CEW16 v Minister for Immigration
[2018] FCCA 2730
•3 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEW16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2730 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – no attendance by the applicants at the hearing before the Tribunal – whether the Tribunal complied with its statutory obligations – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 36, 425, 425A, 424AA, 424A, 426A, 441A, 441C, 476 |
| Cases cited: SZUUR v Minister for Immigration and Border Protection [2016] FCA 123; (2016) FCA 123 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 |
| First Applicant: | CEW16 |
| Second Applicant: | CEX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2142 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 3 September 2018 |
| Date of Last Submission: | 3 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms A Davyskib of Minter Ellison Lawyers |
ORDERS
The application made on 9 August 2016 is dismissed.
The applicants pay the first respondent’s costs set in the amount of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2142 of 2016
| CEW16 |
First Applicant
| CEX16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 August 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 18 July 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”.
The applicants are citizens of India (CB 14 and CB 29). Both are of Hindu religion (CB 13 and CB 29). They are husband and wife. They arrived in Australia as holders of business visas on 6 September 2014 (CB 64.5). Their application for protection visas was received by the Minister’s department on 29 October 2014 (CB 1 to CB 41).
The first applicant set out his claims to fear harm in a statement provided with his protection visa application (CB 40 to CB 41). His wife, the second applicant, applied for the visa as a member of the first applicant’s family unit.
The first applicant claimed to fear harm as a result of his membership of Bapuji Ashram. He claimed to have been an active member, to have donated money to the organisation and to have asked others to make contributions (CB 40.4). He claimed that after the arrest of Bapuji (the religious leader of the group), people to whom the first applicant had introduced to Bapuji “turned against [him]”. He claimed that a “mob of 50 to 60 people attacked [their] local ashram[,] ransacked the office and attacked those who were in office”. He claimed that the mob also attacked his house (CB 41.3).
The first applicant also claimed to fear harm due to his connection to the India National Congress Party (“the Congress Party”). He claimed to have worked for the party during the election and that members of the Bharatiya Janata Party (“the BJP”) knew of his affiliation with the Congress party and “tried to take advantage of the situation” (CB 41.7).
The first applicant was invited to contact the Minister’s department to arrange an interview with the Ministers’ delegate (CB 43 to CB 48 and CB 67.6). He did not contact the Minister’s department (CB 67.6). The delegate therefore proceeded to refuse the visas on 11 February 2015 (CB 52 to CB 72). The applicants applied for review to the Tribunal on 9 March 2015 (CB 73 to CB 79). In their application to the Tribunal, they provided a PO Box address and an email address for the purpose of receiving correspondence (CB 76).
On 27 June 2016, the Tribunal sent a letter to the applicants via email to the email address provided in their application to the Tribunal (CB 89 to CB 98). The letter was an invitation to the applicants to appear before the Tribunal at a hearing scheduled on 13 July 2015. The applicants did not respond to this correspondence (CB 99).
The applicants did not attend the hearing scheduled on 13 July 2015 (CB 100). The Tribunal then proceeded to make its decision without taking any further action to enable the applicants to appear before it pursuant to s.426A of the Act.
The Tribunal affirmed the decision not to grant protection visas to the applicants on 18 July 2016 (CB 106 to CB 112).
In its consideration, the Tribunal noted that pursuant to s.5AAA of the Act, it is the responsibility of applicants to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish a claim to fear harm ([19] at CB 109 to CB 110). The Tribunal stated that as the applicants did not attend the hearing before the Tribunal, the Tribunal relied upon information and documents provided in the application for the visas. The Tribunal found that the detail of the first applicant’s claims to fear harm was “brief” and noted that no evidence was provided to support these claims ([20] at CB 110).
While the Tribunal accepted on the evidence before it that there was “some controversy” surrounding the spiritual leader, “Asaram Bapuji”, or “Asaram Bapu”, it was not aware of any independent country information about the claimed attacks on Sant Shri Asaramji ashrams in the area where the applicants lived, or in the state of Gujarat ([21] at CB 110 to CB 111).
The Tribunal also described details of the first applicant’s involvement with the Congress Party as “very vague”. The Tribunal considered independent country information about the Congress Party and the BJP. It found that there was “insufficient material” before it to suggest that by working for the Congress Party during an election, the first applicant would be a target for harm by the BJP or any other organisation ([22] at CB 111).
The Tribunal also noted that despite the claim that the first applicant’s family in India had been targeted, the first applicant’s two children remained in India. In that circumstance, the Tribunal was not satisfied that the first applicant had a genuine fear of harm to his family ([23] at CB 111). In all, the Tribunal found that neither of the applicants satisfied the criteria for protection visas in s.36(2)(a) or s.36(2)(aa) of the Act.
The six grounds of the application to the Court are in the following terms:
“[1] The Second Respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal. On account of the mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty. By consequences Tribunal decision is not a decision at all in law.
[2] My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A.
[3] The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment on or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
[4] The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India.
[5] The Tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.
[6] The applicant satisfies the key elements of Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed legal error.”
[Errors in the original.]
The parties first appeared before a Registrar of the Court on 27 October 2016. Orders were made which, amongst other things, required the applicants to file and serve any amended application, and any evidence by way of affidavit in support, on or before 24 November 2016. The applicants did not file any documents pursuant to these orders.
The parties next appeared before a Registrar of the Court on 2 March 2017. Orders were made setting the matter down for final hearing and that the applicants file and serve written submissions 14 days before the hearing, and the Minister file and serve written submissions 7 days before the hearing. The applicants did not file written submissions pursuant to these orders. The Minister filed written submissions on 24 August 2018.
At the hearing today the first applicant appeared in person. He was assisted by an interpreter in the Gujarati language. The second applicant did not appear. The first applicant explained that she was unable to come to Court, but she knew that the first applicant was coming to Court, and that he would speak for her. The hearing proceeded on that basis.
The first applicant was asked whether he wished to rely on any matter raised in his affidavit of 9 August 2016 which accompanied the application to the Court. He said that he did not wish to do so.
When the Court took the first applicant specifically to the grounds of the application, the first applicant explained that these had been drafted by a “friend” who had been in a “hurry” and had not explained to him what was written in the application.
In his submissions before the Court, the first applicant raised one main issue for the Court to consider, being that he did not attend the hearing before the Tribunal. He ultimately stated that this was because of his “mistake”, that while he received the email from the Tribunal, he could not read English so he did not understand it. He therefore asked the Court to grant him another Tribunal hearing.
As I sought to explain to the first applicant, the relevant issue for the Court is whether the Tribunal, in sending its invitation for the hearing to the first applicant, complied with all of the relevant obligations under the Act (see further below). It appears the first applicant also asked the Court to consider the merits of his claims to protection and asked whether this Court, or a “higher Court”, could consider that matter.
As the Minister correctly submitted, this Court, and with respect, the appellate Court, has no power to consider the merits of the first applicant’s claims to protection. Under the Act, and as a practical matter, the first applicant’s last opportunity to persuade some Australian authority that he should be given protection in this country, ended with the Tribunal.
As I sought to explain to the first applicant, even if his failure to attend the Tribunal hearing was because of some “mistake”, the Court has no power to intervene to grant him another hearing before the Tribunal, simply because he made a “mistake”.
Ground 1 of the application to the Court claims legal error on the part of the Tribunal because the ground asserts that the applicants did not receive the Tribunal’s invitation to hearing. The ground asserts that this was because of the “mistake” on the part of a “third party”. The ground is not particularised. There is nothing in this ground to explain who this “third party” may be, or what the “mistake” said to have occurred was.
I note again, importantly, that the Registrar of the Court made orders giving the applicants the opportunity to file any evidence to explain any matters that were set out in the grounds of the application and to support those assertions.
As noted above, before the Court, the first applicant submitted that the “mistake” was his, and he requested that the Court intervene to assist him and give him another hearing before the Tribunal. Plainly, this was not put to the Court in any evidentiary context. But whether the “mistake” which allegedly led to the first applicant’s non-appearance at the Tribunal hearing was the first applicant’s mistake, or the mistake of a “third party”, does not matter in the circumstances.
It is trite to say that the Court can only proceed on the evidence that is put before it. In this light, the Tribunal’s invitation to the hearing was sent in accordance with the relevant statutory requirements, that is, what is set out in the Act.
In his written submissions at [17], the Minister has helpfully set out the Tribunal’s obligations in this regard. I note this paragraph, and for the sake of convenience today, given that I am delivering my judgment orally, I adopt what the Minister has set out at [17] of his written submissions as I regard them as being a fair and accurate summary:
“The Minister submits that the evidence before the Court establishes that the applicants were invited to the hearing in accordance with the requirements of the Act. In particular, the hearing invitation:
(a) gave the applicants notice of the day, time and place on which they were scheduled to appear (subsection 425A(1) of the Act);
(b) was sent by email to the last email address provided by the applicants to the Tribunal, being [email protected] (subsections 425A(2) and 441A(5) of the Act);
(c) gave the prescribed period of notice (subsections 425A(3) and 441C(5) of the Act, and subregulation 4.35D(3) of the Migration Regulations 1994 (Cth)); and
(d) contained a statement to the effect of subsections 426A(1) and (1A) (subsection 425A(4) of the Act).
Pursuant to s.425(1) of the Migration Act, the Tribunal is obliged to invite an applicant to a hearing and, that is, to give evidence and make arguments in relation to the issues in the review. Of course, that obligation is subject to the matters that are set out in s.425(2) of the Act but none of those matters apply to the current case.”
The Tribunal complied with all of its relevant obligations. On the evidence before the Court, it fulfilled all of the statutory requirements. In particular, I note that the Tribunal complied with what is set out in s.425A of the Act. On the evidence, the invitation to the hearing was sent by one of the methods set out in the Act. That is, it was sent to the last email address provided by the applicants for the purposes of receiving correspondence (see s.441A(5)(b) of the Act).
As I sought to explain to the first applicant, the letter of invitation dated 27 June 2016 (CB 90 to CB 95) complied with all the relevant notice periods. Even if some “mistake” had occurred, and as the first applicant explained before the Court today, the “mistake” was that he received the invitation, and he took some time in getting someone to explain it to him, this cannot assist the applicants in circumstances where the Tribunal’s invitation was sent in compliance with its statutory obligations.
As the Minister correctly submits, the applicants are deemed to have received the invitation in accordance with the provisions of s.441C of the Act, even if they did not actually receive it. As the Minister again correctly submits, s.441C of the Act does not operate to allow or to create some rebuttable presumption such as to allow the Court to consider any alternatives (SZUUR v Minister for Immigration and Border Protection [2016] FCA 123; (2016) FCA 123 at [43], citing
Xie v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCAFC 172).
That deals in part with the complaint as it is set out in ground 1 of the application. However, as noted above, the applicants have not put this before the Court in any evidentiary context. The first applicant’s explanation of the “mistake” that he said occurred also does not assist him for reason that he did receive the invitation, which was properly sent to him.
I agree with the Minister that, in any event, given the importance to an applicant of an application for protection in this country, it would be incumbent on such an applicant to act as expeditiously as possible to seek assistance with the translation of an important document, or any document received from the authority that was considering his claim to protection in this country.
In those circumstances, again, I can only agree with the Minister that the Tribunal was empowered by s.426A of the Act to proceed to make its decision, without taking any further steps to enable the applicants to appear before it. Ground 1 is not made out.
Ground 2, in essence, sets out two complaints. One is that the Tribunal made no other attempt to contact the first applicant in circumstances where he “missed” the letter.
There is nothing in the evidence before the Court to indicate that the Tribunal knew of this state of affairs, or that the first applicant, on his version now, having received the invitation, did not understand the letter and did nothing for some time about obtaining some understanding.
In any event, once it had complied with its statutory obligations, the Tribunal was under no obligation to send a second invitation to the hearing. This is particularly in circumstances such as the current case, where it cannot be said that the Tribunal acted unreasonably in proceeding to a decision (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713, particularly at [7] – [9] and [69] – [71]).
In the current case, as noted above, the applicants were invited by the delegate to contact the Minister’s department to arrange their attendance at an interview. They did not do so, nor did they otherwise respond to this invitation.
Nor, beyond making their application for the protection visa with the accompanying written statement, can the applicants be said to have actively participated in the consideration of their application. It also cannot be said that they actively participated in the review before the Tribunal. Despite the opportunity to do so, and as invited in writing by both the delegate and Tribunal, the applicants provided nothing further in the support, or the furtherance, of their application for the visas or the review to the Tribunal.
Again, as the Minister submits, this is not a case where the applicants were actively seeking to engage in the review, nor is this a case where the applicants provided a substantial and serious written submission to the Tribunal in support of the claims to protection (AZAFB v Minister for Immigration and Border Protection [2015] FCAFC 1383; (2015) 244 FCR 144). That aspect of ground 2 does not succeed.
Ground 2 also asserts that the Tribunal member made up “its mind” to dismiss the application without writing to the first applicant pursuant to s.424A of the Act to enable him to comment. This complaint, drafted by the first applicant’s “friend”, is misconceived.
The Tribunal’s decision to proceed pursuant to s.426A of the Act, in relation to invitation made pursuant to s.425 of the Act, does not, as the Minister correctly submits, enliven any obligation under s.424A of the Act. In any event, to the extent that the ground complains that the Tribunal “made up its mind”, the Tribunal’s thought processes are not “information” for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) ALJR 1190 (“SZBYR”) at [18]). In all, ground 2 is not made out.
Ground 3 asserts that the Tribunal failed to put to the [first] applicant “information” under s.424A of the Act, when “read with s.424AA”. I note that it is difficult to see how the Tribunal could have utilised s.424AA of the Act, if the first applicant did not attend the hearing. Section 424AA of the Act is only enlivened, if, in turn, s.424A of the Act is enlivened and the Tribunal elects to discharge that latter obligation by use of s.424AA at the Tribunal hearing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”)).
In the current case, the applicants have not explained what “information” attracted the obligation in s.424A of the Act. Nor is this evident on the evidence before the Court. In essence, the Tribunal’s evaluation of the first applicant’s claims to protection is not “information” for the purposes of s.424A of the Act (SZBYR at [18] and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507). Country information on which the Tribunal relied is exempt from any such obligation pursuant to s.424A(3)(a) of the Act (SZMCD). Ground 3 is not made out.
As the Minister again correctly submits, grounds 4, 5 and 6 of the application are formulaic. They are template grounds that seek the Court to engage in impermissible merits review.
There is nothing in the evidence before the Court to indicate that the Tribunal “misconstrued the risk of fear of significant harm”, as claimed in ground 4.
Contrary to the assertion in ground 5, the Tribunal did explain its reasoning in a cogent and intelligible manner. The Tribunal’s findings were probative of the material that had been put before it.
Ground 6 is merely the first applicant’s assertion that he “satisfies” the “key elements” of the Refugees Convention criterion (s.36(2)(a) of the Act). However, on the evidence before the Court, the Tribunal did consider the claims as they had been made (see [12] at CB 108 to [17] at CB 109).
Contrary to what is implied in ground 6, the Tribunal did not have to uncritically accept the first applicant’s claims to protection simply because the first applicant made them (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J).
Conclusion
In all, none of the grounds in the application are made out. It is appropriate that the application to the Court be dismissed. I will make the appropriate order.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 24 September 2018
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