FEDERAL COURT OF AUSTRALIA

SZSTS v Minister for Immigration and Border Protection [2014] FCA 1031

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    The appellant appeals from the decision of a judge of the Federal Circuit Court (“FCC”) dismissing his application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”): SZSTS v Minister for Immigration & Border Protection [2014] FCCA 744. The Tribunal’s decision was to affirm the decision of a delegate of the Minister to refuse to grant the appellant a Protection (Class XA) visa.

Background facts

2    The appellant is a male citizen of India. In September 2008, he arrived in Australia with his then wife holding a class TU subclass 572 Student (accompanying spouse) visa. According to the delegate’s decision record, the appellant was granted a further subclass 572 Student visa in November 2010, allowing him to remain in Australia until December 2011. The appellant returned to India on 2 February 2011, arriving back in Australia on 22 March 2011. During the period in India, the appellant lived in his family’s home.

3    The subclass 572 Student visa was cancelled in August 2011, following which the appellant remained in Australia as an unlawful non-citizen. The appellant made an invalid application for a protection visa on 8 May 2012. On 25 May 2012, the appellant made a valid application for a protection visa. The substance of the appellant’s claim for protection was a fear of persecution by the family and community of the appellant’s former wife. The appellant claimed that he was Hindu and had married his wife, a Sikh, without the permission of her family. The appellant claimed to have been subjected to attempts to kill him as well as torture and beatings by his wife’s parents before the couple fled to Australia.

4    On 13 August 2012, the Minister’s delegate refused to grant the appellant a protection visa.

5    On 10 September 2012, the appellant applied to the Tribunal for a review of the decision to refuse the protection visa application.

6    On 30 January 2013, the Tribunal wrote to the appellant to inform him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the appellant to a hearing on 25 February 2013. The letter stated relevantly:

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.

7    On 25 February 2013, the appellant sent a medical certificate dated that day, which stated that he was suffering from back pain and was unfit for work/study for that day and the following day. The Tribunal interpreted this as an application for a postponement of the scheduled hearing. Accordingly, it wrote to the appellant saying that the hearing had been rescheduled to 19 March 2013. The letter stated relevantly:

Please note that if you happen to be unwell on or before the scheduled Tribunal hearing, the Tribunal will not adjourn the hearing unless it receives a letter from a doctor providing details of the condition suffered, why the condition means that you would be unable to give evidence and present arguments at a Tribunal hearing, and the number of days for which it is expected that you will be unable to give evidence and present arguments at a hearing.

Please ensure that your doctor is aware that this hearing is informal and that arrangements can be made to assist certain needs.

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.

8    On 19 March 2013, the Tribunal received a second medical certificate, dated 19 March 2013, which stated that the appellant was suffering from back pain and was unfit for work on 19 and 20 March 2013. The Tribunal’s decision record states:

The member requested that the case officer telephone the applicant to inform him that the medical certificate was insufficient having regard to the Tribunal’s previous letter to him; the hearing would go ahead, and the applicant should attend the hearing, at which time he could discuss his condition with the member. In response the applicant said he had back pain and is in bed and unable to attend the hearing.

9    The Tribunal thereafter decided, pursuant to s 426A of the Migration Act 1958 (Cth) (“the Act”), to make its decision on the review without taking further action to enable the applicant to appear before it. The Tribunal affirmed the delegate’s decision, essentially because it was not satisfied as to the applicant’s claims for protection.

10    In April 2013, the appellant made an application to the FCC for judicial review of the Tribunal’s decision. In February 2014, he filed an amended application. The amended application contained eight grounds, of which two grounds are substantially the same as the grounds of appeal in this Court.

Grounds of appeal

11    The grounds of appeal are:

1.    The primary judge failed to hold that the Tribunal made a jurisdictional error of law;

2.    The primary judge failed to hold that the Tribunal made decision “assumption and probality. The Tribunal failed to apply real test for persecution according to the [the Act].”

Appellant’s submissions

12    The appellant did not lodge written submissions. At the hearing, the appellant was assisted by a Hindi interpreter. In support of his appeal, the appellant that he will be killed if he has to go back to his country.

Consideration

Ground 1: jurisdictional error

13    The primary judge addressed this issue by saying “No jurisdictional error is revealed to the court and none has been particularised by the applicant”.

14    It is possible that the appellant was seeking to raise, before the primary judge, a complaint about the Tribunal’s decision to proceed to conduct its review in the appellant’s absence at the second scheduled hearing, after the Tribunal had received a second medical certificate from the appellant. A refusal of an adjournment may constitute a denial of procedural fairness amounting to jurisdictional error: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”); Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (“Singh”). However, the primary judge reviewed the facts concerning the circumstances in which the Tribunal decided to conduct its review. There is nothing in those facts which reveals legal unreasonableness of the kind identified in Li and Singh.

15    This ground of appeal does not disclose any appellable error.

Ground 2: failure to apply real test for persecution

16    The primary judge interpreted a similar ground of review as relating to the standard of proof applied by the Tribunal. He referred to the Tribunal’s obligation to comply with the Act and in particular s 65, which requires the Tribunal, standing in the shoes of the Minister, to grant a visa if satisfied of certain matters or, if not so satisfied, to refuse to grant the visa.

17    The primary judge concluded that it was not unreasonable for the Tribunal to fail to reach the necessary state of satisfaction for the grant of a visa when the applicant did not appear, citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].

18    The Tribunal’s decision record states (at [45]), “[a]lthough the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant”. This statement is unexceptionable. The decision record then states that the Tribunal was not satisfied that the criteria for the grant of a protection visa had been satisfied because:

a.    (at [46]) the Tribunal was not satisfied as to the appellant’s claims. The evidence was not sufficiently clear, credible or detailed so as to enable the Tribunal to be satisfied that the applicant had suffered persecution in the past or that he faced a real chance of persecution for a Convention reason in India;

b.    the appellant had not provided sufficient detail to explain the following matters:

1.    (at [47]):

i.    how, when and why his wife’s family tried to kill not only himself but also his wife;

ii.    whether he and his wife attempted to relocate within India before coming to Australia;

iii.    how they managed to escape being killed;

iv.    exactly when this occurred before they travelled to Australia;

v.    their efforts made to obtain police protection.

2.    (at [48]), the inconsistencies raised by the delegate in his decision record including:

i.    why the appellant said that his marriage was a secret, yet there was evidence that it was attended by family members from both sides and his wife’s neighbours;

ii.    why he and his wife claimed in her student visa application that they lived at his wife’s home after the marriage, but he claimed that his wife’s parents did not know about or support the marriage;

iii.    why his wife’s parents wanted to kill him yet did not stop her from returning to Australia (in March 2011) to be with him;

3.    (at [49]), the delay between when the appellant’s visa was granted (on 18 August 2008) and his departure for Australia (on 6 September 2008), having regard to his claims that he was in fear of his life;

4.    (at [50]), the delay between the appellant’s arrival in Australia in September 2008 and in his application for a protection visa in May 2012;

5.    (at [51]), why the appellant returned home to India in February 2011 if, as he claimed, he and his former wife had left in fear of their lives and after several murder attempts on them; and why they were not harmed when they returned to India;

6.    (at [52]), why the appellant’s wife’s family and the village want to harm him now, given that he is separated from this wife;

7.    (at [53]), why the appellant is unable to relocate or approach the police for protection in India.

19    It is plain from these reasons that the Tribunal’s decision was based upon its non-satisfaction as to the veracity of the appellant’s claims. This was not a case involving a possible misapplication of a criterion for a protection visa.

20    Accordingly, the second ground of appeal also does not disclose any appellable error.

Conclusion

21    The appeal must be dismissed.

Associate:

Dated:    23 September 2014