CGF16 v Minister for Immigration
[2019] FCCA 802
•18 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGF16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 802 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal affirming a delegate’s decision where Applicant for a protection visa did not attend Tribunal hearing – whether jurisdictional error where the hearing invitation was sent to the email address provided by Applicant but Applicant was not informed of hearing through an interpreter – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 425, 425A, 426A, 441A, 441C |
| Cases cited: AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383; (2015) 244 FCR 144 |
| Applicant: | CGF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2201 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 18 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2019 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2201 of 2016
| CGF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 July 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Iran, applied for a protection visa in June 2013. The application was refused and he sought review by the Tribunal in November 2014. In his application for review the Applicant did not disclose an authorised recipient or migration agent, although he had had a migration agent acting for him while the matter was before the delegate. He indicated in the application form that he needed a Persian interpreter. He provided the Tribunal with a street address, a telephone number and an email address and with a copy of the delegate’s decision.
On 20 June 2016 the Tribunal wrote to the Applicant by email sent to the email address he had provided in his review application. The email attached an invitation to a Tribunal hearing to be held at 1pm on 14 July 2016. The invitation (in English) advised the Applicant that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear or may dismiss the application without further consideration, which would leave it for the Applicant to seek reinstatement. The invitation provided a contact telephone number for the Translating and Interpreting Service (TIS) for “language difficulties” and attached information in relation to Tribunal hearings and a response to hearing invitation form.
It is apparent from the hearing record in the Courtbook and the Tribunal reasons that the Applicant did not attend the Tribunal hearing.
In its reasons for decision of 18 July 2016, the Tribunal recorded that on 20 June 2016 it wrote to the Applicant and invited him to a Tribunal hearing at 1 pm on 14 July 2016 to give evidence and present arguments relating to the issues in his case. It referred to the content of the letter, in particular to advice that if he did not attend the Tribunal could make a decision on the review without taking further action to allow or enable him to appear. It recorded that the Applicant did not respond to the invitation. The Tribunal also recorded that on the morning of the hearing it attempted to contact the Applicant by telephone, but that the number was no longer in service.
The Tribunal summarised the Applicant’s claims made in his entry interview, his written statement and in his interview with the delegate. The Applicant claimed initially to fear harm from the Iranian regime, in particular the Besij militia and the Sepah, due to his political beliefs. In the statement accompanying his protection visa application he elaborated on the basis for such claims, including that he had been arrested many times when dealing in gold coins, hit by the police, and accused of being anti-Islamic; that he was against everything the State stood for and that he had attended two demonstrations in 2009 at which he believed his photograph had been taken by Sepah officers. He claimed that he feared harm from the Basij and the Sepah if he returned to Iran.
According to the delegate’s reasons for decision (referred to in the Tribunal decision), at the interview the Applicant had claimed that he did not accept the Islamic Republic, that he could not express his views on religion freely, that he had been involved in demonstrations and feared he might face problems in the 2013 elections as a result. In addition, he claimed he had been denounced by his step-father and threatened by his step‑father and step-grandfather who were religious and were aware of his views on religion and his participation in demonstrations in 2009.
The Tribunal referred to various issues in relation to the Applicant’s evidence before the delegate, including his failure to elaborate on or to provide further evidence in relation to particular aspects of his claims. The Tribunal also referred to the fact that the Applicant claimed to the delegate that he was under pressure from his step-father and step-grandfather, that they had threatened him and had told him by phone that they would have him sent to prison. It noted that the delegate had observed that the Applicant had not said anything about being threatened by his step-father and step-grandfather in his earlier submission. The Applicant told the delegate that he had not had any documentary evidence to support these claims until his mother had sent him a copy of a summons relating to legal action taken against him by his step-father and step-grandfather.
The Tribunal acknowledged that a copy of a Farsi language summons had been provided to the delegate. It referred to the verbal translation provided by the interpreter at the interview with the delegate and to the fact that the summons stated it was issued on 17 May 2014, contained the Applicant’s name and address and the time and the location of the court to which he was required to report, but said nothing about the reason it had been issued.
The Tribunal also recorded that the Applicant had provided to the Department a copy of his step-father’s identity card showing his relationship to his mother and of his step-grandfather’s passport showing he was a cleric. The Tribunal observed that the delegate had suggested that the fact the Applicant had a copy of these identity documents appeared to suggest these relatives were assisting him, not that they wanted to harm him, to which he had said that his mother had obtained the documents without their knowledge and that his sister had sent them to him. The delegate was also recorded as noting that country information indicated it was easy to obtain fraudulent documents in Iran. The delegate found that most of the Applicant’s claims were lacking in credibility.
Under the heading “Assessment of the Applicant’s Claims”, the Tribunal summarised the Applicant’s claims to fear harm because of his involvement in demonstrations in 2009, his work as a gold and currency dealer, because of his attitude towards Islam and his views on the Islamic government of Iran, and because his step-father had denounced him to Iranian officials because of his political and religious views. It noted that he also claimed to be a Christian.
However the Tribunal found that “[d]espite being interviewed by the primary decision-maker the applicant’s claims remain vague and lacking in detail” and that some of his claims appeared “to be at odds with credible information from other sources”.
The Tribunal elaborated on these concerns. In particular, it had regard to the fact that while the Applicant claimed to fear he had been identified and would be harmed because of participating in two demonstrations in 2009, he had not faced any problems at that time or thereafter. The Tribunal also observed that this claim appeared to be at odds with information from the Department of Foreign Affairs and Trade (DFAT) which suggested that low-level participants in the 2009 demonstrations were not generally at risk of harm in Iran today.
The Tribunal referred to the generality of the Applicant’s claims, including the absence of a detailed account of why he was at risk of harm when he was out with friends, whether he was ever actually harmed and why he believed he would continue to be at risk of such harm if he returned to Iran. The Tribunal had regard to the fact that while the Applicant claimed he opposed the Islamic Republic and had abandoned his Islamic faith in Iran, when asked about these issues by the delegate, he had responded in general terms and had not provided specific information on why he held these views, whether he had faced problems in Iran because he held these views and why he believed he would be at risk of harm on return to Iran because of these views.
The Tribunal found that the Applicant’s claim that he was a legal gold and currency dealer who had been arrested a number of times was at odds with country information in relation to the Iranian crackdown on currency traders in about 2012. Such information was said to suggest that it was only those who were engaged in illegal activities who were at risk of detention or harassment.
The Tribunal also considered the Applicant’s claim that prior to his departure from Iran, his step-father had threatened to have him jailed and that some months after his departure had denounced him to the authorities. The Tribunal recorded that the Applicant had provided a summons which required his presence in court, but that the summons did not give reasons for this demand. It referred to the Applicant’s failure to mention such problems prior to the delegate’s interview and to his explanation that he had failed to raise these issues because he did not have documentary evidence to support them. The Tribunal observed that, as noted by the delegate, the Applicant had not been deterred from making a range of claims regarding his situation in Iran by lack of documentary evidence.
The Tribunal continued:
Had the applicant attended the hearing, I would have sought considerably more evidence from him regarding his activities and behaviour in Iran, his views on religion and the Islamic government of Iran any problems he experienced prior to his departure from Iran, including the threats made against him by his step-father and the nature of the charges which he claimed were laid against him following his departure from Iran...
The Tribunal stated that it would also have sought the Applicant’s comment on advice from DFAT regarding the treatment of low level participants in demonstrations in 2009 and people engaged in legal currency trading which appeared to contradict his claims.
The Tribunal concluded that without this additional information and the opportunity to test the credibility of the Applicant’s claims at a hearing, it could not be satisfied that he had provided an honest or accurate account of his reasons for leaving Iran or his fears on return. Accordingly, it was not satisfied on the evidence before it that the Applicant had a well-founded fear of persecution for a Convention reason or that he met the complementary protection criterion. The Tribunal affirmed the delegate’s decision.
The Applicant sought review by application filed in this court on 15 August 2016. In his application and the supporting affidavit, he indicated that he was in the process of receiving legal advice and assistance and would amend all his details when he received full legal advice. However, he has not filed any amended application.
I note, for the sake of completeness, that the application was filed some considerable time ago. At the directions hearing on 28 October 2016, the Applicant was given the opportunity to file an amended application and further evidence. He did not do so. At a callover on 14 December 2017 he was given a further opportunity to file an amended application and further evidence, but did not do so. The Applicant did not raise any concerns in this respect today. I am satisfied that he has had more than adequate opportunity to file any amended application or other supporting documents, had he wished to do so.
The only ground in the application is a contention that “the method of communication being of uiexpected nature, and as a result never being aware of the interview’s date” (errors in original).
I asked the Applicant what he meant by this ground. He explained that his concern was that the Tribunal had contacted him about the hearing by email. He expressed concern on the basis that he had indicated (in his review application) that he did not know or understand the language. He submitted that the Tribunal should have contacted him via an interpreter and that in these circumstances he had not been contacted.
The Applicant also took issue with what he understood was a statement by the Tribunal that his telephone number was incorrect. He queried this but did not explain beyond claiming that he had been reporting to the Department of Immigration every three months at that time.
The Applicant also raised an issue in relation to the documents he had provided to the delegate to which I will return.
Dealing first with the ground as pleaded and as elaborated on in submissions, as indicated, on 20 June 2016 the Tribunal sent an email addressed to the Applicant to the email address he had provided in his review application attaching a hearing invitation.
As the First Respondent submitted, the information that the Tribunal provided in its hearing invitation met the requirements of the Migration Act 1958 (Cth) (the Act) in relation to an invitation to appear at a hearing (see ss.425A and 426A of the Act). It was open to the Tribunal (and in accordance with s.425A(2)(a)) to invite the Applicant to a hearing by email sent to the last email address he provided to the Tribunal in connection with the review (see s.441A(5)). Under s.441C(5), as the Tribunal gave the document to the Applicant by a method provided for in s.441A(5), he was taken to have received it at the end of the day on which it was transmitted. No issue has been raised in relation to transmission or receipt of the email.
It is also relevant to note that, as the First Respondent pointed out, s.422B of the Act provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. In this case, the Tribunal met its obligations under the Act in relation to the invitation to attend the Tribunal hearing. There is no statutory obligation to contact an applicant through an interpreter, as the Applicant appeared to suggest. It is the case that in his review application he indicated that he needed a Persian interpreter, but that does not mean that the Tribunal’s invitation was not an invitation in accordance with the Act or that the Applicant was denied procedural fairness because the invitation was in English.
I also note that the Tribunal recorded that on the morning of the hearing it endeavoured to contact the Applicant on the telephone number he had provided in his review application, but that the number was no longer in service. There is no evidence to support the Applicant’s concerns in this respect. The Tribunal made no finding that the number was incorrect.
The hearing invitation spelt out the Applicant’s obligation to appear. It specified the date, time and place of the hearing. It advised the Applicant that if he failed to appear, the Tribunal may make a decision without taking further action to allow or enable him to appear. Section 426A of the Act is relevant where an applicant fails to appear before the Tribunal, as occurred in this case. In such circumstances, under s.426A(1A)(a) the Tribunal may, by written statement under s.430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
It is the case that s.426A(2) provides that the section does not prevent the Tribunal from rescheduling the applicant’s appearance before it or from delaying its decision to enable the applicant’s appearance before it as rescheduled.
Hence, in these circumstances the Tribunal had a choice. It could proceed to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it, or it could delay its decision to allow a further opportunity to the Applicant (see SZVMG v Minister for Immigration and Border Protection & Anor [2016] FCCA 631 at [4] and SZVMG v Minister for Immigration and Border Protection [2016] FCA 1365 at [26]). In this case, the Tribunal decided to make a decision on the review.
The Applicant was invited to the hearing in accordance with the procedure provided for in the Act. The Tribunal took the additional step of attempting to telephone him on the telephone number he had provided in his review application (cf. AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383; (2015) 244 FCR 144 and WZAVH v Minister for Immigration and Border Protection & Anor [2016] FCCA 1020; (2016) 309 FLR 363). This is not a case in which the Applicant had any involvement with the Tribunal beyond filing his application such as to alert the Tribunal to any issues in relation to contacting him. There is no evidence to suggest that any email from the Tribunal was returned undelivered.
As pointed out in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408, the power conferred by s.426A(1) is discretionary, but such power must be exercised reasonably. Having regard to the principles discussed in SZVFW, this is not a case in which the Tribunal acted unreasonably. The Tribunal was not under any obligation to give reasons for the choice that it made in purported exercise of the power conferred by s.426A of the Act. The reasons it gave were brief. It did not spell out that it had decided to proceed to make a decision, but it is clear from paragraph 3 of its reasons and what appears thereafter that the Tribunal proceeded on this basis.
Under s.422B of the Act the Tribunal, acting fairly and justly, in circumstances where Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule, is entitled to regard an applicant to whom it is satisfied that an invitation complying with s.425 has been sent, as having adequate notice of his opportunity to appear before the Tribunal, when considering the exercise of the discretion under s.426A(1) in the event of non-appearance. As Gageler J pointed out in SZVFW at [69]:
Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant.
It cannot be said that no sensible Tribunal acting with due appreciation of its responsibilities could have taken that course. The decision was within the range of decision a reasonable Tribunal could have taken having regard to the subject matter, scope and purpose of s.426A and the facts known to the Tribunal (see SZVGM at [28]–[38]). As the First Respondent submitted, there is nothing in the material before the court that was before the Tribunal that took the situation out of the ordinary in this respect. In particular, the fact that the Applicant indicated that he required a Persian interpreter for the hearing in his review application form is not such as to satisfy me that the Tribunal acted unreasonably in failing to invite him to a hearing through an interpreter or in choosing to make its decision without allowing him further time to appear.
I also note that there was some considerable time between the date of the email of 20 June 2016 and the hearing of 14 July 2016. It would have been open to the Applicant, on receipt of what was clearly an email that appeared to be official, to have sought some assistance. The emailed invitation invited the Applicant to contact the Tribunal if he had any questions in relation to the attached documents (and to contact TIS for language assistance).
On the material before me, I am not satisfied that in exercising its discretion to proceed as it did under s.426A(1A)(a) of the Act, the Tribunal acted in a manner that was legally unreasonable in the particular circumstances of this case.
Neither ground nor other jurisdictional error is established in relation to the Tribunal’s method of inviting the Applicant to the Tribunal hearing or its decision to proceed to make a decision when he failed to appear.
The other issue raised by the Applicant was a concern that the documents on which the decision was made were not translated. When I asked him what these documents were, he referred to a number of documents in the Courtbook, in particular at pages 50 to 55 and 99 to 107. These are copies of untranslated documents he provided to the delegate, apparently through the migration agent who was assisting him at that time. He complained that the person he described as the legal representative the government had supplied to him (his migration agent), was supposed to provide translations to the delegate and had not done so. He was concerned that the Tribunal’s decision was made without considering the documents that he had provided.
It is apparent from the delegate’s decision and the Tribunal decision that documents in Farsi were provided to the delegate. However, it is clear from the delegate’s decision provided to the Tribunal that the interpreter at the Applicant’s interview with the delegate assisted with providing translations of such documents. It is also apparent from the Tribunal reasons that it understood that the Applicant had provided documents in support of his claims in relation to the harm he feared because of the actions of his step-father and step-grandfather. As described above, the Tribunal recorded that a copy of a Farsi language summons was provided, but that it said nothing about the reason it had been issued. The Tribunal also acknowledged that the Applicant had provided copies of his step-father’s identity card showing his relationship to the Applicant’s mother and his step-grandfather’s passport showing that he was a cleric.
The Tribunal understood that an aspect of the Applicant’s claims related to his fears based on threats and actions by these step-relatives. It specifically referred to the summons (in paragraph 39) in assessing the Applicant’s claims and expressing concern about the Applicant’s evidence, including the fact that the summons did not give reasons for the requirement that the Applicant appear and the adequacy of the Applicant’s explanation for not mentioning these problems before interview with the delegate.
The Tribunal stated that had the Applicant attended the hearing, it would have sought more evidence in relation to the threats made against him by his step-father, as well as the nature of the charges he claimed were laid against him following his departure from Iran. It was in the absence of such additional information and the opportunity to test the credibility of the Applicant’s claims that the Tribunal was not satisfied that he had provided an honest and accurate account of his reasons for leaving Iran or his fears on return.
In these circumstances, the Applicant’s contention that the Tribunal was unaware of or made a decision without considering the documents he had provided to the delegate is not made out. The Tribunal was aware of the critical documents that had been provided and that the Applicant had discussed these documents with the delegate. The Tribunal’s reasons for affirming the decision not to grant the Applicant a protection visa ultimately came down to its lack of satisfaction with his claims without the opportunity to obtain additional information from him and to test his credibility at a hearing.
Insofar as the Applicant appeared to take issue with the failure of his migration agent to obtain translations of his documents, there is no evidence to support his claims in relation to his understanding of what the agent had agreed to do on his behalf. In any event, taking these claims at their highest, there is nothing in the circumstances of this case to support any allegation in the nature of fraud such as to stultify the operation of the legislative scheme for the exercise of jurisdiction by the Tribunal as considered in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189. The Applicant has not established that there was fraud on the Tribunal.
The claims that the Applicant made in those documents were considered by the delegate and were acknowledged by the Tribunal in the course of considering its concerns about his evidence. No jurisdictional error is established on this basis.
As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 29 March 2019
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