SZQPO v Minister for Immigration

[2015] FCCA 3184

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQPO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3184

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – procedural fairness – mental illness of applicant – whether the Tribunal should have further adjourned the proceedings in light of the psychological effect on the second applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

Minister for Immigration and Citizenship v SZNVW (2012) 183 FCR 575
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35

First Applicant: SZQPO

Second Applicant: SZQPN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1720 of 2015

Judgment of: Judge Street

Hearing date: 30 November 2015

Date of Last Submission: 30 November 2015

Delivered at: Sydney

Delivered on: 30 November 2015

REPRESENTATION

The Applicants appeared in person

Counsel for the Respondents: Mr P Knowles

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. The application is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1720 of 2015

SZQPO

First Applicant

SZQPN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of the decision of the Tribunal made on 29 May 2015, affirming the decision of the delegate not to grant the applicants protection (Class XA) visas.

2. The first applicant, the husband of the second applicant, first arrived in Australia on a tourist visa on 14 June 2007 and has a migration history identified by the delegate at 85 where he had departed from Australia and re-entered in 2008, 2009, and the first half of 2010. The first applicant arrived in Australia again on 26 July 2010 under a subclass 676 visa that was valid until 26 October 2010, and on 8 October 2010 made an application for protection. 

3. The second applicant’s migration history was one which she had also arrived in Australia under visas initially on 5 December 2006 and departed again in 2006, arrived in Australia again in 2009 and in the early part of 2010, arrived and departed, and then arrived on 19 September 2010 and applied for protection on 8 October 2010.

4. The applicants’ applications for protection were refused on 8 November 2010, and that decision was affirmed by Tribunal on 3 March 2011.  On 6 March 2012, the application for relief before the Federal Magistrates Court was dismissed.  On 24 April 2012, an application to the Federal Court of Australia for relief was dismissed. Consistent with the principles identified in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35, a second application for protection on complementary protection grounds under s.36(2)(aa) of the Migration Act 1958 was lodged by the applicants on 19 March 2013.

5. That application was refused on 3 April 2014.  On 24 April 2014, the applicants sought a merit review before the Refugee Review Tribunal in relation to the complementary protection grounds.  By letter dated 12 September 2014, the Tribunal invited the applicants to attend a hearing on 17 October.  By letter from the applicants’ legal representative dated 16 October 2014, the applicants sought an adjournment of the hearing by reason of a fatal tragedy that had occurred involving the second applicant’s sister and mother.

6. The letter from the solicitors was accompanied by other documents identifying the tragic double homicide that had occurred, including a consultant social worker’s report as to the adverse impact of the tragedy on the nephews of the second applicant.  The Tribunal granted the adjournment and, by letter dated 16 October 2015, invited the applicants to attend further hearing to be held on 10 December.  At that time, only the first applicant appeared, and the Tribunal agreed to hold a further hearing so as to allow the second applicant to attend.

7. By letter dated 12 September 2014, the Tribunal asked the applicants to attend a resumed hearing on 2 March 2015.  By letter dated 26 February 2015, the solicitor on behalf of the applicants sought a further adjournment on the basis of the consequence of a miscarriage that had occurred in relation to the second applicant and provided medical material as to the physical and psychological effect of the miscarriage in support of that adjournment.  The Tribunal then sent a letter dated 26 February 2015 identifying a proposed resumption of the hearing to take place on 25 May 2015.

8. Following the sending of that letter dated 26 February 2015 to the applicants’ legal representative, no further material was provided to the Tribunal to request any adjournment of the hearing date to take place on 25 May 2015.  In fact, on that day, it appears from the Tribunal’s reasons that the second applicant did accompany the first applicant to the Tribunal precincts, but when the first applicant was asked if the second applicant could come into the Tribunal room, the first applicant conveyed to the Tribunal she was scared and did not do so.

9. It appears that the Tribunal was subsequently informed by the first applicant that the second applicant was concerned that she would be asked questions about the tragedy that had occurred to her mother and sister. Of material significance is the fact that no adjournment of the hearing was sought by the first or second applicants.  No medical evidence was put on as to the inability of the second applicant to participate in the hearing, and the explanation proffered in relation to concern as to questions about the tragedy was not an explanation that related to an inability to meaningfully participate in relation to questions about the alleged fears of persecution or to present arguments on the same.

10. It was in those circumstances that the Tribunal decided not to give the second applicant any further opportunity to give evidence and submissions and decided to determine the matter on the material before the Tribunal.  I am satisfied that the statutory obligation in relation to inviting the applicants to attend a hearing was complied with, and that the second applicant was given the opportunity to attend and participate in a meaningful hearing. 

11. A report has been provided to the Court by a Dr Borenstein dated 17 September 2015. That report identified that the second applicant has been suffering from chronic severe PTSD and major depressive disorder.  The doctor opined in the present tense of that condition, compromising the second applicant’s ability to attend Court.  The doctor further opined that the disorder:

    ...precludes her from attending to her affairs and attending RRT and the Federal Court hearings.

12. That last opinion does not identify the assumptions underlying the opinion for the basis or reasons to support the opinion or how the opinion is within the field of expertise.  Further, to the extent relevant, the second applicant has attended a Court hearing today and given evidence and was asked questions about her ability to have participated in the hearing. The second applicant conveyed the position that it was questions about the tragedy that she could not have answered, and said that she was not sure whether she could have participated by answering questions on other topics.

13. That was a frank and candid concession by the second applicant, who gave careful, responsive evidence about what occurred and the nature of the interview that had taken place with Dr Borenstein.  On that evidence, I find that nothing was said to Dr Borenstein about the affidavit that had already been filed in these proceedings by the second applicant, nor was the subject matter of what would occur, either at a Federal Court of Australia hearing or what had occurred at the RRT, the subject of discussion with Dr Borenstein.

14. It is clear that the applicant was able to attend before the doctor to answer questions.  It is also clear that the doctor’s reference to the third hearing in August 2015 was inaccurate, as the relevant Tribunal hearing was one that occurred on 25 May 2015.  Further, contrary to what was implied by Dr Borenstein’s report, the second applicant did, in fact, attend the Tribunal hearing, because of being physically outside the same, but then declined to take up the invitation to come before the Tribunal to participate in the hearing date which had been notified by letter dated 26 February 2015. Nor did Dr Borenstein address the second applicant’s continued employment throughout the period since the tragedy up to the hearing before the RRT on 25 May 2015

15. The second applicant confirmed that no adjournment application was made on her behalf, nor was any adjournment sought by the first respondent.  No material was put before the Tribunal to identify that the second applicant had any major depressive disorder and, given the second applicant’s evidence, I find the second applicant did have the capacity to give an account of her experiences and an ability to be able to present arguments about her claims for protection and to understand and respond to the questions put to her in the hearing if she had chosen to do so.

16. The grounds of the application are as follows:

    1. The decision of the Tribunal:

    a. Is affected by a jurisdictional error.

    b. Tribunal failed to take into account relevant matters and considered irrelevant matters.

    Particulars

    a. The Tribunal failed to consider the psychological effect suffered by the first and second applicant as a result of the murder of the second applicants sister and mother in front of the applicants' children by not granting a postponement of a reasonable period for the hearing. 

    b. The Tribunal failed to consider the psychological effect suffered by the second applicant as a result of her health issues and miscarriage by not granting a postponement of a reasonable period for the hearing.

    c. The failure by the Tribunal to provide a reasonable time resulted in the second applicant not attending the Tribunal hearing.

    d. Due to her mental condition the second applicant was not fit to attend the rescheduled Tribunal hearing and thus her claims could not be explained particular given recent events in Fiji that affected the applicants' family.

    e. The Tribunal considered the claims of the applicants but did not explore the claims of the second applicant further.

17. In relation to ground 1(a), the assertion of a jurisdictional error does not of itself identify a jurisdictional error. In relation to the particulars (a) and (b) to ground 1(a), there was no psychological or psychiatric evidence put before the Tribunal to seek an adjournment, nor was any application for an adjournment made.  The decision of the Tribunal not to further adjourn the matter and give the second applicant a further opportunity to give evidence and present submissions cannot be said to be unreasonable.

18. Relevantly, the Tribunal said:

    11.Be that as it may, as the applicant wife was not able to attend, or did not wish to attend, any of the four scheduled Tribunal hearings, and neither did she take up the Tribunal’s offer to provide written evidence, I have not discussed this issue further.

    …

    18. At the present Tribunal hearing (on 25 May 2015), the applicant husband (the applicant) did not wish to comment about any of the above claims. However, at the end of the hearing, he said his wife “had a strong case” and it was (words to the effect) “a pity” she was not present today. The Tribunal then stated this was the fourth attempt to hold a hearing (the prior hearings being vacated at the applicants request or adjourned). Further, at the (adjourned) hearing on 10 December 2014, the applicant had also said he wished his wife’s claims to be considered (for the purposes of assessing complementary protection). As the applicant wife was not present at that time, when asked why not, the applicant said she was then three months pregnant, and as she had miscarried during a previous pregnancy, her doctor asked her to come to hospital that day. The wife was in hospital on the morning of 10 December 2014 (and the applicant said he would lodge medical evidence – though the Tribunal said that would not be necessary).

    19. At any rate, on 10 December 2014, the Tribunal adjourned the hearing again, but had instructed the applicant to lodge any further written material no later than one week prior to the next hearing (and no further evidence was lodged). The Tribunal also explained that the applicant wife should attend the next hearing; but if she did not wish to attend, the Tribunal would take any evidence and submissions she wished to make, in writing (but then may ask the applicant questions about such evidence at hearing). The Tribunal also told the applicant that it was obliged to make its decisions in a timely manner, so that without extraordinary further grounds, it may not agree to re-schedule the hearing again. Be that as it may, the hearing on 25 May 2015, was the fourth attempt the Tribunal had made to conduct a hearing (though there were very reasonable grounds for the prior adjournments or rescheduling of hearings – including death in the family and that the applicant wife suffered a second miscarriage around the scheduled February 2015 hearing).

    20. At the present hearing, the applicant then said his wife had accompanied him to the Tribunal. When asked if he would bring her into the Tribunal hearing room, he said she was scared and he also said (subsequently) that his wife was concerned the Tribunal would ask questions about the killing of her mother and sister (discussed below).

    21. After considering the matter, the Tribunal has decided not to give the applicant wife further opportunity to give evidence and submissions. That was because this was the fourth attempt to hold the hearing; given that no evidence or submissions were lodged in writing; and given the applicants were still represented by a migration agent. The Tribunal advised the applicant of this and also said that it did not propose to make any formal request for further evidence (though it was obliged to consider any evidence lodged with the Tribunal prior to publication – though no further evidence was lodged prior to publication).

19. In my opinion, the decision of the Tribunal not to give the second applicant a further opportunity to give evidence and present submissions cannot be said to lack an evident and intelligible justification.  There was no evidence before the Tribunal as to the psychological effect in terms of ongoing disorder as to the second applicant in respect of the fourth hearing date before the Tribunal. There was no evidence before the Tribunal in respect of any psychological or psychiatric effect of the miscarriage or its consequences in relation to the second applicant in respect of the fourth hearing. I find the particulars (a) and (b) failed to identify any jurisdictional error of a kind alleged in ground 1(a). 

20. In relation to particular (c), the time given for the hearing in the notification sent on 26 February 2015 for a hearing on 25 May 2015 through the legal representative of the applicants cannot be said to be unreasonable, and no notification was given during that period, up until the time of the hearing, of any difficulty by the second applicant in being able to participate meaningfully in the hearing, until the day of the hearing. The only difficulty of the second applicant identified at that time was referable to questions concerning the tragedy. Particular (c) fails to identify any basis upon which ground 1(a) could be made out.

21. In relation to particular (d), I do not accept that the second applicant was unfit to attend the fourth hearing. It is clear in fact the second applicant did physically attend the hearing location with the first applicant, but decided not to participate because of her concern in respect of questions about the tragedy that had occurred.  This was the second protection visa application of the applicants.  The nature of the hearing process before the Tribunal was one in which the applicants had participated before and, in my opinion, it was not reasonable for the second applicant to believe that the subject matter of her tragedy would be the subject of questioning or argument in relation to her second application for protection. Particular (d) fails to identify any basis upon which a jurisdictional error could be made out under ground 1(a). 

22. In relation to particular (e), it is clear from the Tribunal’s reasons, relevantly in paras.25, 29 and 33, that the second applicant’s alleged fears in relation to complementary protection were the subject of deliberation and adverse findings by the Tribunal and, in particular, in paras.58 and 60 of the Tribunal’s reasons.  Accordingly, particular (e) fails to establish any jurisdiction error of the kind alleged in para.1(a).

23. The generalised assertion in ground 1(b) does not of itself identify any jurisdictional error.  It is clear from the Tribunal’s reasons that the Tribunal was aware of and took into account the tragedy that had occurred. However, this was the fourth scheduled hearing and, in those circumstances, there is no substance in the proposition that the Tribunal failed to take into account any relevant matter in relation to the psychological effect of the applicant of the tragedy or the psychological effect of the applicant in relation to the miscarriage.

24. Materially, no further material had been put on in relation to any continuing psychological or physical effect in respect of the miscarriage, nor was there any material in respect of the psychological effect on the second applicant of the tragedy.  The Tribunal was entitled to take into account the earlier scheduled hearings, and this is not a case where there had been evidence put before the Tribunal to establish that the applicant was not fit to attend the hearing.  Further, there was no claim of the applicants that was identified was a claim not properly considered by the Tribunal. The particulars do not establish any jurisdictional error of the kind identified in ground 1(b). 

25. As to the question of whether there was compliance with s.425 of the Migration Act 1958, counsel for the first respondent drew attention to the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZNVW (2012) 183 FCR 575 at [20] to [22]. For the reasons that I have given, I am satisfied that the second applicant was able to meaningfully participate in the hearing that was fixed to take place on 25 May 2015 and chose not to do so.

26. The fact that the second applicant did not participate at that fourth hearing does not give rise to any contravention of s.425 of the Act. I am satisfied that there is no jurisdictional error in the conduct of the review by the Tribunal. The application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  1 December 2015