FEDERAL COURT OF AUSTRALIA

SZTXE v Minister for Immigration and Border Protection [2015] FCA 493

THE COURT ORDERS THAT:

1.    The Refugee Review Tribunal be joined as a Second Respondent.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Appellant is a citizen of India.

2    In February 2013 he applied to the then Department of Immigration and Citizenship for a protection (Class XA) visa. He claimed that if he returned to India “people from another Community Party will try to harm me”. He did not attend an interview in March 2013 to discuss his claims with the delegate. A delegate of the Minister refused that application in July 2013 and forwarded to him a copy of the Decision Record. That Record detailed (inter alia) a series of questions which the delegate indicated he would have asked and concluded in part as follows:

Notwithstanding the lack of information as noted above, there is cause for concern as to the veracity of the applicant’s claims. In his written account he indicated that he would be killed by the Congress Party supporters if he were to return to India. The applicant has not provided any details of any of the incidents or any proof of being attacked. The applicant made mere assertions with no evidence to substantiate any of it to be true.

3    In August 2013 the now-Appellant sought review by the Refugee Review Tribunal. In December 2013 the Tribunal invited the Appellant to appear before the Tribunal on 20 January 2014. A medical certificate received by facsimile by the Tribunal on that date stated that the Appellant “will be unfit for work/study on 20/01/2014 inclusive”. The hearing was postponed to 28 January 2014. He did not appear on that date. The Tribunal proceeded to hear the application and affirmed the delegate’s decision.

4    The now-Appellant sought judicial review of the Tribunal’s decision. In February 2015 the Federal Circuit Court dismissed the application: SZTXE v Minister for Immigration [2015] FCCA 678. The Appellant now appeals to this Court. The Grounds of Appeal state (without alteration) as follows:

1.    Hon. Judges. Nicholls failed to hold Migration Review Tribunal made a jurisdictional error of the law and did not consider appellant appeal.

2.    His honour failed to hold that the Tribunal did not give time to appear and explain his situation.

The Appellant appeared before this Court unrepresented. He had no difficulty in understanding the submissions made against him on behalf of the Respondent Minister and no difficulty in making oral submissions to the Court.

5    Three procedural questions need to be addressed at the outset. First, the Appellant sought an adjournment to permit him the opportunity to obtain legal assistance. That application was refused. The application for a protection visa was first made over two years ago and the Appellant has long been on notice of the perceived deficiencies in his case. The decision of the Federal Circuit Court was published some two months ago. No satisfactory explanation has been provided as to why legal advice was not previously sought and no satisfactory explanation provided as to steps taken to secure legal assistance subsequent to the publication of the reasons for decision in February 2015. Second, the Notice of Appeal does not join the Refugee Review Tribunal as a respondent to the appeal. An order doing so should be made. The Tribunal suffers no prejudice as its interests are not affected and the Tribunal routinely submits to such orders as this Court sees fit to make, other than an order as to costs. Third, it is noted that the address for service of the Appellant has changed and that the correct address for service is that provided to the solicitor for the Respondent Minister during the hearing.

6    The appeal is to be dismissed with costs.

A failure to consider the claims made

7    The first Ground of Appeal is understood to be a claim that the Tribunal failed to consider the claims made by the Appellant.

8    The claims as made were made only in the most general terms. The application as first made by the now-Appellant to the Department stated that “[t]here is a life threat to me and my family…”. He also feared being tortured. He further stated that on his last visit to India in January 2013 there was an attempt to kidnap him. He gave the reason as a “long family dispute with the [Congress Party]…”. The police, he claimed, “didn’t do anything”. In rejecting that application, the now-Appellant was advised by the delegate as to deficiencies in the manner in which the claim was made and the view that he “made mere assertions with no evidence to substantiate any of it to be true”.

9    The Tribunal unquestionably considered the claims made. In its Statement of Decision and Reasons the Tribunal stated (inter alia):

15.    In the present case, the Tribunal observes that the applicant’s claims are lacking in detail in significant respects and he did not provide detailed information regarding the particular allegations he has made. He has not provided detailed information about his claim that he is at risk of being attacked by people from ‘another community party’, which he indicates is the Congress Party and the local MP, or his claim that on his last return to India, those people tried to kidnap him but he was able to escape and the police did not do anything to help him. Nor has he provided a copy of the FIR he refers to in his application, which he said he would provide. He has not provided detailed information about his claim that his first cousin was kidnapped and that his cousin’s legs and arm were broken. Nor has he provided detailed information about the long standing dispute between his family and the Congress Party people, or detailed information about his grandfather whom he claims was in the BJP party. He has not provided detailed information about his claim that these people from the Congress Party or the local MP would be able to find him throughout India because they have connections and power over the police.

16.    Without more evidence from or on behalf of the applicant than the evidence presently before it, the Tribunal cannot be satisfied about why the applicant left India, or whether he cannot or will not return to India because he fears harm there as he claims ...

Those reasons went on to state the difficulties to which the now-Appellant’s failure to appear at the hearing gave rise, as follows:

    16.    … If he had attended the hearing, the Tribunal would have had the opportunity to discuss his claims with him in more detail and test their veracity. The Tribunal would have sought further information in relation to the matters raised above. The Tribunal would have used the opportunity of the hearing to discuss these issues with the applicant and given him the opportunity to explain the particular details of what he fears would happen if he returns to India now or in the reasonably foreseeable future and the reasons why it would happen. However, it was not possible to discuss any of these issues with him because, despite being advised by the Tribunal in its letters dated 6 December 2013 and 20 January 2014 that it had considered all the material before it but was unable to make a favourable decision on that information alone, he did not attend a hearing and provided no further information or evidence in support of his claims. The Tribunal has insufficient evidence to be satisfied that the events and circumstances he raised are factual and on the evidence before it, does not accept his claims.

10    The Tribunal considered the claims as best as it could – given the lack of detail, and given its inability to pursue further questioning of the now-Appellant.

11    This Ground is without substance.

Time to explain – ss 425 & 426A

12    Division 4 of Part 7 of the Migration Act 1958 (Cth) (the “Migration Act”) deals with the manner in which the Tribunal is to conduct the review of protection visa decisions. Within that Division, s 422B(1) provides that the Division “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.

13    It is within those constraints that the Appellant must advance his second Ground of Appeal.

14    Within Division 4, s 425(1) provides as follows:

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.

15    Also within Division 4, s 426A provides as follows:

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.

Section 427(1) provides as follows:

For the purpose of the review of a decision, the Tribunal may:

(a)    take evidence on oath or affirmation; or

(b)    adjourn the review from time to time; or

(c)    subject to sections 438 and 440, give information to the applicant and to the Secretary; or

(d)    require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

Taken together, these provisions confer a discretion upon the Tribunal as to how it may proceed where an applicant fails to avail himself of the opportunity to attend and “give evidence and present arguments”. Sections 362B and 363(1), it may be noted, confer discretionary powers in like terms to ss 426A and 427(1).

16    There has been no failure to comply with the procedural requirements imposed by Division 4. The Appellant was invited to appear before the Tribunal. Whatever may be the deficiencies in the medical certificate forwarded to the Tribunal on 20 January 2014, the hearing was nevertheless re-scheduled. An officer of the Tribunal who contacted the Appellant on 20 January 2014 was told by the Appellant that he had a “headache”. The date for the re-scheduled hearing was fixed at 28 January 2014. The Appellant confirmed with the Tribunal’s officer that he understood that the Tribunal may proceed to make a decision in his case if he did not seek a further adjournment or attend the hearing. A letter confirming the re-scheduled hearing date and the prospect of a decision being made without further notice was also forwarded to the Appellant. He failed to appear on 28 January 2014. Nor did he contact the Tribunal.

17    The simple fact is that the Appellant was given an opportunity “to give evidence and present arguments…”. He did not avail himself of that opportunity. As the reasons of the Tribunal record, he “failed to contact the Tribunal to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time”. The Tribunal proceeded to make a decision without taking any further action to enable the now-Appellant to appear. This it was entitled to do pursuant to s 426A: e.g., VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 at [15], (2004) 136 FCR 407 at 414 per Sundberg and Hely JJ; SZOJE v Minister for Immigration and Citizenship [2010] FCA 1405 per Greenwood J; SZOHX v Minister for Immigration and Citizenship [2011] FCA 139 per Lander J; SZTLI v Minister for Immigration and Border Protection [2014] FCA 1181 at [16] per Jacobson J; SZSTS v Minister for Immigration and Border Protection [2014] FCA 1031 at [9] per Gleeson J.

18    Section 425(1) does not impose any obligation on the Tribunal to ensure that an applicant makes the best of the invitation to attend a hearing. Section 425(1) is not expressed in as emphatic terms as s 39 of the Administrative Appeals Tribunal Act 1975 (Cth), which provides that that Tribunal “shall ensure that every party to a proceeding … is given a reasonable opportunity to present his or her case…”. Even a section so expressed, it has been held, does not require the Administrative Appeals Tribunal to ensure that a party takes the “best advantage” of that opportunity: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], (2000) 60 ALD 737 at 748 per Cooper J. In Sullivan v Department of Transport (1978) 1 ALD 383 at 403 Deane J (with whom Fisher J agreed) observed that “neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”. Appl’d: De Simone v Federal Commissioner of Taxation [2009] FCAFC 181 at [15], (2009) 51 AAR 161 at 167 per Sundberg, Stone and Edmonds JJ. Similarly, in the present case and with specific reference to s 425(1) of the Migration Act, there is no obligation imposed upon the Tribunal either to ensure that an applicant attends a hearing to which he has been invited or to ensure that a claimant takes the “best advantage” of the hearing if he does attend. Sections 425 and 426A “do not require that the person whose interests are liable to be affected take advantage of that opportunity”: SZTDX v Minister for Immigration and Border Protection [2014] FCA 515 at [16] per Perry J.

19    Nor is any error exposed in the Tribunal exercising the discretion conferred by s 426A(1) to proceed in the absence of the now-Appellant.

20    Subject to any statutory indication to the contrary, a statutory discretion must be exercised in a “legal and regular” manner, and not in a manner which is “arbitrary, vague and fanciful”: cf. Minister for Immigration and Citizenship v Li [2013] HCA 18 at [63] to [66], (2013) 249 CLR 332 at 362 to 363 per Hayne, Kiefel and Bell JJ. The discretion is to be exercised “reasonably”. In that case, at issue was the refusal of the Migration Review Tribunal to adjourn a hearing to afford the applicant an opportunity to obtain a further skills assessment. In concluding that the Tribunal’s decision to refuse an adjournment was unreasonable, their Honours reasoned as follows:

[82]    It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.

[83]    The purpose of s 360(1) has already been referred to. It is to provide an applicant for review the opportunity to present evidence and arguments “relating to the issues arising in relation to the decision under review”. The question which remained in issue when the Tribunal made its decision was the satisfaction of a visa criterion by a complying skills assessment. Although the Tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances it is not apparent why the Tribunal decided, abruptly, to conclude the review.

The discretions conferred by ss 426A(1) and 427(1)(b) are to be exercised in a like manner. The power conferred by s 426A “must be exercised reasonably and cannot be exercised capriciously”: SZOZO v Minister for Immigration and Citizenship [2011] FCA 944 at [22] per Reeves J. The fact is that the Appellant, as submitted on behalf of the Respondent Minister, has simply “not engaged” at any stage with the review process.

21    Without being exhaustive, an exercise of the discretion conferred by s 426A(1) to proceed to make a decision on the review and not to re-schedule a hearing, and the discretion conferred pursuant to s 427(1)(b) not to adjourn a hearing, should take into account:

    the previous opportunities (if any) extended to an applicant to appear and give evidence and present argument;

    any reasons advanced as to why a hearing should be re-scheduled, together with any evidence adduced in support of those reasons;

    the purpose sought to be achieved by an applicant in seeking a re-scheduled hearing, including the nature of any further evidence which may be sought and any prior opportunity to obtain such evidence;

    the extent to which any legal or factual issues to be resolved have previously been identified and raised for the consideration of an applicant; and

    whether any application to adjourn is opposed.

Also to be taken into account is:

    the public interest in ensuring that all applications are resolved in a manner that is “fair, just, economical, informal and quick…” (Migration Act, s 420(1)) and in a manner according to law.

The facts and circumstances of each individual case must always, however, remain of central relevance to a determination by the Tribunal as to how it should proceed.

22    The Tribunal in the present proceeding did not act unreasonably in the exercise of the discretion conferred by s 426A(1) not to again re-schedule the hearing. The now-Appellant had been given an adequate opportunity to present his claim and advanced no real reasons as to why any further indulgence should be extended to him. He failed to attend an interview with the delegate in March 2013 and was on full notice from the terms of the delegate’s Decision Record that a series of questions of central relevance to the veracity of his claims remained unaddressed. They remained unaddressed even after he was given an opportunity to appear before the Tribunal. The Tribunal had also itself indicated to him on 6 December 2013, and prior to the postponed hearing to be held on 28 January 2014, that it was “unable to make a favourable decision” on the information presently available to it. The course to be pursued by the now-Appellant was thereafter a matter for him to decide.

23    The second Ground of Appeal should be rejected.

CONCLUSIONS

24    Neither Ground of Appeal has been made out. Both are without substance. The Federal Circuit Court was correct to dismiss the application which came before that Court.

25     There is no reason why the Appellant should not pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1.    The Refugee Review Tribunal be joined as a Second Respondent.

2.    The appeal is dismissed.

3.    The Appellant is to pay the costs of the First Respondent.

Associate:    

Dated:    21 May 2015