SZVRP v Minister for Immigration

[2016] FCCA 1452

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVRP v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1452

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in exercising its discretion to proceed on the review pursuant to s.426A of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal denied procedural fairness to the applicant by making adverse findings – whether the Administrative Appeals Tribunal misconstrued the complementary protection criterion and thereby denied the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 36, 65, 411, 422B, 425, 425A, 426A, 474, 494B
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
SZUYK v Minister for Immigration and Border Protection [2016] FCA 216

Applicant: SZVRP

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3232 of 2014

Judgment of: Judge Emmett

Hearing date: 15 June 2016

Date of Last Submission: 15 June 2016

Delivered at: Sydney

Delivered on: 15 June 2016

REPRESENTATION

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

Solicitor for the Respondents: Ms Chloe Hillary
(DLA Piper Australia)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3232 of 2014

SZVRP

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. 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 23 October 2014 and handed down on 24 October 2014 (“the Tribunal”).

2. The applicant claims to be a citizen of the Tonga who fears harm from her family, her relatives and the royal family in Tonga.

3. 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 Tribunal’s review and decision.

Background

1. On 21 December 2010, the applicant arrived in Australia on a tourist visa issued on 17 December 2010.

2. On 17 March 2011, the applicant returned to Tonga.

3. On 12 May 2011, the applicant re-entered Australia on a tourist visa.

4. On 12 August 2013, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

5. On 11 February 2014, the Delegate refused the applicant’s application for a protection visa.

6. On 21 February 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

7. On 24 October 2014, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

8. On 20 November 2014, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. 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).

2. 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.

3. 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 s.425, which provides that:

   “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.”

4. Relevantly, s.494B of the Act specifies the manner in which the second respondent may give a document to the applicant as follows:

   “494B Methods by which Minister gives documents to a person

   Coverage of section

   (1) For the purposes of provisions of this Act or the regulations that:

   (a) require or permit the Minister to give a document to a person (the recipient ); and

   (b) state that the Minister must do so by one of the methods specified in this section;

   the methods are as follows.

   …

   Dispatch by prepaid post or by other prepaid means

   (4) Another method consists of the Minister dating the document, and then dispatching it:

   (a) within 3 working days (in the place of dispatch) of the date of the document; and

   (b) by prepaid post or by other prepaid means; and

   (c) to:

   (i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or

   (ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or

   (iii) if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.”

5. Section 426A of the Act specifies the power of the Tribunal in circumstances where an applicant fails to appear at the scheduled Tribunal hearing. Section 426A of the Act is as follows:

   “426A  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.”

6. 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.

7. 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

1. The applicant provided a statement in support of her protection visa application in which she stated:

   a)She fears returning to Tonga because she will be forced into an arranged marriage with an old man who she does not love.

   b)She has refused to marry that man once. If she refuses again, she will be tortured, beaten, threatened and persecuted.

   c)The Tongan government will not protect her because the old man is related to the royal family.

The Delegate’s decision

1. On 7 February 2014, the applicant attended an interview with the Delegate.

2. The Delegate found that the applicant was not a credible witness. In particular, the Delegate noted that the applicant had attempted to conceal from the Department five return journeys between Tonga and New Zealand in 2005, 2006, 2007, 2008 and 2010. Additionally, the Delegate found that the applicant was unable to provide any detail in relation to the person that she claimed her family would force her to marry, other than his name. After considering the applicant’s claims and evidence, the Delegate found that the applicant had not provided a credible account of her circumstances.

3. On 11 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 Tribunal’s review and decision

1. On 21 February 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The applicant provided no further documents in support of her review application.

3. On 21 May 2014, the Tribunal wrote to the applicant informing her that the Tribunal 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 29 July 2014 to give oral evidence and present arguments. That hearing was subsequently adjourned twice to 15 October 2014.

4. On 14 October 2014, the applicant informed the Tribunal that she would not be attending the Tribunal hearing as she needed to see a doctor. The Tribunal informed her that she was required to provide a medical certificate to the Tribunal as soon as possible. The applicant did not attend the Tribunal hearing on 15 October 2014 and no medical certificate was provided to the Tribunal either before or after the scheduled hearing.

5. Accordingly, pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. The Tribunal noted that it had significant problems with the applicant's claims because they were not sufficiently detailed and substantiated.

7. The Tribunal noted that if the applicant had attended the hearing before it, the Tribunal would have explored its concerns about the applicant's claims with her in detail.

8. The Tribunal noted that based on the information before it, it could not be satisfied that the applicant was forced into several arranged marriages, that the applicant faced any difficulties in Tonga because she refused to marry these men, that any threats were made against her, that the government would not provide her with protection, and that she would be harmed if she returned to Tonga.

9. Having considered the applicant’s claims, the Tribunal found 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 Tribunal affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, though had the assistance of a Tongan interpreter. 

2. On 12 March 2015, the applicant attended a directions hearing before a Registrar of the Court. 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, as well as submissions in support.

3. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such an error. 

4. The applicant confirmed that she has not filed any Amended Application, evidence or submissions in support of her application and that she has no further documents to present to the Court this morning in support of her application.

5. The applicant confirmed that she relied on the grounds contained in her initiating application, filed on 20 November 2014, as follows:

   “1. The tribunal committed jurisdictional error when it made its decision on 23 October 2014 giving the fact that the tribunal denied me procedural fairness by its failure to adjourn the hearing until I had given birth to my daughter giving the fact that I was having very severe problems with my pregnancy and my health and the fact I gave birth to my daughter on 11 November 2014 more than 2 weeks earlier from my original date of delivery.

   2. In the making of the decision on 23 October 2014, the Refugee Review Tribunal committed jurisdictional error by its failure to accord me procedural fairness for failing to consider and treat the best interests of my daughter and child as a primary consideration in accordance with Article 1 of the United Nations Convention on the Rights of the Child.

   Particulars

   Article 3 provides as follows:

   “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

   3. The Refugee Review Tribunal denied me procedural fairness and fell into jurisdictional error in that it made adverse findings without any evidential support. The Refugee Review Tribunal's decision is an arbitrary and a capricious exercise of power in breach of the duty to act judicially and that constitutes jurisdictional error of law.

   4. The Tribunal misconstrued the complementary protection legislation and misinterpreted section 36(2A) aa of the Migration Act 1958. This is a denial of procedural fairness and a denial of natural justice.”

   (Errors in original).

6. Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever she wished in support of each of the grounds. The applicant had nothing to say in support of any of the grounds, save for Ground 2, where she asked the Court to reconsider the claim of her child. At the conclusion of the grounds being interpreted for the applicant, I asked the applicant if there was anything further she wished to say generally in support of her application. The applicant said that she had nothing further to say.

Ground 1

1. Ground 1 asserts that the Tribunal denied the applicant procedural fairness by failing to adjourn the Tribunal hearing until after she had given birth, as she was having severe problems with her pregnancy and health. 

2. The Tribunal’s decision record discloses that the Tribunal wrote to the applicant on 3 July 2014, inviting her to attend a hearing on 18 August 2014. The Tribunal noted that on 14 August 2014, the applicant wrote to the Tribunal requesting an adjournment of the hearing until early December 2014 as she was pregnant and had severe vomiting and weakness. The applicant attached a medical certificate, dated 13 August 2014, which indicated that she was suffering from severe nausea and vomiting. In the medical certificate, it was stated that the applicant would be unfit from 14 to 20 August 2014.

3. On 14 August 2014, the Tribunal contacted the applicant by telephone and advised her that the hearing scheduled for 18 August 2014 had been cancelled and that the hearing would be rescheduled to a date later in August. The Tribunal also noted that the applicant was advised that her request for a postponement until early December 2014 was not supported by the medical evidence, which only covered her unavailability for one week up to 20 August 2014.  The Tribunal noted that, on 21 August 2014, the applicant provided a medical report, dated 20 August 2014, indicating that she was pregnant and that the baby was due on 26 November 2014.

4. On 21 August 2014, the Tribunal wrote to the applicant, advising her that she was invited to a new hearing on 15 October 2014. The Tribunal noted that the applicant was advised in that letter that it would only change the date of that hearing if satisfied that she had a very good reason for being granted an adjournment. The letter also noted that if the Tribunal did not advise her that an adjournment was granted, she must assume that the hearing would go ahead. The letter further advised the applicant that if she did not attend the hearing, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it.

5. The Tribunal also noted that it attached information to the invitation letter, stating that if a further adjournment of the hearing was sought for medical reasons, the applicant must provide a medical certificate stating that she is unable to attend the scheduled hearing.

6. The Tribunal noted that, on 14 October 2014, the applicant telephoned the Tribunal to say that she was unable to attend the hearing on 15 October 2014 as she was unwell.  The Tribunal told the applicant that she would need to provide a medical certificate that afternoon for the Tribunal’s consideration. The Tribunal noted the applicant’s response that she was going to the doctor on 15 October 2014. The Tribunal noted that it then advised the applicant that she would need to provide a medical certificate as soon as possible.

7. The Tribunal noted that the applicant did not appear before it on 15 October 2014 and that no medical certificate was provided to the Tribunal. The Tribunal then noted that it considered her request to postpone the scheduled hearing on 15 October 2014 to a later date, as the applicant had said that she was unwell. However, the Tribunal noted that, as at the date of its decision on 23 October 2014, no medical certificate had been provided by the applicant to show that she was unable to attend the scheduled hearing.

8. Whilst the Tribunal accepted that the applicant was pregnant, it found that there was no evidence before it indicating that she could not attend the hearing on 15 October 2014 as a result of her pregnancy. The Tribunal noted the applicant’s claims in August 2014 that she had severe vomiting and could not sit up for more than five to ten minutes. The Tribunal noted that the previous hearing was postponed on that basis and was supported by a medical certificate. The Tribunal noted that no such medical evidence had been provided in support of the new adjournment request. The Tribunal found that the applicant was made aware, through communications by the Tribunal, that a medical certificate was required for a postponement to be granted if she was claiming that she was unfit to attend the hearing on 15 October 2014.

9. In the circumstances, the Tribunal purported to exercise its discretion pursuant to s.426A of the Act to refuse to schedule another hearing and to make its decision on the review without taking any further action to enable the applicant to appear before it. The Tribunal noted that the applicant had been given sufficient time (being until the date of decision on 23 October 2014) to provide the medical certificate that was required in order for the hearing to be postponed.

10. The Tribunal then proceeded to consider the applicant’s claims. The Tribunal identified various aspects of the applicant’s claims that it was not able to explore with the applicant at a hearing, resulting in the Tribunal not being satisfied about significant aspects of the applicant’s claims. The Tribunal identified these aspects with some particularity in its decision record.

11. On the evidence and material before it, the Tribunal was not satisfied that the applicant faced a real chance of persecution involving serious harm in Tonga for a Convention reason, now or in the reasonably foreseeable future. Further, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga, that there is a real risk that she would suffer significant harm.

1. The applicant did not rely on any claims different to her Convention claims in relation to the complementary protection criterion. The Tribunal concluded that the applicant did not meet either the Convention criterion under s.36(2)(a) of the Act or the complementary protection criterion under s.36(2)(aa) of the Act.

2. The first respondent read an affidavit of Ada Wong, affirmed on 16 March 2015. Ms Wong’s affidavit annexed a copy of the Tribunal’s letter to the applicant, dated 21 August 2014, inviting the applicant to attend a hearing before it on 15 October 2014. The affidavit also annexed a copy of the Tribunal’s Postal Dispatch Register, dated 21 August 2014, showing that a letter addressed to the applicant at the applicant’s address for service had been dispatched to the applicant on 21 August 2014.

3. Pursuant to s.494B of the Act, the Tribunal was required to send the applicant a letter of invitation in accordance with s.425A of the Act. That letter was required to be dispatched to the last address for service provided by the applicant, within three days of the date of the document.

4. Based on the evidence before me, I am satisfied that the letter dated 21 August 2014, inviting the applicant to attend a hearing on 15 October 2014, was sent to the applicant in accordance with the legislative scheme. The applicant does not suggest otherwise.

5. The Tribunal’s decision record makes clear that the applicant was, in any event, aware of the hearing scheduled on 15 October 2015 because she telephoned the Tribunal on 14 October 2014 to request an adjournment.  The Tribunal’s decision record makes clear that before exercising its discretion to proceed to make a decision on the review without taking any further step to invite the applicant to attend a hearing, the Tribunal considered the applicant’s request for a further adjournment.

6. However, in circumstances where the applicant’s request was not supported by any further medical evidence when the applicant had been told by the Tribunal that such evidence would be required, and in circumstances where the Tribunal did not make its decision on the review until 23 October 2014, there is no evidence before this Court to suggest that the Tribunal’s discretion was in any way miscarried. The Tribunal’s decision to proceed to make its decision on the review without taking any further step to enable the applicant to appear before it was made in accordance with s.426A of the Act. That course was open to the Tribunal on the evidence and material before it and for the reasons it gave.

7. In the circumstances, there is no denial of procedural fairness by the Tribunal to the applicant in relation to the decision to proceed with the review. 

8. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal erred by failing to consider and treat the best interests of the applicant’s child in accordance with Article 1 of the United Nations Convention on the Rights of the Child.  In respect of Ground 2, the applicant said that she wished the Court to reconsider the claim of her child. 

2. However, the application before this Court and the totality of this proceeding is confined to an application by the applicant.  There is no application before this Court in respect of the applicant’s child.

3. In the circumstances, the applicant’s complaint in Ground 2 is misconceived.

Ground 3

1. In Ground 3, the applicant asserts that she was denied procedural fairness by the Tribunal because it made adverse findings without any evidential support.

2. As the above summary of the Tribunal’s reasons discloses, such a complaint is not made out. The Tribunal did not make adverse findings. The Tribunal simply noted that it had significant problems with the applicant’s claims because the evidence before it was not sufficiently detailed to satisfy the Tribunal that the applicant had faced the difficulties claimed and that she would face serious or significant harm on her return to Tonga.

3. The Tribunal provided in some detail the particular matters it would have sought to have explored with the applicant, including the difficulty she claimed to face in Tonga because of two arranged marriages that she had refused, her claim that she went into hiding as a result, and her dealings with the police.  The Tribunal noted that it was unable to explore with the applicant why she believed that she would be killed, beaten, tortured, threatened, ostracised and persecuted by either of the men, the families of these men, her family, the royal family, the government, or anyone else in Tonga if she refused to marry either of these men. In the circumstances, the Tribunal was not satisfied that the applicant’s claims were made out.

4. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

5. Section 65(1) of the Act makes clear that, in the event that an applicant fails to satisfy the decision-maker that he or she meets the criteria for being a refugee, his or her application must be refused.

6. The Tribunal’s conclusions were open to it on the evidence and material before it and for the reasons it gave, including its lack of satisfaction in respect of the applicant’s claims in the absence of any opportunity to explore those claims with the applicant at a hearing. 

7. Accordingly, Ground 3 is not made out.

Ground 4

1. Ground 4 asserts that the Tribunal misconstrued the complementary protection legislation, thereby denying the applicant procedural fairness and natural justice. 

2. However, as stated above, the applicant did not advance any separate complementary protection claims. Additionally, given the Tribunal’s lack of satisfaction of the entirety of the applicant’s claims in support of her refugee status, and there being no other claims, the Tribunal’s lack of satisfaction that the applicant met the criterion for complementary protection in s.36(2)(aa) of the Act is unsurprising.

3. It is well established that the Tribunal is entitled to have regard to the findings and conclusions that it makes in relation to an applicant’s Convention claims in considering the complementary protection criterion (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).

4. Accordingly, Ground 4 is not made out. 

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’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.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:    21 June 2016