the applicant’s claim that he feared harm due his involvement with the AISSF: [40]. The Tribunal concluded that, on the information before it, the applicant’s account of his activities with the AISSF and his engagement with the secret agency had no factual basis and did not consider it further: [43]-[44].

4. The Tribunal noted that if he had attended the hearing, the applicant would have been asked about the significant delay in lodging his Protection visa application: [41]. The Tribunal expressed its real concern at this delay. It considered that if the applicant had held a genuine fear of harm upon returning to India he would have lodged his visa application much earlier than he did: [42].

5. For those reasons, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under the Refugee Convention, and therefore did not satisfy the criterion set out in s 36(2)(a) and was not owed complementary protection: [47]-[50].

Procedural history

1. On 28 June 2016, the applicant filed an application for judicial review of the Tribunal’s decision.  The applicant sought orders that the Tribunal’s decision be quashed, and a writ of mandamus be directed to the Tribunal requiring it to determine the applicant’s application according to law.

2. The applicant swore an affidavit on 28 June 2018, to which he exhibited a copy of the delegate’s decision record and the Tribunal’s Statement of Decisions and Reasons but otherwise adduced no further evidence.

3. By a Response filed on 16 August 2016, the Minister opposed the making of the orders sought on the basis that the application did not establish any jurisdictional error in the Tribunal’s decision.

4. The matter was listed for directions hearing on 7 December 2016.  On that date orders were made, by consent, listing the matter for Final Hearing on 30 November 2018.  Further orders were made regulating the filing of any amended application, affidavits and written submissions.  The applicant has not taken the opportunity to do so.

5. On 16 November 2018, the Minister filed written submissions which were necessarily responsive to the matters raised in the application.

Consideration

1. Being a privative clause decision[1], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2]  Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] 

   [1]            Section 474(2).

   [2]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [3]            Sub-s 476(2).

2. The application relies upon three grounds of review which read:

   1.The Tribunal failed to accord me the procedural fairness and natural justice as prescribed in Migration Law

   2.The Tribunal decision maker has failed to give me an opportunity and to address the issues and grounds upon which the protection visa was refused.  By delegate of Minister I sought additional time to submit my claims which was disallowed

   3.The Tribunal made a decision disregarding my evidence submitted and assessing regulation and not complied with Section 359A of Migration Act

3. Grounds 1 and 2 may be considered together. 

4. The Tribunal was obliged to afford the applicant natural justice.  This meant that the applicant was entitled to a fair process and hearing.

5. Insofar as it deals with the subject, an exhaustive statement of the natural justice hearing rule is provided by Div 4, Part 7 of the Act which concerns Part 7-reviewable decisions: Conduct of Review: s 422B.

6. The applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments on the issues arising in relation to the decision under review: s 425A(1). The notice of invitation complied with the requirements of s 425A(2). The applicant was informed of the time and place of the scheduled hearing, which notice was transmitted by post to the applicant at his last known address: s 441A(4). The period of notice given was in excess of the required period of notice: reg 4.35D of the Migration Regulations 1994 (Cth). The notice contained a statement of the effect of s 426A: s 425A(4).

7. To accommodate the applicant’s apparent illnesses, the Tribunal rescheduled the hearing on several occasions.  The applicant’s response to communications with the Tribunal confirm that he understood the need to adduce evidence supporting a conclusion any postponement of the scheduled hearing.  Although the applicant stated that he would attend the scheduled hearing he did not do so.  Before me, the applicant re-agitated his submission that he had been ill.

8. Absent any explanation for his failure to attend on the final rescheduled hearing date, the Tribunal was entitled to proceed in his absence: s 426A; AZAFB v Minister for Immigration and Border Protection;[4] Minister for Immigration and Border Protection v SZVFW.[5]  By sub-s 426A(1A), the options open to the Tribunal were twofold:

   a)by written statement under s 430, to make a decision on the review without taking any further action to allow or enable the applicant to appear before it;

   b)by written statement under s 426B, to dismiss the application.

   In the present case, the Tribunal selected the first of those options.

   [4] [2015] FCA 1383, [22]-[28] (North J).

   [5][2018] HCA 30, [8] (Kiefel CJ), [62]-[71] (Gageler J); [118]-[123] (Nettle and Gordon JJ); [141] (Edelman J).

9. In the circumstances described above, the Tribunal did not fail to accord the applicant procedural fairness, natural justice or deny him an opportunity to address the issues arising on the decision under review.

10. Grounds 1 and 2 are rejected.

11. As to Ground 3 and a supposed failure to comply with s 359A of the Act, this may be understood as an intended reference to s 424A.

12. I accept the Minister’s submission that there was no information that was required to be put to the applicant in accordance with that provision. The applicant had attached a copy of the Delegate’s decision and was therefore on notice of the information which it contained. Insofar as the Reasons disclose the Tribunal’s resort to country information, by sub-s 424A(3) this type of information was expressly excluded from the application of s 424A.

13. Contrary to the applicant’s complaint, the Tribunal did not disregard his evidence.  As the Reasons disclose, the Tribunal considered that the applicant’s claims were vague and limited and, had he attended the hearing, that the Tribunal would have afforded him an opportunity to expand upon his claims.  That the applicant did not take that opportunity is not a matter which can be laid at the feet of the Tribunal.  In all the circumstances, the Tribunal was well entitled to proceed as it did to decide the application in the absence of the applicant.

14. Ground 3 is rejected.

15. The application must be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date:  18 December 2018