SZSNO v Minister for Immigration

[2013] FCCA 824

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSNO v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 824

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal breached s.425 of the Migration Act 1958.

Legislation:

Migration Act 1958, ss.36, 425, 426A, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553

Applicant: SZSNO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 110 of 2013

Judgment of: Judge Cameron

Hearing dates: 13 June and 5 July 2013

Date of Last Submission: 5 July 2013

Delivered at: Sydney

Delivered on: 5 July 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the second respondent quashing its decision dated 17 December 2012.

2. A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application for review made on 9 July 2012.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 110 of 2013

SZSNO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia on 1 August 2005 on a student visa.  On 14 March 2012 he lodged an application for a protection visa with the Department of Immigration and Citizenship alleging that he feared persecution in India because of his political opinion.  On 22 June 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were set out on pages 4-8 of the Tribunal’s decision.

2. In his protection visa application the applicant claimed that he could not return to India because of his family’s important role in the Telangana movement.  He claimed that he and his family faced threats from Andhra political followers.  The applicant claimed that he would have no protection because the police were involved with the politicians.

3. The applicant attended a departmental interview on 19 June 2012 and made various detailed factual allegations concerning the basis upon which he claimed to have a well-founded fear of persecution for a Convention reason in India. Because I have concluded that the Tribunal’s decision was affected by a breach of s.425 of the Act it is not necessary to detail the allegations which the applicant made at the departmental interview.

The Tribunal’s decision and reasons

1. By letter 31 October 2012 the Tribunal wrote to the applicant at the address provided in his application for review to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 11 December 2012 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his application without further notice. A further letter was sent on 5 November 2012 to a new address which the applicant had advised by telephone on 1 November 2012. The applicant responded to the hearing invitation on 13 November 2012 and indicated that he would attend the Tribunal hearing. However, he did not appear before the Tribunal on the day and at the time he was scheduled to appear. In those circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.

2. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or pursuant to s.36(2)(aa) of the Act.

3. The Tribunal found that despite the delegate’s decision putting the applicant on notice as to the deficiencies in his application and it informing him that it was unable to accept his claims on the evidence before it, the applicant failed to provide further evidence to support his claims.  The Tribunal noted that the applicant was offered the opportunity to give evidence and make submissions at a hearing before it but that he had not availed himself of that opportunity. 

4. The Tribunal found that the applicant’s written claims in his protection visa application and his oral claims at the departmental interview lacked detail and were not corroborated by any reliable contemporaneous evidence.  On the basis of the information before it, the Tribunal was not satisfied that there was a real chance that the applicant would face serious harm for a Convention reason for the reasons he asserted.  The Tribunal was also not satisfied that there was a risk that the applicant would suffer significant harm in India as a reasonable and foreseeable consequence of him being removed there from Australia.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.I applied for protection visa on 14^th March 2012 to Sydney regional office but I did not get approved with reason that you do not meet criteria for protection visa on 22^nd June 2012.

   2.Then I applied to MRT for review of that decision.

2. Subject to the comments which follow, I am satisfied on a review of the Tribunal’s decision, and the evidence which the applicant advanced before the delegate and in his protection visa application, that the conclusion reached by the Tribunal, that it was not satisfied that the applicant did not meet the criteria for the grant of the protection visa, was not affected by error.  Subject to the following comments, it was reasonable for the Tribunal to not be satisfied of that matter. 

3. The next issue to which regard should be had is whether the Tribunal met the procedural requirements necessary to proceed to a decision pursuant to s.426A of the Act. One matter raised by the Minister during his submissions today was whether or not the exercise of the discretion given to the Tribunal by s.426A of the Act miscarried. In the circumstances of the case, based on the facts as known to the Tribunal, I do not believe that the discretion miscarried. On the information before the Tribunal the applicant simply failed to attend in circumstances where he had indicated that he would attend. It was implicitly agreed between the parties that the applicant made no attempt to advise the Tribunal before its hearing or, indeed, after its hearing and before its decision was made that he was, as he now says, unfit to attend the Tribunal hearing. In the circumstances, the only information before the Tribunal was that which would have satisfied a reasonable tribunal that the discretion to proceed to a decision without permitting the applicant any further opportunity to appear before it was enlivened.

4. Nevertheless, the fact that the discretion to proceed to a decision did not miscarry does not mean that the Tribunal fulfilled the duty imposed upon it by s.425(1) of the Act. That sub-section provides:

   The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

5. The cases make it clear that although that sub-section refers only to an invitation, it also implies that the Tribunal must afford an applicant a real and meaningful hearing if it is not able to make a final positive finding for an applicant on the papers. 

6. I am satisfied from the material contained in the Court Book that the invitation letter sent to the applicant met all the statutory procedural criteria for the enlivening of the s.426A discretion.

7. The second element of s.425(1) is that such hearing as is offered to an applicant must be real and meaningful. That requirement cannot be satisfied in circumstances where an applicant is unable, through ill health, to attend the Tribunal’s hearing. In this regard the applicant said on the first day of this hearing that the day before the Tribunal hearing he was injured when a glass table top fell on his foot and seriously hurt him. He said he went to the doctor with heavy bleeding and that the wound was stitched. He was advised to put his feet high to stop the bleeding. The applicant also said that photographs of his injured foot had been taken.

8. The applicant said that he went to the Harris Park Private Hospital for attention and that a friend had taken him there.  In response to a question from the Court the applicant stated that the Harris Park Hospital was a private hospital but he did not seem to be able to make a very clear response to the Court’s question concerning how he could have afforded treatment at a private hospital.  That question was in part answered today, admittedly in submissions rather than in sworn evidence.  The applicant said that the care he had received on the day of his injury had been provided to him on an unofficial basis and that a friend had helped him out. 

9. The applicant told the Court on the last occasion that he did not have time to advise the Tribunal before the hearing of the injury he had suffered because the medical attention he received did not conclude until 4.30 pm and he was given pills which made him sleepy.  He said he was unable to get out of bed.  He admitted that he did not ask anyone to contact the Tribunal for him and in this regard I note the Minister’s submissions that he did have sufficient time before the Tribunal made its decision to advise it of the reasons for his absence.

10. Be that as it may, the fact is that I accept that the applicant was, in fact, unfit to attend the Tribunal hearing on the listed day.  In this connection I have particular regard to the two photographs which were tendered by the applicant.  One of them shows a significant wound to his foot and the other shows him sitting with his foot up and bandaged.  It is significant to me that the dressing and taping of the wound appear to be professionally done and I am willing to accept the applicant’s oral evidence that he was treated at hospital, even if it would seem to have been on an unofficial basis.

11. In light of authorities such as Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553, I conclude that the inability of the applicant to attend the Tribunal hearing by reason of his injury was such that, through no fault of its own, the Tribunal failed to accord him the hearing which it was obliged to provide under s.425 of the Act. As a consequence its decision on the review was affected by jurisdictional error

Conclusion

1. There will be orders setting aside the Tribunal’s decision and directing it to determine the application for review according to law.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:  

Date:  16 July 2013