SZSLI v Minister for Immigration

Case •

[2013] FCCA 500

•

13 June 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 500
Catchwords:
MIGRATION – Application for review of decision of Refugee Review – alleged bias – Tribunal refused request by the applicant for an adjournment for the purpose of providing documents to the Tribunal – no arguable case raised – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.36, 363, 425, 425A, 426A, 427, 441A, 441C, 441G, 476
Federal Circuit Court Rules 2001 (Cth), r.44.12
Migration Regulations1994 (Cth), r.4.35D
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Citizenship v Li [2013] HCA 18
Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Applicant: SZSLI
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3090 of 2012
Judgment of: Judge Nicholls
Hearing date: 30 May 2013
Date of Last Submission: 30 May 2013
Delivered at: Sydney
Delivered on: 13 June 2013

REPRESENTATION

The Applicant: In person
Appearing for the Respondents: Ms M Stone
Solicitors for the Respondents: DLA Piper

ORDERS

  1. The application made on 21 December 2012 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

  2. The applicant pay the first respondent’s costs set in the amount of $3,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3090 of 2012

SZSLI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made on 21 December 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 5 December 2012, which affirmed the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

Background

  1. The applicant is a citizen of the People’s Republic of China (“China”) (Court Book – “CB” – CB 11). He arrived in Australia on 28 October 2011 (CB 12) and applied for a protection visa on 23 April 2012 (CB 1 to CB 34, including attachments).

  2. The applicant’s claims to protection were set out in a “Personal Statement” that accompanied that application (CB 32 to CB 34). His claims can be summarised as follows:

    1)     In October 2010 his parents were told that they had to dismantle their shop as the “town government” planned to enlarge the residential area. They were to be compensated by payment of a sum of 30,000RMB which was “a robbery” (CB 33.3).

    2)     The applicant’s father, along with his neighbour, tried to “reason” with the “town government”. However, they were detained for seven days and accused of “harassing government officers” (CB 33.6).

    3)     On the morning of 10 August 2011 the “dismantle team” arrived at the applicant’s parents shop. The applicant was “so angry” that he had “some physical clashes” with the “dismantle team” (CB 33.9). He was arrested by the police and detained for a period of three days (CB 34.2). While in detention the applicant was “persecuted and assaulted” (CB 34.5).

    4)     Following his release, the applicant sent “appeal letter” and petitioned the government office building. Police came to the applicant’s home to arrest him, however he was not there (CB 34.6).

    5)     He came to Australia in order to avoid persecution by the “local” Chinese government (CB 32.3).

The Delegate

  1. The applicant attended an interview with the Minister’s delegate on 25 July 2012 (CB 46.5). On 30 July 2012 the Minister’s delegate decided to refuse the grant of a protection visa to the applicant (CB 54).

  2. The delegate was not satisfied that the applicant had “…a political profile, or any other profile, that would lead to a real chance of persecution from the Chinese authorities” (CB 51.8). The delegate was not satisfied that the applicant satisfied the complementary protection criterion (s.36(2)(aa) of the Act) (CB 53.4).

The Tribunal

  1. The applicant applied to the Tribunal for review of the delegate’s decision on 18 August 2012 (CB 55 to CB 59). Subsequently, he appointed a Ms Jie Yu, of “Auyangtong International”, as his migration agent for the purpose of the review (CB 65 to CB 66).

  2. By letter dated 5 November 2012, the applicant was invited to attend a hearing before the Tribunal scheduled for 26 November 2012 (CB 70). The applicant attended and was assisted by an interpreter in the Mandarin language. The applicant told the Tribunal that if he returned to China he would pursue his parents’ legal rights and would be arrested.

  3. On 5 December 2012 the Tribunal decided to affirm the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant. The applicant was notified of that decision by letter sent to his representative on that date (CB 84 to CB 85).

  4. The Tribunal did not accept that the applicant left China for the reasons claimed, nor that he had a genuine fear of persecution if he returned to China ([32] at CB 91). The Tribunal’s reasons for rejecting the applicant’s claims were, variously:

    1)At the hearing, the applicant had given “vague and obscure” details about his claims and, in answer to questioning, he had provided “minimal detail and limited responses” ([33] at CB 91).

    2)The conduct of the applicant during the hearing “…left the impression that he was going through the motions” and that he was not genuine in his application to seek protection ([35] at CB 91). In particular, he sought to “delay the finalisation of his matter” by asking to provide further documents, despite not seeking to make written submissions prior to the hearing ([35] at CB 91).

    3)The applicant claimed that, if he returned to China, he planned to pursue his parents’ legal rights and would, as a result, be arrested. However, when asked how he was pursuing his parents’ compensation claim, he only referred to “looking up the internet for a lawyer” ([34] and [37] at CB 91).

  5. Having found that the applicant did not satisfy s.36(2)(a) of the Act, the Tribunal turned its mind to s.36(2)(aa) of the Act. It did not accept that there were substantial grounds for believing that the applicant faced a real risk of significant harm if he returned to China ([38] – [39] at CB 91).

The Application to the Court

  1. The grounds of the application to the Court are as follows:

    “1. RRT HAVE DESCRIMINATIO ON ME, FAILED TO CONSIDER MY REAL SITUATION AND COUNTRY’S SITUATION.

    2. RRT FAILED TO COMPLY WITH REFUGEE REGULATION.

    I BELONG TO A MEMBER OF A SOCIAL GROUP, I WAS MISTREATED AND PERSECUTED”

    [Errors in original.]

Before the Court

  1. At the first Court date in this matter (27 February 2013) the applicant was put on notice that the “grounds” of his application to the Court lacked legal substance. He was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. Orders were made that, amongst other things, gave the applicant the opportunity to file any amended application and any evidence in support of his grounds. He was also put on notice that, if nothing further was presented by him, his application may not survive beyond the next Court event.

  2. At the next directions listing (30 May 2013), the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms M Stone appeared for the first respondent.

  3. Nothing further had been filed by the applicant. The applicant claimed that he had not received legal advice from the panel lawyer. However, I note a Certificate on the Court’s file from the lawyer appointed to provide advice to the applicant, certifying that written legal advice was sent to the applicant (see further below).

  4. The Minister sought that the matter proceed to an immediate show cause hearing pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). I ultimately agreed to this.

  5. Before the Court, the applicant asked for further time to “speak” to a lawyer whom he described as a “friend”. It subsequently emerged that his “friend” would arrange for him to speak to a lawyer. Yet further, the applicant responded to the Court that the “friend” was in fact his migration agent who assisted him before the Tribunal (see CB 65 to CB 66 and [6] above). In response to the Court’s request for further explanation the applicant said that “a few days ago” he spoke to his migration agent and asked her to find a lawyer for him.

  6. The applicant also stated, with prompting from the Court, that he had been unable to attend to this matter earlier because he was confined to his home for the three months since the first Court date with a “rash”. He responded to the Court that he had not attended any hospital for treatment, nor consulted any doctor. Instead he had gone to a pharmacy and obtained “cream” for his rash.

  7. The applicant could not explain why he had delayed giving instructions to his migration agent, particularly given that he had left the house on at least one occasion. Similarly, he could not explain why he did not telephone his migration agent.

  8. I understood the applicant’s request to be in the nature of an application for an adjournment of the proceedings. I refused that adjournment application. My reasons for doing so are as follows.

  9. First, the applicant had had a reasonable opportunity to obtain legal advice and assistance. The Tribunal’s decision was made on 5 December 2012. The applicant was notified of the Tribunal’s decision, by facsimile transmission sent to his migration agent, on 5 December 2012, whom he had appointed as his “authorised recipient” for this purpose (CB 84).

  10. There is nothing before the Court from the applicant to explain why he did not take steps to obtain legal advice at that time. Nor why he did not take steps, even through his migration agent, to consult a lawyer after the first Court date when the paucity of his grounds was pointed out to him.

  11. Second, the applicant’s explanation as to why he delayed taking any action from the first Court date is not satisfactory. Even if it is accepted that the applicant had some “rash”, it is difficult to see how that prevented him from taking relevant action. Particularly in circumstances where he did not seek medical advice (beyond “cream” from a pharmacy) and did not explain why he could not telephone his migration agent.

  12. Third, the applicant told the Court that he had not received advice from the panel lawyer. The Certificate from the lawyer bears the handwritten notation that the applicant “requested postal advice”. I accepted the Certification from the panel lawyer.

  13. In all therefore, the applicant had a reasonable opportunity to obtain legal advice. He provided no satisfactory explanation as to why he took no steps to do so. The panel lawyer in any event provided legal advice. The applicant’s request for an adjournment was refused.

Consideration: The Application

  1. In light of that refusal, and the Minister’s position that the matter proceed to an immediate show cause hearing pursuant to r.44.12(1)(a) of the Rules of this Court, I heard the parties on the “grounds” of the application.

  2. For the reasons that follow, the application should be dismissed as no arguable case arises from the grounds of the application for the relief sought.

  3. The reason that the Tribunal affirmed the delegate’s decision is that it emphatically rejected the factual basis on which the applicant said he feared harm if he were to return to China. The Tribunal’s findings were reasonably open to it on what was before it. It gave reasons for this. Its findings of fact, including its disbelief of the applicant, were all made within jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

  4. Ground one of the application has two elements. First, that the Tribunal discriminated against the applicant. I understood the complaint to be that the Tribunal came to its conclusion “quickly” at the hearing. That is, possibly, it had prejudged the matter. This would appear to be some attempt to allege bias, or the apprehension of bias, on the part of the Tribunal.

  5. I note the relevant authorities. In particular, that an allegation of bias attacks the very integrity of the decision maker. As such, given its serious nature, any allegation of bias must be “distinctly made and clearly proven” (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J, see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). Further, as was noted by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 (at [38]), it is a rare case where bias can be made out on the Tribunal’s decision record alone.

  6. The applicant has not provided any transcript of the hearing before the Tribunal. On the Tribunal’s unchallenged account (contained in its decision record), I can not see any basis for such an assertion (“prejudging”), let alone that an arguable case exists. Further, in the absence of any particularity from the applicant it is tolerably clear, from the Tribunal’s own account, that the applicant’s reference to the Tribunal coming to its conclusion “quickly” is a reference to the Tribunal’s questioning of the applicant at the hearing. That is, its “suggestions”, or “indications”, to him about whether the circumstances he presented had occurred or could amount to a real chance of harm.

  7. In context, such questioning by the Tribunal is plainly the Tribunal fulfilling its obligation to properly conduct the review and putting the applicant on notice of its concerns and the issue, or issues, in the review. No legal error is revealed in the circumstances.

  8. The second element to ground one is an assertion that the Tribunal failed to consider the applicant’s claims as against what he says to be the “real situation” and the “country’s situation”.

  9. A failure to deal with a claim expressly made, or clearly arising from the circumstances presented, may lead to jurisdictional error in the way explained in such authorities as NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630.

  10. However, it is clear that that is not the sense in which the applicant has made his complaint. Even at its highest, in the circumstances, the complaint is a challenge to the Tribunal’s adverse findings of fact. It invites merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). Ground one does not rise to an arguable case.

  11. Ground two is best understood as an unparticularised complaint that the Tribunal failed to follow, or apply, the law. I cannot see that such a complaint has any hope of success, let alone raises an arguable case. The applicant was invited to a hearing pursuant to s.425 of the Act. The Tribunal complied with all the relevant statutory and regulatory requirements (s.425, s.425A, the reference to s.426A, s.441A(4), s.441C(4), s.441G of the Act and r.4.35D of the Migration Regulations 1994 (Cth)). The Tribunal’s findings were open to it on what was before it. Further, its expressed understanding of the relevant law was orthodox. No arguable case is raised by ground two.

  12. Ground three suffers from two deficiencies. First, the applicant made no claim to be a member of a particular social group. Nor did the circumstances presented give rise to any obligation on the Tribunal to consider any such question (with reference to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).

  13. The second deficiency is that the complaint seeks to press the applicant’s factual claims made to the Tribunal and, in doing so, it again seeks impermissible merits review (Wu Shan Liang).

Consideration: Additional Matter

  1. Before the Court the Minister, appropriately, raised the additional matter of the High Court’s judgment in Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”), even though, ultimately, the Minister said it too did not raise an arguable case for the relief sought. Li was raised in relation to what is set out at [30] (at CB 90) of the Tribunal’s decision record.

  2. Paragraph 30 of the Tribunal’s decision record (at CB 90) is in the following terms:

    “The applicant stated that he wished to obtain photographs and documents from his family and wished for an extension of time to provide these. I indicated that I would not delay making my decision as the applicant had had ample time to provide materials to the Tribunal prior to the hearing.”

  3. In particular, the Minister referred the Court to Li where the High Court said that the Tribunal’s refusal to adjourn the disposition of the review until the outcome of the applicant’s skills assessment was finalised (the applicant in Li had applied for a “skilled residence” visa) was found to be unreasonable, and therefore revelatory of jurisdictional error.

  4. However, the Minister also sought to distinguish the circumstances in Li to those in the current case and to say that no reasonable argument for the relief sought arose in this regard in the current case. I agree. The following is sufficient, although not exhaustive, to support this position.

  5. In my respectful view the judgment of the Chief Justice in Li provides direction in understanding the notion of reasonableness in the relevant statutory context in which the Tribunal operates.

  6. First, the discretion conferred by statute on the Tribunal is “constrained by law” (Li at [23] per French CJ). In circumstances where the discretion is conferred without determination as to the grounds for the exercise of the discretion then there is scope for the Tribunal “…to give effect to [its] view of the justice of the case” (Li at [23] per French CJ with reference to Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467 at 473 per Dixon CJ, McTiernan and Windeyer JJ agreeing at 473 – 474).

  7. However, as the Chief Justice made clear in Li, the “view…must be reached by a process of reasoning” (Li at [23]). It was the absence of such a process by the Tribunal in Li that was, in part, revelatory of error (Li at [24] – [31] per French CJ).

  8. Second, the Tribunal’s approach must be informed by the “fine” distinction between the acceptance that (Li at [20] per French CJ):

    “… procedural fairness applies to a request for an opportunity to obtain evidence of a fact and to reject its application to a request for an opportunity to obtain a statutory assessment as to the existence of a fact”

  1. In the circumstance in Li, this was explained at [21] (per French CJ):

    “The MRT's approachin this case, which does not appear to have been informed by that distinction, was captured succinctly, and apparently exhaustively, by the words ‘the applicant has been provided with enough opportunities to present her case’. It made no reference to the probability that the first respondent would be able, within a reasonable time, to secure the requisite skills assessment. The Minister submitted, against a straw-person argument not put, that there is no general obligation upon the MRT to adjourn a decision because the applicant for review ‘considers’ that the passage of time will allow a visa criterion to be met. That was not this case. There was good reason to expect that the criterion would be met. The MRT denied the first respondent what would have been, in the circumstances, a reasonable opportunity to acquire the TRA skills assessment which was essential to her success. The first respondent's migration agent had shown the MRT that there was a proper basis for expecting a favourable outcome in response to his request for a review by TRA. That was borne out by the event. There was no practical countervailing consideration disclosed in the MRT's reasons for refusing to defer its decision. The first respondent was denied procedural fairness and that denial constituted jurisdictional error.”

    [Footnote omitted.]

  2. Third, in the judgment of the plurality (Hayne, Kiefel and Bell JJ) the following is directive. First, at [63]:

    “Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably”

    [Footnote omitted. The equivalent to s.363(1)(b) for the Refugee Review Tribunal is s.427(1)(b) of the Act.]

  3. The following are also, in my respectful view, explanatory for current purposes [65] and [79] – [82] (per Hayne, Kiefel and Bell JJ):

    “[65] In Sharp v Wakefield, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law’. It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be ‘exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself’. It is pointed out in Wade and Forsyth that the legal conception of discretion dates from at least the 16th century.  In Sharp v Wakefield, Lord Halsbury LC had referred to Rooke's Case of 1598, in which it was stated that the discretion of commissioners of sewers ‘ought to be limited and bound with the rule of reason and law’.

    …

    [79] The submission misapprehends the nature and purpose of the discretionary power to adjourn and the requirement of reasonableness which attaches to it. The discussion of the forthcoming second skills assessment during the hearing on 18 December 2009, and the subsequent request for an adjournment of the Tribunal's review while TRA reviewed the second skills assessment, must have conveyed to the Tribunal that Ms Li did not consider that she had presented her case. In deciding whether to adjourn, that was what the Tribunal had to consider in the context of the statutory purpose of s 360, but it does not appear that it did so.

    [80] The decision to refuse the adjournment request was explained by the Tribunal on the bases that: (a) Ms Li had been provided with enough opportunities to present her case; and (b) the Tribunal was not prepared to delay the matter any further. The reference to delay was not further explained by the Tribunal. The only significant delay would appear to be attributable to the Tribunal, which took some nine months to contact Ms Li after the lodgement of her application. In any event, what pressing need for a conclusion of the review was the Tribunal adverting to, a need which would have to be weighed against the object of s 360? The position of the Tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another. It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5.

    [81] The Minister appears to translate the Tribunal's reference to Ms Li having had sufficient opportunity as ‘enough is enough’ and submits that if the Tribunal could not so determine, it would be required to hear, in effect, a series of applications which could be unending. This submission should be understood in the context that the criteria for the visa in question may be fulfilled at any time up to the point of decision.

    [82] It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that ‘enough is enough’, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.”

    [Footnotes omitted.]

  4. Fourth, I am also directed by Justice Gageler at [101] and [120] – [122] of Li:

    “[101] However, the requirement for the MRT to act reasonably is not exhausted in every case where an applicant before the MRT is given a reasonable opportunity to give evidence, provide information and present arguments in relation to the decision under review.  Reasonableness can require more. Thus, while it has been held that the MRT has no general duty to make inquiries[1], it has been accepted that ‘a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review’. The touchstone is reasonableness in the performance of the duty to review.

    [1]     Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 602 [20].

    …

    [120] In holding the MRT's refusal to adjourn the review to be ‘unreasonable in the Wednesbury Corporation sense’, Burnett FM said:

    ‘Ultimately what appears absent in the [MRT's] decision in this instance is a consideration of the relative merits of the competing interests. [Ms Li's] agent informed the [MRT] of the outcome of the second skills assessment when he received it and of [Ms Li's] concerns about its efficacy. [Ms Li's] agent set out in detail why the decision was in error.  On a plain reading of [Ms Li's] agent's letter there appeared good reason to be cautious of the assessing authority's original decision. [Ms Li's] detailed explanation of the reasons why the decision was wrong ought to have put the [MRT] on notice that this was not merely a stalling tactic on the part of [Ms Li].  That matter was the only item outstanding in what otherwise ought to have been a successful application.  When considered together with the significance of the impact of that wrong decision, I consider the [MRT's] decision to proceed in these circumstances rendered it unreasonable such as to constitute it unreasonableness in the Wednesbury Corporation sense. That is to say it constituted an improper exercise of the power and it went to the very jurisdiction.’

    [121] On appeal to the Full Court of the Federal Court, Greenwood and Logan JJ found that analysis to be ‘unremarkable’, pointing out that there was in the circumstances ‘no countervailing consideration on the basis of which it might be concluded that the refusal to adjourn was one reasonably open to the MRT’.

    [122] It is difficult to disagree. Ms Li had been in Australia for some years.  The review by the MRT had been on foot for nearly a year without any delay on her part. What she sought was an adjournment of the review for a highly specific purpose clearly articulated by her migration agent: to await the outcome of the review she had already sought of TRA's second skills assessment, which she contended to have been erroneous for reasons the migration agent explained to the MRT. Those reasons were, as the Minister concedes, ‘coherent on their face and might well have justified an expectation that a favourable skills assessment would be obtained’. Indeed, the evidence before Burnett FM showed that a favourable skills assessment did in fact eventuate, three months later. Nothing in the MRT's reasons for decision suggests that the MRT took a different view of Ms Li's prospects and there was no reason to infer that the MRT considered that the adjournment would be likely to have been unduly protracted. The MRT identified no consideration weighing in favour of an immediate decision on the review and none is suggested by the Minister.”

    [Footnotes omitted.]

  5. There is some similarity between the reasoning of the Tribunal (as set out at [30] at CB 90 – see [39] above) and that of the Tribunal in Li. That is the reference in the current case to the Tribunal “not delay[ing]” and the applicant having had “ample time”. Similarly, in Li reference was made to the applicant in that case having had a sufficient opportunity to present her case.

  6. But there, in my view, the similarity between this case and Li ends. In the current case the applicant needed to satisfy the Tribunal that his claims to protection were such that the protection visa must be granted to him (with reference to s.65 and s.36(2) of the Act and the requisite level of satisfaction – see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] per Beaumont, Merkel and Hely JJ and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

  7. In Li, the request for the adjournment of the review was put in the context of time to obtain a document (the skills assessment) that would objectively satisfy a criterion for the grant of the visa for which the applicant had applied. The prescriptive nature of the relevant criteria meant that the applicant’s need to present further evidence had definition and shape.

  8. In the current case there was no comparable explanation by the applicant, or for that matter his migration agent, as to how the “photographs and documents” would assist the Tribunal in reaching the requisite level of satisfaction such as to mandate the grant of a protection visa.

  9. In Li the applicant’s agent explained to the Tribunal the relevant steps taken by, and on behalf of, the applicant to obtain a document central to a specific prescriptive criterion. The agent’s explanation was such that it was reasonable to expect that the assessment of the applicant’s skill would result in a successful outcome her. In the current case, there is nothing to show that the documents and photographs (whatever they were) could have been persuaded the Tribunal such that the visa must be granted.

  10. Further, in the current case the circumstances as found by the Tribunal were such that ([35] at CB 91):

    “The applicant’s manner of conducting himself in the hearing left the impression that he was going through the motions and not genuinely engaged in seeking protection. He sought to delay the finalisation of his matter stating that he wanted to seek further documents from China. However he had not sought to make any written submissions to the Tribunal prior to his hearing.”

  11. In that sense also, the Tribunal’s reference (at [30] at CB 90) to the applicant having had “ample time” is reasonably explained by the absence of any evidence as to why the applicant had delayed, or been unable, to obtain these documents and photographs earlier from either his parents or his wife, all of whom continued to live in China without any apparent hindrance or interest from the authorities.

  12. The applicant (who, as in Li, had the assistance of a migration agent [CB 25]) would have been on notice from the delegate’s decision of the need to provide “as much detail as is necessary to enable the examiner to establish the relevant facts” (CB 51.7). The delegate’s decision in the current case was made in July 2012 (CB 54) and notified to the applicant, through his migration agent, on 30 July 2012 (CB 35). That the applicant did nothing relevant to obtain any such “detail”, and only raised the question of the documents and photographs at the hearing with the Tribunal (some four months later) makes this an appropriate case that “enough is enough” (with reference to Li at [82] per Hayne, Kiefel and Bell JJ).

  13. Ultimately, in my respectful view, one additional theme running through each of the judgments in Li, as to why the Tribunal acted unreasonably in that case, was the absence of an explanation by the Migration Review Tribunal as to how it proceeded from what was presented to it (including the adviser’s submissions) to the conclusion that it reached in relation to the request to adjourn the review. In the current case the Tribunal’s explanation was not only evident, it was probative of the circumstances presented and the context in which the applicant made the request.

Conclusion

  1. While it is the case that, based on Li, a complaint may be raised in relation to a request to adjourn the review, in the current case, and having regard to the circumstances before the Tribunal, that complaint is not arguable.

  2. In all therefore the application to the Court does not raise an arguable case for the relief sought. The application should be dismissed pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date:  13 June 2013


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