CSE22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 720
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CSE22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 720
File number: PEG 148 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 18 August 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the applicant was provided with a copy of the delegate’s decision and reasons for refusal of his visa – whether the Tribunal ought to have adjourned any hearing on the basis that the applicant was unwell – whether the Tribunal erred by proceeding to make a decision based on the information before it (without allowing the applicant any further opportunity to appear at a hearing before it) – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5AAA, 36, 425 and 476 Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103
Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Anor [2006] FCAFC 152
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZIMG v Minister for Immigration and Citizenship [2008] FCA 368
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 90 Date of hearing: 12 July 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 148 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CSE22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
1.The application (as amended on 12 July 2023) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of China (Court Book (“CB”) 1-4). He first arrived in Australia in May 2019 as the holder of a visitor visa (CB 11, 24 & 88).
On 22 May 2019, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-22). He was not represented in relation to that application (CB 8). The applicant provided a statement outlining his protection claims (dated 17 May 2019) with his visa application (CB 23-25). In his statement, the applicant claimed to fear harm on the basis of a land dispute between his family and government officers in China. The applicant also claimed to have had a physical altercation with police because of that land dispute and further claimed that he was detained by police for three days following that altercation. The applicant also claimed to have protested outside a government office building, vandalised a government office building and the police issued a summons requiring him to report to the local police station within two months (CB 23-24).
On 20 November 2020, the Department of Home Affairs (the “Department”) requested more information from the applicant in relation to his visa application (CB 34-40). Relevantly, the Department requested further details or documentary evidence in support of the applicant’s claims that he was involved in a land dispute and that he protested about that dispute to town government officials in China (CB 40). The applicant was required to provide that information within 28 days (CB 34).
No response or additional information was provided by or on behalf of the applicant (CB 47).
On 23 December 2020, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 45-50). The delegate considered the applicant’s claims to be lacking detail and supporting evidence. In light of the lack of detail and the available country information, the delegate was not satisfied that the applicant participated in the activities, or suffered the kinds of adverse treatment in China as claimed (CB 47-49). The delegate ultimately found that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2) of the Migration Act 1958 (Cth) (the “Act”) (CB 50).
On 30 December 2020, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 51-58). In that application, the applicant provided details of a registered migration agent as his “authorised recipient” (the “representative”) (CB 55). A completed appointment of representative form (dated 29 December 2020) was also provided with that review application and contained the details of the same representative (CB 59).
On 13 January 2022, the Tribunal contacted the applicant by telephone. The Tribunal’s case notes detail that conversation as providing as follows (without alteration) (CB 97):
13/1/22, outbound call to PRA in regards to recent submission and request for Medicare, ID verified.
PRA wish to update email and confirmed the email domain is mail.com and NOT GMAIL.com. advise he needs to tell us in writing if he wish to withdraw representation. he says he understands. will send out Medicare letter this time to BOTH him and representative.
On 30 May 2022, the Tribunal invited the applicant (via email and through his representative) to appear at a hearing before it on 17 June 2022 (CB 64-70).
Later that day (also on 30 May 2022), the applicant’s representative provided the Tribunal with a completed “Response to hearing invitation” form (via email) (CB 71-76). The form was dated 30 May 2022 and appears to have been signed by the applicant (CB 76). In that form, the applicant was asked if he would “take part in the hearing schedule for 17 June 2022”. The applicant’s response indicated that he would “not participate in the hearing” and indicated that he “consent[ed] to the Tribunal making a decision on the papers without taking further steps to allow [him] to appear” (CB 74).
On 2 June 2022, the applicant emailed the Tribunal and stated (without alteration) (CB 77):
Would you please see the attachments for the applicaiton of change of contact details?
I do not use the previous agent anymore. The previous agent name is [Agent] from [Migration Agency]. Please stop sending the letters to the agent’s email address [representative’s email address omitted].
She is not my agent and authorized contact anymore.
Would you please send me the update informaiton letters to my email address:
[applicant’s email address omitted]?
I think I send the applicaiton form before for changing the contact details . However I forgot to tick the box to withdrawl the previous authorisation.
Would you please help me to send the latest information letter into my email address?
I will say lots of thanks to you.
Attached to that email correspondence was a completed “Change of Contact Details” form (CB 78-79).
On 27 June 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 82-96).
On 26 July 2022, the applicant lodged an application for judicial review in this Court. The applicant seeks review of the Tribunal’s decision pursuant to s 476 of the Act.
TRIBUNAL DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. In determining whether an error arises in this matter it is useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is 15 pages long and spans 78 paragraphs. The final three pages contain extracts of relevant legislative provisions from the Act.
The Tribunal began by identifying the type of visa under review, noting that a delegate of the Minister had refused to grant the applicant the visa on 23 December 2020. The Tribunal then set out the applicant’s family history, background and migration history (at [1]-[7]).
The Tribunal noted that the applicant had applied for the visa on 22 May 2019, was granted a bridging visa on 30 May 2019 and was invited to provide additional information to the Department on 20 November 2020. The Tribunal also noted that the applicant did not respond to the Department’s invitation and that the delegate ultimately refused to grant the applicant the visa (explaining that the delegate was not satisfied that the applicant participated in the activities or suffered the kind of adverse treatment in China as claimed or that the applicant had a profile that would be of adverse interest to Chinese authorities) (at [9]-[12]).
The Tribunal explained that on 30 December 2020, the applicant had lodged a review application with the Tribunal, that on 30 May 2022 the Tribunal had invited the applicant to appear at a hearing before it on 17 June 2022 and that the applicant’s representative had notified the Tribunal (also on 30 May 2022) that the applicant consented to the Tribunal making a decision on the review without taking any further action to allow him to appear before it (at [13]-[16]).
The Tribunal set out the evidence before it (at [17]) and identified that the issues in the review were as follows (at [18]):
a. whether the applicant is a refugee, pursuant to s 36(2)(a) of the Act; or
b.if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk he will suffer significant harm, pursuant to s 36(2)(aa) of the Act; or
c.whether the applicant is a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act, and who holds a protection visa of the same class as applied for by the applicant, pursuant to s36(2)(b) or (c) of the Act.
The Tribunal then detailed the criteria relevant to the visa and noted that, in accordance with Ministerial Direction No. 84, it had taken into account the Refugee Law Guidelines, the Complementary Protection Guidelines and relevant country information assessments (at [20]-[41]).
The Tribunal then outlined the applicant’s protection claims (as set out in his visa application) and reproduced the information provided in the applicant’s statement provided with his visa application (at [42]-[43]).
The Tribunal continued:
44.In summary, the applicant's claims for seeking protection are based on the following:
a.a dispute with the government over a compulsory order requiring the applicant's parents to dismantle their recycling station business;
b.the applicant's physical altercation with police on 10 March 2019 and subsequent detention by police for 3 days;
c.the applicant's petition against the government and subsequent interaction with police.
The Tribunal acknowledged that the visa application was made by the applicant within two weeks of his arrival in Australia (which could suggest a level of authenticity to his protection claims) (at [45]).
The Tribunal noted that it was the applicant’s responsibility to provide sufficient evidence to establish his protection claims (pursuant to s 5AAA of the Act). The Tribunal then explained that the applicant had been invited to provide additional information by the Department but did not do so. The Tribunal also noted that it had invited the applicant to attend a hearing before it to give evidence and present arguments but the applicant declined to attend. In the circumstances, the Tribunal was satisfied that the applicant had been given notice that the Tribunal did not have sufficient information to make a favourable decision and, further, had been given a reasonable opportunity to provide further information to support his claims. The Tribunal noted that applicant did not do so (at [46]-[47]).
The Tribunal was satisfied as to the applicant’s identity and the validity of his passport and national identification card. On that basis, the Tribunal was also satisfied that the applicant’s receiving country was China (at [48]-[49]).
The Tribunal determined that the applicant’s claims regarding the dispute with the town government relating to the dismantling of his parent’s recycling station lacked details and were unsupported by documentation or corroborating evidence (at [50]).
The Tribunal explained that the applicant:
(a)had provided conflicting information about the property (initially referring to it as “his property” and later identifying it as a “business established by his parents”) (at [51]);
(b)did not provide locations or details about where any of the events he described took place (noting, in particular, that he did not identify where his parents lived or where the recycle station was located) and did not provide any evidence to substantiate his parents ownership of the property or their entitlement to establish the recycle station in its location (at [52]);
(c)provided no information about the name of the relevant town government, where it was located or copies of any notice issued by that government requiring the dismantling of the recycle station (at [53]);
(d)provided no supporting documents relating to the offer of compensation made to his parents or the market value of the recycle station (to support his claim that the compensation offered was less than market value) (at [54]);
(e)stated that he had heard about the dismantlement order through a telephone conversation with his aunt but did not provide his aunt’s name or details of when he spoke to her. The Tribunal also noted that the applicant’s evidence seemed to indicate that he had spoken to his aunt when he was in Australia (which was inconsistent with the applicant’s evidence and Departmental records regarding his arrival date in Australia) (at [55]); and
(f)stated that he had heard from his aunt in February 2019 that his father had been detained but did not provide his aunt’s name or indicate how the conversation took place. The Tribunal also noted that the statement inferred that the applicant was not living in China at the time of the conversation (which was inconsistent with information in his visa application) (at [56]).
The Tribunal found as follows:
57.On the limited evidence available and in the absence of any supporting documents, I do not accept that:
a.the applicant’s parents were ordered to dismantle their recycle station by the town government either in September 2018 or at any time, or that the town government offered compensation of 60,000 RMB which was less than the market value of the recycle station;
b.the applicant’s aunty told the applicant by phone about the town government order to dismantle his parents recycle station by 10 March 2019;
c.the applicant’s aunty told the applicant in February 2019 that the applicant’s father had argued with the town government officers over the dismantle order and was detained for 5 days accused of disturbing harassing government officers;
d.the applicant's father had argued with the town government officers and was detained for 5 days accused of disturbing harassing government officers.
The Tribunal then considered the applicant’s evidence in relation to his claimed altercation with the police and subsequent detention and noted that there was a lack of detail about what the applicant was doing before the altercation or how he came to be “knocked to the floor”. The Tribunal also referenced a lack of detail about the applicant being detained, including which police station he was taken to, its location, if he was charged with any offences or where he was detained. Further, the Tribunal noted that no supporting documents had been provided in that regard (at [58]-[59]).
The Tribunal continued:
60. I do not accept that:
a. the applicant returned to his parents’ home on 8 March 2019;
b.town government dismantle officers and police attended the applicant’s parents’ home at 8am on 10 March 2019 to dismantle the recycle station;
c.the applicant had some physical clashes with the police at his parents’ home on 10 March 2019 during which he was knocked to the floor by some police whilst others dismantled the recycle station by force;
d.the applicant’s father was knocked to the floor by the police at his home on 10 March 2019 whilst pleading for mercy for the applicant;
e.the applicant was detained by police for 3 days following the physical altercation with police on 10 March 2019.
The Tribunal also considered the applicant’s evidence in relation to his claimed petition against the town government and subsequent interactions with police. The Tribunal:
(a)noted that the applicant had claimed to have written multiple appeal letters following his release from detention but did not provide any copies of the letters or advise who he wrote the letters to (at [61]);
(b)explained that the applicant indicated that he had petitioned outside the government office building when he did not receive any replies to his appeal letters but did not provide details of where the building was located, the name of the building or the date on which he made his petition. There was also no supporting evidence provided in that regard (at [62]);
(c)outlined the applicant’s evidence that the police came to his home “to arrest him on the second day but he was not home” but noted that that the applicant did not explain how he knew that information. The Tribunal found it implausible that the police would seek to arrest the applicant “on the second day instead of during the act of his petitioning” (at [63]);
(d)did not accept that the applicant wrote appeal letters, petitioned outside a government building or that police came to arrest the applicant (at [64]);
(e)noted that the applicant claimed to have been so angry at the police that he damaged the town government office building. The Tribunal again noted the lack of detail in relation to the name or location of the building and was not satisfied that the event took place (at [65]);
(f)outlined the applicant’s evidence regarding the issue of a summons by the police but again noted that no details were provided about when the police came, the type of summons received or what it related to and the consequences of failing to comply (at [66]); and
(g)found that the applicant’s failure to produce a copy of the summons lead to a strong inference that the applicant did not receive it. The Tribunal was not satisfied that the police issued such a summons (at [67]).
The Tribunal found that there was no real chance that the applicant would be persecuted by the police, town government or any authorities if he was returned to China (by reason of his activities regarding the dismantlement order for the recycle station, his activities protesting the order or damaging the government building or by reason of the summons issued), now or in the reasonably foreseeable future. On that basis, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution or that the applicant was a refugee (as defined in the Act) (at [68]-[71]).
Based on the same evidence and findings, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to China, there was real risk that the applicant would suffer significant harm (at [72]-[73]).
Having concluded that the applicant did not satisfy the criteria set out in ss 36(2)(a) and (aa) of the Act, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [75]-[78]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 26 July 2022 contained one “ground of review” as follows (without alteration):
1.I am a genuine refugee and I meet the criteria for applying protection visa. I will face dangerous situation if I go back China. I do not think the department of Home Affairs and Administrative Appeals Tribunal made the correct decision on my case. They do not have the spirit of humanitarian aid. I am seeking an appeal in the court.
In support of the applicant’s judicial review application, the applicant also swore an affidavit (on 19 July 2022). That affidavit annexed a copy of the Tribunal’s decision and associated notification letter.
On 23 September 2022, procedural orders were made by Registrar Carney of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 26 July 2022, a Court Book numbering 97 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 26 June 2023 and an affidavit of service of Benjamin Mayne (affirmed and filed on 6 July 2023).
The applicant appeared before the Court on 12 July 2023 without legal representation. He was assisted at the hearing by a Mandarin interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The Court noted that the application for judicial review filed by the applicant only sought relief by way of an order quashing the Tribunal’s decision. It did not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act was not properly invoked. The Court explained this oversight to the applicant and made an order amending the application for judicial review to include the seeking of a writ of mandamus. This is now the preferred approach in this Court in relation to unrepresented applicants: Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103 (per Judge Given) at [25]-[35].
Noting that the applicant was not legally represented, the Court gave the applicant an opportunity to explain orally what he thought the Tribunal “did wrong” in relation to his matter. This is the standard practice of this Court following the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]-[9], and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [25].
It was explained that the only issue before the Court was whether the Tribunal has fallen into jurisdictional error in arriving at its decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap, and that for migration decisions of this sort, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”). Importantly, the Court cannot grant the applicant the visa that he seeks (even if the Court disagrees with the Tribunal’s findings). Rather, the Court can only consider whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant told the Court that his visa had expired but he “cannot go back to [his] home country”. The applicant also explained that his parents had a shop and the police came to confiscate some items. He then had a fight with the police and fled to Australia.
The applicant also claimed that the delegate had not advised him about why his visa was refused or given any reasons in that regard. Rather, he was simply told that his visa had been refused.
When asked by the Court why he had not provided any evidence to the Tribunal or the Department, the applicant said that he did not know what other evidence he should have provided. The applicant also said that he “just ran away from China and did not have any evidence”. The Court asked the applicant why he had not explained that to the Tribunal. The applicant responded that he did not know why the evidence was not provided.
The Court asked the applicant if he had had the assistance of a migration agent. The applicant told the Court that he did not have an agent. Instead, he explained, a friend had helped him. The Court explained that the documents before it suggested that he had indeed appointed a migration agent. The applicant repeated that he had not appointed an agent and that his friend had helped him. Later in the hearing, the applicant explained that when he was in Sydney, someone had recommended a person to him that could “help him with his application” but the applicant was not sure if that person was an agent or not. The applicant said that he sat “face to face” with that person and had a discussion “about his whole situation” before he “started the process”.
The Court also asked the applicant why he had not attended the Tribunal hearing. The applicant told the Court that he was sick. The Court asked the applicant if he had let the Tribunal know that he was sick. The applicant told the Court that the Department had phoned him and he told them.
The Court noted that the documentation before it suggested that the hearing invitation was sent to the applicant’s representative and that the applicant had consented to a decision being made without the applicant attending a hearing before the Tribunal. The applicant again told the Court that he had just asked a friend to help him. The Court asked the applicant if he had agreed to the Tribunal making a decision without a hearing. The applicant confirmed that he had done so.
Despite the Court’s best efforts, the applicant seemed very reluctant to speak openly. The Court continued to ask questions of him but he was either unable or unwilling to engage openly with the Court.
In the circumstances, the Court will (in its duty to assist self-represented litigants) read the applicant’s ground of review and consider his oral submissions as broadly as possible. The Court will also remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
CONSIDERATION
Ground of review
The applicant’s ground of review provides:
1.I am a genuine refugee and I meet the criteria for applying protection visa. I will face dangerous situation if I go back China. I do not think the department of Home Affairs and Administrative Appeals Tribunal made the correct decision on my case. They do not have the spirit of humanitarian aid. I am seeking an appeal in the court.
The applicant’s ground of review raises two main concerns.
Firstly, the applicant claims that he met the criteria for the grant of the visa and is unable to return to China.
Secondly, the applicant appears to disagree with the decisions made by both the delegate and the Tribunal in refusing his visa application.
In relation to the first issue, the Court notes that, as outlined above, this Court does not have the power to review the applicant’s visa application or his protection claims. Further, the Court cannot grant the applicant the visa that he seeks. The applicant’s claims in this regard rise no higher than seeking impermissible merits review: Wu Shan Liang.
The Court also notes that, as set out in s 5AAA of the Act, it is an applicant’s responsibility to “specify all particulars of his or her [protection] claim” and “to provide sufficient evidence to establish the claim”: s 5AAA(2) of the Act. Further, the Minister (or the Tribunal) does not have any responsibility or obligation to “assist in specifying any particulars of the [applicant’s] claim” or to “establish, or assist in establishing the claim”: s 5AAA(4) of the Act.
Despite being given opportunities by both the Department and the Tribunal to provide additional information in support of his protection claims, the applicant did not avail himself of those opportunities.
In those circumstances, the Tribunal proceeded to make its decision on the (limited) information and evidence before it and found that the applicant’s protection claims lacked detail and supporting evidence.
No error arises in this regard.
Insofar as the applicant raises any issue with the Department or the decision made by the delegate, this Court has no jurisdiction to review the delegate’s decision: ss 476(2) and 476(4) of the Act. Further, any errors in the delegate’s decision would be “cured” by the Tribunal’s decision on review: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
As correctly submitted by the Minister (at [21] in written submissions filed in this Court on 27 June 2023), to the extent that the applicant disagrees with the findings made by the Tribunal, mere disagreement, and even emphatic disagreement, with the Tribunal findings does not constitute jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [40].
No jurisdictional error arises in relation to ground 1.
Applicant’s oral submissions
Although not entirely clear, the Court considers the applicant’s oral submissions to raise the following three issues:
(1)whether the applicant was provided with a copy of the delegate’s decision and reasons for refusal of his visa;
(2)whether the Tribunal ought to have adjourned any hearing on the basis that the applicant was unwell; and
(3)whether the Tribunal erred by proceeding to make a decision based on the information before it (without allowing the applicant any further opportunity to appear at a hearing before it).
These issues will be considered by the Court below.
Issue 1: whether the applicant was provided with a copy of the delegate’s decision and reasons for refusal of his visa
To the extent that the applicant claims that he was not provided with a copy of the delegate’s decision or the reasons for his visa refusal, this fails on a factual level. As outlined above, the delegate refused to grant the applicant the visa on 23 December 2020 (CB 45-50).
A copy of the delegate’s decision was sent to the applicant under cover of a letter dated 23 December 2020 (sent via email to the applicant at the email address provided by the applicant in his visa application) (CB 41-44).
The Court also notes that the applicant sought review of the delegate’s decision by the Tribunal on 30 December 2020 (only 7 days after the delegate’s decision was made and within the requisite time period for seeking review). Further, the applicant provided a copy of the Department’s notification letter and the delegate’s decision to the Tribunal with his review application (CB 57). This indicates that the applicant received the delegate’s decision within seven days of the delegate’s decision being made.
No error arises in relation to issue 1.
Issue 2: whether the Tribunal ought to have adjourned any hearing on the basis that the applicant was unwell
As outlined above, in oral submissions before this Court, the applicant claimed that he did not attend the Tribunal hearing because he was unwell. The applicant further claimed that someone from the Department had phoned him and that he had told the Departmental officer that he was unwell.
The Court considers the reference to the Department to have been a reference to the Tribunal, noting that the applicant was not invited to a protection visa interview or hearing before the Department.
There is no evidence before the Court to substantiate these claims. For example, there is no medical certificate for the date of the proposed Tribunal hearing and the Tribunal case notes do not evidence any phone call to or from the applicant in relation to his hearing (CB 97).
As detailed above, on 30 May 2022, the Tribunal invited the applicant (via email and through his representative) to appear at a hearing before it on 17 June 2022 (CB 64-70). That invitation letter also explained what an applicant should do if they are unable to attend a hearing, as follows (CB 68-69):
If you are not able to appear as scheduled, for instance, if you are not available on this day or you believe you will experience difficulty participating in the hearing as arranged, you need to advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only make changes to this hearing if satisfied that it is reasonable and there are good reasons for doing so.
The Presiding Member will consider any submissions and you will be advised of the outcome of that consideration before the hearing. You must assume that the hearing will go ahead as scheduled unless we have advised you otherwise.
The Court also notes that, as set out above, the applicant answered “no” to the question of whether he would “take part in the hearing scheduled for 17 June 2022” in the completed “Response to hearing invitation” form (CB 74). In that form, the applicant’s answer also indicated that he consented to the Tribunal making a decision on the papers. That form was dated and returned to the Tribunal on the same day the hearing invitation was sent (being on 30 May 2022). That is, the applicant (through his representative) had already told the Tribunal that he would not attend the hearing well before the scheduled hearing date of 17 June 2022.
The Court is satisfied that the Tribunal was not made aware of any illness the applicant may have had at the time of the proposed Tribunal hearing.
Where there was no information about the applicant’s illness before the Tribunal, there can be no error in relation to the Tribunal failing to grant an adjournment on that basis or otherwise failing to consider the information.
The issue of whether the Tribunal erred in proceeding to make a decision in the way that it did will be considered by the Court below.
Otherwise, no error arises in relation to issue 2.
Issue 3: whether the Tribunal erred by proceeding to make a decision based on the information before it (without allowing the applicant any further opportunity to appear at a hearing before it)
To the extent that the applicant takes issue with the Tribunal proceeding to make a decision without allowing him to appear at a hearing before it or suggests that the Tribunal should have extended a further hearing invitation, the Court disagrees.
As set out above, on 30 May 2022, the Tribunal invited the applicant (via email and through his representative) to appear at a hearing before it on 17 June 2022 (CB 64-70). That invitation letter stated (CB 67):
We have considered the material before us but we are unable to make a favourable decision on this information alone.
You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case as detailed below.
The letter also explained that the applicant could provide further information to the Tribunal prior to the hearing, as follows (CB 69):
Things to do before the hearing
Please provide all documents you intend to rely on to support your case by 10 June 2022. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a NAATI accredited translator.
Your representative should provide a written submission setting out all claims made and maintained by you by 10 June 2022. The submission should be accompanied by a signed declaration from you that the submission has been read and explained to you and that it accurately and completely presents your claims.
If you are proposing that a witness give evidence at the hearing, a witness statement setting out the witness's evidence should be provided to us by your representative by 10 June 2022. Where a witness is unable to adopt or sign a witness statement, particulars of the evidence the witness is expected to address and how it is relevant to the case should be provided by this date.
Later that day (also on 30 May 2022), the applicant’s representative provided the Tribunal with a completed “Response to hearing invitation” form (via email) (CB 71-76). The form was dated 30 May 2022 and appears to have been signed by the applicant (CB 76). In that form, the applicant was asked if he would “take part in the hearing schedule for 17 June 2022”. The applicant’s response indicated that he would “not participate in the hearing, and consent[ed] to the Tribunal making a decision on the papers without taking further steps to allow [him] to appear” (CB 74).
The Court notes that, in circumstances where the applicant consented to the Tribunal deciding the review on the papers, the applicant was no longer entitled to appear before the Tribunal by force of ss 425(2)(b) and 425(3) of the Act.
Section 425 of the Act relevantly provides as follows (emphasis added):
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The Court also notes the comments made by Justice Rares in this regard in SZIMG v Minister for Immigration and Citizenship [2008] FCA 368 (“SZIMG”) (citing Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Anor [2006] FCAFC 152 at [64]) as follows:
Again, it is difficult to see any purpose in the legislative scheme to require the tribunal to go through the empty form of holding a hearing when it had been informed by the applicant for review that he or she consented to the tribunal deciding the review without him or her appearing before it, even after the invitation to attend the review had been issued. Such a consent, if given after the applicant for review has been informed that the tribunal did not consider that it should decide the review in the applicant’s favour on the material before it and thus wished to invite him or her to a hearing so as to persuade it to the contrary, would be an informed consent to a decision being made against the interests of the applicant. Such a consent engages the operation of s 425(3) so that after it has been given the applicant is no longer entitled to appear before the tribunal. As Spender, French and Cowdroy JJ considered, once the applicant for review consents to the tribunal deciding the review without him or her appearing before it, the tribunal can proceed under ss 425(2)(b) and (3) to determine the application for review on the basis of the consent: SZFML 154 FCR at 587 [64]. Their Honours distinguished that mode of the tribunal proceeding from its acting on the basis of the power to decide the review under s 426A(1) following the non-appearance of an applicant. The applicant for review by rejecting an invitation to appear under s 425(1), can waive his or her right to a hearing. That has the effect of an applicant for review consenting to the tribunal deciding the matter without him or her appearing before it.
The Court also asked the applicant (when the matter came before the Court) if he had consented to the Tribunal proceeding in this matter. The applicant confirmed that he had done so.
The Court is satisfied that the applicant here consented to the Tribunal deciding the review without him appearing before it. Here, as was the case in SZIMG, by rejecting the Tribunal’s invitation to appear at a hearing, the applicant waived his right to any such hearing.
No error arises in the Tribunal proceeding to make a decision in the way that it did and without allowing the applicant to appear before it.
CONCLUSION
The application for judicial review filed by the applicant on 26 July 2022 has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
The application (as amended on 12 July 2023) is, accordingly, dismissed.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 August 2023
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