FEDERAL COURT OF AUSTRALIA

SZQCQ v Minister for Immigration and Citizenship [2011] FCA 1385

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant is to pay the costs of the first respondent as agreed or taxed.

3.    The name of the appellant be redacted from any transcript.

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

REASONS FOR JUDGMENT

1    The appellant appeals from the decision of Barnes FM delivered on 5 September 2011. By such decision, her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 7 March 2011 which affirmed a decision of the first respondent (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the appellant.

BACKGROUND

2    The appellant arrived in Australia on 20 April 2009 as a holder of an Indian passport and a Subclass 572 (Student) (Vocational Education Sector) visa (‘the visa’). As the appellant failed two consecutive terms of study, on 21 April 2010 the visa was automatically cancelled by operation of s 137J of the Migration Act 1958 (Cth) (‘the Act’). He thereafter remained unlawfully in Australia.

3    On 18 June 2010 the appellant applied for a Protection (Class XA) visa and was granted an associated Subclass 030 (Bridging C) visa. On 16 August 2010 the appellant was granted a further Subclass 030 visa with permission to work.

4    The appellant claimed to have been a follower of the Dera Sacha Sauda (‘the DSS’) since the age of 15 years and had regularly visited the DSS headquarters. The appellant claimed that during a visit to such headquarters in May 2007 he was caught up in clashes during which bricks and other objects were thrown and a Sikh was killed. The appellant claimed that he was hit on the head with a brick, lost consciousness and was taken to a hospital and discharged the next day.

5    The appellant claimed the Sikhs that lived in his neighbourhood believed that he was part of the mob that killed the Sikh. The appellant further claimed that although he had no involvement in the killing, the Sikhs did not believe him and they and other anti-DSS organisations threatened to kill the appellant if he did not convert to mainstream Sikhism. The appellant claimed to have reported death threats to the police and higher authorities but no action had been taken. For this reason the appellant claimed that he left India as he feared he would be killed.

6    A delegate of the Minister considered such claims but found that the appellant was not a credible witness for the following stated reasons:

•    The information submitted in his application is incomplete and vague.

•    He has had four months since lodging his application to submit supporting evidence.

•    He has made no attempt to contact the department since lodging his application.

•    He was given a reasonable opportunity to elaborate on his claims at the interview which he failed to attend.

•    He lodged his application more than a year after he arrived in Australia, and two months after his Subclass 572 visa was cancelled. Even a three month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution – Andaraj Subrmaniam v MIMA (1988) VG 310 of 1997.

7    Accordingly on 15 October 2010 the Minister, by the delegate, refused the application for a Protection (Class XA) visa.

DECISION OF THE TRIBUNAL

8    On 11 November 2010 the appellant made an Application for Review to the Tribunal. On 22 November 2010 the Tribunal acknowledged receipt of such application by letter addressed to the appellant at the address nominated by the appellant as the address for correspondence. No migration agent was appointed. Thereafter, by letter dated 13 January 2011 the Tribunal invited the appellant to attend an interview to be conducted by video from the TAFE Riverina Institute at Griffith, New South Wales. A Response to Hearing Invitation provided to the appellant was returned to the Tribunal which indicated that the appellant would attend the hearing which had been scheduled for 14 February 2011. Such response was dated 8 February 2011.

9    On 11 February 2011 a telephone call was made by the appellant to the Tribunal. In such conversation the appellant stated that he would not be attending the hearing as he was unwell with sore knees and was unable to sit for long periods. The appellant told the officer at the Tribunal that he had seen a medical practitioner. The appellant was requested to provide a medical certificate and informed that the Tribunal would then consider a postponement of the hearing.

10    A medical certificate dated 7 February 2011 was then provided by the appellant indicating that the appellant was unfit for his usual occupation and unfit ‘to travel by car for long distance’ until 21 February 2011.

11    The Tribunal duly granted an adjournment. By letter dated 18 February 2011 sent by registered post to the address nominated by the appellant as his address for correspondence in the Application for Review, the appellant was advised that a further hearing date would take place on 7 March 2011 at the time and place referred to in [8] above.

12    On 7 March 2011 the appellant failed to attend the Tribunal hearing. Accordingly, the Tribunal proceeded in his absence to make its decision. The Tribunal was empowered to do so by s 426A of the Act.

13    The Tribunal found that the appellant’s claims were too general to enable any determination to be made that the appellant’s claims were valid, and that in the absence of information it could not be satisfied that the appellant had suffered persecution in the past nor that there was any basis of fear of persecution in the future on a Convention ground. The Tribunal was not satisfied that the appellant’s fear was well founded. The Tribunal affirmed the decision of the delegate, finding that the appellant did not satisfy the criteria set out in s 36(2)(a) of the Act for a protection visa.

FEDERAL MAGISTRATES COURT

14    By application filed 4 April 2011 the appellant sought writs of certiorari, prohibition and mandamus in respect of the Tribunal’s decision in the Federal Magistrates Court. The appellant raised two grounds of appeal. First, that there was an obligation to put to the appellant inconsistencies which the Tribunal found in the appellant’s claims before making its decision. Second, that despite the appellant failing to attend the hearing it became ‘imperative that, before the Tribunal made up its mind to dismiss the application’ the Tribunal was obliged to invite him to make written comments in order for compliance with s 424A of the Act to be fulfilled as referred to in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294.

15    In her Honour’s decision, Barnes FM referred to the non-attendance of the appellant before the Tribunal. Her Honour found that the invitation letters complied with the requirements of ss 425A and 441A(4) of the Act.

16    With regard to the second invitation, her Honour observed that such invitation being sent on 18 February 2011 by registered post would have been ‘taken to have been received’ on 1 March 2011. On this basis the appellant had six days notice of the rescheduled hearing date. As a result, her Honour found that the Tribunal had complied with the requirements of the Act and of the Migration Regulations 1984 (Cth) (‘the Regulations’).

17    With respect to the appellant’s first ground of appeal, her Honour observed that the Tribunal’s decision resulted from the vagueness, generality and lack of detail in the appellant’s claims. Her Honour found no failure by the Tribunal to comply with s 424A of the Act.

18    As to the second ground of appeal her Honour applied the decision of SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18], where the High Court held that the Tribunal was under no obligation to provide its provisional reasoning to an appellant for comment. Her Honour found no jurisdictional error by the Tribunal and accordingly dismissed the application.

THE APPEAL

19    By notice of appeal filed in this Court on 23 September 2011 the appellant raises the following grounds of appeal:

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

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

20    The appellant attended before this Court unrepresented but assisted by an interpreter. The appellant was invited to address each of the two grounds of appeal. However, the appellant stated through the interpreter that he did not wish to make any submissions.

CONSIDERATION

21    The Court observes that insofar as the first ground of appeal alleges unreasonableness on the part of the Tribunal, such allegation was neither raised nor considered before the Federal Magistrate. Where a matter had not been previously raised for determination, the Court will only allow such a matter to be relied upon provided leave is granted. The appellant must establish that it is expedient in the interests of justice to allow such ground to be raised: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [163]-[164]. The Court is also required to consider the merits sought to be raised by the ground: see VAAC at [26].

22    No particulars had been provided of any alleged unreasonable conduct. If the appellant means by ground 1 of his claim that the Tribunal ‘acted in a manifestly unreasonable way’ in respect of any notification provided to him, the Court is unable to discern any unreasonable conduct. The Tribunal invited the applicant, pursuant to s 425 of the Act to appear before it ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’. Such invitation was issued on 13 January 2011 forwarded by registered post to the address of the appellant nominated as the address for correspondence. The appellant received such invitation, since he responded by his Response to Hearing Invitation which was received on 11 February 2011 by the Tribunal. The invitation was for a hearing to be held on 14 February 2011.

23    As found by her Honour, the appellant telephoned the Tribunal and upon production of a medical certificate an adjournment was granted. By letter dated 18 February 2011, again forwarded by registered post to the appellant at his nominated address, the hearing date was set for 7 March 2011. The appellant failed to attend and made no communication with the Tribunal offering any reason for his non-attendance.

24    Pursuant to s 425A(3) of the Act a notification must give at least ‘the prescribed period’ of notice to an applicant, or if no period is prescribed, a reasonable period. Regulation 4.35D of the Regulations states ‘the prescribed period’ (for a person not in detention)‘starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received’.

25    The original notice dated 13 January 2011 complied with the requirements of Regulation 4.35D. The second invitation was found by Barnes FM to allow six days notification. Her Honour found that the Tribunal had complied with the requirements of the Regulations. There was no requirement upon the Tribunal to comply with Regulation 4.35D with regard to the notice to the appellant advising him of the rescheduled hearing.

26    In Minister for Immigration and Multicultural and Indigenous Affairs v SZFML & Another (2006) 154 FCR 572 the Full Court found that there was no requirement upon the Tribunal when rescheduling a hearing to provide 14 days notice. The Full Court in SZFML found however that the notice to be given by a Tribunal when a hearing is rescheduled must be reasonable.

27    In the present circumstances Barnes FM found that the notice provided to the appellant was reasonable. The Court considers that her Honour was entitled to reach such finding taking into consideration the fact that the appellant had access to a telephone and could have notified the Tribunal if he had any genuine difficulty in attending the re-scheduled hearing, and the lack of any medical evidence to support the appellant’s claim that he was suffering an illness which prevented his attendance.

28    The Court also observes that before this Court the appellant was asked why he did not respond to the rescheduling notice by the Tribunal. In reply the appellant stated that he was sick and could not respond. The appellant was however able to arrange for a friend to telephone the Tribunal to seek the postponement of the first hearing before the Tribunal. No explanation was offered why the friend could not telephone the Tribunal to explain any absence from the rescheduled hearing.

29    The Court can find no error in the Tribunal’s conduct of its statutory obligations.

30    Insofar as it is alleged that the Tribunal ignored ‘the aspect of persecution and harm in terms of Sec 91R of the Act’, no particulars are provided in support of this allegation. The Tribunal’s decision demonstrates that the Tribunal considered the claims of the appellant and the basis for his claim of persecution. However, on the information available to it, the Tribunal found that it was not satisfied that the appellant had been persecuted for a Convention reason. There is no basis for the assertion that the decision is unreasonable in the Wednesbury sense: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. In the absence of particularisation of any claims of unreasonableness, the Court refuses leave for the appellant’s first ground.

31    The second ground of appeal seeks to raise an unparticularised assertion that ‘legal and factual errors’ existed in the Tribunal’s decision. This ground was also not raised before the Federal Magistrates Court, and a grant of leave by this Court is accordingly required before it can be relied upon.

32    No particulars of this ground have been indicated and the Court, upon its reading of the Tribunal’s decision, is unable to discern any error. For this reason leave is refused to rely upon the two grounds of appeal.

33    For the above reasons the appeal will be dismissed with costs.

Associate:

Dated:    8 December 2011