SZRWA v Minister for Immigration & Anor

[2013] FCCA 138

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRWA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 138

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – whether the complementary protection criteria apply –no applicable criteria – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(aa), 91X, 424A, 426A, 474

Cases Cited:
Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429
VAF v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2004) 206 ALR 471

Applicant: SZRWA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2165 of 2012

Judgment of: Judge Lloyd-Jones

Hearing date: 5 March 2013

Delivered at: Sydney

Delivered on: 6 May 2013

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of an Urdu interpreter

Solicitors for the First Respondent: Ms R. Jones of Australian Government Solicitor

The Second Respondent: The Second Respondent filed a submitting notice of appearance

ORDERS

1. The application filed on 3 October 2012 and amended on 3 December 2012 is dismissed.

2. The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to this application.

The Applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRWA.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 2165 of 2012

SZRWA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In accordance with the Court’s orders made on 23 October 2012, the solicitors for the first respondent, the Minister for Immigration & Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing.  This order was complied with and the volume of material provided is identified as the Court Book (“CB”), and marked Exhibit “A” and is the only evidence before the Court.  

2. At the first court date directions hearing the applicant indicated he wished to participate in the NSW RRT Legal Advice Scheme.  This referral was made and written advice was provided after the conference with the allocated Panel Advisor.  The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material on or before 4 December 2012.  The applicant elected to file an amended application on 3 December 2012.

3. This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1208186, a decision of Tribunal Member A. Mullin made on 5 September 2012 affirming the decision of a delegate of the first respondent, the Minister, to refuse the grant of a Protection (Class XA) visa to the applicant.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the first respondent.  I have not made further attribution as this would make the summary unwieldy.  Where this information is extracted from the Court Book, each item contains a reference for that material.

2. The applicant seeks, by way of an application filed 3 October 2012, to review a decision of the Tribunal dated 5 September 2012 (CB 127-137).  A subsequent amended application was filed with leave and is considered below.

3. The applicant is a male citizen of India who arrived in Australia on a Tourist visa on 29 November 2011 and applied for a Protection visa on 13 January 2012 (CB 1-62).  A delegate of the Minister refused his application on 18 May 2012 (CB 77-97).  On 12 June 2012, the applicant lodged an application for review of the delegate’s decision with the Tribunal (CB 98-103).

4. In summary, the applicant claimed to fear harm from Hindu groups and members of the Ahmadiyya faith because of his political opinion, having written newspaper articles exposing their malpractices.  He also claimed to fear harm from Hindu groups on the grounds of his Muslim religion.

5. The applicant provided a statement with his Protection visa application, claiming that he had been a reporter for a weekly newspaper in Hyderabad between 2006 and 2011 (CB 131 at [25]).  He claimed that some of his articles concerning the Government’s policies and its supporters from the Bharatiya Janata Party (“BJP”) and the Vishwa Hindu Parishad (“VHP”) had attracted the enmity of Praveen Thagadia, a political figure in the region, and that he was subsequently harassed by police.  During one incident the applicant was arrested in Rajasthan where he had sought refuge.  He was accused of being a terrorist, was handed over to the police in his home town and told that he could not go anywhere without permission (CB 131 at [27]).     

6. The applicant also recounted incidents where he had been the target of violence purely on the basis of his Muslim religion.  He recalled an incident which occurred while he was living in Jaipur when men, who may have been his neighbours, entered his house and tried to kill him with hockey sticks and other weapons (CB 131 at [27]).

7. The applicant elaborated on his claims at an interview before the delegate.  In particular, he claimed that members of the Kadiani (Ahmadiyya) group attacked him because he had exposed this group when he wrote about them in 2008 (CB 133 at [30]).

8. On 12 July 2012 the Tribunal wrote to the applicant and invited him to attend a hearing on 16 August 2012 (CB 105-106).  The Tribunal received a medical certificate from the applicant stating that he was unfit for work for the period from 14 to 16 August 2012 (CB 113-114).  On 15 August 2012, the Tribunal again wrote to the applicant at the same address as the previous letter that had been sent and invited him to attend a re-scheduled hearing on 3 September 2012 (CB 115).  The applicant did not respond to this invitation and did not attend the hearing.

9. The Tribunal decided to make its decision on review without taking any further action to enable the applicant to appear before it pursuant to s.426A of the Migration Act.

The Delegate’s Decision

1. The applicant was invited to attend an interview before a delegate of the Minister via letter dated 26 April 2012, which was set down for 15 May 2012.  The applicant attended the interview with the assistance of an Urdu interpreter.  The applicant reiterated and expanded his claims (CB 84) and raised a further claim during the interview, that he feared persecution from the Ahmadiyas (Ahmadiyya) group.  He claimed he wrote about them, and exposed their spiritual leader in 2008.  He submitted they were a dangerous group who had a special connection with the BJP (CB 84).  The applicant also claimed that he regularly fled to the Medak district for 15 to 20 days at a time (CB 84).

2. The applicant was notified by letter dated 18 May 2012 that his application for a Protection (Class XA) visa had been refused.  The delegate made reference to the applicant’s claim of religious persecution and persecution based on his political opinion.  The delegate noted that the applicant was granted a Subclass TR676 Tourist visa on 2 September 2011, however, the applicant did not depart India until 29 November 2011 which was almost three months after he was granted a visa to come to Australia.  The delegate put it to the applicant that his actions were not indicative of someone fleeing persecution.  The delegate was not satisfied with the applicant’s explanation that he had delayed leaving India to arrange his business affairs and dispose of personal property.  The delegate found that the applicant’s actions indicated a planned and orderly departure from India, rather than the departure of someone fleeing from persecution and led the delegate to believe that the applicant’s situation was not as claimed (CB 92).      

The Tribunal’s Decision

1. In the Tribunal’s decision record at [24] (CB 131) the Tribunal Member noted that no response to the second invitation to attend a hearing was received and the applicant did not appear before the Tribunal on the day. It was in these circumstances that the Tribunal, pursuant to s.426A of the Migration Act, decided to make its decision on the applicant’s review application.

2. In affirming the delegate’s decision, the Tribunal noted that the applicant’s account of his experiences, as set out in his Protection visa application, the applicant’s statement and the Departmental interview, contained ‘significant gaps’ in respect of central aspects of his claims to fear harm in India (CB 135 at [37]).  For example, the applicant did not explain in any detail what it was that he allegedly wrote in the newspaper articles which would have so enraged leaders of the BJP, the VHP, Ahmadiyya followers or anyone else that they would wish to harm him.  Nor did he explain how these articles were materially different from other newspaper reporting freely circulated in India which, according to country information, reflected a wide range of views and political opinion.  The Tribunal also considered it to be significant that the applicant had not explained why he delayed his departure for nearly three (3) months after he obtained his Australian visa on 2 September 2011, particularly given his claim that he was forced to flee (CB 136 at [37]).

3. The Tribunal concluded that, based on the material before it, noting that the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear (CB 131 at [24]), that it was not satisfied that the applicant had a well-founded fear of harm for a Convention reason should he return to India now or in the reasonably foreseeable future (CB 136 at [40]).

4. The Tribunal also considered whether the applicant met the alternative criteria for complementary protection. It found that, on the basis of the information before it, the Tribunal was not satisfied that, as a necessary and foreseeable consequence of his being removed from Australia to India, there would be a real risk that the applicant would suffer significant harm for the purposes of s.36(2)(aa) of the Migration Act (CB 136 at [41]).

Legislative Framework

1. The decision of the Tribunal is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474 operates to prevent the judicial review of all decisions under the Migration Act except those vitiated by jurisdictional error.

Current Proceedings

1. The applicant filed an application for judicial review in the Federal Magistrates Court on 23 October 2012.  The applicant filed an amended application on 3 December 2012.  Pursuant to the amended application, the orders the applicant sought were as follows:

   1.  The applicant claims to set aside the decision of the Refugee Review Tribunal on 5 September 2012 handed down on 06/09/2012

   2. An order that no action is taken to remove the applicants (sic) from Australia while the decision is pending.

   3. A WRIT OF CERTIORARI quashing the decision of the RRT.

   4. And any other orders the Court may deem appropriate.

2. The amended application pleads three grounds:

   1. The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of the applicant’s account in his protection visa application and the Departmental interview, contains significant gaps about the central aspects of his claims to fear harm in India.  The Tribunal did not provide the applicant the significant gaps in writting(sic) in written explanation.  The Tribunal also did not ask any written information about the three months delay.

   2. The Tribunal made procedural mistakes that the Tribunal did not given any letter to the applicant to give answer for that the material does not provide a sufficient basis on which I can be satisfied there is a real chance the Applicant would suffer serious harm from political leaders of the BJP, the VHP, Ahmadiyyas, Hindu groups or anybody else of his political opinion or his religion.  The applicant claims that the Tribunal could have sent a letter to the applicant about its concerns because the applicant thought that he produced all his information to the Department and he gave interview to the Department do he will get his protection visa.  He also thought that for any further information he will get letter to provide.  If he does not go for interview that should not be treated as negative for making decision on the applicant’s review application.  The Tribunal made mistakes in this regard.

   3. The Tribunal made a jurisdictional error that the Tribunal did not assess the information was before it for the review purpose.  The Tribunal did not call the applicant which was possible for the Tribunal to get information for not coming to the hearing.  The Tribunal did not send any letter to the applicant about its concern.  The Tribunal did not investigate the applicant’s claim.  The Tribunal did not extend the time for hearing.  The Tribunal did not sent the applicant adverse information for its rejection of the review application.  The Tribunal was not reasonable in its review process.

Applicant’s Submissions

1. The applicant was granted leave to file written submissions fourteen (14) days before the hearing.  The applicant elected to file written submissions on 20 February 2013.

2. The applicant submits that he was a reporter for the Hyderabad weekly Urdu newspaper called DECCAN-KI-AWAZ.  He also had a business in India.  The applicant claims that the policies of some political parties were against Muslims in India, with a number of political leaders openly supporting these policies.  The applicant claims that he was a regular writer against these policies and political leaders.  The applicant claims that his life is in danger because he is a reporter who supports Muslim minority rights and will be harmed and possibly killed for his support and political opinion.

3. The applicant submits that the Tribunal made a jurisdictional error and that the Tribunal rejected the applicant’s claim on the basis that there were significant gaps about the central aspects of his claims to fear harm in India.  The applicant claims that he was not asked by the Tribunal by any letter to explain about the concerns of the Tribunal.  The applicant contends that the Tribunal rejected the applicant’s claims based on the fact that the applicant had not explained what was written in the newspaper.  He states that he was unaware that this needed further explanation. 

4. The applicant claims that the Tribunal was expecting an explanation about the impact of the newspaper report on the newspaper itself, the owner, the editor and other staff which the applicant could not provide.  Acknowledging this, the applicant submits that his absence at the Tribunal hearing would have made no difference to the outcome of the Tribunal’s decision as the Tribunal was seeking explanations to questions that the applicant could not answer.  The applicant submits that as the Tribunal did not ask for any written explanation, specifically about the applicant being a Muslim and his delay in leaving India, the decision is wrong.

5. The applicant claims that the Tribunal made a procedural mistake in that the Tribunal rejected the claim on the basis that the applicant did not attend the hearing.  The applicant submits that the Tribunal did not make a favourable decision on the basis of his non-appearance and this is wrong.

6. The applicant contends that the Tribunal made a mistake in that it did not investigate whether the applicant would face harm on his return to India.  The applicant submits that the Tribunal should enquire or seek information from the relevant authority to check the applicant’s claim.

7. The applicant claims that the Tribunal could have sent him a letter about its concerns.  The applicant stated that the Tribunal did not assess the information that was before it. The applicant submits that the Tribunal should have telephoned him, sent him a letter about its concerns or extended the time for the hearing.  The applicant contends that the Tribunal did not inform him of the adverse information contained in the Tribunal’s decision.

Respondent’s Submissions

Failure to notify of concerns

1. The applicant claims that the Tribunal failed to notify him that it could not be satisfied that the applicant was a refugee on the basis of the material before it.  The applicant also claims that the Tribunal should have put to him in writing that there were significant gaps in the applicant’s evidence and that the applicant’s delay in departing India could lead it to find that the applicant did not have a genuine fear of persecution. 

2. The Minister submits that the applicant was on notice that the Tribunal could not make a favourable decision on the material before it.  The Tribunal’s letter to the applicant of 12 July 2012, inviting him to attend the hearing, clearly states that “the Tribunal has considered the material before it but it is unable to make a favourable decision on the information alone” (CB 105).

3. The Minister argues that the second aspect of this ground of review appears to rest on a misunderstanding of s.424A of the Migration Act. That section requires the Tribunal to give to the applicant clear particulars of any information that it considers would be the reasons, or a part of the reason, for affirming the decision that is under review. It is well established that “information” for the purposes of this section does not extend to perceived gaps in evidence or the thought processes of the Tribunal. As Finn and Stone JJ observed in VAF v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2004) 206 ALR 471 at 476-477, the word “information”:

   …does not encompass the tribunals subjective appraisals, thought processes or determinations… nor does it extend to identified gaps, defects or lack of details or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

4. It is for those reasons that the Minister argues that this ground cannot be sustained.

Failure to assess information before it

1. The Minister submits that the applicant claims that the Tribunal did not assess the information which was before it.  He also claims that the Tribunal erred by using the applicant’s failure to attend the interview as a reason to affirm the delegate’s decision.

2. In respect of the first issue alleged in the paragraph above, the Minister submits that the Tribunal considered the applicant’s claims as they were expressed in the statement attached to his Protection visa application and in his interview with the delegate.  The applicant made no further submissions to the Tribunal.  These claims are carefully set out in the Decision Record at [19] (CB 130) to [31] (CB 135) and considered in the Tribunal’s Findings and Reasons beginning at [32] (CB 135).

3. The Minister contends that contrary to the applicant’s submission, the Tribunal did not draw any adverse inference from the applicant’s decision not to attend the hearing (CB 136 at [38]).  However, that decision meant that the Tribunal had very limited information upon which it could make its determination.

Failure to inquire

1. The Minister submits that the applicant’s claim in this respect is that the Tribunal erred by not making its own investigation about the applicant’s claims.  The High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] held that it is not appropriate to speak of the Tribunal being under a duty to inquire. The duty imposed on the Tribunal is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could in some circumstance supply the sufficient link to the outcome to constitute a failure to review which would give rise to jurisdictional error. This is not such a case. There is nothing in the record or before this Court to suggest that there was any failure on the part of the Tribunal to make an obvious inquiry about a critical fact.

Failure to extend the time for hearing

1. The Minister argues that the applicant claims that the Tribunal erred by not allowing him further time to attend the hearing.

2. The Minister submits that the Tribunal was entitled to make it decision without taking any further action to allow or enable the applicant to appear before it pursuant to s.426A(1) of the Migration Act. That section provides that:

   Failure of applicant to appear before Tribunal

   (1)  If the applicant:

   (a)  is invited under section 425 to appear before the Tribunal; and

   (b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

   the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   (2)  This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.

3. The Minister argues that in the present case the Tribunal gave the applicant two opportunities to attend a hearing before it.  After the first hearing was rescheduled because the applicant provided a medical certificate asserting he was unfit to appear, the Tribunal wrote to the applicant on 15 August 2012 and invited him to attend a re-scheduled hearing on 3 September 2012 (CB 115).  The Tribunal sent this invitation and the applicant did not attend the rescheduled hearing.

4. The Minister submits that the Tribunal was, therefore, entitled to proceed on the review without allowing the applicant any further opportunities to attend a hearing.

5. The Minister submits that the Tribunal’s decision was not affected by jurisdictional error.  The application should therefore be dismissed with costs. 

Consideration

1. At the commencement of the hearing the applicant was advised that the Court had received and read his written submissions and extended to him an invitation to make any further oral submissions in support of his claims.  This was met with a negative response.  I similarly advised Ms Jones, appearing for the Minister, that I had received and read her written submissions and invited any further oral submissions.  Ms Jones indicated that she relied upon those written submissions.

2. I indicated to the applicant, that I had been informed immediately prior to the commencement of the hearing that the interpreter had read the contents of the respondents written submissions to him, in his own language. I then invited the applicant to make any submissions in reply to the respondent’s written submissions, however, the applicant indicated that he did not understand the submissions but wished to make some comments. The applicant then proceeded to raise complaint with the method in which he was provided with a copy of the Tribunal’s decision. The applicant stated that he did not attend the second scheduled hearing before the Tribunal because he was unwell and was also not sent a letter, presumably addressing the issue of non-attendance or a s.424A letter. He also complained that he was not provided with a letter containing the Decision Record. When asked whether he had contacted the Tribunal, he advised that he did not attend the hearing and indicated that he was unwell, had been suffering illness for a period of 45 days and was bed ridden. Ultimately, this required him to attend hospital, however, no attempt was made by the applicant to present any evidence in support of these contentions.

3. In respect of the issue of not receiving a copy of the decision forwarded by mail, the applicant was asked whether he still resided at the same address in Punchbowl as provided at the time of his application to this Court.  He confirmed that he still resided at that address but had not received a copy of the decision.  After waiting a period of approximately 15 days he attended the office of the Tribunal and upon request was provided with a copy of the decision.  I believe from the statement it can be inferred that the applicant was well aware of the hearing date and the need to attend, but did nothing, allowing 15 days to pass before attending the Tribunal’s office.  This claimed non-receipt of the decision is inconsistent with the applicant’s receipt of the previous correspondence inviting him to the original and rescheduled hearings.  Nor was there any delay in the filing of proceedings in this Court.  

4. The applicant then proceeded to raise concerns about his initial interview with a delegate of the Minister, stating that the immigration officer refused to provide the applicant with an opportunity to provide further documents to support his claim.  There is no comment in the delegate’s Decision Record that such a request was made and rejected.   In respect of the documents that he had provided, he invited the delegate to send those documents to the embassy in New Delhi or any other agency to verify their contents.

5. At the First Court Date directions hearing, the applicant expressed the desire to participate in the pilot RRT Legal Advice Scheme (NSW) and the scheme coordinator was advised of that request.  The court file contains correspondence from the allocated panel advisor that, despite forwarding two letters to the applicant containing an invitation to contact his clerk to make an arrangement for a conference, there had been no response.  The applicant was granted leave to file an amended application and the applicant availed himself of this opportunity. 

6. Ms Jones in her written submissions, on behalf of the Minister, conveniently summarised the grounds as:

   a)Failure to notify applicant of concerns;

   b)Failure to access information before it;

   c)Failure to enquire;

   d)Failure to extend time for hearing.

   I am satisfied that each of these identified claims has been adequately and competently addressed by the respondent’s submissions.

7. In the Tribunal decision, under the subheading “Claims and Evidence” at [19] (CB 130) states:

   19. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant.  The Tribunal also has had regard to the material referred to in the delegate’s decision.

   The applicant’s substantial claims are set out in a statement attached to his visa application which is approximately five pages long (CB 48-52).  In addition, the applicant attended an interview with a delegate of the Minister on 15 May 2012 which indicates that he raised a further claim that was not contained in the original application. 

8. The Tribunal indicated at [38] (CB 136) of its “Findings and Reasons” the preferred approach that it would have adopted in relation to the application:

   38.  I would have used the opportunity of the hearing to discuss these issues with the Applicant and give him the opportunity to explain why he believed he would now face harm in India.  It was not possible to do so, however, because he did not attend the hearing on the date and at the time and place which were scheduled, notwithstanding that in its hearing invitation letters of 12 July and 15 August 2012 the Tribunal had made it clear that it was not able to make a favourable decision on the information before it.  The right to give oral evidence is an applicant’s to exercise or waive as he or she chooses and no adverse inference can be drawn from a decision to forgo that right.  However, where an applicant does not attend a hearing the Tribunal has only the information contained in the material before it on which it makes a determination. 

9. Then at [39]-[40] (CB 136) the Tribunal states:

   39. In the present case the material does not provide a sufficient basis on which I can be satisfied there is a real chance the Applicant would suffer serious harm from political leaders of the BJP, the VHP, Ahmadiyyas, Hindu groups or anybody else in India because of his political opinion or his religion.  He does not claim to fear harm for any other reason and no other reason is apparent on the face of the information before the Tribunal. 

   40. Having considered all the information available to the Tribunal I am not satisfied that the Applicant has a well-founded fear of harm for a Convention reason should he return to India now or in the reasonably foreseeable future and I am not satisfied that he is a refugee.

10. The Tribunal also, without any obvious omission, summarised the evidence presented by the applicant in writing, together with oral submissions made to the delegate which are reported in the delegate’s decision.  The Tribunal summarises the totality of the applicant’s claims (which are common to both the refugee criterion and the complementary protection criterion) at [37] (CB 135-136):

    37. The Applicant’s account of his experiences, as set out in his protection visa application and the Departmental interview, contains significant gaps about central aspects of his claims to fear harm in India.  Among these, he does not explain in any detail what it was that he allegedly wrote in newspaper articles which would have so enraged the leaders of the BJP, the VHP, Ahmadiyya followers or anyone else as to wish to harm him.  He does not explain how, if he wrote such articles, they were materially different from the other newspaper reporting which freely circulates in India and which according to country information, reflects a wide range of views and political opinion.  He does not explain how or whether the alleged reporting might have impacted on the newspaper itself and its owner, editor or other staff.  He does not explain how this alleged reporting came to be reflected in a commercial dispute over the lease of the business premises, or how such commercial dispute might have involved violence.  He does not explain how the fact of his being a Muslim might have led to him being harmed or might constitute a reason for future harm in his particular circumstances.  Nor does he offer any convincing explanation as to why, if he had been so fearful of harm from these sources that he was forced to extreme of fleeing his home to find safety in a far-off country, he would have delayed his departure for nearly three months after he obtained his Australian visa on 2 September 2011.

11. The Tribunal then proceeds to indicate the nature of the questioning that it would have pursued to attempt to verify the claims and enquire to apparent gaps in the applicant’s story. This paragraph is reproduced above at [49] above.

12. The Tribunal had before it the facts as alleged by the applicant that were contained in the Application and the Statement of Claim (CB 48-52).  The above mentioned documents were the only material upon which the Tribunal could proceed.  The relevant facts pertaining to the application needed to be supplied by the applicant himself in as much detail as necessary to enable the applicant to establish the facts.  It is for the applicant to make his own case: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 per Kirby J at [596]. In this case the applicant had an opportunity to attend the hearing and furnish additional facts. To the extent that he failed to attend the re-scheduled hearing, the applicant cannot now complain that other facts were not taken into account.

13. The Tribunal letter addressed to the applicant, dated 15 August 2012, headed “Request for postponement” clearly stated:

    On 12 July 2012 we sent a letter inviting you to attend a hearing of the Tribunal on 16 August 2012 to give evidence and present argument relating to the issues arising in your case.  On 15 August 2012 the Tribunal received a request that the hearing be postponed.  The Presiding Member has agreed to your request and the hearing has been rescheduled. 

    The Member reviewing your case advises that no further postponement of the hearing will be granted on medical grounds unless you provide the Tribunal with a report from your treating doctor which sets out the following information:

    - a detailed description of your medical condition and treatment; and

    -   a detailed explanation as to why your medical condition prevents you from attending a hearing before the Tribunal

    The Tribunal will only change this hearing date for good reason.  Please contact the Tribunal immediately if you are unable to attend the hearing on this date.

    The letter then sets out the scheduled date for the rehearing on 3 September 2012 which the applicant failed to attend. 

14. The Tribunal decision was dated 5 September 2012 and the letter forwarded to the applicant notifying the decision is dated 6 September 2012.  In the applicant’s oral submissions before the Court he indicated:

    …I waited for up to 15 days for any letter of the decision from the tribunal but I did not receive any.  And after 15 days when I went there they handed ne the decision…

    (Transcript 5 March 2013, p.3)

15. On the applicant’s own admission, knowing that the Tribunal hearing was to be held on 3 September 2012, he waited a period of 15 days without notifying the Tribunal or without informing the presiding officer that he was too ill to attend the hearing on that date and that the severity of his illness required him to attend hospital.  There was no further explanation of any period of hospitalisation or treatment ordered to address his condition.  I am satisfied that the applicant had received Tribunal notification of the rescheduled hearing and that he took no steps to inform the Tribunal, either before or subsequent to the hearing, of his inability to attend due to his illness. 

16. The Tribunal was also obliged to consider whether the applicant was owed protection obligations under s.36(2)(aa). The complementary criteria are summarised in the Decision Record in the usual template description of “Relevant Law” which is commonly adopted by most Tribunal Members. A convenient summary of the objects of this new provision of the Migration Act is contained in the then Bill’s Second Reading speech on 24 February 2011, where the Minister did explain the effect of s.36(2)(aa) of the Migration Act as asserted by Schedule 1, Item 12, as follows; [Hansard, 24 February 2011]:

    The Migration Amendment (Complementary Protection) Bill 2011 amends the Migration Act to eliminate a significant administrative hole in our protection visa application process.

    Under the Migration Act, as it currently stands, only those people fleeing persecution for one of the five reasons outlined in the Convention Relating to the Status of Refugees - race, religion, nationality, social group or political opinion - are eligible to receive a protection visa through the usual process.

    Applicants who fall outside these categories are not considered refugees and, consequently, their applications must be rejected by the Department of Immigration and Citizenship and also by the Refugee Review Tribunal. 

    But some of these people are fleeing significant harm – be they women fleeing so called ‘honour killings’ or, in some certain circumstances depending on the nation, people fleeing persecution on the basis of their sexual preference.

    These people can fall outside the categories recognised by our current protection visa process. 

    So their applications will be rejected at first instance – and again at review – even where Australia’s non-refoulement obligations and other international treaties ensure that we cannot and will not send them back to their countries of origin.

    These treaties are the International Covenant of Civil and Political Rights (ICCPR),  the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT) and the Convention of the Rights of the Child (CROC). 

    Protection from return in situations that engage our non-refoulement obligations under these treaties is known as ‘complementary protection’, in the sense that this complementary to the protection given under the refugees convention.

    Under the current system, these people, who have often fled their countries in fear of their lives, must go through our administrative processes knowing they are going to be rejected.

    …

    The bill establishes new criteria for the grant of a protection visa in circumstances that engage Australia’s non-refoulement obligations under the human rights treaties other than refugees convention.

    Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:

    ·   the arbitrarily deprivation of life;

    ·having the death penalty carried out;

    ·being subjected to torture;

    ·being subjected to cruel or inhuman treatment or punishment; or

    ·being subjected to degrading treatment or punishment.

17. After dealing with the applicant’s claims relating to the groups identified as the BJP, the VJP, Ahmadiyya, Hindu groups or anybody else in India the Tribunal states at [39]:

    He does not claim to fear harm for any other reason and no other reason is apparent on the face of the information before the Tribunal.

    (CB 136)

    The issues that have been raised by the applicant clearly fall within the provisions of the Refugee Convention and do not involve the specific categories which relate to the complementary protection criterion in s.36(2)(aa) of the Migration Act. At [41] (CB 136) of the decision record, the Tribunal Member indicates that both approaches have been considered, but as none of the criteria summarised in the Second Reading speech noted above at [57] were raised by the applicant in his claims, a more detailed examination of this provision of the Migration Act is not warranted.

Conclusion

1. I am satisfied that the grounds pleaded in the Amended Application cannot be sustained.  On the claims by the applicant made and the material provided, it is not apparent that the complementary protection criteria are activated, although this was not specifically addressed by the parties.  Similarly, on a fair reading of the contents of the Court Book and the Tribunal’s Decision Record, no jurisdictional error is apparent.  Consequently, the applicant’s claim should be dismissed with costs.     

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Date:  6 May 2013