SZTXE v Minister for Immigration

[2015] FCCA 678

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTXE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 678

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether Tribunal erred in proceeding pursuant to s.426A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 425,425A, 426A, 441A, 441C, 474, 476

Migration Regulations1994 (Cth), reg.4.35D

Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358; (2011) 199 FCR 51
Minister for Immigration& Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152; (2006) 154 FCR 572
SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026; (2005) 144 FCR 251
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
SZTHQ vMinister for Immigration and Border Protection [2014] FCA 1231

Applicant: SZTXE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 402 of 2014

Judgment of: Judge Nicholls

Hearing date: 26 February 2015

Date of Last Submission: 26 February 2015

Delivered at: Sydney

Delivered on: 26 February 2015

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms D Watson of Australian Government Solicitor

ORDERS

1. The application made on 21 February 2014 and amended on 8 September 2014 is dismissed.

2. The applicant pay the first respondent’s cost set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 402 of 2014

SZTXE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 21 February 2014, and amended on 8 September 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 January 2014, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Before the Court

1. A bundle of relevant documents filed by the Minister in these proceedings is in evidence before the Court (“the Court Book” – “CB”).

2. At the hearing today, the applicant appeared in person. He confirmed that he did not require the assistance of an interpreter. I was satisfied during the course of the hearing that the applicant’s presentation of English was of a satisfactory standard to enable him to make his submissions

3. The applicant sought leave to read his affidavit filed on 12 May 2014. I note one deficiency with the form of the affidavit, there is no date on which that affidavit was said to have been sworn, or affirmed, on that document. It appears that, for whatever reason, the Justice of the Peace before whom the applicant purported to make the affidavit, was content to go ahead without attending to that matter.

4. The affidavit seeks to put a number of documents before the Court.  They, for the most part, are not in English. I understood from the applicant today that they were documents that relate to the sale of property in his home country, which was part, as he explained, of the difficulties that he had had in his home country. The Minister objected to the affidavit being read.

5. There is no evidence that the documents were before the Tribunal. Nor does the applicant assert this to be the case. In essence, it would appear that what the applicant seeks to do is to assert certain facts in support of his claim for a protection visa.  As I have explained to the applicant today, this Court has no power to grant him a protection visa. The documents, therefore, are not relevant to the question of whether the Tribunal’s decision is affected by jurisdictional error. They invite the Court to make findings of fact in relation to the grant of the visa. The affidavit was not read into evidence.

6. The Minister has filed written submissions. The applicant has not filed written submissions in these proceedings.

Background

1. The relevant background to this matter is set out in the Court Book.

2. The Minister’s written submissions set out, in summary form, the history of the applicant’s application for the protection visa, as before the Minister’s department and, subsequently, the Tribunal. They also contain a summary of the Tribunal’s reasoning for its decision. I am satisfied, having regard to the material in the Court Book, that they provide a reasonable summary of the background to this case. I adopt the relevant parts for the purposes of this judgment ([6] – [15] of the Minister’s written submissions - I note that “RD” is a reference to “CB”):

   “[6] The history of this matter leading up to the applicant’s

   
   

   non-appearance at the Tribunal needs to be considered in some detail.

   [7] The applicant was invited to attend an interview with the delegate when his protection visa claims were being considered (Relevant Documents (RD) 40) but did not attend. Therefore his claims were assessed on the basis of the claims contained in his protection visa application. The delegate identified a number of areas where questions would have been put to the applicant if he had attended an interview at RD 40-41.

   [8] The applicant sought review in the Tribunal after receiving his protection visa decision (RD 50). He did not supply any supporting documents or further information in relation to his claims despite the delegate indicating that there was a lack of detail in the applicant’s claims. He was invited to attend a hearing before the Tribunal on 20 January 2014 commencing at 2.00 p m. (RD 60). On 20 January 2014, approximately 1 hour before the hearing time, a fax was received by the Tribunal which contained a medical certificate relating to the applicant indicating that he had a “medical condition” and would be “unfit for work/study on 20/01/2014 inclusive” (RD 62).

   [9] A tribunal officer rang the applicant at approximately 2.10 pm. and spoke to the applicant. She confirmed that the medical certificate had been received and that the member had agreed to postpone the hearing to ‘next Tuesday at 11 a.m.’, this being 28 January 2014. He was further advised that a hearing invitation would be sent to his email address. He was further informed that, if the Tribunal did not agree to a further postponement and he did not attend the hearing, the Tribunal may make a decision without taking any further action. He was further advised that the Tribunal would only consider a further postponement of the hearing on receipt of a detailed medical certificate with clear and specific reasons as to why he cannot attend the hearing (see file note at RD 63).

   [10] Further telephone contact was made with the applicant approximately one hour later (RD 64). He was asked to confirm his postal address as the notice inviting him to a hearing would also be sent by post. He was also asked to provide details of the medical reason as to why he could not attend that day’s hearing.

   [11] The new invitation to hearing was issued by email on 20 January 2014 (RD 65). A letter was issued the same day addressed to the applicant’s postal address (RD 66).

   [12] The applicant did not attend the hearing at the designated time.

   [13] In the reasons for decision, the Tribunal noted the claims made by the applicant in his protection visa application, that the applicant had not attended the interview with the delegate and that the delegate had refused the application because she considered the claims to be general, vague and unsubstantiated (RD 75 at [5] - [7]).

   [14] The Tribunal further noted that the applicant had not responded to the invitation to attend a hearing, although enquiries with  Australia Post had indicated that the postal item had been delivered (RD 76) at [8] and [9]. The Tribunal further noted the communication  between the applicant and the Tribunal which occurred on the nominated hearing date (at [1O]) and that a further hearing invitation had been dispatched to the applicant, as well as noting that the applicant had been advised orally by a Tribunal officer of the new date and time for the hearing

   
   

   ([10]-[11]).

   [15] The Tribunal noted at [12] that the applicant did not attend the new hearing, nor did he contact the Tribunal about his failure to attend. The Tribunal was satisfied that the applicant was offered the opportunity to appear before the Tribunal and did not do so. He failed to contact the Tribunal and failed to provide any reason why he could not attend. In those circumstances, the Tribunal exercised the power under s 426A of the Migration Act (the Act) to proceed to make its decision without taking any further action to allow the applicant to appear before it.”

Application Before the Court

1. There is one numbered ground of the amended application, which is in narrative form:

   “1. The applicant claim that in making decision, the Refugee Review Tribunal acted without jurisdiction or excess of jurisdiction in that failed to take into account relevant consideration and took into account irrelevant consideration.

   Facts: Subparagraph of 36(2)(a) or (aa) of the migration Act 1958 requires the decision maker in respect of the applicants for a protection visa to make determination as to whether criteria for the grant of the visa arbitrary by the Act or the Regulation made there under regulation were satisfied.

   The RRT require to review the decision. RRT made their decision in the absences of applicant. RRT did not follow the rules of Migration Act. Applicant claim that the RRT made decision based on irrelevant facts and finding.

   Applicant claims that the Tribunal made jurisdictional error when it made decision on guess and probability. The tribunal finding of reason is confused and test for persecution was not applied according to the rule of the Act.

   Facts: The Department and Tribunal ignored the rule of procedural rightness and made decision without giving any consideration of danger of life .applicant say that local MP of congress party trying to kidnap him . And his first cousin was kidnapped and torture him broke his leg and arm but RRT nor Delegates believe him. The tribunal made jurisdictional error it did not follow Rule of Real Risk Test of persecution and harm.

   Applicant claim that RRT made his own opinion and limited information about possible harm.”

   [Errors in the original.]

2. What must be said, with respect to the applicant, is that it is not clear exactly what jurisdictional error, or errors, are being asserted in the ground.  Parts of the narrative are difficult to understand, in the context of seeking to derive some argument that the Tribunal fell into some relevant legal error.

3. However, what I understood from the applicant today, the essence of his complaint, was that the Tribunal erred (“was too quick”) in making its decision without allowing him a further opportunity to attend a hearing before it.

4. As stated above, the applicant was invited to attend a hearing before the Tribunal. That invitation complied with the relevant period of notice. On the day of the hearing he sent a medical certificate to the Tribunal (CB 62). The certificate, from a medical practitioner, dated 20 January 2014, which was the day of the hearing, said:

   “THIS IS TO CERTIFY THAT

   [The applicant] has a medical condition and will be unfit for work\study on 20/01/2014 inclusive.”

5. In a subsequent telephone conversation with the applicant on that day, initiated by an officer of the Tribunal, the applicant was advised that the Tribunal would postpone the hearing to the following week. Importantly, the applicant was told that he would receive a letter to that effect. He was told that he should return the “Response to Hearing Invitation” form, which had been enclosed with the first letter of invitation to hearing, and which had not been returned by the applicant (CB 60 to CB 61 and CB 63).

6. Relevantly, given the applicant’s complaint before the Court, he was put on notice that the Tribunal would only consider the further postponement of the already-postponed hearing, on receipt of a detailed medical certificate, which provided clear and specific reasons why the applicant was unable to attend and participate in the hearing.

7. There was a further conversation on the same day, again initiated by the Tribunal officer. The applicant is reported to have told the Tribunal officer that he was not able to attend on the first occasion because he had a “headache”, and that he had had a headache over the “past two days” (CB 64). There is no evidence of any further communication from the applicant. 

8. On the postponed hearing date, 28 January 2014, the applicant did not attend the hearing. No explanation or medical certificate was given to the Tribunal. The Tribunal proceeded to make its decision, pursuant to s.426A of the Act.

9. In that context, the first complaint that the applicant has put to the Court today by way of oral submissions, is that it was not appropriate for the Tribunal to “immediately” proceed to make its decision. He argued that he should have been given another opportunity to attend a hearing before the Tribunal. The applicant put to the Court that the Tribunal should have, again, rung him to be able to ascertain whether he had any difficulty in attending. Its failure to do so is the essence of the claimed “error” committed by the Tribunal. 

10. The applicant’s second complaint, which derives from what in part is said in the ground of the application, was that the Tribunal failed to make a proper assessment of his claims, as it is required to do under s.36(2) of the Act. Sections 36(2)(a) and (aa) of the Act, contain the two separate criteria relevant to the grant of a protection visa. I understood from the applicant, on his own explanation before the Court, that that complaint, again, derives from the central complaint that the Tribunal was “too quick” in proceeding to make its decision.

11. The applicant submitted that had the Tribunal given him the opportunity to come to a hearing, he would have been able to put a number of matters to the Tribunal to explain his “situation”. This would have enabled the Tribunal to have completed a “proper”, or more comprehensive, assessment of his claims as against the relevant criteria. 

Consideration

1. In essence, the complaint, as I understood it in the context of an assertion of legal error, was that the Tribunal acted unreasonably in proceeding in the exercise of its discretion, pursuant to s.426A of the Act. The assertion was that due to this, therefore, the Tribunal fell into legal error.

2. I cannot see that any such jurisdictional error arises in the circumstances of this case. The following also stands in answer to all the applicant’s complaints, as explained, and arising from what is otherwise stated in the application to the Court.

3. First, the ground of the application, and as explained before the Court, complains that there was a disbelief of the applicant’s claims by the delegate. This Court has no jurisdiction to review the delegate’s decision. With reference to s.474 of the Act, the delegate’s decision is a “primary decision”. This Court has no jurisdiction to review such decisions. I note that not only was the delegate’s decision reviewable by the Tribunal, it was, in fact, the subject of such a review under Part 7 of the Act.

4. Second, the Tribunal did invite the applicant to a hearing, pursuant to s.425 of the Act. I am satisfied, on the evidence, that that invitation was sent by registered post and dated 6 December 2013, and that the hearing was scheduled to take place on 20 January 2014 at 2pm. I am further satisfied, on the evidence, that that invitation complied with all of the relevant statutory and regulatory requirements as to the content of the letter, its mode of sending, transmission, and the giving of a reasonable period of notice. (s.425, s.425A, s.441A, s.441C of the Act and reg.4.35D of the Migration Regulations1994 (Cth)).

5. The letter of invitation asked the applicant to complete and return an enclosed “Response to Hearing Invitation” form (CB 60 to CB 61). The applicant did not do so. Further, the letter made clear that if the applicant failed to attend the hearing, or did not seek any adjournment, the Tribunal may proceed to make a decision on what was before it. The applicant does not dispute that he received that letter. Therefore, as at the date of receipt of that letter, the applicant would have been on notice that failure to attend at a Tribunal hearing may mean that the Tribunal could proceed to make a decision in the absence of the applicant and without further action to enable him to attend. That is, the letter contained a statement as to the effect of s.426A of the Act.

6. Third, it appears the applicant understood this, because about 50 minutes before the time for the hearing, on 20 January 2014, the Tribunal received a copy of a medical certificate sent by facsimile transmission (CB 62). The applicant explained to the Court today that that was the only document that was sent.  There was no covering letter or further explanation. However, it is reasonable to infer that the applicant was seeking to explain his inability to attend the hearing at that time. There is evidence that, subsequently, that is how the Tribunal understood it. That is, implicit in the sending of that medical certificate, he was seeking some postponement, although, there was no express request from the applicant to that effect. 

7. Nonetheless, the Tribunal, it appears, proceeded on that basis. As I said earlier, it is important to note the written terms of the medical certificate.  They are that the applicant had a “medical condition”, and would not be fit for “work or study” on 20 January inclusive. Importantly, no other dates, or no other unfitness for any purpose, in relation to any time beyond that date, was put in the letter. There was no explanation of what that medical condition may, or may not, be.  Importantly, there was no indication that the unfitness prevented the applicant from attending the Tribunal hearing, or that it was likely to continue beyond that one day.

8. It must be said that, in my view, given the terms of the certificate, the unexplained context in which the certificate was sent to the Tribunal, and given the clear notice given by the Tribunal as to the possible consequence of not attending, it would have been open to the Tribunal on that day to have proceeded to make a decision, pursuant to s.426A of the Act, without taking any further action to enable the applicant to attend a hearing.

9. However, the Tribunal did take such further action. A Tribunal officer rang the applicant (CB 63). The evidence before the Court is contained in a “file note” of that conversation. The applicant has provided no evidence to dispute what was said, and it appears he does not complain about what is reported about that conversation. The applicant was told that the hearing was postponed until the following week, that is, until 11am on 28 January 2014, and told that if he did not attend, the Tribunal may proceed to make its decision at that time.

10. The applicant was told that any further request for a postponement would require a detailed medical certificate in support.  I cannot see, in the circumstances, that that was an unreasonable request to make of the applicant, given the terms of the earlier medical certificate, and importantly, that it was a certificate that said nothing about the applicant’s capacity to appear at a hearing before the Tribunal. 

11. It is of relevance to the subsequent exercise of the Tribunal’s discretion, pursuant to s.426A of the Act, to note that the refusal to exercise the discretion on a second occasion was done in circumstances where it had notified the applicant of the possibility of a yet further postponement of the hearing on production of an appropriate medical certificate.

1. There was, subsequently, a second conversation, again initiated by the Tribunal, for the purpose of confirming details of his personal address (CB 64). Another letter, confirming the conversation, was sent to him at that address.

2. Given the applicant’s complaint to the Court today, there is nothing in any of these telephone calls, nor is there any other evidence of any other communication to the Tribunal from the applicant, putting the Tribunal on notice that the applicant had any ongoing medical condition. Before the Court today, the applicant said that he had “mental health” difficulties, but there is no evidence that any such assertion was made to the Tribunal, either in writing or orally.

3. While the postponement of the hearing did not provide a further period of notice, consistent with the regulatory period of notice relating to hearing invitations, I note that the Tribunal had already complied with the relevant statutory and regulatory period of notice that it was required to provide to the applicant in inviting him to a hearing on the first occasion. 

4. In those circumstances, and given that the postponement was given at the applicant’s request, and for the applicant’s convenience, the Tribunal is not required to provide, on the second occasion, the relevant notice period for the postponed hearing (Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358; (2011) 199 FCR 51 at [27] per Flick J; Minister for Immigration & Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152; (2006) 154 FCR 572 at [79] and [82] per Spender, French and Cowdroy JJ and SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026; (2005) 144 FCR 251 at [29] per Conti J).

5. The applicant has not provided any evidence to the Court, or made any assertion to the Court, that he did not know of the postponed date of the hearing. There is nothing in the evidence before the Court, to say, that he sought any further postponement from the Tribunal. This was confirmed by the applicant today.

6. In all the circumstances, I cannot see that the Tribunal’s exercise of its discretion to proceed pursuant to s.426A of the Act was arbitrary, capricious or unreasonable. The Tribunal’s explanation as to why it exercised its discretion to proceed is as set out at [12] (at CB 76) of its decision record. The obligation on the Tribunal, in the exercise of any statutory discretion to act reasonably, and to provide an “evident and intelligible justification” for proceeding in the way that it did is set out in that paragraph (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280).

7. The Tribunal reasoned that the applicant did not appear before it on the date that he had been scheduled to appear (the second date provided, 28 January 2014).  He did not contact the Tribunal about a failure to attend and there was no person authorised to act on his behalf. The Tribunal was satisfied that the invitation had been sent to the “correct” address. It was satisfied that the applicant was offered the opportunity to appear, and he did not do so.  Further, that he had failed to contact the Tribunal to seek a further postponement of the hearing, or to provide any reason why he could not attend. This was in circumstances where he had previously done so, and was on specific notice of what was required if he wanted any further adjournment. In these circumstances, the Tribunal decided to proceed to make its decision. I cannot see that the Tribunal acted unreasonably in that regard.

8. Before the Court today, the applicant ultimately explained his specific complaint as being that, notwithstanding what is set out above, the Tribunal should have contacted him on the day of the second, postponed, hearing.

9. At an earlier Court event, I noted that the applicant was legally unrepresented, and I raised with the Minister, at that time, whether in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 per Mortimer J (“Kaur”), which had just been handed down at that time, may be of assistance to the applicant in this case. I note that the Minister’s submissions set out a response to that question posed by the Court, which was in the following terms (see [18] – [23] of the Minister’s submissions):

   “[18] The first respondent submits that this matter does not raise any of the issues of concern identified by Mortimer J in Kaur v Minister for Immigration and Border Protection and anor 1 (Kaur) which led her Honour to find that the discretion exercised by that Tribunal to proceed in the absence of the applicant and without taking any further action to allow the applicant to appear was legally unreasonable. Furthermore, as opposed to the finding in Kaur, the Tribunal here could not be said to have denied the applicant a reasonable opportunity to present his case and/or breached the requirements of s 360 of the Act.

   [19] In Kaur, her Honour recounted in great detail the various interactions that the applicant had with the Tribunal, including appearing at a hearing. Her Honour also noted that the Tribunal and the applicant had communicated with each other by telephone, email and fax, yet when the second hearing invitation issued it was only sent by registered post and the notice was returned to the Tribunal prior to the hearing date. This led her Honour to conclude ‘that the tribunal ought to have realised the failure to file a response to the hearing invitation, and the non-appearance at the second hearing, were out of character, and departed from the pattern of conduct for the first appellant in terms of her attitude to this review.’

   [20] In contrast to the applicant in Kaur, the applicant in the present case failed to attend the interview before the delegate, did not provide any further information to the Tribunal despite being on notice that the delegate had found his claims to be generalised and vague and identified a number of areas where questions would have been put to him, was put on notice by a tribunal officer orally of the new hearing date, as well as having it sent to him by email and post, but failed to attend the second hearing which had been rescheduled at his request. Furthermore, the applicant demonstrated that he was aware what was required if, for some reason, he was not able to attend on the rescheduled hearing date. In such circumstances, it is submitted that there is no error in the way in which the Tribunal exercised its discretion to proceed in the applicant's absence without taking further action.

   [21] Further, it should be noted that in Kaur, Mortimer J recognised that there was no freestanding obligation on the Tribunal, in every case where there has been a failure to respond to a hearing invitation and a failure to appear at a scheduled hearing, to discover if there is some other way of communicating with the applicant, should he or she fail to attend a hearing.

   [22] It is submitted that the facts of this case are more aligned with the facts in SZTHQ and anor v Minister for Immigration and Border Protection and anor.  Indeed the facts in this case are, it is submitted, even stronger when assessing whether the Tribunal has acted reasonably. In that case, the applicants did not attend the interview before the delegate and did not attend the hearing. The Court held that there was nothing in the facts to demonstrate that the Tribunal had acted in a legally unreasonable way, in circumstances where a hearing invitation had issued approximately one month prior to the hearing but the applicants did not pick it up from the post office and the uncollected mail had been returned to the Tribunal prior to the decision being handed down.

   [23] Therefore, it is submitted that no error is disclosed in the way in which the Tribunal proceeded to determine the case in the absence of the applicant.”

10. I have considered those submissions and I agree with them, and note, in particular, that the circumstances before the Court in Kaur have a number of marked differences between those in the current case. In particular, in this case, there were in fact two telephone communications with the applicant. It is not as if the Tribunal did nothing in relation to the applicant’s inability to attend. On the first occasion it in fact contacted the applicant and proceeded to provide a postponed hearing date.

11. However, there is a further distinct difference between the circumstances in Kaur and the current circumstances. It is clear that in Kaur, as I respectfully understand it, an important part of the Court’s reasoning was that the applicant, in that case, had actively engaged in the process of the application for the visa and the review. In the current case, as the Minister submitted, the applicant did not engage in, nor demonstrate a level of engagement in, the process of the application for the visa, and the review, such as is comparable with the circumstances in Kaur. For example, I note that the applicant did not appear before the delegate at an interview (CB 40). 

12. Also in this case, there is sufficient to say that the applicant understood the relevant process. Clearly, the sending of the medical certificate was in recognition of the fact that he understood that if he did not attend the hearing he was required to provide some explanation, or, at least, to make some communication to the Tribunal to seek to explain his inability, or difficulty, in attending the postponed hearing date.

13. The applicant, in this case, took that opportunity on the first occasion, but did not take it on the second occasion. I cannot see that the Tribunal was obliged, in the circumstances, to again ring the applicant.  Noting that there was nothing from the applicant to indicate that he had any continuing difficulty in attending on the second occasion. 

14. I further note the Minister’s reference in his submissions to SZTHQ vMinister for Immigration and Border Protection [2014] FCA 1231. In that case, where an applicant did not attend an interview before the delegate, and did not attend the hearing before the Tribunal, the Court held that there was nothing in the facts to demonstrate the Tribunal had acted in a “legally unreasonable” way, in circumstances where a hearing invitation had being issued one month prior to the hearing.

15. It is of note that in that case, the applicants did not collect the invitation to hearing letter from the post office, and the “uncollected mail” had been returned to the Tribunal. In this case, the evidence is, and as confirmed by the applicant, that the applicant received the letter of invitation. It plainly put him on notice of the expectation of his taking some action to either seek an adjournment, or putting the Tribunal on notice of difficulties in attending.

16. There is no legal error in how the Tribunal proceeded in all the circumstances above.

17. In relation to the applicant’s second complaint (see [19] above), the Tribunal did give reasons as to why it could not reach the requisite level of satisfaction that the applicant met either of the criteria set out at s.36(2) of the Act such that, in conformity with s.65 of the Act, the protection visa must be granted to the applicant. This is not a case where the Tribunal simply said that the applicant did not attend, and, therefore proceeded to affirm the delegate’s decision on that basis alone.

18. The Tribunal’s decision record shows that the Tribunal did engage with the claims and the material before it. That is, it considered these claims, as they had been put by the applicant, in support of his application for the visa. In short, the Tribunal did not just express a conclusion without revealing its consideration, and the reasons for that conclusion. Again, it must be emphasised that the applicant did not attend an interview before the delegate, and the Tribunal, therefore, was left with the various handwritten, and general, responses to questions that the applicant had made in the application form for the visa.

19. As a result of the delegate’s decision (CB 34 to CB 47), the applicant would have been on reasonable notice that his claims, as presented, lacked substance. Further, the delegate stated that the applicant that he would have been asked a long series of questions in an effort to provide that substance (CB 40 to CB 41). On a plain reading of the delegate’s decision record, the delegate was concerned that while in Australia the applicant had returned to India, his home country, several times during the period when he said he feared harm in India. Further, that the applicant had remained in Australia for over five and a half years during this period, without applying for a protection visa. Plainly, the applicant would have been on notice at the time of making his application to the Tribunal that these were possible “live” issues in the review adverse to him, and that he may need to address them at the Tribunal hearing.

20. The applicant provided nothing further to the Tribunal in his application for review.  There were no written materials or written submissions provided by the applicant to address those “deficiencies” in his case, identified by the delegate. I note that the applicant did have a copy of the delegate’s decision record because, on the best evidence available, the applicant attached a copy of the delegate’s decision record in the making of his application for review to the Tribunal (see CB 53).

21. In any event, the Tribunal reasoned, on what was before it, that the claims, as stated, lacked detail in significant aspects, and that particular allegations made by the applicant lacked substance and explanation.  The Tribunal found that without further evidence from the applicant, it was left with insufficient evidence such as to reach the requisite level of satisfaction.  The applicant’s complaint put before the Court, and derived from part of his ground of the amended application, that the Tribunal should have, in effect, accepted his claims, is merely a challenge to the findings made by the Tribunal as to the nature and character of his claims as presented, and a complaint as to the Tribunal’s inability to be satisfied that the claims as against either of the criteria for the grant of the protection visa.

22. No legal error is revealed.  The Tribunal explained why it could not reach that requisite level of satisfaction.  It gave reasons for its inability to do so. I cannot see that any legal error arises here. 

Conclusion

1. In all, therefore, there is no jurisdictional error in the Tribunal’s decision record.  The application to the Court should be dismissed. I will make the appropriate order today.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  24 March 2015