FEDERAL COURT OF AUSTRALIA

BZAET v Minister for Immigration and Border Protection [2014] FCA 521

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1    On 31 March 2014 in BZAET v MIBP & Anor [2014] FCCA 605 a Judge of the Federal Circuit Court dismissed the appellant's application in which the appellant sought constitutional writs with respect to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 June 2013. The Tribunal had affirmed a decision of the delegate of the first respondent (“the Minister”) dated 4 September 2012 not to grant the appellant a Protection (Class XA) visa.

2    The appellant is a citizen of India. He arrived in Australia on 20 November 2008 on a Student (Class TU, Subclass 573) visa as a dependant spouse. The appellant subsequently divorced his wife and lodged an application for a Protection (Class XA) visa on 23 May 2012.

3    The appellant claimed to fear harm from the relatives of his former wife because of the dissolution of their marriage. The appellant claimed that he would not be able to obtain protection from the authorities in India because "anyone can bribe them".

4    On 29 August 2012 the appellant attended an interview with a delegate of the Minister. On 4 September 2012, the delegate made a decision refusing to grant the appellant a Protection (Class XA) visa. The delegate was not satisfied that the claimed harm related to Convention grounds because the harm was in respect of a personal family matter. The delegate also did not accept that the Indian authorities would not protect the appellant as there was no evidence before the delegate which indicated that the appellant would be treated "differentially" and was satisfied he would have the same level of State protection as other citizens of India. The delegate found that relocating within India was a "safe and reasonable option" for the appellant.

5    On 20 September 2012, the appellant lodged an application for review of the delegate's decision with the Tribunal. On 15 April 2013, the Tribunal wrote to the appellant and invited the appellant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The Tribunal's letter also notified the appellant that if he failed to attend the hearing, the Tribunal might make a decision without taking any further action to allow or enable him to appear before it.

6    On 10 May 2013 the Tribunal received a medical certificate from the appellant which stated that he was "NOT fit for his normal work/study from 8 May 2013 to 22 May 2013 inclusive". The Tribunal agreed to postpone the hearing.

7    On 21 May 2013, the Tribunal wrote to the appellant and advised that his request for postponement was granted and invited him to attend a rescheduled hearing on 19 June 2013.

8    On 14 June 2013, the Tribunal received another medical certificate from the appellant which stated that he was "unable to continue his normal duties from 10 June 2013 to 21 June 2013". On the same day the Tribunal contacted the appellant and advised that a detailed medical report and reasons why he would be unable to attend were necessary to support an application for an adjournment. The appellant confirmed that he would attempt to obtain such evidence and that if he could not he would attend the hearing.

9    The appellant did not appear at the hearing on 19 June 2013 and did not contact the Tribunal to explain his failure to attend. The Tribunal found that it was unable to satisfy itself of the claims raised in the appellant's application.

Decision of primary Judge

10    On 17 July 2013, the appellant filed an Application for Judicial Review of the Tribunal's decision in the Federal Circuit Court. In the Court below the grounds of review of the appellant were as follows :

1.    The Tribunal failed to consider an integer of the applicant's claims, in failing to consider whether or not the applicant in India was at risk of harm from his ex-wife's family members, and not able to access effective protection. The Tribunal decision was fundamentally influenced by not receiving evidence from the applicant at hearing. Therefore the Second Respondent's decision is not decision at all in law.

2.    The applicant satisfy the key elements of Convention definition as detailed in page 2, 3 and 4 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

[Errors in original]

11    In respect of these grounds of review the decision of the learned Judge was, in summary, as follows :

1.    The first ground of review:

    was an invitation to the Court to conduct a review on the merits of the application, which was impermissible;

    raised questions of procedural fairness in the Tribunal. In the view of the primary Judge, however, the Tribunal did accord procedural fairness to the appellant. The appellant did not provide any detailed medical report as requested by the Tribunal, nor attend the Tribunal hearing on 19 June 2013, nor contact the Tribunal in order to explain his non-attendance at the rescheduled hearing, and accordingly the Tribunal quite properly proceeded to make a decision.

2.    The second ground of review similarly requests the Court to conduct an impermissible merits review.

12    Finally the Judge noted at [29] that when the matter came on for hearing before him it was clear that the appellant needed an interpreter although he had not requested one. Accordingly, the matter was adjourned to 10 March 2014 in order for the hearing to be conducted with an interpreter to assist the appellant.

13    Accordingly his Honour dismissed the application with costs.

Appeal to this Court

14    On 14 April 2014, the appellant filed a notice of appeal from the FCCA, alleging that:

1.    The Federal Magistrate failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant's claim and ignoring the aspect of prosecution 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 Federal Magistrate failed to consider that the Tribunal had no jurisdiction to make the said decision because its 'reasonable satisfaction; was not arrived in accordance with the requirements of the Migration Act.

(Errors in original]

15    Before me the appellant appeared in person. The Minister was represented by Counsel.

16    In my view these grounds of appeal have not been substantiated.

17    In relation to the first ground of appeal:

    I note that the question of the Tribunal acting in manifestly unreasonably way was not before his Honour below, and accordingly it is not appropriate for me to entertain on appeal a ground which was not before the primary judge.

    In any event, the appellant has not particularised how the Tribunal has acted in a "manifestly unreasonable way".

    It is unclear how the Tribunal has breached its "statutory obligation".

    There is no foundation to the appellant's claim that the Tribunal did not consider whether he was at risk of persecution and harm in terms of s 91R. As is clear from its Findings and Reasons the Tribunal was unable to satisfy itself that the appellant faced a real chance of serious harm in the reasonably foreseeable future in India for one of the reasons specified in the Refugee's Convention. As the Tribunal explained, this was in light of the failure of the appellant to attend a hearing or provide adequate material to the Tribunal for it to consider.

18    In relation to the second ground of appeal:

    issues raised in this ground were similarly not raised in the Court below;

    this ground of appeal is vague and unparticularised, to the extent that it is virtually meaningless.

19    Finally, I am also satisfied that the Tribunal had acted properly in deciding to proceed to a decision in the absence of the appellant, and that in the circumstances the Tribunal had acted with procedural fairness.

20    In my view the appropriate order is to dismiss the appeal with costs.

Associate:

Dated:    21 May 2014