FEDERAL COURT OF AUSTRALIA

SZQAO v Minister for Immigration and Citizenship [2011] FCA 874

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

1    In this matter the appellant appeals against a judgment of a Federal Magistrate delivered on 24 May 2011 (SZQAO v Minister for Immigration [2011] FMCA 390). The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 17 February 2011, which had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) dated 15 October 2010, to refuse to grant a Protection (Class XA) visa (protection visa) to the appellant.

2    The appellant is a citizen of India who arrived in Australia on 29 June 2009. On 18 June 2010, the appellant lodged an Application for a protection visa with the Department of Immigration and Citizenship. As mentioned at [1] above, a delegate of the first respondent refused the application for a protection visa on 15 October 2010.

3    On 19 November 2010, the appellant applied to the Tribunal for review of that decision. In his protection visa Application, the appellant claimed that he was a member of the Sikh religion and that he belonged to the Jat ethnic group. He also claimed to be head of an organisation, called “Dera Sacha Sauda” (DSS), in his local area, an organisation which he claimed he had joined in 2000. The appellant claimed that, in May 2007, there was a clash between DSS adherents and Sikh protestors in which one person was killed. Sikh organisations blamed DSS for the death of this person.

4    The appellant claimed that in December 2008, when he was holding a prayer group meeting, five to six people from the Khalsa Action Committee (KAC) entered the place where he and the other attendees were meeting and attacked the group. He claimed that, on this occasion, he was beaten with an iron bar and that he suffered injuries as a result of which he was hospitalised. The appellant claimed that death threats were made to him and to two other members of his group. The appellant also asserted that the KAC was an alliance of terrorist Sikh organisations and that, although he approached the police over the incident, they failed to take any action.

5    The appellant is also a member of the Congress Party (DSS supported the Congress Party) and said that the ruling Bharatiya Janata party was not prepared to protect DSS supporters for the reason that they were aligned with the Congress Party. The appellant claimed that, if he returned to India, he would be forced to change his religion.

The Decision of the Delegate

6    The appellant was invited to attend an interview with the delegate but he failed to do so. On 15 October 2010, the delegate refused to grant the appellant a protection visa. The delegate was not satisfied that the appellant’s claims were credible and, in any event, found that the Indian authorities were both able and willing to protect DSS followers from harm. Accordingly, the delegate found that the appellant’s claimed fear of harm was not well-founded.

The Tribunal Proceedings

7    On 19 November 2010, the appellant lodged an application for review with the Tribunal. By letter dated 13 January 2011, the Tribunal wrote to the appellant inviting him to attend a hearing on 15 February 2011. In the hearing invitation sent to the appellant, the Tribunal specified that the hearing would take place upon the basis that the Tribunal member would be in Sydney, that the appellant would be in Griffith and that the two would be linked by way of video link. The hearing invitation letter contained the following additional statement:

If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible.

8    In the hearing invitation letter, the Tribunal also stated that, if the appellant was unable to attend the hearing on the specified date, he should contact the Tribunal immediately. The letter went on to say:

Please note that if you fail to 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    The hearing invitation letter went on to ask the appellant to complete and return the enclosed “Response to Hearing Invitation” invitation form.

10    The appellant completed and returned the Response to Hearing Invitation form. In that form, he indicated that he would take part in the Tribunal hearing scheduled for 15 February 2011 upon the basis set out in the hearing invitation letter—ie upon the basis that the Tribunal member would be in Sydney, that he would be in Griffith and that the two would be linked by way of video link. The Tribunal was entitled to proceed by way of video link in the fashion outlined in the hearing invitation letter (see s 429A of the Migration Act 1958 (Cth) (the Migration Act)). The hearing invitation letter generally complied with all applicable legislative requirements. It should be noted that the appellant plainly received the hearing invitation letter and responded to it in such fashion as he decided was appropriate. He specifically agreed to the video link proposal.

11    The appellant failed to appear at the Tribunal hearing which took place on 15 February 2011, as scheduled. The appellant did not contact the Tribunal at any stage in order to explain his non-attendance. For these reasons, the Tribunal elected to proceed to hear the appellant’s case pursuant to s 426A of the Migration Act and made a decision on the review without taking any further action to allow or enable the appellant to appear before it. It appears from the hearing record of the Tribunal that some indulgence was allowed to the appellant in terms of the commencement of the hearing. Attempts were made shortly before 10.00 am and again at 10.37 am to see whether the appellant had arrived at the hearing room. The appellant had not arrived by either of those times and ultimately never attended the hearing.

The Tribunal’s Decision

12    The Tribunal delivered its decision on 17 February 2011 and affirmed the delegate’s decision to refuse the appellant’s Application for a protection visa. The Tribunal did not accept the appellant’s claims. The Tribunal was of the view that the appellant’s claims were expressed in vague general terms and had not been supported by any essential details. In particular, the Tribunal found that the appellant had not provided any detail about how and why he had joined the DSS, why he was targeted and attacked by the KAC and the nature of his support for, and involvement in, the Congress Party. The Tribunal ultimately concluded that it was not satisfied that he had suffered harm in the past or that there was a real chance that he would suffer harm in the reasonably foreseeable future if he returned to India.

13    Accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention.

The Application for Judicial Review

14    Dissatisfied with that decision, the appellant filed an Application for judicial review in the Federal Magistrates Court. That application was filed on 15 March 2011 and amended on 18 May 2011. In support of that Application, the appellant filed an affidavit sworn on 9 March 2011. He also gave oral evidence at the hearing before the Federal Magistrate.

15    The grounds relied upon by the appellant before the Federal Magistrate in his Amended Application were:

1.    The Tribunal has failed to investigate my claims, specially the claims of persecution in India. Therefore, the Tribunal’s decision was effected [sic] by actual bias constituted judicial error;

2.    The Tribunal had no jurisdiction to make the said decision because “reasonable satisfaction” was not arrived [sic] in accordance with the provisions of the Migration Act.

16    At the hearing before the Federal Magistrate, the appellant sought to explain why it was that he had failed to attend the hearing room in Griffith for the purpose of participating in the Tribunal hearing by way of video link, as he had previously agreed to do. The explanation given by the appellant during the course of his testimony before the Federal Magistrate as to why he had not attended the Tribunal hearing was somewhat vague, to say the least. He said that he had made a mistake. He said he could not reach Sydney for the Tribunal hearing. He then recognised that all that he had to do was attend Griffith. He then said that it was difficult for him to get from Leeton to Griffith because there was hardly any transport.

17    The appellant was cross-examined about this evidence. In the course of that cross-examination, it became perfectly clear that the appellant had understood that the hearing was to take place in the manner specified in the hearing invitation (that is to say, by way of video-link between Griffith and Sydney, with the Tribunal member in Sydney and the appellant in Griffith). He also suggested that he had not understood the letter completely but nonetheless had appreciated that he was to attend at Griffith.

The Federal Magistrate’s Decision

18    After giving a brief history of the appellant’s Application for a protection visa and reciting the substance of the application made before the Federal Magistrates Court, the Federal Magistrate adverted to the proposition advanced by the appellant that he had been unable to attend the hearing at Griffith. At [22] of the Federal Magistrate’s Reasons, her Honour said:

In the circumstances, I am satisfied that the applicant [referring to the appellant] received the letter of invitation from the Tribunal, was aware of the date, place and time of the hearing, had no objection to the hearing being conducted by video conference in Griffith, chose not to attend the hearing and did not inform the Tribunal accordingly.

19    I pause to observe that those findings are not challenged before me.

20    Her Honour then went on to deal with the grounds that had been advanced by the appellant in his Amended Application in the Federal Magistrates Court. Her Honour concluded that, insofar as the allegation of bias was concerned, there was simply no evidence to support that allegation.

21    As far as ground 2 was concerned, her Honour noted that the appellant had informed her that he had nothing to say in support of ground 2. Her Honour, nonetheless, remarked that a fair reading of the Tribunal’s Decision Record made clear that the Tribunal had considered all of the appellant’s written claims but had rejected them on their merits (see [38] of her Honour’s Reasons). Her Honour went on to reject ground 2.

The Appeal in this Court

22    The appellant’s Notice of Appeal in this Court raises the following grounds:

1.    The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.

2.    The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

Ground 1

23    The appellant did not argue ground 1 (manifest unreasonableness) before the Federal Magistrate. He requires leave to argue that ground in this Court. In my view, there is no basis for the contention embedded in ground 1 (viz that the Tribunal’s decision was manifestly unreasonable). Therefore, leave to argue that ground in this Court is refused.

24    An unreasonable decision is one for which no logical basis can be discerned. The test to be satisfied sets the bar very high. The question is whether the decision was so unreasonable that no reasonable person could have come to it. In the present case, there is nothing in the material before me that would suggest that the Tribunal’s decision satisfied that test. The difficulty for the appellant is that the Tribunal rejected his claims on the merits. The Tribunal did so by paying due regard to the written claims which he had made. The Tribunal was confined to a consideration of those written claims because the appellant had failed to attend the hearing in order to amplify, clarify or explain those claims. In the circumstances, as I have already indicated, I would refuse leave to the appellant to argue this ground.

Ground 2

25    As far as ground 2 is concerned, it is a wholly unparticularised ground designed, in the end, to raise merits review. This Court cannot engage in merits review. There was no jurisdictional error apparent in the approach taken by the Tribunal. In the circumstances, ground 2 has not been made out.

Conclusion

26    For these reasons, there was no appellable error in the decision made by the Federal Magistrate and I propose to dismiss the appeal with costs.

27    The orders of the Court will be:

(1)    That the appeal be dismissed.

(2)    That the appellant pay the first respondent’s costs of and incidental to the appeal.

Associate:

Dated:    5 August 2011