BZAHM v Minister for Immigration

[2015] FCCA 49

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAHM & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 49

Catchwords:
MIGRATION – Application for extension of time – not in the interests of the administration of justice to extend time – application dismissed.

Legislation:

Migration Act1958 (Cth), ss.36(2), 36(2)(a), 36(2)(aa), 48A, 48B, 417, 425, 425A, 426A, 430, 430(2), 477(1), 477(2)

NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SZNZI v Minister for Immigration [2010] FMCA 57
SZOZO v Minister for Immigration and Citizenship [2011 ] FCA 944
SZTHQ v Minister for Immigration and Border Protection [2014] FCA 1231

First Applicant: BZAHM

Second Applicant: BZAIS

Third Applicant: BZAIT

Fourth Applicant: BZAIV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 782 of 2014

Judgment of: Judge Jarrett

Hearing date: 12 December 2014

Date of Last Submission: 12 December 2014

Delivered at: Brisbane

Delivered on: 23 January 2015

REPRESENTATION

Counsel for the Applicants: Mr Nguyen

Solicitors for the Applicants: Essen Lawyers Pty Ltd

Counsel for the Respondents: Mr Richardson

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application for an extension of time to bring an application for review of the tribunal’s decision, pursuant to s.477(2) of the Migration Act 1958 (Cth), is dismissed.

2. The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 782 of 2014

BZAHM

First Applicant

BZAIS

Second Applicant

BZAIT

Third Applicant

BZAIV

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of a refugee review tribunal given on 18 June, 2014 which affirmed a decision of a delegate of the first respondent to refuse to grant to the applicants a Protection (Class XA) visa.

2. The application was filed on 4 September, 2014. The first applicant filed an amended application on 6 November, 2014. Neither application was filed within the statutory period of 35 days from the date of the tribunal’s decision as required by s.477(1) of the Act.

3. The second, third and fourth applicants are the first applicant’s wife and children.  They are secondary visa applicants who rely upon being part of the first applicant’s family unit for the grant of the relevant visas to them.  They make no separate claims to satisfy the criteria for the grant of a protection visa.  They rely upon the grounds advanced by the first applicant.

4. The applicants require, and seek, an extension of time within which to commence this application.  Until an extension of time is granted, the application, as amended, is not competent.

5. The first respondent opposes the extension of time.  The second respondent enters a submitting appearance.

Background

1. The applicant is a national of Vietnam, born on 30 March, 1981. He came to Australia on 13 August, 2007.  He held a Temporary Work (Skilled) Principal applicant Offshore (UC 457) visa and worked as a butcher.  This visa ceased on 23 July, 2011.

2. On 30 June, 2011 the first applicant lodged an application for an Employer Nomination Scheme (Full) (BW 856) visa which was refused on 25 October, 2011.

3. The first applicant applied for review of that decision and on 22 April, 2013 a migration review tribunal affirmed the first respondent’s delegate’s decision to refuse the first applicant the Employer Nomination Scheme (Full) (BW856) visa.

4. On 6 June, 2013 the first applicant lodged an application for a Protection (Class XA) visa.  Claims were also made by the first applicant’s wife and their two daughters.  They did not advance their own claims for protection, but relied upon their membership of the first applicant’s family unit.  He also has a son, but he did not seek protection.  He is in the care of the first applicant’s parents in Vietnam.

5. A delegate of the first respondent refused to grant that visa on 26 November, 2013.  The first applicant thereafter applied to a refugee review tribunal on 19 December, 2013 for review of the delegate’s decision.

6. The tribunal affirmed the delegate’s decision on 18 June, 2014.

7. The first applicant made a further application for a protection visa on 10 July, 2014 and a delegate of the first respondent notified the first applicant that his further application would be considered as a request by the first applicant for ministerial intervention.

8. The first applicant did not apply for judicial review of the decision of the refugee review tribunal within the 35 days mandated for such applications.  He says that he was waiting to receive the outcome of the ministerial intervention request. However, the ministerial intervention was refused on 19 August, 2014.

Extension of time

1. The first applicant’s submissions did not address the question of an extension of time in terms.  Rather, those submissions focused upon the substantive merits of the first applicant’s review application.

2. The first respondent’s submissions addressed the question of the extension of time.

3. In his amended application for review, the first applicant sets out the grounds upon which the extension of time should be granted as follows:

   The delay in making this application was beyond Applicant’s control.

4. The amended application contains particulars of that ground.  They are as follows:

   The decision of RRT was notified to the Applicant on 19 June 2014.  The Applicant made a fresh application for Protection on 10 July 2014 and it was considered as an application for Ministerial Intervention. That application for ministerial intervention was refused and the Applicant was notified on the 19 August 2014.

   As the Applicant was waiting for the outcome of his application to the Minister he could not lodge an application to this court within the specified time.

5. On 4 September, 2014 the first applicant filed an affidavit in support of his application for review.  In that affidavit at paragraph 17, he deposes that he:

   …re-applied for protection on 8 July 2018 (sic) and that application was assessed as an application for ministerial intervention. I was waiting to receive the outcome of this application and the notice of refusal for intervention was notified on 19 August 2014.

6. By s.48A of the Migration Act 1958 (Cth) the first applicant cannot make a further application for a protection visa if, while in the migration zone, he has made an application for a protection visa and the grant of the visa has been refused. By s.48B of the Act, the first respondent may, by written notice given to a particular non‑citizen, determine that s.48A does not apply to prevent an application for a protection visa made by that person within a specified time period.

7. Thus, unless the first applicant had the benefit of a written determination that s.48A of the Act did not apply to him at the relevant time, he was precluded by s.48A from applying for a protection visa on a second occasion. He did not have the benefit of such a written determination. His second application was not valid. The second application was treated as an application for intervention by the first respondent, pursuant to s.417 of the Act.

8. Section s.477(1) of the Act prescribes 35 days as the time in which an first applicant might seek judicial review in this Court of a decision of a refugee review tribunal. That time limit might be extended where, upon application for such an order, the Court determines that it is necessary in the interests of the administration of justice to do so.

9. The discretion must be exercised judicially.  The factors that bear upon the exercise of that discretion include the length of the delay, the explanation for the delay, and the substantive merits of the review application.  In SZNZI v Minister for Immigration [2010] FMCA 57 at [11] Smith FM suggested:

   11.    The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two ‘critical’ considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40]- [41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two ‘critical’ considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.

10. Here, the 35 day time limit expired on 23 July, 2014.  The application for review was not filed until 4 September, 2014 – some 43 days late.  The delay was not particularly lengthy.

11. During that period, the first applicant was not idle. He filed a second (albeit misguided) application for a protection visa. That was dealt with pursuant to s.417 of the Act and he awaited that outcome.

12. As the first respondent points out, from the time the application for protection was lodged with the first respondent, the first applicant has had the benefit of a migration agent who is a legal practitioner.  There is no evidence suggestive of an oversight by the first applicant’s representative after the tribunal’s decision, nor any attempt to seek judicial review before the date the application was filed.  It might be inferred that the time limit was allowed to pass intentionally.

13. However, once notified of the first respondent’s refusal to substitute a more favourable decision on 19 August, 2014 the application for review was filed relatively promptly.

14. As the first respondent points out, notwithstanding that the first applicant’s second protection application was being treated as an application for ministerial intervention, the first applicant could have filed his application for review in this Court.  That an application for ministerial intervention is on foot is no bar to the first applicant seeking to review the tribunal’s decision, or seeking an extension of time within which to bring such an application.

15. In the absence of evidence to the contrary (of which there is none), it is reasonable to infer from the fact that at all times the first applicant was represented that the first applicant took the course that he did, aware of the time limit imposed by s.477(1) of the Act.

16. Much of the argument before me was addressed to the substantive issues raised by the grounds of review relied upon by the first applicant in this application.  It is to those matters that I now turn.

The Tribunal’s Decision

1. The first applicant’s protection visa application was based on the following claims:

   a)in 1971 his father was forced to join the army ‘in the South’ to fight ‘against the Americans’.  His father escaped. He was captured by ‘the local authority’ and had to bribe a ‘huge amount of money in order to be released’.

   b)in October 2001, ‘because of the harsh treatment and heavy tax on the Communist Party’ the people in his village protested.  The first applicant’s brothers were involved and the authorities thought his father was the leader.  The authorities jailed his father and a brother. Even though the first applicant did not participate in the event, he was questioned and accused of joining the protest and harming government officers in 2001.  After this incident, the authorities accused his family of being traitors and put their names on a list of anti-government groups.

   c)he was also subjected to harassment and discrimination by the authorities as a Catholic. His father is a Catholic dignitary in his village and he had a very close relationship with the village pastor.  He claimed that Vietnamese communists hated Catholics and because ‘they’ thought his father was a supporter of the village pastor ‘they’ discriminated against his family.

   d)he had to sign an agreement to send money to government authorities in order to bribe them to process his documents to permit him to come to Australia to work.  The money has not been paid in full. The first applicant claims that his parents have been threatened because of this and that he will have to ‘face the consequences’ when he returns to Vietnam.

   e)the first applicant participated in activities conducted by an organisation of anti-communists in Australia.

   f)his father told him that if he returns to Vietnam he will be caught and imprisoned for a long time.

2. On 17 March, 2014 the tribunal wrote to the applicants at the address provided by them and advised that it was unable to make a favourable decision on the material before it.  It invited the applicants to give evidence and present arguments relating to issues arising in their case at a hearing on 12 May, 2014.

3. On 4 April, 2014 the tribunal received a ‘Response to Hearing Invitation’ from the applicants indicating that they would be attending the hearing, as per the invitation.

4. On 12 May, 2014 the tribunal received a written request from the applicants’ representative for a postponement of the hearing for medical reasons.

5. On 13 May, 2014 the tribunal wrote to the applicants advising that the hearing was rescheduled to 18 June, 2014 at 9:30am.  The tribunal received no response to that letter. 

6. Neither the first applicant (nor the other applicants) appeared at the rescheduled hearing.  Their agent did not appear.  The tribunal was not contacted regarding the applicants failure to attend the hearing.

7. Pursuant to s.426A of the Act, the tribunal decided to make its decision on the review without taking any further action to enable the family to appear before it.

8. The tribunal read the first applicant’s claims in his application but found the claims vague and lacking in a number of significant respects.

9. At paragraphs [57] and [58] of its reasons for decision, the tribunal said:

   57.    On the basis of the very limited information before it and the vagueness of the claims, the tribunal is not satisfied that the local police often come to the first named applicant’s home asking about activities of human rights, democratic governing and freedom campaigns. It is not satisfied that the first named applicant has participated in any “organisation of anti-communism in Australia”. It is not satisfied that he will be persecuted and taken into detention centre as claimed or for any reason. It is not satisfied that the local authorities will harm the first named applicant.  It is not satisfied that the Vietnamese government intended to send workers overseas to take more foreign money.  It is not satisfied that the first named applicant did not send money home thereby upsetting the authorities.  It is not satisfied that the first named applicant or his family are kept on any “list of anti-government group”. It is not satisfied that the first named applicant or his family are blacklisted in any way for being anti-communist. It is not satisfied that the applicants having been living in fear or that the first named applicant is unwilling to go back without a fight because he does not want to be put in jail or physically harmed. It is not satisfied that the applicants will be put in jail or physically harmed if they return to Vietnam. 

   58.    On the basis of the very limited information before it and the vagueness of the claims, the tribunal is not satisfied that the applicant and his family are Catholic. It is not satisfied that his father was a dignitary in the Con Thoi Parish, that his father had a very good relationship with the pastor, that the Vietnamese communists hated Catholics in this area, that they thought his father was a supporter of the pastor and that they discriminated against his family in any way.  It is not satisfied that in 1971 the communists forced his father to join the army in the south to fight against the Americans, that his father knew that if he went to the south he would die and therefore escaped, that the local authorities captured his father, that his family had to bribe them a huge amount of money in order for him to be released, that he was still under their surveillance and that he was confined in his house for 4 years and could not go anywhere. It is not satisfied that in around October 2001 the people at his village protested in response to harsh treatment and heavy taxes by the authorities. It is not satisfied that there was an uprising in his village and that there were five villages participating (Con Thoi, Kim, Trung, Kim My, Kim Tan and Van Hai). It is not satisfied that there were around ten thousand people in the uprising and that it lasted for a whole week. It is not satisfied that the town police blocked all the streets so nobody could go anywhere, that they also went to the suspected leaders’ houses and not let them leave, that his father was also one of their suspects, that during the protest some people surrounded the office of the Con Thoi village people's committee and captured the secretary, president and vice president and chief police of the village and beat them up. It is not satisfied that the chief police and the vice president were seriously injured. It is not satisfied that the applicant or any of his brothers took part in this fight. It is not satisfied that his brother had been previously penalised and harassed by the chief police and the authorities.  It is not satisfied that the local authority accused the whole family as being traitors. It is not satisfied that the authorities often harassed his family from that point onwards. It is not satisfied that around a month later, the secret police captured tens of people. It is not satisfied that his father was captured and detained for 10 days. It is not satisfied that about 10 people had to go to court and that a Mr Minh Con Pham  received 18 years of imprisonment and that a Mr Van Ngoc Nguyen received 12 years imprisonment and that “the rest of the people got from 5 to 8 years imprisonment”. It is not satisfied that his father was often followed and harassed.  It is not satisfied that in 2004 the local authorities said the applicants were traitors and did not allow them to go to Australia to work as a butcher. It is not satisfied that the applicants had to bribe the authorities in order to obtain relevant documents. It is not satisfied that they also had to sign an agreement that during the 4 years they were in Australia, they had to pay 900,000,000 VND (around $45,000) and that they had to give the authorities an initial deposit of 50,000,000 VND, the another 850,000,000 would have to be paid in the course of 4 years. It is not satisfied that the police and local authorities harassed his parents for the money because the applicants could not pay it. It is not satisfied that his parents were required to pay any money to the authorities for the applicants. It is not satisfied that there is any agreement signed by the first named and that his parents have been threatened in any way.  It is not satisfied that his father said if he was to return, he would be caught for two reasons. It is not satisfied that the authorities have accused the applicant of joining the protest and harming government officers in 2001. It is not satisfied that the first named applicant has breached any contract or that there was any contract in existence.  It is not satisfied that the first named applicant is the son of a traitor’s family. It is not satisfied that he fears or has had a fear of returning since his arrival in Australia. It is not satisfied that he cannot go back to Vietnam because he may or will be imprisoned for a long time or any time.

1. At paragraph [59], the tribunal concluded that it was not satisfied that the applicants had ever suffered any “Convention-related” persecution in Vietnam in the past. It also looked to the reasonably foreseeable future and was not satisfied that there was a real chance that the applicants will suffer serious harm for a Convention reason in Vietnam. Therefore, the applicants did not satisfy the requirements of s.36(2)(a) of the Act.

2. At paragraph [60] of its reasons for decision, the tribunal also considered the application of s.36(2)(aa) to the applicants’ circumstances. It concluded there was not a real risk that they will suffer significant harm if they return to Vietnam.

3. The tribunal affirmed the delegate’s decision not to grant the applicants the visas.  The tribunal member certified the statement and reasons for decision at 1:37pm on 18 June, 2014.

4. On 18 June, 2014 at 4.09pm Brisbane Migration Law, on behalf of the first applicant and the other claimants, sent a facsimile to the tribunal advising that “[their] client could not attend the hearing this morning because he was bedridden due to his illness.”  A medical certificate dated 18 June, 2014 was enclosed with the facsimile letter.

5. The tribunal’s statement and reasons was faxed to the family’s representative on 19 June, 2014.

6. On 20 June, 2014 the tribunal wrote to Brisbane Migration Law enclosing documents to be delivered to the first applicant. The enclosed letters, similarly dated 20 June, 2014 and addressed to the first applicant, noted that:

   The tribunal received your medical certificate dated 18 June 2014 on 18 June 2014 at 4.09pm .... The tribunal made its decision in this case on 18 June 2014 at l.37pm. Once the tribunal has made a decision under the Migration Act 1958, it becomes functus officio and has no power to take any further action on the review ...

The grounds of review

Ground 1

1. This ground is expressed as follows:

   The tribunal denied procedural fairness to the applicant by not giving him an opportunity to present his case and to submit new evidence at the hearing.

2. The first applicant gives the following particulars of this ground:

   (a) The applicant lodged his first protection visa application on the 6th of June 2013 and that application was refused on 26 November 2013 . He then lodged an application for review at the RRT on the 19 December 2013.

   (b) During the processing of the review application the applicant submitted new evidence to prove his claim for protection under the complementary protection criterion.

   (c) The tribunal hearing was scheduled on 18 June 2014. However, the applicant was not medically fit to attend the hearing and he submitted a medical certificate to the tribunal.

   (d) However, the tribunal conducted the hearing in his absence denying the applicant an opportunity to present his evidence and new material at the hearing.

   (e) In the decision record at para [60] the tribunal admitted that it has very limited information before it to decide the case and the applicant’s claim therefore significantly affected by the denial of an opportunity to be heard at the hearing.

   (f) The tribunal arrived at its decision to hear the case in absence of the applicant without giving an opportunity to make submissions at the hearing.

3. Relevantly, a tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review except where the tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it, or the applicant consents to the tribunal deciding the review without the applicant appearing before it: s.425 of the Act.

4. By s.425A of the Act, if an applicant is invited to appear before a tribunal, the tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. The notice must be given in a specified way and it must provide the applicant with the prescribed period of notice of the hearing. It must contain a statement of the effect of s.426A of the Act.

5. By s.426A, if an applicant is invited to appear before the tribunal according to s.425 and does not appear on the day on which, or at the time and place at which, the applicant 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. By s.426A(2), the tribunal’s power to reschedule an applicant’s appearance before it, or to delay its decision on the review in order to enable the applicant’s appearance before it is expressly preserved.

6. The first applicant makes no complaint about the invitation that he received to appear before the tribunal. There is nothing about the invitation sent by the tribunal to the first applicant that would suggest that the tribunal did not discharge its obligations under ss.425 or 425A of the Act.

7. The first applicant argues that:

   a)he wanted to appear at the hearing and give evidence with the aid of a Vietnamese interpreter; and

   b)he was desperate to give more evidence on his claims, especially on the incident he described as the public unrest in his village.

8. Plainly the tribunal was alive to the proposition that the first applicant wished to take up the invitation to appear before it and provide further evidence and make submissions in support of his application.  His response to the hearing invitation made that clear.

9. However, the first applicant argues that the tribunal failed in its duty to give the first applicant an opportunity to give evidence and present arguments which resulted in “procedural unfairness” to the first applicant.  He argues that it failed to take “adequate” account of the request from the first applicant to attend the review hearing. 

10. But the evidence indicates no such failure on the part of the tribunal.  Conscious that the first applicant wished to appear before the tribunal and present arguments and evidence, and in response to the first applicant’s request for a postponement, the tribunal rescheduled the first hearing.  It did so upon the first applicant’s request because of his ill health.  He makes no complaint about the rescheduling of the hearing by the tribunal.  The first applicant’s own case makes it clear that he was aware of the rescheduled date and intended to appear before the tribunal on that date. 

11. The first applicant acknowledges that on 13 May, 2014 the tribunal wrote to the first applicant informing him about the rescheduled hearing. In that letter the tribunal indicated that if the first applicant was not able to attend the hearing he should advise the tribunal as soon as possible and an adjournment would be granted if he had a very good reason.

12. The first applicant argues that he became suddenly ill on the day of the rescheduled hearing and that he obtained a medical certificate to seek an adjournment.  He argues that given the “history of medical illness of the first applicant, the tribunal had reasons to believe that the first applicant would seek an adjournment on the date of hearing”.

13. He argues that in circumstances where neither the first applicant nor his agent turned up at the hearing and neither contacted the tribunal at, or before the time fixed for the commencement of the hearing, the tribunal had an obligation to contact either the first applicant or his migration agent to ascertain the first applicant’s position.

14. The tribunal elected to determine the application in the first applicant’s absence.  It was entitled to do so.  The tribunal had no information that would suggest that the first applicant was seeking a further adjournment.  The tribunal was not obliged to infer from the fact that it had permitted the previous adjournment, or from the reasons for doing so, that the absence of the first applicant indicated either that:

    a)he was too unwell to attend the rescheduled hearing; or

    b)that he was seeking a further postponement or adjournment.

15. At the time the tribunal decided the application before it, there was nothing to suggest that the first applicant was seeking a further adjournment.  There is no explanation about why the first applicant, or his agent, did not contact the tribunal before the time fixed for hearing to request the further adjournment.

16. The first applicant argues that “It has been decided that a failure to accede to a reasonable request for adjournment amounted to procedural unfairness and a breach of the rules of natural justice.” Whilst that might be so, here the tribunal had received no request for an adjournment.

17. The first respondent has drawn to my attention the decision in SZTHQ v Minister for Immigration and Border Protection [2014] FCA 1231 where Murphy J said:

    [42] The tribunal’s task in deciding whether to proceed to determine the applications or to adjourn them was to arrive at the correct or preferable decision in the case before it according to the material before it: Li at [10] per French CJ, referring to Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J.  Whether it is correct or preferable to proceed in the applicant’s absence depends on the circumstances of the particular case.  It should also be kept in mind that the regime for determining visa applications would soon come to a grinding halt if the review process could be stopped simply by an applicant refusing or failing to attend interviews and/or hearings.

18. Further, the first applicant relies upon SZOZO v Minister for Immigration and Citizenship [2011 ] FCA 944 where Reeves J stated:

    ... the election to proceed to a decision on the review in the absence of the [applicant] cannot, by itself, be treated as the expression of an unreasonable exercise of power.

19. In my view, there was nothing unreasonable about the tribunal’s determination to proceed in the absence of the first applicant.  The first applicant had been appropriately notified of the first hearing date and had responded to that invitation.  At the first applicant’s request that date was postponed and the first applicant was appropriately advised of the rescheduled hearing date.  The evidence demonstrates that the first applicant knew of the rescheduled hearing date.  The second invitation letter made clear to the first applicant and his representative what was required if a further postponement on medical grounds was necessary. 

20. The first applicant did not seek any form of adjournment prior to the rescheduled hearing date on 18 June, 2014 nor did the tribunal receive any communications from the first applicant’s representative after 12 May, 2014.  The next contact from the first applicant’s representative was after the hearing and the decision had been made.

21. The tribunal’s reasons indicate that the tribunal gave consideration as to whether or not to exercise the discretion.

22. In my view there was no unreasonableness affecting the tribunal’s decision.  This ground of review has no real prospect of success.

Ground 2

1. This ground is expressed as follows:

   The tribunal failed to take relevant factor into consideration.

2. The first applicant gives the following particulars of this ground:

   The applicant provided a medical certificate to inform the tribunal that he was unfit to attend the hearing on 18 June 2014. However, the tribunal did not take that certificate into consideration.

3. As is apparent from the history set out above, the relevant medical certificate provided by the first applicant to the tribunal was provided after the tribunal had made its decision on the review application.

4. The first applicant’s submissions acknowledge that the tribunal did not have notice of the medical certificate when it decided the first applicant’s review.  Nonetheless, he argues that his sickness on the date of the hearing was unexpected.  He argues that he had a very good reason for an adjournment. 

5. But the fact is that the tribunal, when it determined the review, had no notice of the first applicant’s difficulties or his request for an adjournment.  There is nothing in the evidence to suggest that the first applicant or his agent could not have contacted the tribunal before the time scheduled for the hearing to provide information about the first applicant’s difficulties.   

6. The first respondent suggests that this ground requires a consideration of whether the tribunal was functus officio when it received the medical certificate.

7. At the time of the tribunal’s decision on 18 June, 2014, s.430 of the Act provided:

   430  Refugee Review tribunal’s decision and written statement

   Written statement of decision

   (1)  Where the tribunal makes its decision on a review, the tribunal must make a written statement that:

   (a)  sets out the decision of the tribunal on the review; and

   (b)  sets out the reasons for the decision; and

   (c)  sets out the findings on any material questions of fact; and

   (d)  refers to the evidence or any other material on which the findings of fact were based; and

   (e)  unless the decision is given orally—records the day and time the statement is made; and

   (f)  if the decision is given orally—records the day and time the decision is given orally.

   How and when written decisions are taken to be made

   (2)  A decision on a review (other than an oral decision) is taken to have been made:

   (a)  by the making of the written statement; and

   (b)  on the day, and at the time, the written statement is made.

   Note:          For oral decisions, see section 430D.

   (2A)  The tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

8. The tribunal had made a written statement of its decision for the purposes of s.430(2) of the Act at 1:37pm on 18 June 2014. The first applicant does not contend to the contrary. In those circumstances, having made a decision on the review application, the tribunal could not vary or revoke its decision upon the receipt of the first applicant’s medical certificate or his application for an adjournment later that afternoon.

9. In my view there was no unreasonableness affecting the tribunal’s decision.  This ground of review has no real prospect of success.

Ground 3

1. This ground is expressed as follows:

   The tribunal is in breach of its statutory obligation under s 36(2) (AA) of the Migration Act 1958. It failed to analyse and or examine the relevant information or facts in this regard.

2. The first applicant gives the following particulars of this ground:

   (a)The applicant possessed evidence to prove the incident of protest which occurred in his village in 2001 and the tribunal did not have the opportunity to consider that evidence.[at para 58 it states that it is not satisfied that there was an uprising in the applicant’s village in 2001]

   (b) It failed to consider that the applicants his anticommunist activities and his practice of Catholicism in Australia Vietnam will make him a target in Vietnam. There was evidence to suggest that the applicant’s family was targeted as they had close connection with the village pastor.

   (c) It did not consider any country information to investigate the applicant’s significant fear of return.

3. The first applicant argues that one of the reasons for the first applicant’s fear of return was associated with his father and brother’s participation in a village protest in 2001.  The first applicant claims to have had no involvement in the protest, but nonetheless, he says that the “authorities” accused him of participating in the protests.  He claimed to fear that he would be persecuted for joining that protest.

4. The first applicant argues that the tribunal “denied all the applicant’s claims in this regard without investigating or inviting the applicant to comment.” However, the first applicant’s submissions do not attempt to link this argument to the tribunal’s assessment of his claim for complementary protection under s.36(2)(aa) of the Act.

5. The tribunal set out its findings on the relevant matters of fact in paragraphs 57 and 58 of its reasons for decision.  The tribunal considered the material it had before it.  It had invited the first applicant to provide further evidence and submissions but for the reasons discussed above, that did not occur.

6. On the basis of its findings of fact, the conclusion that the tribunal reached about complementary protection pursuant to s.36(2)(aa) was plainly open to it. I accept the first respondent’s submission that there is nothing advanced by the first applicant which demonstrates that the tribunal had material to hand which it failed to address when assessing whether the first applicant satisfied s.36(2)(aa) of the Act.

7. The first applicant further argues that the tribunal failed to consider the first applicant’s anti-communist activities in Australia and his practice of Catholicism in Australia and Vietnam.

8. But it did consider those claims.  The tribunal was not satisfied that the first applicant or his family were blacklisted in any way for being anti- communist. It was not satisfied that the first applicant’s father was a dignitary in the local Catholic parish or that his father had a very good relationship with the local pastor.  In those circumstances, the tribunal could do nothing else than to reach the conclusions that it did.

9. The first applicant’s submissions acknowledge that the tribunal gave consideration to the first applicant’s claimed practice of Catholicism and the “extreme discrimination” he claimed he was subjected to by the authorities.  The tribunal considered his claim that he has also been practicing Catholicism since his arrival in Australia. The tribunal rejected all the first applicant’s claims in this regard.  However, the first applicant’s claim that it did so without inviting the first applicant to comment on those issues is plainly incorrect.  As set out above the first applicant was invited to appear before the tribunal.   

10. The choice and interpretation of country information is a matter for the tribunal. Given the findings made by the tribunal, the tribunal has not seen the need to rely on country information. It made findings, based on the material advanced by the first applicant, as to whether the first applicant satisfied s.36(2)(aa) of the Act. I accept the first respondent’s submissions that the tribunal’s findings, and conclusions drawn from these findings, were factual findings that were open to the tribunal.

11. I accept the first respondent’s submissions that the first applicant’s complaints under this ground amount to an impermissible request for merits review.

12. Having formed the view that it could not be satisfied of the first applicant’s claims on the material before it, and having invited the first applicant to a hearing that he did not attend, it was inevitable that the first applicant’s claims would be rejected.  In NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 the Full Court of the Federal Court of Australia said:

    In assessing the adequacy of these reasons, it must be kept in mind that the tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information .... Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

13. In my view there was no unreasonableness affecting the tribunal’s decision.  This ground of review has no real prospect of success.

Conclusion

1. Whilst the applicants have provided an explanation for the delay in commencing these proceedings within the time limited for that purpose, I am of the view that the proposed application for review has such little prospect of success that to grant an extension of time within which to commence these proceedings would not be in the interests of the administration of justice.

1. Accordingly, the application for an extension of time to bring an application for review of the tribunal’s decision, pursuant to s.477(2) of the Act, should be dismissed with costs.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       23 January 2015