SZQTU v Minister for Immigration
[2020] FCCA 1944
•21 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQTU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1944 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the Applicant a Protection (Class XA) (Subclass 866) visa – Applicants claim that the Tribunal failed to provide a meaningful invitation to the First Applicant to appear at a hearing before it, and / or that the Tribunal ought to have appointed or arranged a litigation guardian or a lawyer for the First Applicant to appear on his behalf at the hearing before the Tribunal – Tribunal does not have the power to order that legal representation be provided to an applicant for review before it, nor does procedural fairness require an applicant to be provided with legal representation – appointment of litigation guardian would not have made any practical difference – jurisdictional error not made out – application for judicial review dismissed. |
| Legislation: Administrative Appeals Act 1975 (Cth), s.2A Migration Act 1958 (Cth), ss.36, 48A, 65, 417, 425, 427 |
| Cases cited: Applicant s296 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1166 AWA15 v Minister for Immigration [2018] FCA 604 Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 Minister for Immigration & Multicultural & Indigenous Affairs v SZFML (2006) 154 FCR 572 SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 SZMSF v Minister for Immigration & Citizenship [2010] FCA 585 SZODN v Minister for Immigration and Citizenship [2010] FMCA 269 SZODN v Minister for Immigration and Citizenship [2010] FCA 886 SZOGP v Minister for Immigration and Citizenship (2010) 244 FLR 139 SZQTS v Minister for Immigration and Citizenship [2012] FMCA 468 SZQTS v Minister for Immigration and Citizenship [2012] FCA 1094 SZQTS v Minister for Immigration and Citizenship [2013] HCASL 10 SZRVA v Minister for Immigration & Border Protection [2019] FCA 630 WABZ v Minister for Immigration & Multicultural Affairs (2004) 134 FCR 271 |
| First Applicant: | SZQTU |
| Second Applicant: | SZQTT |
| Third Applicant: | SZQTS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1793 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing dates: | 12 June 2019 |
| Date of Last Submission: | 1 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr J. Mort of Counsel |
| Counsel for the First Respondent: | Mr G. Johnson of Counsel |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 12 July 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1793 of 2016
| SZQTU |
First Applicant
| SZQTT |
Second Applicant
| SZQTS |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicants in this proceeding are as follows:
a)the First Applicant is a male citizen of India aged 40 years;
b)the Second Applicant is a female citizen of India aged 39 years and is the wife of the First Applicant; and
c)the Third Applicant is a male citizen of India aged 10 years and is the son of the First and Second Applicants.
(and collectively the Applicants)
By Application filed in this Court on 12 July 2016 they seek to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 23 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 19 June 2014 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visa(s)) under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The First and Second Applicants arrived in Australia on 26 May 2008 on Tourist (Subclass 676) visas. The Third Applicant was born in Australia on 13 September 2009.
On 26 August 2008 the First and Second Applicants applied for Protection visas under the Refugees Convention criterion (first Protection visa application). The first Protection visa application was refused by a Delegate of the Minister on 21 November 2008. They sought merits review of the Delegate’s decision with the then Refugee Review Tribunal (RRT), which by decision dated 4 March 2009 affirmed the decision of the Delegate not to grant to them Protection visas. The First and Second Applicants then lodged an application for judicial review of the RRT’s decision and an extension of time in which to bring it of some 11 months with the then Federal Magistrates Court of Australia, which was dismissed by Federal Magistrate Lloyd-Jones on 21 April 2010 in judgment bearing medium neutral citation [2010] FMCA 269. The First and Second Applicants lodged an application for leave to appeal this decision in the Federal Court of Australia, which was dismissed for want of jurisdiction by Katzmann J on 25 June 2010 in judgment bearing medium neutral citation [2010] FCA 886. The First and Second Applicants made two requests to the Minister to exercise his discretion under s.417 of the Act dated respectively 19 August 2009 (which was personally considered by the then Minister) and 6 September 2010 (which was not referred to the Minister), which were both unsuccessful.
On 31 January 2011 the Third Applicant lodged his own Protection visa application, with the First and Second Applicants as secondary applicants. A Delegate of the Minister found that the secondary applications were not valid to the extent that the First and Second Applicants had already been refused Protection visas on 21 November 2008 and that Australia did not owe protection obligations under the Refugees Convention to the Third Applicant. By decision dated 6 October 2011 the RRT affirmed the Delegate’s decision that Australia did not owe protection obligations to the Third Applicant and that it did not have jurisdiction in relation to the First and Second Applicants as secondary applicants.
The Applicants sought judicial review of the RRT’s decision of 6 October 2011 in the Federal Magistrates Court, which application was dismissed by Federal Magistrate Cameron on 30 May 2012 in judgment bearing medium neutral citation [2012] FMCA 468. The Applicants then appealed this judgment in the Federal Court of Australia, which appeal was dismissed by Edmonds J on 21 August 2012 in a judgment bearing medium neutral citation [2012] FCA 1094. The Applicants then sought special leave to appeal to the High Court of Australia, which was refused by Heydon and Bell JJ on 26 February 2013 in reasons bearing medium neutral citation [2013] HCASL 10.
On 24 March 2012 the complementary protection criterion under s.36(2)(aa) of the Act was introduced and on 3 July 2013 the Full Court of the Federal Court of Australia in SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ) held that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds.
Thus it was that on 23 September 2013 the Applicants, through their solicitor and registered migration agent (solicitor), then made a further application for Protection visas (second Protection visa application) based exclusively on the complementary protection criterion, which application was deemed to be valid by the Department of the Minister (Department) because of SZGIZ and is the subject of this proceeding. The First Applicant was the primary applicant, and the Second and Third Applicants were secondary applicants who applied as members of the First Applicant’s family unit. The solicitor at the same time made a submission and provided documentary evidence in support of the second Protection visa application.
Relevant Law and Criteria Applicable to the Grant of a Protection visa
A convenient summary of the relevant grounds and criteria for the grant of the Protection visas in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Claims to Protection
In short the First Applicant claimed that he feared harm in India due to threats made to him and his father due to their membership of the Congress Party by the Bharatiya Janata Party (BJP). The First Applicant claimed that his father was a leader in the Congress Party and was attacked on several occasions because of this, and claimed himself to have joined the Congress Party and to have been active in the Youth Congress Party. He claimed to have been threatened, kidnapped and questioned due to his membership of, and activities with, the Youth Congress Party. He feared that he would suffer significant harm at the hands of BJP members in the form of physical harm, violence or deprivation of his liberties.
Decision of Delegate
The Delegate only had jurisdiction to consider the second Protection visa application under the complementary protection criterion: see Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366 (SZVCH). However, in the result the Delegate considered the second Protection visa application under both the Refugees Convention criterion and the complementary protection criterion.
The First Applicant attended an interview with the Delegate on 14 April 2014 at the Sydney office of the Department with the assistance of a Punjabi interpreter.
The Delegate found that the First Applicant’s claims for protection were not credible or genuine and that he was not at risk of harm if he returned to India and she refused to grant a Protection visa to him under either the Refugees Convention criterion or the complementary protection criterion, which meant that she also refused the Protection visa applications of the Second and Third Applicants as members of the First Applicant’s family unit.
Decision of Tribunal
The Applicants lodged an application for merits review of the Delegate’s refusal of their second Protection visa application with the RRT on 8 July 2014.
As the only argument made at the hearing on 12 June 2019 in this Court on behalf of the Applicants by Mr Mort of Counsel (when Mr G. Johnson of Counsel appeared for the Minister) was that the Tribunal had failed to provide a meaningful invitation in the particular circumstances under s.425 of the Act to the First Applicant to appear at the Tribunal hearing to give evidence and present arguments, it is appropriate to summarise the attempts made by the Tribunal to arrange a hearing for that purpose. Those attempts are summarised in Mr Johnson’s Outline of Submissions for the Minister, and are not in dispute:
[7] The applicant applied to the Tribunal for review of the delegate’s decision. The applicant’s application form indicated he and his family resided in Leeton, New South Wales. The Tribunal invited the applicant to appear before it at a hearing to be held on 3 June 2015, which the applicants accepted. On 20 May 2015 the second applicant requested that the Tribunal re-schedule the hearing due to her husband’s ill health. Medical certificates and records and a statutory declaration from the applicant was supplied.
[8] A file note made by an officer of the Tribunal on 29 May 2015 indicates that the officer spoke to an individual who called on behalf of the applicant regarding the rescheduling of the hearing. The officer invited the individual to ask the applicant to contact the Tribunal so that it could be confirmed whether the applicant and his family would be happy to have a video hearing in Griffith, or whether they would prefer to come to Sydney for the hearing.
[9] On 18 June 2015 the Tribunal notified the applicant that his hearing would be re-scheduled to 18 August 2015. The applicant accepted the invitation to attend the hearing.
[10] On 6 August 2015 the Tribunal received a fax from Dr Aung Kyaw of the Narrandera Medical Centre on behalf of the applicant. Dr Kyaw stated that she had seen the applicant and assessed he was suffering from depression and did not have capacity to attend the hearing on 18 August 2015. A similar request was received from a counsellor at the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). The Tribunal notified the applicant that it would again postpone the hearing but indicated that ‘there have now been two adjournments, and [the Tribunal] is concerned to have a hearing in relation to the applicants’ claims on the next occasion’.
[11] On 8 September 2015 an officer of the Tribunal telephoned the applicant, but spoke to the second applicant. The officer was informed by the second applicant that the applicant was not available to talk at that time. The officer confirmed that the Tribunal would reschedule the hearing to 3 November 2015 and wanted to know whether the applicant and his family would prefer a video hearing in Griffith or to attend in person in Sydney. The second applicant said that they were happy to attend by video link because the applicant was not sufficiently well to travel to Sydney.
[12] On 16 September 2015 the Tribunal notified the applicant in writing of the 3 November 2015 hearing date. The applicant accepted the invitation to attend the hearing.
[13] On 28 October 2015 the Tribunal received a fax from Dr Harjinder Johar stating that he had been treating the applicant for ‘some mental health issue since 18.05.15’ and that the applicant was undergoing ‘psychological and pharmacological treatments’. Dr Johar stated that the applicant was still not medically able to attend his hearing on 3 November 2015 and requested a postponement of at least three months. A further report from the counsellor at STARTTS was also received requesting a postponement of the hearing until the applicant ‘is well enough to participate’.
[14] On 29 October 2015 the Tribunal notified the applicant that the hearing scheduled for 3 November 2015 would proceed by way of video link. The Tribunal indicated that the member would at the hearing make his own assessment as to whether the applicant is able to effectively participate in the proceedings. The Tribunal noted that it had regard to the information supplied by the applicant but that it had not received a report from a specialist medical practitioner in relation to the applicant. The hearing scheduled for 3 November 2015 did not proceed due to technical issues. The hearing was again re-scheduled for 21 December 2015, which the applicants confirmed they would attend.
[15] On 18 December 2015 the Tribunal received information from Wagga Wagga hospital that the applicant had been admitted to the hospital’s psychiatric facility. There were further delays [the hearing scheduled for 21 December 2015 could not proceed because of failure of staff to operate equipment] in the hearing. On 13 January 2016 the Tribunal received a report from Dr Adesina Adesanya, a consultant psychiatrist, in which an opinion was given that the applicant ‘continues to be significantly functionally impaired’.
(see also [4] of the Decision Record of the Tribunal)
A further hearing before the Tribunal was conducted on 14 April 2016 in the following circumstances recorded by the Tribunal at [5] of its Decision Record:
[5]A further attempt to conduct a hearing by video link was made on 21 December 2015 but was unable to proceed because of technical problems. A further attempt to conduct a hearing with the applicants by video link was arranged for 14 April 2016. On that occasion the primary applicant would not engage with the Tribunal even though he was physically present in the video hearing room. The primary applicant did not respond to any Tribunal questions or involve himself in the proceedings on that occasion. The second named applicant and the third named applicant were in attendance by video link on that occasion. The second named applicant told the Tribunal that further medical documentation would be provided to the Tribunal in relation to the primary applicant's medical condition. The second named applicant told the Tribunal that the primary applicant was unable to participate in the Tribunal hearing and could not speak to the Tribunal. The Tribunal has attempted to conduct a hearing with the applicants on five occasions.
By letter dated 18 April 2016 addressed to the First Applicant the Tribunal stated in substance as follows:
The Tribunal refers to the attempt to conduct a hearing on 14 April 2016. On that occasion you were unable to engage with the Tribunal in relation to your application for a review. I now confirm the Tribunal's comments at the hearing in terms of future requirements.
Even though you were physically present in the video hearing you did not respond to any Tribunal questions or involve yourself in the proceedings on that occasion. Your wife and son (the second and third named applicants) also attended the proceedings. Your wife spoke to the Tribunal and informed the Tribunal that further medical documentation would be provided to the Tribunal in relation to your medical condition. Your wife told the Tribunal that you were unable to participate in the hearing and that you could not speak to the Tribunal.
The Tribunal asked that medical documentation be provided to the Tribunal immediately. The Tribunal subsequently received by fax a total of nine pages of documents. It appears the Tribunal should have received 11 pages. In those circumstances can you please ensure that full copies of all the medical documentation is provided to the Tribunal as soon as possible.
As indicated in the proceedings on 14 April 2016, the Tribunal is concerned about the delay in being able to determine your protection visa application. The attempt on 14 April was the fifth occasion on which an attempt was made to conduct a Tribunal hearing. The first Tribunal hearing was fixed for 3 June 2015 but was postponed at your request. A further hearing on 18 August 2015 was also postponed at your request. Those adjournments were granted because of your medical situation. Two further hearings were not able to proceed because of technical problems regarding video equipment, although a telephone hearing occurred on 3 November 2015, but your wife told the Tribunal that you were unable to participate on that occasion because of your medical situation.
The Tribunal indicated on 14 April 2016 that it will consider the medical documentation provided on your behalf and make a decision on whether you are likely to be fit to participate in a hearing in the foreseeable future. If the Tribunal decides that you will be unable to participate in a hearing in the foreseeable future because of your medical condition, then the Tribunal will proceed to make a decision without taking oral evidence from you. Your application in those circumstances will be decided on the basis of the available evidence, including documents on the Department's and Tribunal's files and other relevant information available to the Tribunal from external sources. As indicated to your wife on 14 April 2016 the Tribunal requires that you provide it with any relevant medical documentation immediately.
The Tribunal has also asked that your wife provide a statement, or an outline of a statement, as to any evidence that she may be able to give in relation to your claims. Your wife indicated previously that she was not intending to provide evidence to the Tribunal, but she indicated on 14 April that she would be prepared to answer Tribunal questions to the best of her knowledge. However, she indicated on that occasion, that, because of her medical situation she felt that it would be difficult for her to give evidence on that occasion. In the circumstances, the Tribunal did not ask your wife any questions. The Tribunal has asked that your wife provide a statement, or an outline of a statement, by 26 April 2016. That needs to be provided in the English language or with an English language translation. The Tribunal will then be in a position to determine whether it should conduct a hearing to take evidence from your wife in relation to your claims.
(emphasis added)
By 16 May 2016 the Tribunal had received a number of medical assessments of the First Applicant, but no statement or outline of a statement from the Second Applicant in relation to evidence which she might be able to provide in support of the First Applicant’s claims to protection.
In its letter dated 16 May 2016 addressed to the First Applicant the Tribunal stated with reference to the medical assessments received, as follows:
The Tribunal has considered those documents and reports. The Tribunal's overall assessment is that, based on those reports and its assessment of the previous attempts to conduct a hearing in relation to your application for a protection visa, that you are currently unfit to participate in a Tribunal hearing. The Tribunal's assessment, based on those medical reports and its assessment of the history of this matter over the last twelve months, is that you will be unfit in the foreseeable future to participate in a Tribunal hearing.
This led to the Tribunal concluding as follows in the last paragraphs of this letter:
The Tribunal, after having regard to the totality of the issues, has decided to proceed to complete the review of your application without taking evidence from you or from anyone else in relation to your claims. In this regard the Tribunal notes that your wife has not provided any statement, or an outline of statement, in relation to any evidence which she may be able to provide in support of your claims. The Tribunal, in its letter of 18 April 2016, indicated that your wife should provide a statement, or an outline of statement, if she believed that she could provide any evidence relevant to your claims. That issue was also discussed with your wife during the video hearing on 14 April 2016. As indicated, no such outline or statement has been received.
The Tribunal will now proceed to determine your application for a protection Visa on the basis of the information and materials available to it. If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
From [1] – [12] of its Decision Record the Tribunal summarised its attempts to arrange a satisfactory hearing up to the date of its letter of 16 May 2016; then at [13] – [14] it recorded as follows:
[13] As indicated the Tribunal’s overall assessment of the medical documentation provided in relation to the primary applicant is that he is unfit to participate in a Tribunal hearing and is expected to be unfit for the foreseeable future to participate in a Tribunal hearing. The Tribunal has also had regard to the apparent medical difficulties that have been encountered in attempting to conduct a hearing with the applicant. The Tribunal has referred to those issues elsewhere in these reasons.
[14]The Tribunal notes that there is a statutory obligation on the Tribunal to complete a review without undue delay, even where an applicant becomes incapacitated from participating in a hearing for the foreseeable future (SZOGP v MIAC (2010) 244 FLR 139 [(SZOGP)] at [57]). The Tribunal has referred to communicating with the second named applicant to ascertain whether she would be able to provide any relevant evidence in relation to the primary applicant's protection visa application. As indicated the Tribunal received no statement or an outline of statement from the second named applicant in relation to this issue. In those circumstances the Tribunal has decided to proceed on the basis that the second named applicant has decided that she cannot provide any relevant evidence to the Tribunal in relation to the applicant's claims. As indicated she had previously informed the Tribunal on 3 November 2015 that she was not intending to give any evidence but had told the Tribunal on 14 April 2016 that she would attempt to answer Tribunal questions to the best of her knowledge. As indicated the Tribunal invited the second named applicant to provide a statement or an outline of a statement to the Tribunal so that it could decide whether she would be able to provide relevant evidence in relation to the applicant's claims. No statement or outline of a statement was provided by the second named applicant. In those circumstances the Tribunal has decided to proceed without taking any oral evidence from the primary or second named applicant.
From [15] – [19] of its Decision Record the Tribunal recorded the substance of the Refugees Convention criterion and the complementary protection criterion, but correctly noted at [21] that it was of the view that it could only consider the claims of the Applicants under the complementary protection criterion.
From [20] – [31] of its Decision Record the Tribunal recorded the Applicant’s claims to protection. Then from [33] – [39] it analysed and considered the claims and evidence before it, and concluded at [41] that it was satisfied that none of the Applicants were owed protection obligations by Australia and it affirmed the Delegate’s decision not to grant Protection visas to them.
Grounds of Attack on Decision of Tribunal in this Court
The Grounds of the Application were originally as follows:
1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India.
2. The Tribunal constructively failed to exercise its jurisdiction.
Particular:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents.
3. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
Progress of the Matter in this Court
There have been a number of unsatisfactory features of the progress of the matter in this Court.
On the first return date the Applicant appeared in person and informed me that the First Applicant was not present in Court merely “because he is not feeling well”. She entered into consent orders which appointed the First Applicant as litigation guardian for the Third Applicant and for the matter being set down for final hearing on 11 October 2017 in Sydney before me, with the Second Applicant advising me that this date would be suitable to the First Applicant.
However, by facsimile dated 4 October 2017 supported by attached medical evidence an adjournment of the hearing of 11 October 2017 was sought by the Second Applicant on the basis of the First Applicant’s significant depressive disorder. At the hearing on 11 October 2017 the Second Applicant put the basis for an adjournment as being the medical condition of the First Applicant, and that the Applicants could not afford a lawyer. I adjourned the final hearing on the basis that I would request a referral for legal assistance be made by the Court for a pro bono lawyer. Mr Mort kindly accepted that role, and a final hearing date was subsequently set for 13 December 2017.
Nevertheless, on 13 December 2017 Mr Mort sought a further adjournment because he had “been unable to receive instructions or provide legal advice to the principal applicant”. I again felt compelled to adjourn the hearing and appointed a new final hearing date of 12 June 2019.
At the hearing on 12 June 2019 Mr Mort expressly abandoned Grounds 1 and 2 of the Application and sought leave to amend Ground 3 to refer to s.425 of the Act so as to contend that the Tribunal had failed to provide a meaningful invitation to the First Applicant to appear at a hearing before it, and / or that the Tribunal ought to have appointed or arranged a litigation guardian or a lawyer for the First Applicant to appear on his behalf at a hearing before the Tribunal. No notice had been given of this new proposed amended Ground, and leave to rely on it was quite properly opposed by Mr Johnson for the Minister.
Consideration
Ground 3 as Amended
I grant leave to Mr Mort to amend Ground 3 in the terms as recorded in the preceding paragraph of this judgment. Nevertheless, the Ground is not made out and fails to establish that the Tribunal committed jurisdictional error.
At the hearing Mr Mort frankly conceded and accepted as follows:
a)“through no fault of the Tribunal, it tried again and again to accommodate the First Applicant” and “bent over backwards to accommodate” him;
b)as of 12 June 2019 the First Applicant, some three years later, “still would be unable to attend before the Tribunal” and “that there’s no evidence that [the First Applicant] is going to get better”; and
c)“that the Tribunal [was] not bound or obliged to just simply adjourn the hearing of [the First Applicant’s] application until he’s better”.
In my view, the review application before the Tribunal, like a proceeding in a court of law, could not be extended indefinitely, but rather had to be brought to a determination within a reasonable period of time. Obviously from time to time the interests of justice will require an adjournment of a proposed hearing date for some reasonable period of time for such reasons as the illness of a party or the unavailability of a witness. Under s.427(1)(b) of the Act it was open to the Tribunal to adjourn the First Applicant’s review application from time to time. The Full Court of the Federal Court of Australia comprised of Spender, French and Cowdroy JJ in Minister for Immigration & Multicultural & Indigenous Affairs v SZFML (2006) 154 FCR 572 at 590 [82] said of the Tribunal’s power to adjourn as follows:
[82] …It is open to the Tribunal in the conduct of a hearing to adjourn it from time to time. If express authority were necessary it would be provided by s 427. …
However, the simple fact of the matter is that the First Applicant was unlikely ever to be able to meaningfully participate in a hearing before the Tribunal. This fact did not militate that the review application must be put on hold indefinitely. At the time of the decision of the Tribunal s.420 of the Act (now s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) provided that the Tribunal was under a duty to deal with a review in a “fair, just, economical, informal and quick” manner. In the context of the circumstances of this case Gyles J observed in Applicant s296 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1166 at [6] as follows:
[6] … There can be no general disagreement with the proposition that the Tribunal is under a duty to deal with a review in a ‘fair, just, economical, informal and quick’ manner (s 420). There will be circumstances where the incapacity of an applicant is such that the review by the Tribunal simply must take place without the benefit of oral evidence or oral contribution from that applicant.
These observations of Gyles J were considered and accepted by Smith FM in SZOGP at 154 [51]. Further, having considered other relevant authorities Smith FM concluded in SZOGP as follows:
[57]… I have concluded that no procedural unfairness attended the present Tribunal’s decision to proceed to make a decision without taking evidence from the applicant wife, on the assumption that rights of fair procedure can be implied. Such an implication must, on any view, impose only such procedural obligations on the Tribunal which are consistent with the statutory scheme which governs its proceedings, and are appropriate to the particular circumstances of the matter. As I have concluded above, the statutory scheme includes a statutory obligation on the Tribunal to complete its review without undue delay, even where an applicant becomes incapacitated from participating in a hearing for the foreseeable future.
(emphasis added)
SZOGP was noted by the Tribunal at [14] of its Decision Record: see [20][14] above.
Finally, in SZMSF v Minister for Immigration & Citizenship [2010] FCA 585 Flick J at [18] stated as follows:
[18]Where a claimant is “unfit” to participate effectively in a hearing before the Tribunal, it may be that the Tribunal should adjourn or postpone the hearing until a later date: Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166. But, as Gyles J there noted, “[t]here will be circumstances where the incapacity of an applicant is such that the review by the Tribunal simply must take place without the benefit of oral evidence or oral contribution from the applicant”: [2006] FCA 1166 at [6]. His Honour was not there called upon to illustrate the “circumstances” which could lead to such a conclusion.
In my view, the Tribunal conducted its review in accordance with its statutory obligations, and in particular its obligation under s.425 of the Act to invite the First Applicant to appear before it to give evidence and present arguments. That invitation was real and meaningful. The Tribunal was not required to postpone indefinitely the determination of the review on account of the First Applicant’s incapacity. If the Act did require such a course to be taken in the present circumstances, it would have the potential to render the review permanently incomplete and incapable of completion. That cannot have been the intention of the legislature. That is particularly the case having regard to the scope and purposes of the Act and the strictures found in s.2A of the AAT Act.
In conclusion, there is no substance in Mr Mort’s contention that the Tribunal ought to have appointed or arranged for a litigation guardian or a lawyer for the First Applicant to appear on his behalf at a hearing before the Tribunal for at least the following reasons.
First, s.427(6) of the Act provided that the First Applicant was not entitled to be represented before the Tribunal by any other person, and there is no evidence that the Tribunal was ever asked to exercise its discretion to allow the First Applicant to be represented by anyone at a Tribunal hearing: see the explication of s.427(6) by the Full Court of the Federal Court of Australia in WABZ v Minister for Immigration & Multicultural Affairs (2004) 134 FCR 271 at 294 – 295 [67] – [70] per French and Lee JJ.
Second, the Tribunal does not have power, either under the Act or at general law, to order that legal representation be provided to an applicant for review before it, nor does procedural fairness require an applicant to be provided with legal representation: Nguyen v Minister or Immigration & Multicultural Affairs (2000) 101 FCR 20 per the Full Court at 28 [32] and Flick J in SZRVA v Minister for Immigration & Border Protection [2019] FCA 630 at [45].
Third, there is no provision in the Act which would have entitled or permitted the Tribunal to appoint some form of tutor or litigation guardian for the First Applicant. At the hearing Mr Mort conceded that the effect of the appointment of a litigation guardian or tutor could only be regarded as speculative. In my view, the confined and constricted nature and role of a litigation guardian or tutor means that such an appointment could not have made any practical difference to the result of the review application. There is no evidence that the Applicants could have put the litigation guardian in funds so as to retain a lawyer and the First Applicant would still have been unable to meaningfully participate in the Tribunal hearing.
Accordingly, Ground 3 as amended fails to establish jurisdictional error.
Conclusion
The Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 21 July 2020
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