BZACZ v Minister for Immigration
[2013] FCCA 1264
•23 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZACZ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1264 |
| Catchwords: MIGRATION – Application for protection visa – Refugee Review Tribunal – whether the tribunal properly communicated with the applicant – whether the applicant was made aware of proceedings – whether there was unfairness in the tribunal’s failure to send further communication – whether the tribunal acted within its jurisdiction – application dismissed – costs awarded. |
| Legislation: Federal Circuit Court Rules 2001, r.16.05(2)(a) |
| Applicant: | BZACZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 871 of 2012 |
| Judgment of: | Judge Burnett |
| Hearing date: | 23 May 2013 |
| Date of Last Submission: | 23 May 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 23 May 2013 |
REPRESENTATION
| BZACZ appeared on their own behalf |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application filed on 5 April 2013 be dismissed.
That the Applicant pay the Respondent’s costs fixed in the sum of $2,658 pursuant to the Federal Court Rules 2011 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 871 of 2012
| BZACZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Ex Tempore Reasons)
On 8 March 2012, orders were made dismissing the applicant’s application filed 2 October 2012.Those orders were made because the applicant failed to appear on that date for the hearing of the application. On that date, although BZACZ did not attend at court, he had attempted to attend but was delayed by approximately 20 minutes in his arrival at court.
He now makes application, pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001, to set the order aside as an order that was made in his absence.
That application came on for hearing yesterday, but was adjourned to today to enable the applicant an opportunity to review the principal application which he wishes to pursue. The exercise of the power under r.16.05(2)(a) is to be exercised judicially. In the current context, the relevant considerations for the exercise of that discretion are, particularly, the circumstances occasioning the non‑appearance and the strength of the application in respect of which he seeks to have the right to now agitate.
The Minister does not take issue with the applicant’s explanation for his non‑appearance, and I too am satisfied with his explanation. However, the application must be refused, in my view, for more fundamental reasons. In essence, that reason is that the applicant’s principal application has no real prospects of success and accordingly, to set aside the orders made on 8 March 2013 and relist the principal application for hearing would simply serve to delay the inevitable.
It is important to understand some of the background and the basis for the applicant’s principal application. The applicant is a young man, having been born in 1994 in Punjab, India. He completed year 11 at high school and subsequently applied for, and was issued with, an Indian passport. In February 2011 was granted a subclass 456 temporary business visa, permitting entry to Australia. He arrived in Australia on 25 February 2011 and had no difficulty departing from Delhi International Airport for that purpose.
His 456 visa expired in April 2011 and on 5 December 2011 he applied for a protection class XA visa. In essence, the applicant’s claim for protection was based upon his association with the All India Sikh Students Federation. In his refugee application and before a delegate, he made various claims arising from his association with that organisation. The delegate considered not only the applicant’s written material, but also conducted an interview with the applicant before making a decision, on 18 May 2012, to refuse his protection visa application.
The applicant made application to the Refugee Review Tribunal for a review of the delegate’s decision. That application was made within time, being made on 15 June 2012, and was resolved by a decision dated 4 September 2012. The tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. In the course of the making of its determination, the tribunal invited the applicant to provide further material to it, consistent with its obligations under s.424A of the Migration Act 1958 (Cth) (“the Act”), and it invited the applicant to attend and give further evidence before it.
Specifically, on 23 July 2012, the tribunal wrote to the applicant, advising that it had considered all the material before it relating to his application, but was unable to make a favourable decision on that material alone. The tribunal invited the applicant to appear before it on 3 September 2012 to give evidence and present arguments. It informed the applicant that, if he did not attend the hearing and a postponement or adjournment was not granted, the tribunal might decide the case without further notice.
The letter informing the applicant of these matters, was dispatched by the tribunal by ordinary prepaid registered post, and was not returned to the tribunal unclaimed. The applicant did not appear before the tribunal on the day and at the time and place at which he was scheduled to appear. Furthermore, he did not contact the tribunal in respect of that hearing and, accordingly, the tribunal proceeded to determine the application, as it was authorised to do, without taking any further action to enable the applicant to appear before it.
In determining the application, the tribunal took into account the matters that the applicant had informed the delegate of, and ultimately came to the conclusion that, based upon the evidence that was then before the tribunal, it was unable to satisfy itself that he faced a real chance of serious harm in the reasonable foreseeable future, in India, for a convention reason. The decision itself is a privative clause decision. Accordingly, provided the tribunal has done all that it is required to do, pursuant to the Act, and the decision does not appear to be contaminated by any jurisdictional error, the decision is a valid one and cannot be impeached.
In his principal application the applicant raised four grounds. The first ground was that the tribunal acted incorrectly, he says, acted on the assumption that the applicant had received its invitation to appear before it. He contends that, on account of the mistake of a third party, the tribunal failed to discharge its statutory duty and, therefore, the decision was not a decision at all. I have earlier detailed the tribunal’s process in respect of the forwarding of an invitation to appear before it.
It is well settled that, provided the tribunal abides by that process, the tribunal is not required to take further steps to communicate with the respondent. By complying with that process, the tribunal has done all that it is required to do under the Act, and accordingly the fact that the applicant may not have received the letter, or that by the intervention of some third party it was not directed to him, is not a matter which impeaches the tribunal’s decision. It follows that this ground is likely to fail.
The second ground advanced is that, having missed the letter, the tribunal did not make any attempts to contact him to request he attend the hearing. He contends that this invitation was necessary in order to ensure that he was invited to make comments for the purposes of compliance with s.424A. It was correctly submitted by the respondent that the applicant’s contention misconceives the purpose of s.424A.
Subsection one of that section provides the tribunal must give the applicant clear particulars of the information that the tribunal considers would be a reason or part of the reason for affirming the decision that is under review.
That subsection is subject to exceptions as set out in subsection (3). Two such exceptions are information that the applicant gave for the purpose of the application for review and information that the applicant gave during the process that led to the decision that is under review, other than such information that is provided orally by the applicant to the department.
For that purpose, information does not encompass the tribunal’s subjective appraisals, thought processes or determinations. Nor does information extend to identified gaps, defects, or lack of detail or specificity in evidence. Nor does information include conclusions arrived at by the tribunal in weighing up evidence by reference to those gaps. In this case the tribunal decided that, without the benefit of a hearing, it was unable to satisfy itself that the applicant met the criteria for a protection visa on the evidence that was then before it.
The tribunal’s decision to affirm the delegate’s decision was based on gaps in the applicant’s evidence, not on information the subject of an obligation. I am satisfied that this ground has no real prospects of success. The third ground was unfairness was involved in the tribunal’s failure to send further communication to substantiate his claim for refugee status. The matters addressed in grounds 1 and 2 address this ground and, again, this ground, in my view, has no real prospects of success.
The fourth ground contended for by the applicant was that the tribunal had no jurisdiction to make the decision, because the tribunal’s unreasonable satisfaction was not arrived at in accordance with the requirements of the Act. However, as contended for by the respondent, by this ground the applicant appears to allege that the tribunal had no jurisdiction to make the decision, because it was not able to reach the necessary level of satisfaction as to the applicant’s satisfaction or non‑satisfaction of the criteria for protection for a protection visa.
This would require an interpretation of the Act contrary to the clear meaning of s.65(1)(b), which provides,
Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a)…
(b) if not so satisfied, is to refuse to grant the visa.
The tribunal, in reviewing a decision of the decision maker, exercises all the powers of the original decision maker, but cannot make a decision beyond that authorised by the Act.
In saying that, the tribunal does not have to, and did not in this case, uncritically accept everything the applicant claimed, as the onus is upon him to present his evidence and make arguments so the tribunal can make such a decision. Simply put, the applicant did not persuade the tribunal, in this case, that he met the criteria for a protection visa. It would seem, by reference to some of the comments made by the applicant in the course of submissions this morning, that all he seeks to do is to re-agitate the factual issues relevant to his application.
The tribunal made a decision that was within its power, and it is not open to be reviewed by reference to later material. This ground, too, has no, or remote, prospects of success.
It follows, in my view, that the principal application has no real prospects of success and, accordingly, on that basis, the discretion to set aside the original order ought not be exercised in favour of the applicant.
The applicant has been unsuccessful. There is no reason why the usual order, which is costs follow the event, ought not be applied in this instance. I understand the applicant claims he is impecunious, but that fact alone should not disqualify the successful respondent from entitlement to a costs order. Costs on the scale are assessed at $2658. I will allow the respondent costs in that sum.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Burnett.
Date: 3 September 2013
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