DZI16 v Minister for Immigration
[2018] FCCA 70
•20 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZI16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 70 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant fearing harm in Bangladesh as a homosexual and because of involvement in a tax fraud scheme in Australia – applicant’s homosexuality claim not believed and other fears not well-founded – whether the Tribunal hearing was procedurally unfair due to the refusal of a six week adjournment considered. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 189, 422B, 424A, 425, 425A, 438, 500, 501 Migration Regulations 1994 (Cth) |
| Cases cited: Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration v SZFML (2006) 154 FCR 572 |
| Applicant: | DZI16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 475 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 December 2017, via videolink to Perth |
| Date of Last Submission: | 12 January 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Ladhams of Australian Government Solicitor |
ORDERS
The application filed on 5 September 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 475 of 2017
| DZI16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 5 December 2017.
The applicant is a citizen of Bangladesh who first arrived in Australia on 12 April 2009 as the holder of a subclass 572 (Class TU) student visa.[1]
[1] Court Book (CB) 100
Since first arriving in Australia, the applicant has twice returned to Bangladesh, in July-August 2011 and in February-March 2013.[2]
[2] CB 101
The applicant was granted a subclass 573 student visa on 7 February 2013 which was valid until 15 March 2014.[3]
[3] CB 101
On 22 July 2013 the applicant was charged with 58 counts of fraud and identity charges relating to the lodgement of fraudulent tax returns. He was subsequently convicted, and on 4 July 2014 was sentenced to a term of two years imprisonment but with release after 12 months on recognisance of $1,000.[4]
[4] CB 79-94
Around November 2013 the applicant deferred his studies due to his legal issues, and on 12 March 2014 he lodged a further student visa application which was refused on 20 January 2015.[5]
[5] CB 101
On 10 June 2015 the applicant was released from prison and detained under s.189 of the Migration Act 1958 (Migration Act), as he did not hold a visa after his release from prison.[6]
[6] CB 101
On 22 June 2015 the applicant lodged an application for a protection visa.[7]
[7] CB 2-36
The applicant was invited to attend an interview with an officer of the Minister’s Department (Department), which was held on 16 December 2015.[8]
[8] CB 70-73
On 15 August 2016 the delegate made a decision not to grant the applicant a protection visa.[9]
[9] CB 96-114
The applicant lodged an application for review of the delegate’s decision with the Tribunal, and on 23 November 2016 the Tribunal affirmed the delegate’s decision. The applicant sought judicial review of that decision, and on 13 April 2017 I made orders by consent, quashing the Tribunal decision and remitting the matter to the Tribunal for reconsideration according to law.[10]
[10] CB 118
After a request for postponement, the applicant attended a further hearing before the Tribunal on 19 July 2017.[11]
[11] CB 183-186
On 8 August 2017 the Tribunal (differently constituted) affirmed the delegate’s decision.[12]
[12] CB 200-216
On 5 September 2017 the applicant filed the present application for judicial review.
Protection claims
The applicant is a 28 year old Muslim man apparently born in Dhaka, Bangladesh.[13]
[13] cf CB 13, CB 201, [14]
The applicant claimed to fear harm on account of his sexual orientation, as it is illegal to be homosexual in Bangladesh. He claimed that people know he is homosexual and he was attacked by Muslim fundamentalists and physically harmed for this reason. The applicant claimed that his parents were very conservative, and they were concerned about his sexual orientation.
The applicant also claimed to fear harm on account of having given evidence to the Australian Federal Police regarding Mr Aminul Islam’s criminal activities, and that Mr Islam had threatened him. The applicant claimed that on account of his criminal offending in Australia, he will be arrested and questioned upon his return to Bangladesh.
Tribunal decision
The Tribunal first assessed the applicant’s claims as a homosexual man.
The Tribunal traversed the applicant’s evidence regarding his early years, relationship with his family, past sexual encounters and life in Australia.[14] The Tribunal made the following findings:
a)it found unpersuasive the applicant’s evidence that he attended only two sessions with a mental health counsellor after his family found out that he was homosexual because his family could not afford further sessions, but then had the financial resources to travel to Australia as a student only two months later. The Tribunal was similarly unconvinced by the applicant’s evidence that his family was deeply religious and conservative but would allow the applicant to travel to Australia very shortly after finding out he was homosexual, simply on the applicant’s undertaking to forget about his sexual orientation;[15]
b)the Tribunal noted various inconsistencies in the applicant’s account of “the only interaction of a gay nature he has ever had”, such as how he and his claimed partner Tomal met on Facebook and why they did not meet when the applicant returned to Bangladesh in 2011.[16] The Tribunal also noted inconsistencies in the applicant’s accounts at his earlier and current Tribunal hearings of where and when he and his claimed sexual partner had met and dined when he returned to Bangladesh in 2013.[17] The Tribunal also noted inconsistencies and implausibility in the applicant’s explanation of why he went to Noakhali for his “tryst” with Tomal and events after they were allegedly attacked.[18] Ultimately, the Tribunal disbelieved the applicant’s entire story about having a friendship with a homosexual man in Dhaka named Tomal;[19]
c)the Tribunal found the applicant’s account of being identified at a gay bar in Sydney and his parents being informed to be unconvincing, given inconsistencies in the applicant’s evidence at his two Tribunal interviews. It found that the applicant fabricated this evidence; and[20]
d)accordingly, based on its credibility concerns and findings of fact, the Tribunal was not satisfied that the applicant is, or will be perceived to be, homosexual.[21]
[14] CB 205-209, [27]-[40]
[15] CB 205-206, [30]
[16] CB 206, [32]
[17] CB 206, [33]
[18] CB 207-208, [34], [37]
[19] CB 208, [38]
[20] CB 209, [39]-[40]
[21] CB 210-211, [48]-[49]
In relation to his fears of harm on account of having given evidence against Mr Islam, the Tribunal found as follows:
a)it accepted that the applicant had given information to the Australian authorities in relation to the criminal activities of Mr Islam, that Mr Islam fled Australia and that he sent a threatening email to the applicant;[22]
b)the Tribunal did not accept, based on the applicant’s vague and untruthful evidence about Mr Islam, that Mr Islam had looked for the applicant or approached the family at any time after the email;[23] and
c)taking into account the lack of evidence of any further threat, the Tribunal found that there was no more than a remote chance that the applicant would now face harm from Mr Islam if he returned to Bangladesh.[24]
[22] CB 211-212, [51]-[53], CB 213, [60]
[23] CB 212, [55]
[24] CB 212-213, [54]-[61]
The Tribunal considered country information regarding the circumstances of returnees to Bangladesh. Based on the country information, the Tribunal accepted that the applicant will come to the attention of the Bangladeshi authorities because of his criminal conviction in Australia if he returns as an involuntary returnee, but it did not accept that he would face adverse attention for this reason.[25]
[25] CB 213-214, [64]-[65]
In conclusion, the Tribunal considered the applicant’s personal circumstances and the Tribunal’s findings of fact. Based on this, the Tribunal was not satisfied that there was a real chance of serious harm amounting to persecution to the applicant now and in the reasonably foreseeable future for any reason in s.5J(1) of the Migration Act. The Tribunal was therefore not satisfied that the applicant met the criteria in s.36(2)(a) of the Migration Act, nor was it satisfied that the applicant met the complementary protection criteria in s.36(2)(aa) of the Migration Act.[26]
[26] CB 214-215, [67]-[72]
In the circumstances, having considered the applicant’s claims individually and cumulatively, the Tribunal affirmed the delegate’s decision.
The current proceedings
As noted above, these proceedings began with a show cause application filed on 5 September 2017.[27] The applicant continues to rely upon that application. There are three grounds in it:
1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
2. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to country.
3. The AAT decision is unjust and was made without taking into account the full gravity of my circumstances and the consequences of the claim.
[27] having been lodged the previous day
I have before me as evidence the applicant’s short affidavit filed with his application and the court book filed on 25 October 2017.
At the trial of this matter on 12 December 2017, I invited oral submissions from the applicant. He submitted that the hearing opportunity afforded him by the Tribunal was unfair because he had sought an adjournment of six weeks, which was declined. He told me that he had sought the adjournment because he had been dealing with a separate review application before the Tribunal in relation to a bridging visa application and he needed more time to prepare for the hearing on the protection visa review. He also said that he had obtained assistance from pro bono lawyers for the purposes of the Tribunal hearing, but they withdrew when the Tribunal would only grant them a week to prepare.
The circumstances are dealt with by the Tribunal at [18]-[20] of its reasons, where it stated:[28]
[28] CB 203-204
A hearing was scheduled for 12 July 2017 to be undertaken by video between Melbourne and Yongah Hill Immigration Detention Centre (WA). However, on 4 July 2017 the applicant requested a postponement of the hearing for at least two months for the reasons: he wished to get legal advice and help to prepare for the hearing; he was seeking pro bono assistance via Law Access and this may take some time; he needed an opportunity to prepare written submissions and arguments; his English is not fluent. After careful consideration I did not agree to postpone the scheduled hearing and on 4 July 2017 the applicant was advised in part:
The hearing will proceed as scheduled, with the assistance of a Bengali interpreter.
The Member has considered the reasons you have given for asking for a postponement of at least 2 months. However, the Member considered the lengthy time you have been in detention, having been transferred to Yongah hill IDC on 29 June 2015, and first sought review by the AAT on 23 August 2016, had a hearing on 7 October 2016, and the AAT (differently constituted) affirmed the refusal decision on 23 November 2016. The Federal [Circuit] Court remittal was then made on 13 April 2017, now almost 3 months ago. The Member considers that at every stage in the process outlined, you have had a very long time to seek representation. In summary, in light of the length of time you have been detained (2 years), and the length of time since you lodged your AAT review (over 10 months), or since the Federal [Circuit] Court decision (3 months) — The Member decided not to postpone the scheduled hearing.
Then on 11 July 2017 an Appointment of Representative/Authorised Recipient form was received by the Tribunal that ostensibly appointed Mr Robert Lindsay as representative and was signed by Mr Lindsay but not by the applicant. In the accompanying email Ms Alexandria Bishop stated:
I am assisting Mr Robert Lyndsay with this matter via a referral from Law Access to assist [the applicant] on a pro−bono basis. I have attached the Appointment of Representative form. Please note that as [the applicant] is in detention, we are unable to have him sign the form at short notice.
I understand that this matter is listed for hearing at 10:30 am tomorrow 12 July 2017. However, as we received the referral just a few days ago, we would be extremely grateful if the Tribunal would grant an adjournment so that we can review the case and prepare for the hearing. Our first opportunity to interview [the applicant] was yesterday evening. We are now seeking a number of pieces of evidence from [the applicant] which may prove his homosexuality and will therefore be highly relevant to the hearing. Our preference would be for at least a 6 week adjournment.
After careful consideration of this request I agreed to adjourn the hearing for one week. This advice was sent to Mr Lindsay as authorised recipient. Mr Lindsay then advised by email on 11 July 2017 that: he and Ms Bishop were “not presently engaged to represent” the applicant; their role was limited to interviewing him and then providing an opinion on merit to LawAccess and no more than that; the request for adjournment was to enable the applicant to follow up suggested lines of inquiry to prove his case and for him to advise the Tribunal as to what evidence he proposed to adduce. Following this advice, by letter dated 11 July 2017 the Tribunal gave the applicant details of the foregoing correspondence and advised:
Based on Mr Lindsay's strong advice that he and Ms Bishop are “not presently engaged to represent” you, together with the fact that they sought to limit the ‘appointment’ to act for you just on 12 July 2017, and as you did not actually sign the Appointment form, the Tribunal has formed the view that Mr Lindsay had not been validly appointed by you as your representative and authorised recipient. That means they will no longer receive correspondence on your behalf.
The Tribunal decision is silent on the question of the bridging visa proceeding before it and there is no indication in its decision whether it was aware of the other proceeding. The other proceeding is apparently unresolved because of judicial review in the Federal Court. The court book[29] contains email correspondence consistent with the Tribunal’s reasons at [20].
[29] at CB 174
I requested affidavit evidence from the Minister concerning the bridging visa proceedings and further written submissions from the Minister on the question of procedural fairness. I also invited further written submissions in reply from the applicant by 29 January 2018.
On 12 January 2018 the Minister filed two affidavits[30] and further written submissions. Nothing further was filed by or on behalf of the applicant.
[30] The affidavit of Karen La made on 22 December 2017 concerning the sound recording of the Tribunal hearing, and annexing a transcript of that hearing, and the affidavit of Brooke Marie Griffin made on 12 January 2018 concerning the history of the bridging visa application
Consideration
There is no substance to the grounds advanced in the application. I agree with the submissions of the Minister in relation to those grounds.
Grounds 1 and 2
The Tribunal correctly applied the law in s.36(2A) of the Migration Act. At [69]-[70] of the decision, the Tribunal correctly set out the relevant circumstances which constitute “significant harm” for the purposes of the complementary protection provisions. The Tribunal's reasons do not disclose that it adopted an overly narrow interpretation of significant harm.
The Tribunal was entitled to rely on its findings in relation to Convention reasons (now s.5H of the Migration Act) in assessing whether there is a real chance of significant harm where the essential claims and facts relied upon by the applicant are the same for Convention and complementary protection purposes.[31] The threshold of “real risk” is the same as “real chance”.[32]
[31] MZYXS v Minister for Immigration [2013] FCA 614 at [31]
[32] Minister for Immigration v SZQRB (2013) 210 FCR 505 at [246]
Accordingly I find that these grounds are without merit.
Ground 3
This ground of review contains several complaints, none of which establish jurisdictional error.
The applicant's allegation that the Tribunal decision was “unjust” is without particulars and therefore meaningless. Division 4 of Part 7 of the Migration Act contains exhaustive statements of the natural justice hearing rule in relation to the matters dealt with in that Division.[33] Here, the applicant was invited to a hearing under s.425 of the Migration Act to give evidence and present arguments. There is no denial of procedural fairness pursuant to the adverse information provisions in s.424A of the Migration Act, and the applicant was on notice of the dispositive issues. There was also no non-disclosure certificate under s.438 of the Migration Act in this matter.
[33] section 422B
The Tribunal also expressly had regard to all of the applicant's claims.[34] Its decision ultimately turned on credibility findings in relation to his individual claims, being that it did not accept that he was homosexual nor that the single threat by Mr Islam made several years ago means that Mr Islam will seek to harm the applicant in Bangladesh. Those credibility findings were findings of fact par excellence.[35] Both of these findings were open to the Tribunal and do not suggest that the Tribunal did not take into account all of the applicant's circumstances.
[34] see [15] of the decision
[35] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]
The Tribunal also understood that the consequences of its decision were that the applicant would be returned to Bangladesh. Absent any further particulars, this ground is without substance.
Was there a breach of s.425?
I accept the Minister’s post hearing submissions that no breach of s.425 occurred in this case.
The evidence available before the Court suggests the following background to the Tribunal’s decision not to grant the applicant an adjournment:
a)on 29 June 2017 the Tribunal sent to the applicant an invitation to attend a hearing on 12 July 2017;[36]
b)on 3 July 2017 the applicant wrote to the Tribunal and requested an adjournment of at least two months.[37] The reasons provided by the applicant were as follows:
Reasons because I was not aware wether I will receive such short timeframe in which I would be capable of preparing myself without a lawyer could be problematic in order to write the submissions and to be able to prepare myself and to get legal advise would therefore require extra time in this context or other required preparations need to be done such as contacting and receiving help from a legal adviser in order to help me in this matter.
And yet there is another reason why I am asking for the extension of time because I am seeking pro bono assistance via Law Access this would take sometime, and I myself need an opportunity to be prepare for the Appeal such as writing for myself to present argument and other defending mechanism and preparation which normally required for an Appeal, and also my English is not fluent.
(errors in original)
c)on 4 July 2017 the Tribunal wrote to the applicant declining to grant the adjournment and indicating that the hearing would proceed as scheduled with the assistance of a Bengali interpreter.[38] The reasons provided by the Tribunal were:
The Member has considered the reasons you have given for asking for a postponement of at least 2 months. However, the Member considered the lengthy time you have been in detention, having been transferred to Yongah hill IDC on 29 June 2015, and first sought review by the AAT on 23 August 2016, had a hearing on 7 October 2016, and the AAT (differently constituted) affirmed the refusal decision on 23 November 2016. The Federal [Circuit] Court remittal was then made on 13 April 2017, now almost 3 months ago. The Member considers that at every stage in the process outlined, you have had a very long time to seek representation. In summary, in light of the length of time you have been detained (2 years), and the length of time since you lodged your AAT review (over 10 months), or since the Federal [Circuit] Court decision (3 months) – The Member decided not to postpone the scheduled hearing.
[36] CB 142
[37] CB 152
[38] CB 154-155
d)on 11 July 2017 Ms Alexandria Bishop, a solicitor, wrote to the Tribunal indicating that she was assisting Mr Robert Lindsay with this matter via a referral from Law Access to assist the applicant on a pro bono basis, and requested an adjournment of six weeks.[39] Ms Bishop indicated that the referral was received a few days prior and that their first interview with the applicant was the previous evening. She requested the adjournment in order to review the case and prepare for hearing and indicated that they were “now seeking a number of pieces of evidence from [the applicant] which may prove his homosexuality”;
e)on the same day, the Tribunal agreed to postpone the hearing for one week “to enable appropriate case preparation” and indicated it would write again to advise of the hearing date;[40]
f)later on 11 July 2017, Mr Robert Lindsay wrote to the Tribunal in the following terms:[41]
[39] CB 164
[40] CB 166-171
[41] CB 174
Dear Madame,
Thank you for your email below in which an adjournment is given for one week.
The applicant is being advised accordingly.
The role of Ms Bishop and myself to date has been limited to interviewing the applicant and for me to provide an opinion on merit to LawAccess in this matter and no more than that.
We are therefore not presently engaged to represent him and the request for an adjournment on his behalf was to enable him to follow up suggested lines of inquiry to prove his case and for him to then advise you on the next occasion as to what evidence he proposes to adduce.
Kind regards
Robert Lindsay
g)on 13 July 2017 the Tribunal wrote to the applicant advising that the new hearing date and time was 19 July 2017 at 10.30am (WA time);[42]
h)the hearing was held on 19 July 2017. There is no evidence to suggest that the applicant at the hearing renewed his request for an adjournment, indicated that he needed more time to prepare or referred to another application that he had before the General Division of the Tribunal.[43] The Tribunal indicated to the applicant that it would take into account any further documents provided by the applicant up to the date of the decision;[44]
i)on 24 July 2017 the applicant provided a further document to the Tribunal, namely, an untranslated copy of the email sent by Mr Aminal Islam;[45] and
j)the Tribunal then made its decision on 8 August 2017.[46]
[42] CB 176-178
[43] affidavit of Ms La
[44] affidavit of Ms La
[45] CB 187-188
[46] CB 200-216
There is no evidence to suggest that the Tribunal member was aware that the applicant had another matter in the General Division of the Tribunal. The following facts are relevant to the matter in the General Division, in which the applicant was allocated the pseudonym XQFF and the proceeding was allocated the number 2017/2095:[47]
a)on 13 April 2017 the applicant lodged an application for review of a decision of a delegate of the Minister to refuse to grant him a bridging visa because he did not pass the character test;
b)that delegate’s decision had been made on 5 April 2017 under s.501(1) of the Migration Act. Pursuant to s.500(6L), if the Tribunal did not make a decision within 84 days of the date on which the applicant was notified of the delegate’s decision, the decision would be deemed to be affirmed. The 84th day after the date of notification was 28 June 2017;
c)the Tribunal made directions on 2 May 2017 to facilitate the hearing of the matter. The applicant did not comply with any of the directions;
d)a hearing was held on 8 June 2017, at which the applicant gave evidence. The applicant was self-represented at the hearing;
e)on 12 July 2017 the Tribunal sent to the parties a decision dated 28 June 2017 which affirmed the delegate’s decision pursuant to s.500(6L) of the Migration Act; and
f)on 5 September 2017 the applicant filed in the Federal Court an application for an extension of time to review the decision purportedly made on 28 June 2017. The applicant discontinued that application on 1 December 2017.
[47] see affidavit of Ms Griffin
The evidence before the Tribunal does not suggest that the applicant would necessarily have been represented by Mr Lindsay or Ms Bishop, or any other person via Law Access, if a longer adjournment had been granted. Mr Lindsay confirmed that his role at the time he sent the email to the Tribunal had been to interview the applicant and to provide an opinion of merit to Law Access. There is no evidence to confirm that Mr Lindsay would have further assisted the applicant if a longer adjournment had been granted, or that the granting of only a one week adjournment was the reason that the applicant was not represented via a Law Access referral. Nor is there any evidence to confirm that an alternative lawyer would have been willing to represent the applicant on a pro bono basis, had more time been available. In these circumstances, it cannot be concluded that the applicant was denied an opportunity to be represented as a result of the Tribunal granting only a one week adjournment.
The applicant’s claim that he was denied an opportunity to prepare for the hearing should be viewed in the context of the matter as a whole. The applicant lodged his application for a protection visa on 22 June 2015. His application to the Tribunal was made on 23 August 2016. He had attended an earlier hearing before the Tribunal on 7 October 2016. The applicant sought judicial review of the decision made following that hearing, constitutional writs were issued and the matter was remitted to the Tribunal for reconsideration on 13 April 2017, some three months before the hearing. In circumstances where over two years had passed since the applicant had lodged an application for a protection visa, almost 11 months had passed since he had lodged an application for review by the Tribunal and three months had passed since the matter had been remitted to the Tribunal by this Court, the Tribunal was entitled to conclude that the applicant had already been afforded sufficient opportunity to find pro bono representation. The Tribunal did not fall into error in making its decision to grant only a one week adjournment.
The applicant now refers to application 2017/2095 before the General Division of the Tribunal as a reason for explaining why he had insufficient time to prepare for his hearing in this matter. However, the applicant never made any request for an adjournment on the basis of his preparation for the hearing in application 2017/2095, nor is there any evidence to suggest that the Tribunal member who made the decision presently under review would have been aware of the matter in General Division. In these circumstances, there is no jurisdictional error in the Tribunal failing to consider the applicant’s preparation for application 2017/2095 when making a decision in relation to the adjournment request.
Further, the affidavit of Ms Griffin shows that the hearing in application 2017/2095 was held on 8 June 2017 and the applicant’s last known communication to the Tribunal, being a short letter to confirm that he agreed with the information provided on behalf of the Minister on 9 June 2017 in relation to work rights on a bridging visa, was made on 14 June 2017. The applicant had almost six weeks between his hearing in 2017/2095 and his hearing in the present matter. There is no evidence to support the applicant’s submission that he was unable to prepare for the hearing before the Tribunal in this matter as a result of preparation he was doing for his hearing in 2017/2095.
The applicant was not denied a fair hearing as a result of the Tribunal’s decision to grant only a one week adjournment, nor was the invitation to attend a hearing issued under s.425 of the Migration Act rendered meaningless or an empty gesture.
In this regard, it is also relevant that the Tribunal, after setting out the procedural history of the matter in relation to the adjournment request, states at [22]:
At the start of the hearing I asked whether he was well and able to talk about his story, and he stated that he had been in detention a long time and was physically and mentally tired. He then confirmed that his mind was clear and he was able to talk about his story. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.
In addition, I accept that the decision to adjourn for only one week was not vitiated by unreasonableness of the type identified in Minister for Immigration v Li. [48] The Tribunal considered the relevant background to the matter, including the length of time the matter had been on foot and the length of time the applicant had been in detention in reaching its decision, as it was entitled to do, and there is nothing unreasonable or arbitrary in the Tribunal’s decision.
[48] (2013) 249 CLR 332; [2013] HCA 18
The Minister also noted in his submissions that the applicant was given only six days notice of the rescheduled hearing. Section 425A(3) of the Migration Act requires that the period of notice that a person should be given of an invitation to attend a hearing should be at least the prescribed period (if any) and regulation 4.35D(2) of the Migration Regulations 1994 (Cth) (Regulations) requires that a detainee be given seven days notice. However, the Court has previously held that s.425A(3) and the prescribed timeframes in the Regulations do not apply to an invitation to a rescheduled or adjourned hearing.[49] Therefore there was no jurisdictional error on the basis of the notice period in relation to the adjourned hearing.
[49] Minister for Immigration v SZFML (2006) 154 FCR 572 at 589-590 [79]-[82]; SZDQO v Minister for Immigration (2005) 144 FCR 251; see also Ogawa v Minister for Immigration (2011) 199 FCR 51 at 55-58 [27]-[35] regarding the equivalent provision in Part 5
Conclusion
The applicant has failed to establish that the Tribunal decision is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 February 2018
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