SZVST v Minister for Immigration

[2016] FCCA 1153

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVST v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1153

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the application for adjournment was re-enlivened by the Tribunal – whether the applicant was denied procedural fairness – whether the Tribunal complied with its statutory obligations – no jurisdictional error identified – amended application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 420, 425A, 426A, 427, 476

Applicant: SZVST

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3295 of 2014

Judgment of: Judge Street

Hearing date: 9 May 2016

Date of Last Submission: 9 May 2016

Delivered at: Sydney

Delivered on: 9 May 2016

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Shelley Legal

Solicitors for the First Respondent: Ms B Rayment
Mills Oakley Australia

ORDERS

1. The name of the second respondent is changed to the ‘Administrative Appeals Tribunal’ and the filing of any further documents in this regard is dispensed with.

2. Leave be granted to the applicant to rely on the amended application filed on 5 May 2016.

3. The applicant’s amended application for judicial review of a decision of the second respondent is dismissed.

4. The applicant pay the costs of the first respondent fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3295 of 2014

SZVST

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 30 November 2014, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Bangladesh and his claims were assessed against that country.  The applicant arrived in Australia on an Indian passport, which he said was a false passport, issued on 19 November 2012. The visa in respect of that passport was granted on 22 August 2013.  The applicant applied for protection on 19 September 2013.

3. In summary, the applicant claimed to fear harm by Muslim extremists in Bangladesh on account of his religion, the applicant being a Buddhist.

4. The Tribunal made findings that the applicant had exaggerated and fabricated certain claims. The Tribunal gave detailed reasons in relation to those adverse findings of credibility. Those adverse findings were open on the material before the Tribunal. It was in those circumstances that the Tribunal concluded that it was not satisfied that the applicant met the criteria, under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958. 

5. At the time of making the application for protection, the applicant provided a statement of claims.  The applicant was invited to attend a hearing before the delegate and failed to do so.  In those circumstances, the delegate further said:

   I am unable to be satisfied as to the veracity of his claims.

6. The application for review was lodged on 22 March 2014.  Following the lodgement of the application, a letter was sent to an address being that notified on the application for lodgement.  The address provided, on the review application by the applicant, was, in fact, erroneous.  That error was the applicant’s error, just as it was the applicant who had failed to appear before the delegate.

7. The Tribunal sent a letter to the notified address in the review application, dated 26 August 2014, fixing the matter for hearing on 30 September.  On 30 September 2014, when the applicant did not appear, the Tribunal member made contact with the applicant to ascertain why he had not attended.  The applicant conveyed that the address on his application was wrong and that he had not received the notice.

8. It was in those circumstances that the Tribunal provided the applicant with a further opportunity to attend a hearing.  The Tribunal sent a letter dated 30 September 2014 to the applicant identifying the proposed hearing date on 24 October 2014.  That covering letter identified:

   If you’re not able to attend the hearing, you should advise the Tribunal as soon as possible.  Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment.  If the Tribunal does not advise you that an adjournment has been granted, you must assume the hearing will go ahead.  If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it. 

9. Enclosed with that letter was also an information sheet about the Tribunal hearing, as well as a response to hearing invitation which, in fact, the applicant completed and returned identifying that he needed an interpreter. 

10. The applicant made a request, which was received on 8 October 2014 and was responded to on 15 October 2014, provided certain information. 

11. On 21 October 2014, the applicant applied for an adjournment of the hearing scheduled for 24 October 2014. 

12. The grounds for the adjournment were identified as being, first, an erroneous address that the applicant now contended had been typed out by a friend and that he had been having trouble finding a lawyer and he was not well prepared for the hearing on Friday.  The applicant also identified that he had only just received documents that he had asked for in relation to an FOI application.

13. The Tribunal responded to that request for an adjournment by a decision made on 22 October 2014 declining to postpone the hearing.  That decision, made by the Tribunal on 22 October 2014, is not the subject of any challenge by counsel for the applicant. 

14. To the extent relevant, in the circumstances of the history of the matter, the Tribunal could have proceeded on 30 September 2014 and, the fact that the applicant had the benefit of a further opportunity, together with the paucity of the explanation for an adjournment, the refusal of 22 October 2014 could not be said to lack an evident and intelligible justification. 

15. The Tribunal, when it delivered its reasons, touched further upon that refusal that had occurred on 22 October.  Following the refusal of the adjournment application, the applicant had prepared a submission that was provided to the Tribunal at the commencement of the hearing and, also, provided prior to the hearing, further documents in relation to in the applicant’s claims, including a passport. 

16. At the time of the hearing, the applicant attended together with a person who was identified as a friend.  At the commencement of the hearing, the Tribunal explained to the applicant the nature of the hearing that was to be conducted and the Tribunal may come to different conclusions than those made by the Department.

17. The Tribunal asked the applicant’s friend to wait outside and no protest or other request was put or raised relating to that event.  There was nothing to suggest that the applicant’s friend was representing the applicant.  It does appear that the applicant’s friend was, however, providing information of some kind to the applicant.  Following the applicant’s friend leaving, the Tribunal explored with the applicant the applicant’s readiness to proceed and the applicant identified that he now had a part-time job and had not been able to obtain a lawyer prior to that date because he did not have the money.

18. The Tribunal identified to the applicant that he had had quite some time an opportunity to get legal representation.  The applicant knew he was seeking to challenge the delegate’s decision from at least the time he lodged his application and the Tribunal went on to explore with the applicant whether he was in a position for the hearing to go ahead.  The applicant said:

    Yes, I am ready.

19. The hearing of the applicant’s claims and submissions proceeded and at the conclusion, the applicant was invited as to whether there was anything else he wished to add and the applicant conveyed there is nothing else.  The Tribunal also sought to explore with the applicant whether the applicant needed time for any further submissions and the response from the applicant was no, together with a request for the decision-making to be done fairly.

20. The grounds of the amended application are as follows

    1. The Tribunal erred refusing to grant the Applicant an adjournment, the Tribunal made a decision so unreasonable no reasonable person would have made it.

    Particulars

    The Tribunal erred refusing to grant the applicant an adjournment in circumstances where the Applicant was unrepresented in the hearing, had difficulties in finding and instructing a lawyer/agent, was impecunious, had missed important opportunities to advance his cause due to an erroneous address for notice being provided to the Department of Immigration.

21. Mr Bodisco of counsel confirmed that there was no alleged jurisdictional error in respect of the decision made by the Tribunal not to grant the adjournment as conveyed in the request prior to hearing by the letter dated 22 October 2014.  Mr Bodisco’s argument was, however, that the application for an adjournment was somehow continuing and/or was re-enlivened by the communications from the Tribunal.

22. In the Tribunal’s reasons, the Tribunal addressed procedural matters, relevantly in para.11 as follows:

    11. The applicant was invited to attend the Tribunal hearing on 30 September 2014. He had not done so. The applicant was offered a further invitation to attend the Tribunal hearing on 24 October 2014. Prior to the hearing, the applicant requested the Tribunal postpone the hearing as he stated he wanted to find a lawyer. The Tribunal has considered the request but decided not to postpone the hearing because the applicant had ample time to obtain legal representation. During the hearing the applicant informed the Tribunal that he wished to go ahead with the hearing and it was his friend who advised him to seek postponement. In such circumstances, the Tribunal has formed the view that the applicant’s willingness to proceed with the hearing, the hearing was held on 24 October 2014. 

23. The procedural matters explained by the Tribunal relate first to what occurred prior to the hearing and then what occurred during the hearing.  It is clear that the Tribunal identified there was an adjournment application prior to the hearing. 

24. What the Tribunal was doing in identifying what occurred during the hearing was consistent with its obligations under s.420 to ensure that it was acting according to substantial justice and the merits of the case in proceeding and, in doing so, considering whether the applicant was thereby able to have a genuine hearing. What was said in the transcript does not, in my opinion, amount to an adjournment application by the applicant. On that basis, the alleged error in the amended application fails to make out any jurisdictional error.

25. However, even if the exchanges that occurred at the commencement of the hearing were treated as making a formal application for adjournment by the applicant, the circumstances in the present case are not ones where the decision of the Tribunal to continue with the hearing could be said to lack an evident and intelligible justification.  The applicant himself had said, “Yes. I’m ready.”  It was reasonable for the Tribunal in those circumstances to continue with the hearing. 

26. There was no breach of s.427 or s.426A of the Migration Act 1958 in the Tribunal proceeding to conduct the hearing. There is nothing on the face of the decision of the Tribunal or in the transcript that has been tendered that supports any suggestion that the applicant did not have a genuine hearing. The proposition of unreasonableness advanced by counsel for the applicant sought to make much of the applicant being unrepresented. Section 427(6) of the Migration Act 1958 provides as follows.

    (6)  A person appearing before the Tribunal to give evidence is not entitled:

    (a)  to be represented before the Tribunal by any other person; or

    (b)  to examine or cross-examine any other person appearing before the Tribunal to give evidence.

27. It cannot be said that the Tribunal acted unreasonably in deciding to proceed with the hearing, if the exchange is treated as an adjournment application, because the applicant was unrepresented. 

28. Further, to the extent that the applicant had earlier identified difficulties with obtaining lawyers and at the time of the hearing expanded on his changed circumstances relating to now having a part-time job, this was not a case where the applicant had provided any specific detail about the attempts made to obtain legal representation. It cannot be said to have been unreasonable for the Tribunal to have proceeded with the hearing merely because the applicant now had a job and might be able to obtain legal representation.  There was no identified lawyer that the applicant was proposing to engage or who had conveyed that they would now act for the applicant. 

29. The reference to the missed opportunities to advance the applicant’s case was due to the applicant’s own conduct and was not any denial of opportunity by the Tribunal. Nothing in the particulars to the grounds of application makes out that it was unreasonable for the Tribunal not to adjourn the hearing. Counsel for the applicant also sought to develop an argument of unreasonableness based on the communications that had earlier been sent to the applicant, and in particular the notice required under s.425A.

30. Those communications do not give rise to circumstances that make the decision of the Tribunal to proceed with the hearing on 24 October 2014 unreasonable.  I am satisfied that the Tribunal complied with the statutory regime in relation to the notice of invitation to appear and the applicant had a reasonable opportunity to present evidence and give arguments. 

31. I also accept the submission from the first respondent that it is apparent from the submissions handed up on the day of the hearing, as well as the additional material provided by the applicant, that the applicant appreciated the opportunity he had been provided and took advantage of it.  The point made by Mr Bodisco that better advantage might have been able to be taken of the opportunities of the applicant had he been represented does not make out any unreasonableness in the decision of the Tribunal to proceed. 

32. Mr Bodisco of counsel focused on the Tribunal’s summary of what occurred during the hearing and the view formed that the applicant had not been disadvantaged in any way in the absence of legal representation.  That was a statement by the Tribunal in the context of whether the applicant had had a genuine hearing, and the reference to the applicant’s willingness to proceed with the hearing was also a reference to the applicant’s position conveyed to the Tribunal that he was ready. 

33. If a more favourable approach was adopted to what occurred in the transcript and it was treated as an application by the applicant for an adjournment, what was said by the Tribunal should not be read with a keen eye for error and does not disclose any unreasonableness in the decision of the Tribunal to proceed with the hearing. 

34. The amended application fails to make out any jurisdictional error. The amended application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  17 May 2016