FEDERAL COURT OF AUSTRALIA

MZAFO v Minister for Immigration and Border Protection [2015] FCA 822

THE COURT ORDERS THAT:

1.    The application for leave to 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 is a citizen of India. He arrived in Australia on 4 July 2009 as a dependent on his then wife’s student visa. On 20 May 2013, he applied for a Protection (Class XA) visa.

2    On 30 August 2011, the appellant claimed that he separated from his wife because she was in a relationship with another man.

3    On 2 December 2012 the appellant and his former wife divorced. The appellant claimed that he had received constant threats of physical harm from his in-laws because of the divorce. The appellant claimed to fear that he would be killed by his in-laws if he returned to India.

4    The application was refused by a delegate of the Minister.

5    The appellant appealed to the Refugee Review Tribunal (“the Tribunal”).

6    The appellant did not attend the hearing before the Tribunal. The Tribunal determined that the appellant had not provided sufficient details of his claim, such as details of the divorce, his former wife’s current circumstances, her family’s values, the content and timing of the claimed threats and why or how his former in-laws wished to harm him. The Tribunal noted that the appellant had been invited to attend a hearing but did not appear and did not contact the Tribunal in relation to the hearing. Nor had the appellant attended an interview with the delegate in relation to his claim.

7    The Tribunal affirmed the delegate’s decision.

8    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The appellant relied on the following four grounds:

1.    The Second Respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal. On account of the mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty. By consequence Tribunal decision is not a decision at all in law.

2.    My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance with section 424A.

3.    Unfairness was involved in the failure of the Tribunal to send further communication to substantiate my claim of Refugee status and therefore there was a denial of natural justice.

4.    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.

9    The Federal Circuit Court considered each of the appellant’s grounds in the course of a “show cause” hearing pursuant to Rule 44.12(1)(a) of the Federal Court Rules. It considered that none of them was arguable. It rejected the application.

10    The appellant now seeks leave to appeal to this Court against the Federal Circuit Court’s decision. The appellant’s grounds of appeal are set out in the draft notice of appeal as follows:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant 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 Federal Circuit Court failed to take into consideration that the Tribunal’s decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim.

11    The appellant attended this morning on the hearing of his appeal. He had the assistance of an interpreter. He was invited to make any submissions he wished in support of his draft grounds of appeal.

12    The only matter raised by the appellant related to his failure to attend the Tribunal hearing. Although he had told the Federal Circuit Court that he had not attended as a result of a mistake made by an unnamed third party, he attributed his failure to attend to illness. He said that he had been depressed and confused at the time.

13    The appellant’s grounds for challenging the Tribunal’s decision in this Court differ from those on which he relied in the Federal Circuit Court. Arguably, they do not raise the question of his non-attendance before the Tribunal. Counsel for the Minister, however, accepted that draft ground 2 was very broadly drawn and did not oppose consideration being given to the issue raised by the appellant.

14    The difficulty which confronts the appellant is that there was no evidence before the Federal Circuit Court at all relating to the reasons for the appellant’s failure to attend the Tribunal hearing. There was no evidentiary basis on which the Federal Circuit Court could have determined whether the appellant was prevented from attending before the Tribunal for either of the reasons which he has since proffered.

15    The Federal Circuit Court’s decision was interlocutory in nature. It is, therefore, necessary that this Court be satisfied that the Federal Court’s decision was attended with sufficient doubt as to warrant reconsideration by this Court.

16    The primary judge’s reasons do not disclose any arguable appellable error. On the contrary, they reveal that his Honour gave careful attention to the evidence and the grounds raised by the appellant. There was no basis in law for any conclusions apart from those to which he came.

17    The present application for leave to appeal must be refused with costs.

Associate:

Dated:    11 August 2015