FEDERAL COURT OF AUSTRALIA

SZRWA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 834

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship” and the title of the proceeding be amended accordingly.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

Introduction

1    Earlier this morning, the Court made orders in this proceeding. What follows are the reasons for making those orders.

2    This is an appeal from a decision of the Federal Circuit Court of Australia published on 6 May 2013 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the appellant.

Background

3    The appellant is a male citizen of India who arrived in Australia by aeroplane on a tourist visa on 29 November 2011. On 13 January 2012, he applied for a protection visa. A delegate of the respondent Minister refused the application on 18 May 2012. On 12 June 2012, the appellant lodged an application for review of the delegate’s decision with the Tribunal.

protection claims

4    The appellant claimed to have been a reporter for a weekly newspaper in Hyderabad between 2006 and 2011 and to have written newspaper articles about the government’s policies, members of the Bharatiya Janata Party (“BJP”), the Vishwa Hindu Parishad (“VHP”) and other prominent political figures. As a result, the appellant claimed to have been threatened and harassed.

5    The appellant claimed that, despite relocating to another town, he was accused of being a terrorist, handed over to the police in his home town and told that he could not go anywhere without permission. He recalled an incident that occurred while he was living in Jaipur, when men entered his house and tried to kill him with hockey sticks and other weapons. He claimed that the violence was instigated purely on the basis of his Muslim faith.

6    The appellant claimed to fear retribution from Hindu groups and members of the Ahmadiyya faith because of his political opinion and having written newspaper articles exposing their malpractices.

7    On 12 July 2012, the Tribunal wrote to the appellant and invited him to attend the hearing on 16 August 2012. The letter stated that “the Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone”.

8    The Tribunal did not receive a response to the invitation but subsequently received a medical certificate from the appellant stating that he was unfit for work from 14 to 16 August 2012. On 15 August 2012, the Tribunal wrote to the appellant at the same address to which the previous letter had been sent and invited him to attend a rescheduled hearing on 3 September 2012. The appellant did not respond to this invitation and did not attend the hearing.

9    The Tribunal decided to make its decision without taking further action to enable to appellant to appear before it pursuant to s 426A(1) of the Migration Act 1958 (Cth).

the decision OF THE TRIBUNAL

10    The Tribunal noted that the appellant provided no evidence in support of his claim to have written newspaper articles in India. The Tribunal also noted “significant gaps” in the central aspects of his claim to fear harm in India, including a failure to provide any detail regarding what he had written in the newspaper articles to attract the enmity of the BJP, VHP and others and why the articles were materially different from the other newspaper articles freely circulating in India which, according to country information, reflected a wide range of views and political opinion. The Tribunal noted that the appellant was also unable to explain his reason for delaying his departure to Australia for nearly three months after he obtained his Australian visa.

11    The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason if he returned to India now or in the foreseeable future. The Tribunal was also not satisfied that the appellant met the criteria for complementary protection under s 36(2)(aa) of the Act.

The DECISION OF THE COURT BELOW

12    The appellant filed an amended application for judicial review of the Tribunal’s decision in the Federal Circuit Court on 3 December 2012. It relied on the following three grounds:

1. The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of the applicant’s account in his protection visa application and the Departmental interview, contains significant gaps about the central aspects of his claims to fear harm in India. The Tribunal did not provide the applicant the significant gaps in writting(sic) for written explanation. The Tribunal also did not ask any written information about the three months delay.

2. The Tribunal made procedural mistakes that the Tribunal did not given any letter to the applicant to give answer for that the material does not provide a sufficient basis on which I can be satisfied there is a real chance the Applicant would suffer serious harm from political leaders of the BJP, the VHP, Ahmadiyyas, Hindu groups or anybody else of his political opinion or his religion. The applicant claims that the Tribunal could have sent a letter to the applicant about its concern because the applicant thought that he produced all his information to the Department and he gave interview to the Department so he will get his protection visa. He also thought that for any further information he will get letter to provide. If he does not go for interview that should not be treated as negative for making decision on the applicant’s review application. The Tribunal made mistakes in this regard.

3. The Tribunal made a jurisdictional error that the Tribunal did not assess the information was before it for the review purpose. The Tribunal did not call the applicant which was possible for the Tribunal to get information for not coming to the hearing. The Tribunal did not send any letter to the applicant about its concern. The Tribunal did not investigate the applicant’s claim. The Tribunal did not extend the time for hearing. The Tribunal did not sent the applicant adverse information for its rejection of the review application. The Tribunal was not reasonable in its review process.

13    The appellant stated to the Court that he did not attend the hearing before the Tribunal because he was sick for 45 days and was ultimately hospitalised. He claimed that he did not see the letter from the Tribunal and that he was not provided with a letter containing the decision record.

14    His Honour noted that the appellant provided no evidence in support of his contentions. The appellant confirmed that he lived at the same address as on the Department record and that he had received previous correspondence inviting him to the hearing. The judge below found that the appellant’s complaint of non-receipt of correspondence from the Tribunal was inconsistent with these claims and found that the appellant was aware of the rescheduled hearing date but chose not to attend. In those circumstances, his Honour was satisfied that the appellant had received the Tribunal’s notification of a hearing date and that he took no steps to inform the Tribunal of his inability to attend the hearing. To the extent that he failed to attend the hearing, the judge below found that the appellant cannot now complain that other facts were not taken into account. Accordingly, the application was dismissed.

the appeal

15    The appellant appealed to this Court from the decision of the Federal Circuit Court on 24 May 2013. The Notice of Appeal contains three grounds:

1. The Honorable Federal Magistrate erred in not considering that the Refugee Review Tribunal (the Tribunal) has an obligation to send a letter under part 7 of the Migration Act 1958 (the Act) that the applicant understand the adverse information and get time to address that information which are reason or part of the reason to reject his application for review. The applicant’s failure to attend the Tribunal cannot be the reason to reject his genuine claim for protection. The Tribunal acted in a way that the applicant did not appear before the Tribunal so his legal rights are seized and his application would be rejected the Court did not consider it.

Particulars:

The Tribunal also considered it to be significant that the applicant had not explained why he delayed his departure for nearly three (3) months after he obtained his Australian visa on 2 September 2011 (paragraph 16 of Court decision).

It found that on the basis of the information before it, the Tribunal was not satisfied that, as a necessary and foreseeable consequence of his being removed from Australia to India, there would be a real risk that the applicant would suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act (paragraph 16 of Court decision).

2. The Honourable Federal Magistrate erred in not finding that the Tribunal made procedural mistakes that the Tribunal failed to communicate information with the applicant and the Court did not address that the Tribunal did not send the applicant any letter or did not investigate his claim. The Tribunal also did not provide any letter for its decision to the applicant. The Tribunal wrongly rejected the applicant’s review application. There is not proof before the Tribunal that they had given the letter to the applicant. The applicant also did not understand why his application was rejected by the Tribunal where the Tribunal did not comply with its own obligation.

3. The Honourable Federal Magistrate did not consider that the Tribunal did not follow the rule of the Part 7 of the Act. The Tribunal did not extend the time. The Tribunal did not investigate his claim. The Tribunal did not send him any adverse information before reject his claim. The Tribunal did not send him any letter with decision. The rejected the claim because the review applicant did not appear before the Tribunal. The Court did not consider these issues.

Consideration

16    The Court below was correct to find that there was no obligation on the Tribunal to notify the appellant of perceived gaps or inconsistencies in his evidence; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] per Finn and Stone JJ.

17    His Honour rightly found that the Tribunal did not draw any adverse inference from the appellant’s decision not to attend the rescheduled hearing. His Honour was also correct in finding that the Tribunal was under no obligation to “investigate” or make its own inquiries about the appellant’s claims over and above what was provided to it, applying Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429. As the Court below observed, the duty of the Tribunal is a duty to review. There may be circumstances where failure to make an obvious inquiry about a critical fact could constitute a failure to review giving rise to jurisdictional error but this is not such a case.

18    The Court below correctly found that the Tribunal was entitled to make a decision without providing the appellant with a further opportunity to appear before it pursuant to s 426A(1) of the Act.

19    As his Honour found, the appellant’s claimed non-receipt of the decision was inconsistent with his previous receipt of correspondence inviting him to attend the original and rescheduled hearings.

20    The appellant provided the Court with written submissions in support of his appeal. He did not provide those submissions to the respondent Minister until this morning. Those submissions failed to identify any appealable error in the reasons of the Court below or any jurisdictional error in the reasons of the Tribunal. Nothing was advanced orally by the appellant this morning to improve his position in this regard. For the above reasons, the appeal should be dismissed with costs.

Associate:

Dated: 16 August 2013