SZVLY v Minister for Immigration - [2016] FCCA 539

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVLY v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 539

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal properly exercised its discretion under s.426A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424, 424A, 424AA, 425, 426A, 474, 477
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439
Kaur v Minister for Immigration and border Protection & Anor [2014] FCA 915
Minister for Immigration and Citizenship v Li [2013] HCA 18

Applicant:

SZVLY

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3124 of 2014

Judgment of:

Judge Emmett

Hearing date:

14 March 2016

Date of Last Submission:

14 March 2016

Delivered at:

Sydney

Delivered on:

14 March 2016

REPRESENTATION

The applicant appeared in person with the assistance of a Punjabi interpreter.

Counsel for the Respondents:

Mr Martin Smith

Solicitors for the Respondents:

Sparke Helmore Lawyers

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3124 of 2014

SZVLY

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 1 October 2014 and handed down on 2 October 2014 (“the RRT”).
The applicant claims to be a citizen of India and of Sikh faith, who fears harm from his wife’s family and Hindu extremist groups by reason of his marriage to a woman from a different religion and caste.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

The applicant arrived in Australia on 23 January 2009 having departed legally from India on a passport issued in his own name and as the holder of a student visa.
On 7 November 2013, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 24 February 2014, the Delegate refused the applicant’s application for a protection visa.
On 26 March 2014, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 2 October 2014, the RRT affirmed the decision of the Delegate not to grant a protection visa.
On 11 November 2014, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) 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.”
Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

The applicant provided a statement in support of his protection visa application in which he stated:
a)He was born in to a conservative Sikh family.
b)On 14 October 2007, he married a Hindu woman from a higher caste than his own family, and without the consent of the woman’s family.
c)His wife’s family attacked the Gurdwara where their marriage took place. Hindu extremist groups also threatened his family and searched for him.
d)They moved to Australia for their safety. After several years in Australia, their marriage broke down.
e)His wife accused him of attempting to convert her to Sikhism and threatened to tell her parents that the applicant was abusive towards her.
f)If he goes back to India, the Hindu extremist groups will hang him in from of Sikh people to frighten them away from attempting to convert Hindu girls to Sikhism.

The Delegate’s decision

On 18 February 2014, the applicant attended an interview with the Delegate.
The Delegate had significant concerns about the veracity of the applicant’s claims. In reaching this finding, the Delegate noted that the applicant’s oral evidence at the interview was inconsistent with the claims he made in his protection visa application. The Delegate further found that the applicant was unable to satisfactorily explain the contradictory evidence he presented to the Department.
The Delegate noted that the applicant delayed leaving India for approximately fifteen months after his passport had been issued in March 2007 and that he returned to India in January 2012 for a period of approximately two months. Additionally, the Delegate noted that there was a lengthy delay between when the applicant arrived in Australia in January 2007 and him applying for his protection visa in November 2013. The Delegate found that such conduct was inconsistent with the actions of a person who harboured a genuine fear of persecution.
Further, the Delegate found that it would be reasonable for the applicant to relocate within India if he still felt unsafe. Having regard to country information, the Delegate also found that the applicant could seek state protection in India if he felt threatened in any way.
On 24 February 2014, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The RRT’s review and decision

On 26 March 2014, the applicant lodged an application for review of the Delegate’s decision by the RRT.
The applicant provided no further documents in support of his review application.
On 18 August 2014, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 30 September 2014 to give oral evidence and present arguments.
The applicant did not attend that hearing and did not give oral evidence.
The RRT proceeded to make a decision on the review purportedly pursuant to s.426A of the Act.
The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The RRT found that the applicant’s claims were “unsubstantiated from external sources” and “notably vague as to most details”. In reaching this finding, the RRT noted that the applicant did not identify his wife’s caste; did not explain the connection, if any, between his wife’s caste and religion and his own caste and religion; and did not explain how Hindu extremist groups were able to be mobilised by his wife’s family.
The RRT also noted that applicant had not explained why he was unable to avail himself of state protection in Punjab, a State where Sikhs form the majority, or whether he had had in fact sought State protection.
Further, the RRT noted that the applicant was able to live in India without experiencing any harm for more than twelve months before leaving for Australia, and that he did not provide a “cogent explanation for the delay of nearly five years” between arriving in Australia and lodging his protection visa application.
Additionally, whilst the RRT accepted that the applicant was married in India in 2007 and was now separated, the RRT found that the information available to it “did not provide a sufficient basis to be satisfied that he ever suffered serious threats or harm of any kind as a result of his marriage”.
Having considered the applicant’s claims, the RRT found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to India and that the applicant did not have a well-founded fear of persecution in India. Accordingly, the RRT found that the applicant was not a person to whom Australia owed protection obligations.
The RRT also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The RRT found that there was no credible evidence before it that the applicant would be harmed by his wife’s family or Hindu extremist groups in India. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, India, there is a real risk that the applicant would suffer significant harm.
Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

The applicant was unrepresented before this Court, although had the assistance of a Punjabi interpreter.
On 5 March 2015, the applicant attended a directions hearing before a Registrar of the Court. On that occasion, the matter was set down for a hearing on the applicant’s application for an extension of time to seek judicial review of the RRT’s decision pursuant to s.477 of the Act.
On 27 March 2015, the applicant attended the hearing of his application for an extension of time to seek judicial review of the RRT’s decision. By consent, time was extended to the applicant to file an application seeking judicial review of the RRT’s decision.
The matter was set down for final hearing today. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.
On 27 May 2015, the applicant filed an Amended Application.
At the commencement of today’s hearing, the applicant confirmed that he relied on the grounds contained in his Amended Application, as follows:
“1. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
2. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India (page 5 RRT decision, third paragraph). The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
3. The Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act 1958.
Particulars:
The Tribunal construed (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his return in India. The Tribunal failed to take in to account the following points that fulfil the applicant fears to be well founded.
(i) The Tribunal stated that the applicant belongs t a reason which is predominantly of 'Sikh' religion but failed to take into account that he belongs to a country which is predominantly of Hindu religion, and the VHP is Hindu extremists group, members of which have extended threats to the applicant and his family;
(ii) Inter-state mobility of such groups is usually not an issue when it comes to inter-religious marriages which have caused national-wide outrage in the past and have been showcased in various forms by both Indian and International media;
(iii) As such the Tribunal highlights the existence of majority of a state to provide refuge to the applicant but fails to take into account the existence of power of extremists groups and associations that may affect such refuge.
The Tribunal has misinterpreted the Applicant's claim that his wife and family were trying to convert his Hinduism and stated that this claim was inconsistent with the claim in his protection visa application that his wife had accused him of wishing to convert her to Sikhism. The Tribunal will appears to have misunderstood that it was the Applicant's wife's family who was pressurising him to convert. His wife was in fact fabricating a story that he was trying to convert her when in fact, he had expressed no such wish to his wife.
4. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
5. The applicant satisfy the key elements of the Convention definition as detailed in the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.”
(Errors in original.)
Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished to say in support of each of the grounds and in support of the application generally.

Applicant’s application for adjournment

Following my exploration of all the grounds of review with the applicant, the applicant indicated that he wished to have an opportunity to seek legal advice in respect of his visa status because he now has a newborn baby in Australia.
However, the applicant confirmed that he did not have any appointment with a lawyer, nor did he have the name of any lawyer that he wished to contact.
To the extent that the applicant was making an application for an adjournment, it was opposed by the first respondent on the basis that the applicant has had ample opportunity to seek legal advice. In any event, the first respondent submitted that the reason identified by the applicant for seeking legal advice, namely his visa status following the birth of his baby, is unrelated to the matter presently before the Court.
In my view, the applicant has had significant time and opportunity to obtain proper legal advice. I note that the applicant’s application for an extension of time to seek judicial review of the RRT’s decision was filed on 11 November 2014, which is almost one and a half years ago. I also note that at the directions hearing on 5 March 2015, the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
In circumstances where the applicant had taken no steps to seek legal advice, and in light of the fact that the reason for the applicant to seek legal advice was unrelated to the proceeding before this Court, the applicant’s application for an adjournment was refused.
I will now turn to the grounds contained in the applicant’s Amended Application.

Ground 1

Ground 1 is an assertion that the RRT failed to comply with s.424A of the Act.
As the applicant confirmed that he had not written the grounds of his application, I explained to the applicant what the meaning of s.424A of the Act was. I then invited the applicant to tell the Court the particular information that should have been given to him by the RRT for comment in accordance with s.424A of the Act.

In response, the applicant merely asserted that he had never received any invitation to the RRT hearing. The applicant did not identify any information which might have enlivened any obligation under s.424A of the Act, and none is apparent on the face of the RRT’s decision record.
Accordingly, Ground 1 is not made out.

Ground 2

Ground 2 asserts that the RRT failed to make a finding as to whether the applicant would suffer serious harm if he were to relocate in India.
However, that ground for judicial review is not supported by any particulars or written or oral submissions.
In any event, it was not necessary for the RRT to consider relocation where it has found that the applicant does not have a well-founded fear of persecution at all (Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261 at [13] per Whitlam, Lehane and Gyles JJ) and, as long as that finding was open to the RRT. For the reasons referred to Ground 3 below, the RRT’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, Ground 2 is not made out.

Ground 3

Ground 3 is an assertion that the RRT misconstrued the risk of fear and significant harm to the applicant. Particulars in support of that ground assert that the RRT failed to take into account certain points that the applicant wished to rely upon in support of his assertion to have a well-founded fear in India.
However, this is a matter where the applicant failed to attend the hearing before the RRT on 30 September 2014. The RRT exercised its discretion under s.426A of the Act to proceed to make its decision on the review without taking any further action to enable the applicant to appear before it.
The RRT considered the applicant’s written claims in support of his protection visa application and considered the information provided to the Delegate in determining whether the applicant met the criteria for protection under ss.36(2)(a) and 36(2)(aa) of the Act. Those sections make clear that it is for the applicant to satisfy the RRT, being the relevant decision-maker in this case, that he meets the criteria for being a refugee. If the RRT is not so satisfied, then pursuant to s.65(1) of the Act, the applicant must be refused a protection visa.
For whatever reason, the applicant did not attend the RRT hearing. The RRT stated in its decision record that it would have used the hearing as an opportunity to ask the applicant about matters in respect of which it had various concerns, but that it was not possible to do so because the applicant did not attend the hearing.
To the extent that the particulars in Ground 3 assert that there may have been some interpretation errors by the RRT of the applicant’s evidence, the applicant has twice been directed by the Court to file and serve by way of affidavit any evidence upon which he relies. As stated above, no further evidence was filed by the applicant. Otherwise, there is no evidence before the Court to suggest that there were interpretation errors. Further, there is no suggestion of any such error in the RRT’s decision record.
In the circumstances, the Court is entitled to, and does accept, the RRT’s summary in its decision record of the claims that it was considering (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

Ground 4

Ground 4 is an assertion that the RRT did not have jurisdiction because “its ‘reasonable satisfaction’ was not arrived at in accordance with the requirements of the Act”.
That ground is not supported by any particulars or written or oral submissions.
In the circumstances, Ground 4 is no more than a bare assertion that does not disclose any error capable of review by this Court.

Ground 5

Ground 5 asserts that the RRT had not considered key elements of the Convention.
That ground is not supported by any particulars or oral or written submissions.
Accordingly, Ground 5 is no more than a bare assertion that does not disclose an error capable of review by this Court.
In the circumstances, none of the grounds of the applicant’s Amended Application are made out.

RRT’s discretion under s.426A of the Act

Consistent with its obligations as a model litigant, the first respondent appropriately raised the issue of whether the RRT had exercised its discretion in accordance with s.426A of the Act by proceeding to make its determination without taking any further opportunity to allow the applicant to appear before it.
At the time of the RRT decision, s.426A of the Act relevantly stated:
“Failure of applicant to appear before Tribunal
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.”
In order to ascertain whether the RRT properly exercised its discretion under s.426A of the Act, two issues need to be considered.
First, if the RRT provided reasons for its exercise of discretion pursuant to s.426A of the Act, then the Court is only concerned with whether or not the exercise of discretion by the RRT was reasonable for the reasons it gave (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (“Singh”) at [45] per the Full Court of the Federal Court of Australia).
However, if the RRT is found not to have provided reasons for the exercise of its discretion under s.426A of the Act, the Court should, as the Full Court of the Federal Court of Australia stated at [45] in Singh:
“focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law…”
In written submissions, counsel for the first respondent submitted that in the present case, the RRT did not provide any reasons as to why it made a decision on the review without taking any further action to allow the applicant to appear before it.
However, in my view, the RRT did provide reasons for the exercise of its discretion in paragraphs [7] – [10] of its decision record, as follows:
“7. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision.
8. On 18 August 2014, the Tribunal wrote to the Applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing on 30 September 2014. He was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.
9. On 25 September 2014 the Tribunal checked to see whether a response had been received but not attached to the file. The Tribunal also checked that the invitation had been sent to the Applicant's most recent address for correspondence.
10. No response was received to the invitation letter and the letter was not returned unclaimed. The Applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, I have decided to make a decision on the review without taking any further action to enable the Applicant to appear before [the Tribunal].”
The first respondent tendered a bundle of documents identified as the ‘Court Book’, filed on 24 March 2015, which was marked Exhibit 1R. Exhibit 1R makes clear that the applicant lodged his application for review by the RRT on 25 March 2014 and provided ‘10 Cross Road, Doonside, NSW 2767’ as his address for correspondence.
Exhibit 1R makes clear that on 31 March 2014, the RRT wrote to the applicant at the identified address, acknowledging his application and inviting him to provide any further material or written arguments that he wished the RRT to consider. The letter also made clear to the applicant that it was important to notify the RRT of any changes to his contact details immediately upon such a change.
Exhibit 1R shows that on 18 August 2014, the RRT wrote to the applicant at the identified address, informing him that the RRT has considered the material before it, but was unable to make a favourable decision on that material alone. That letter invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case, and identified the date, time and location of the hearing. The letter also informed the applicant that he should advise the RRT as soon as possible if he was unable to attend the scheduled hearing, and further, that if he not did not attend the scheduled hearing, the RRT may make a decision without taking any further action to allow or enable him to appear before it. Again, the applicant was invited to send any additional information that he wished the RRT to consider.
There is nothing in Exhibit 1R to suggest that there was any further document sent by the applicant to the RRT following the lodging of his review application. The applicant did not suggest otherwise. Further, Exhibit 1R does not disclose any document or information provided by the applicant to the RRT to notify it of any change to his contact details.
The paragraphs extracted from the RRT’s decision record above disclose that, on 25 September 2014, the RRT checked to see whether a response had been received to its letter dated 18 August 2014 inviting the applicant to appear at a hearing. The RRT noted that it checked that the letter had been sent to the applicant’s most recent address for correspondence. The RRT also noted that there was no response received to that letter, and further, that the letter was not returned unclaimed.
The first respondent also read the affidavit of Hailey Musgrove, affirmed 3 February 2016. That affidavit annexed a postal record of the RRT’s letter dated 18 August 2014 inviting the applicant to attend a hearing before it.
In the circumstances, on the evidence before me, I am satisfied that the RRT’s letter dated 18 August 2014 was sent to the applicant in accordance with ss.424 and 425 of the Act.
Having complied with one of the methods of giving the invitation to the applicant, the RRT was under no further obligation to take further steps to discover if there might be some other way of communicating with the applicant (Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39] per French, Spender and Cowdroy JJ; Kaur v Minister for Immigration and border Protection & Anor [2014] FCA 915 at [133] per Mortimer J).
Further, the RRT’s decision to proceed in the applicant’s absence was not unreasonable in the sense referred to in Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”). Unlike the applicant in Li, the applicant in the present case did not at any stage engage with the RRT’s review process. The applicant did not provide any further material in response to either of the two invitations made by the RRT to send further material. Nor is there any evidence to suggest that the applicant attempted to contact the RRT to seek an adjournment of the hearing. Indeed, as Gageler J remarked in Li at [113], a judicial finding of unreasonableness should be made with great caution unless there are extraordinary circumstances that warrant such a finding.
In the event that paragraphs [7] – [10] of the RRT’s decision record extracted above do not constitute reasons for the exercise of its power under s.426A of the Act, I am satisfied that, in light of the applicant’s conduct as referred to above, the RRT’s exercise of its discretion did not lack an intelligible justification in the sense referred to by Hayne, Keifel and Bell JJ in Li at [76].
Accordingly, I am satisfied that the RRT’s exercise of its power under s.426A of the Act was both reasonable and without error.

Conclusion

A fair reading of the RRT’s decision record makes clear that the RRT made findings based on the available evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave.
In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 24 March 2016