SZSTS v Minister for Immigration

[2014] FCCA 744

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSTS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 744

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal failed to consider applicant’s claims – whether tribunal failed to consider information provided by applicant – consideration of standard of proof – consideration of Tribunal’s discretion to postpone hearing – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(aa), 65, 426A

NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618

Applicant: SZSTS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 801 of 2013

Judgment of: Judge Raphael

Hearing date: 3 April 2014

Date of Last Submission: 3 April 2014

Delivered at: Sydney

Delivered on: 3 April 2014

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 801 of 2013

SZSTS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is an Indian citizen who came to Australia on 6 September 2008 with his then wife as the dependent of a person who held a student visa.  That visa was renewed on 23 October 2010 but was cancelled prior to its final validity date on 26 August 2011.  He first made an application for a protection visa on 8 May 2012, but the application that was made on that day was invalid.  The application that was considered was one made on 25 May 2012. 

2. On 13 August 2012 the delegate of the Minister refused to grant the protection visa, and the applicant sought review of that decision from the Refugee Review Tribunal.  The Tribunal wrote to the applicant on 30 January 2013 advising him that it had considered 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 25 February 2013 at 1pm. 

3. On that day the applicant did not appear.  Instead he sent to the Tribunal, by fax, a medical certificate which stated:

   “This is to certify that Mr Applicant is suffering from back pain.  He is unfit for work/ study from Monday, 25 February 2013 to Tuesday, 26 February 2013 inclusive. 

   Signed Dr Mounjed Dagher.” [CB116]

4. The Tribunal treated that medical certificate as supporting an application for a postponement of the hearing.  It wrote to the applicant on 25 February 2013, reminding him of the invitation to the hearing on 25 February, noting that it had received the medical report, and that it had agreed to a request to postpone and reschedule the hearing.  The new hearing was rescheduled for 19 March 2013 at 12.30pm.  The letter contained an important warning to the applicant.  It stated:

   “Please note that if you happen to be unwell on or before the scheduled Tribunal hearing, the Tribunal will not adjourn the hearing unless it receives a letter from a doctor providing details of the condition suffered, why the condition means that you would be unable to give evidence and present arguments at a Tribunal hearing, and the number of days for which it is expected that you will be unavailable to give evidence and present arguments at a hearing. 

   Please ensure that your doctor is aware that this hearing is informal and that arrangements can be made to assist certain needs. 

   Please note that if you fail to attend the scheduled hearing, the tribunal may make a decision without taking any further action to allow or enable you to appear before it.”  [CB171-118]

5. The applicant was sent a form entitled ‘Response to Hearing Invitation’, asking whether he intended to take part in the hearing on 19 March 2014, but he did not return the document.  Instead on 19 March 2014 he sent to the Tribunal another medical certificate from Dr Dagher, which just said, in handwriting:

   “Mr Applicant is suffering from back pain and is unfit for work from 19 March 2013 to 20 March 2013.”  [CB124]

6. A case note was made by the Tribunal which stated:

   “The applicant submitted a medical certificate dated 19/3/13 to the Tribunal which states that he is unable to attend work due to back pain.  As advised by the Presiding Member I rang the applicant and advised him that the Member does not accept that he can’t attend the hearing.  The medical certificate states that he is unable to attend work from 19/3 to 20/3.   The hearing will go ahead as scheduled and he should attend the hearing and discuss his condition with the member.  The applicant said he has back pain and is unable to attend the hearing.”  [CB125]

7. That case note was made at 11.29am, remembering that the hearing was not scheduled to take place until 12.30pm, and whilst it might have been tight for the applicant to come in from his home in the Granville area within the hour, there is no indication that he asked the Tribunal to give him some leeway on this. Notwithstanding that, the Tribunal appears, from documents found at [CB126], to have waited until some time after 1pm before determining to proceed under s.426A of the Migration Act 1958 (Cth)[1] to make its decision on the review without taking any further action to enable the applicant to appear before it. 

   [1] The Act.

8. The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations arose from his marriage, which he said was a love match, between himself and his now former wife, who is a Sikh.  In the words of the Tribunal member, he stated in his application form that:

   “His only source of fear is from his wife’s family and brothers because he entered into a love marriage without their permission.  After two years here, he and his wife had some arguments, she left him and returned to her family.  They threatened him on the phone that if he returns they will kill him, they will wait for him.”  [[27] CB 134]

9. In its decision, the Tribunal sets out in considerable detail the history of the matter before the delegate, including some concerns that had been expressed by the delegate to the applicant.  The Tribunal noted that the delegate had found that the applicant’s evidence at interview to be changing and contradictory to his protection visa in some parts, and vague in response to issues put to him by the delegate.  It noted:

   “The delegate considered it implausible that his wife’s family would threaten to kill him and yet they did nothing before the applicant and his wife left India the first time, or whilst he was there the second time.  The delegate was also concerned about the applicant’s delay in claiming protection once in Australia.  The delegate thought that even if the applicant’s claims were true, he could relocate.” [[34] CB137]

10. In its decision record the Tribunal explains why it exercised its discretion to proceed without providing the applicant with yet another opportunity to appear before it.  The Tribunal’s reasons for this are found at [[41-42] CB138-139].  In short, the Tribunal noted that after the first postponement the Tribunal had made it quite clear to the applicant in its letter what was required if any further adjournment was to be granted.  In particular, the Tribunal wished to know whether or not he could attend a hearing as opposed to attend work or study. 

11. The Tribunal noted that the second medical report did not do this, and it appeared to the Tribunal that the medical report could only have been based upon information provided to the doctor by the applicant.  The Tribunal noted that it could not accept the applicant’s assertion that he was unable to attend the hearing. 

12. The Tribunal then went on to provide its findings and reasons, stating:

    “The applicant has provided insufficient detail to explain the inconsistencies raised by the delegate in the Decision Record (which the applicant provided to the Tribunal without providing at the same time any response to the matters in that document) including for example why he said that the marriage was a secret, yet there was evidence that it was attended by family members from both sides (and her neighbours);  why they claimed in the student visa application that they lived at his wife’s home after the marriage, but he claimed in the protection visa application that his wife’s parents did not know about or support the marriage;  and why his wife’s parents wanted to kill him yet did not stop her from returning to Australia to be with him

    …

    The applicant has also provided insufficient detail as to why, if he feared persecution upon his arrival in Australia in September 2008, he delayed over three years of applying for a protection visa.  It is also noted that during that period he was (according to the Decision Record that he did not dispute) unlawfully present in Australia from 26 August 2011 after his visa was cancelled, yet he did not apply for protection until May 2012, over eight months later.

    …

    The applicant has provided insufficient detail as to why he returned home to India in February 2011 if, as he claimed, they left India in fear of their lives and after several murder attempts on them.  He further provided in sufficient details as to why they were both not harmed when they returned to India.” 

    [[48 – 51] CB140]

13. The Tribunal considered the applicant’s claim under the complementary protection provisions, s.36(2)(aa), and indicated that it was not satisfied that he was a person in respect of whom Australia owed protection obligations under that section. The phraseology of the Tribunal’s conclusion in that regard is perhaps not all but one would have desired but, given the applicant’s failure to attend the Tribunal hearing and provide the Tribunal with any further information, the court does not believe that it forms the basis of the jurisdictional error of not considering all the applicant’s claims.

14. On 17 April 2013 the applicant filed an application for review of the Tribunal’s decision with this court.  On 6 February 2014 he filed an amended application.  There are eight grounds noted and the court will deal with each in turn. 

15. The first ground is:

    “1. The applicant claim that making decision by Refugee tribunal ignored the facts that he claims.”

    The Tribunal decision record, while short, does go through all the claims made by the applicant and those that were considered by the delegate.  The applicant does not assist the court by pointing out to it any facts that were ignored and the court is hard-pressed to see any.  There is no merit in this ground.

16. The second ground states:

    “2. Applicant claims that the Tribunal made a jurisdictional erroe (sic) when it made decision on acceptance and probability.”

    Whilst this ground is difficult to comprehend, it appears to relate to the standard of proof applied by the Tribunal. Of course, there is no standard of proof in these Tribunal matters. The Tribunal is obliged to comply with the provisions of the Act and, in particular, s.65 which states:

    “Decision to grant or refuse to grant visa

    (1)  After considering a valid application for a visa, the Minister:

    (a)  if satisfied that:

    (i)  the health criteria for it (if any) have been satisfied; and

    (ii)  the other criteria for it prescribed by this Act or the regulations have been satisfied; and

    (iii)  the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

    (iv)  any amount of visa application charge payable in relation to the application has been paid;

    is to grant the visa; or

    (b)  if not so satisfied, is to refuse to grant the visa.

    Note:          See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.

    (2)  To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).”

    The requirement on the Tribunal is to come to a state of satisfaction and if it is unable to come to that state of satisfaction, it must refuse to grant the visa.  It was not unreasonable for the Tribunal to fail to come to that state of satisfaction when the applicant did not appear and the Full Court, French, Emmett, Dowsett JJ in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 confirmed that fact when, at [5], their Honours opined:

    “In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.”

    For these reasons, ground 2 of the application must also fail.

17. The third, fourth and fifth grounds seem to the court to be required to be considered together.  They are:

    “3. Applicant claim if he returned his wife family will kill him. 

    4. Tribunal and Immigration Department both ignored this fact and deny him to grant visa. 

    5. The applicant claims that the Tribunal formed the above opinion based on the limited information.”

    The Tribunal certainly did not ignore the fact that the applicant claimed that if he returned to India, his wife’s family would kill him.  It noted, however, that he had returned to India and his wife’s family had not killed him.  This was one of the reasons why it could not be satisfied that he was a person to whom Australia owed protection obligations.  There is no reason to consider that the opinion was formed on the basis of limited information.  It was formed on the basis of information provided by the applicant.  It is up to the applicant to establish his case himself, and not for the Tribunal to make it up for him:  Abebe v Commonwealth of Australia (1999) 197 CLR 510; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166. For these reasons, grounds 3 to 5 must also fail.

18. Ground 6 states:

    “6. Tribunal also not give him chance for interview even he is sick.”

    This goes to the exercise by the Tribunal of its discretion not to postpone the hearing any further after the applicant had submitted an unsatisfactory medical report and had been telephoned and told to attend but did not do so.  In Mr Pinder’s helpful written submissions, he notes:

    “… the First Respondent submits it was open to the Second Respondent to find, as it did, that the medical certificate did not demonstrate that the Applicant was unable to attend the scheduled hearing. (cf SZNLF v Minister for Immigration & Anor [2009] FMCA 847 (3 September 2009) and NALQ v Minister for Immigration & Multicultural & Indigenous Affairs[2004] FCAFC 121).”

19. Mr Pinder also notes the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618, but the court agrees with him that this case is distinguishable from that considered by the High Court as, firstly, this was a decision to postpone a hearing, not to adjourn one, and is an exercise of the power under s.426A(2) of the Act. The court agrees that power would only be not exercised reasonably if it was exercised in a way that no reasonable Tribunal could have been said to exercise it in the circumstances.

20. In this case, the Tribunal exercised the power and explained the way in which it had done so and the reasons for it.  The Tribunal had given the applicant quite adequate warning of what would occur should he not submit a medical report that complied with the request of the Tribunal.  It had given him quite a considerable period of time to get over his original back problems and had never had, from the applicant or a medical practitioner who he had consulted, any statement that he was unable to attend a Tribunal hearing and give evidence and present arguments.  The court is of the view that the Tribunal’s discretion was exercised appropriately and that the decision cannot be impugned on this basis. 

21. The seventh ground of the application is:

    “7. Applicant claim RRT has misunderstood the evidence.”

    Once again no particulars are provided.  But this seems to the Court to be a request for impermissible merits review. 

22. The eighth ground of the application is:

    “8. The Tribunal made a jurisdictional error.”

    No jurisdictional error is revealed to the court and none has been particularised by the applicant. 

23. When the applicant attended today, he told me that:

    “My problem is that I will be killed if I go back but they did not believe me.  That’s all.”

24. It is only the applicant’s fault that the Tribunal was unable to believe his story.  He did not attend the hearing.  In any event, that claim is one for impermissible merits review as well and, for that reason, cannot be accepted.  The application must be dismissed.  The applicant must pay the respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  11 April 2014