FEDERAL COURT OF AUSTRALIA

BYF15 v Minister for Immigration and Border Protection [2016] FCA 774

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The first and second applicants are to the pay the Minister’s costs of the application as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application pursuant to r 35.12 of the Federal Court Rules 2011 (Cth) for leave to appeal from a decision of the Federal Circuit Court dated 18 January 2016 dismissing an application under r 16.05(2) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) to set aside orders made on 4 December 2015 and to reinstate the application for judicial review. By the orders made on 4 December 2015, the Federal Circuit Court had dismissed the applicants’ application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) on the ground that the applicants failed to appear at the hearing under r 13.03C(1)(c) of the FCC Rules.

2    Leave to appeal is necessary under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the decision refusing the application to reinstate the proceedings is interlocutory in character: Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [3].

3    The applicants raise two grounds in their application for leave to appeal:

1.    The Hon Judge did not consider that The Second Respondent’s decision was fundamentally influenced by not receiving evidence from me in hearing.

2.    The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of the AAT.

4    At the hearing, leave was granted for the applicants to file and serve an affidavit annexing a draft amended notice of appeal relating to the Tribunal’s consideration of the fourth applicant’s medical condition, together with evidence in support of any such proposed ground including: any medical certificate relating to the fourth applicant’s medical condition said to have been provided to the Tribunal; and any evidence as to the reasons why the ground was not raised in the Federal Circuit Court proceedings. Orders were also made for the filing of written submissions by the parties in relation to the new ground.

5    No affidavit attaching a draft amended notice of appeal was filed. However the applicants filed written submissions in support attaching three documents. The first respondent filed and served submissions in response on 30 May 2016. No submissions were filed by the applicants in reply.

6    For the reasons that follow, the application for leave to appeal must be dismissed on the ground that any appeal would not enjoy any real prospects of success.

2.    BACKGROUND

2.1    The first visa application

7    The applicants are citizens of India, with the first and second applicants being husband and wife respectively and the third and fourth applicants being their children. The fourth applicant was born in Australia in late 2013.

8    The first application for protection visas was made by the first, second and third applicants on 9 September 2009. Those applications were refused by the Minister’s delegate whose decision was affirmed on review by the Refugee Review Tribunal. An application for judicial review of the Tribunal’s decision was successful and the protection visa application was remitted to a differently constituted Tribunal. That Tribunal again affirmed the delegate’s decision. Subsequent applications to the Federal Court, the Full Federal Court and the High Court were unsuccessful, as were applications to the Minister pursuant to s 417 of the Migration Act 1958 (Cth) (the Act).

2.2    The second visa application

9    Following the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, the applicants made further applications for protection visas on 29 October 2013. SZGIZ concerned the construction of the bar imposed by s 48 of the Act which prevents a non-citizen making a further application for a protection visa while in the migration zone. The Full Court held that s 48 did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s 36(2)(a) of the Act from making a further application on the basis of the complementary protection provision in s 36(2)(aa) following its enactment in 2012.

10    The first applicant (who was the primary applicant) claimed that as a member of Dera Sacha Sauda (DSS) he has been attacked and harmed in India by members of the Sikh association and militant groups. The second, third and fourth applicants relied upon on their membership of the applicant’s family unit for the grant of protection visas to them.

11    The delegate refused to grant the protection visas on 11 August 2014. Notwithstanding that the delegate was prepared to give the first applicant “the benefit of the doubt” and accept that he was a member of the DSS at a grassroots level, the delegate did not accept that he was at risk of harm in the future if returned to India.

2.3    The Tribunal’s decision

12    Following lodgement of the application for review in the Tribunal, the applicants’ representative provided a submission in relation to the first applicant’s claims to fear harm as a member of the religious group, the DSS.

13    By letter dated 18 May 2015, the Tribunal invited the applicants to attend a hearing on 19 June 2015 to give evidence and present arguments. The Tribunal agreed to a request made on 19 June 2015 that that hearing be postponed and the hearing was rescheduled to 19 August 2015.

14    The first applicant attended the rescheduled hearing but his wife and children did not attend. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages, and the applicants were represented in relation to the review by their registered migration agent.

15    In a submission following the hearing, the applicants’ representative again submitted that the first applicant is a member of the DSS and has been attacked on two occasions, that he is a farmer whose knowledge is limited, and that his nervousness and difficulties in elaborating on his religious faith and beliefs were apparent. The representative further submitted that the fourth applicant is currently being treated for a hole in her heart and the first applicant cannot take his family back to India amidst such uncertainty.

16    On 31 August 2015, the Tribunal affirmed the delegate’s decision not to grant the applicants a protection visa.

17    In line with the decision in SZGIZ, the Tribunal assessed the first, second and third applicants’ applications against the complementary protection provision in s 36(2)(aa) and (c) (membership of the same family unit) only because they had previously been refused a protection visas in Australia by reference to the refugee criterion in s 36(2)(a). However the fourth applicant’s application had not been assessed against either provision. As such the Tribunal assessed the fourth applicant’s claim against both the Refugees Convention and complementary protection provisions.

18    While acknowledging that the Minister’s delegate accepted that the first applicant was a low-level member of the DSS in India, the Tribunal was not satisfied on the evidence before it that the first applicant was involved in the DSS in India. The Tribunal was drawn to the conclusion that the first applicant’s purpose in coming to Australia was to work on a farm in rural Australia. In this regard the Tribunal said in its reasons that it had explained at the hearing that it was not bound by the findings of the delegate or any previous tribunal.

19    The Tribunal’s reasons for rejecting the first applicant’s claims to be involved in the DSS can be summarised as follows.

(1)    The first applicant’s evidence regarding his lack of any involvement in the DSS during his six years in Australia was not consistent with his claim to have fled India due to his commitment to or involvement with that group.

(2)    The first applicant was able to articulate only superficially the importance of the DSS to him and how he practices the principles of DSS in his everyday life. Given information as to the strict adherence by DSS members to specific principles, the Tribunal considered that a person who was genuinely committed to the DSS would have given considerable thought to the application of such principles in their everyday life. The first applicant’s evidence in relation to this issue together with his evidence as to his lack of any involvement in the DSS in Australia raised considerable concerns that led the Tribunal to consider that he had manufactured his claims to be a member of the DSS.

(3)    The first applicant did not exhibit anything other than a limited understanding of the principles and beliefs of the DSS.

20    In any event, the Tribunal found that the independent evidence did not support the first applicant’s claims that members of the DSS are being targeted in India. The Tribunal was therefore not satisfied that, even if the first applicant was believed as to his membership of the DSS, there was a real risk he would suffer significant harm for this reason upon his return to India.

21    The Tribunal also asked during the hearing whether there was any other reason why the first applicant could not be returned to India. In response, the first applicant stated that he had no other reasons. When reminded of his claim relating to extortion, the first applicant stated that there is a lot of terrorism and extortion within the Sikh community but his family is poor and has no money. The Tribunal considered that it was evident that the applicant had forgotten his claim that he would be the subject of extortion and did not accept that there was a real risk he will suffer harm for this reason.

22    The Tribunal concluded that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to India, there is a real risk that he will suffer significant harm so as to satisfy the complementary protection criteria in section 36(2)(aa).

23    With respect to the fourth applicant, the Tribunal further found at [31] of its reasons that:

The Tribunal has had regard to the applicant’s claims that the fourth named applicant is undergoing treatment for a hole in the heart. The Tribunal has not been provided with any further evidence in relation to this issue, but accept [sic] that the applicant’s daughter is undergoing such treatment. The Tribunal has no further evidence regarding the severity of this condition and on the evidence before it is not satisfied that she will be unable to obtain treatment in India for this condition or that she will suffer significant harm for this reason.

24    It followed that the second, third and fourth applicants’ applications for a protection visa under the complementary protection criteria in s 36(2)(aa) were refused.

25    In considering whether the fourth applicant might satisfy the criteria for a protection visa under the Refugees Convention ground in s 36(2)(a), the Tribunal found at [32] that:

The fourth named applicant’s application was made on the basis of her membership of her father’s family unit. Although no claims were previously made on her behalf it has since been claimed that she suffers from a hole in the heart. As indicated above, the Tribunal has not accepted that she will suffer significant harm for this reason and for the same reasons the Tribunal is not satisfied that there is a real chance that she will suffer serious harm for this reason. Accordingly, the Tribunal finds that the fourth named applicant does not have a well founded fear of persecution for a Convention reason if she returns to India now or in the reasonably foreseeable future.

2.4    The decision of the Federal Circuit Court

2.4.1    The dismissal of the case pursuant to r 13.03C(1)(c) on 4 December 2015

26    On 4 December 2015, the applicants’ appeal from the Tribunal to the Federal Circuit Court was fixed for a show cause hearing pursuant to r 44.12 of the FCC Rules. The applicants did not appear at that hearing. The primary judge noted that on 3 December 2015, a report had been received from Dr Haasbroek “which made reference to character matters concerning the applicants and depression being suffered by the second applicant” (at [2] of the reasons of 4 December 2015). The primary judge concluded (at [3]-[4] the reasons of 4 December 2015):

No opinion was expressed as to an inability of the applicants to attend the hearing today. No application for adjournment was foreshadowed or made to the first respondent. The first respondent has read an affidavit of service of the submissions of the first respondent that was sent to the correct address as identified on the application. This included a letter foreshadowing that the matter may be the subject of an application to dismiss the proceedings for non-appearance if the applicants fail to attend. I am satisfied that the applicants were well aware of the hearing date for the show cause hearing and that there is no proper explanation for their failure to appear.

The doctor’s report does not identify any proper ground upon which an adjournment should be granted, and there is no explanation for the absence of the applicants. The first respondent has moved for dismissal under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. I am satisfied that this is an appropriate matter to exercise the Court’s powers under r.13.03C(1)(c).

2.4.2    The decision on the application in a case on 18 January 2016

27    The applicants applied for an order under r 16.05(2) of the FCC Rules to have the orders of 4 December 2015 set aside and the proceedings reinstated. The grounds of the application before the Federal Circuit Court were as follows:

1. The Tribunal made a procedural error by not correctly assessing information relevant to the applicant's particular circumstances.

Particulars

The applicants state that they produced before the Department of Immigration and Administrative Appeals Tribunal valid and relevant information with regard to their protection claims. However, these evidence were rejected by the assessing authorities as simply not accepting. The applicants state that such a stand is not accepting to them, because their claims were not given due consideration by the assessors.

2. The applicants were not afforded natural justice.

Particulars

The applicants believe that they were not afforded a fair hearing. The first applicant states that his legitimate expectation to seek protection in Australia with his family was denied by the decision of the Tribunal. The first applicant believes this is due to the fact he did not have an opportunity to have her case heard by an impartial decision-maker. The first applicant felt that in certain situations, the Respondents have prejudged their case not allowing the evidence to prevail. The Respondents simply chose to disbelieve the applicants' evidence. The first applicant states while the Respondents are entitled to his/her opinion, this should be done reasonably. The first applicant states the respondents did not take into account relevant considerations and took into account irrelevant considerations.

28    The primary judge dismissed the application in a case. First, the primary judge found that he was not satisfied that the medical certificate or anything said by the first applicant at the hearing satisfactorily explained the applicants’ failure to appear at the hearing on 4 December 2015. He stated that he would refuse the application on that ground alone. Secondly, his Honour found that he was not satisfied that there was any sufficiently arguable case of jurisdictional error to warrant setting aside the earlier judgment in the interests of the administration of justice.

3.    CONSIDERATION

3.1    Relevant principles

29    As the Minister submitted, in determining whether or not to grant leave to appeal, relevant factors include whether the decision of the Federal Circuit Court is attended by sufficient doubt to warrant reconsideration and, if it is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In this regard, the power exercised by the Federal Circuit Court in dismissing the reinstatement application under r 16.05(2) of the FCC Rules was discretionary. As such, it would be necessary for the applicant to demonstrate that the primary judge made an error of the kind identified in House v R (1936) 55 CLR 499 at 505 in the exercise of discretion, namely that the primary judge acted upon a wrong principle, was guided by extraneous or irrelevant matters, ignored relevant or matters, made a mistake of fact, or that the discretionary decision is unreasonable or plainly unjust.

30    In this regard the principles which govern the exercise of power under rule 16.05(2) of the FCC Rules were identified by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]:

In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:

(a)    whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

(b)    the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

(c)    whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]:

The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement.

(emphasis in the original.)

31    The principles governing the discretion whether or not to reinstate a proceeding are not, therefore, identical to those relevant to the grant of leave to appeal. Nonetheless, I do not consider that the application of those requirements would lead to any different result in this case. Specifically, I do not consider that there is a reasonably arguable case that the primary judge erred in finding that the substantive grounds of judicial review in the dismissed proceeding could not succeed if the proceedings were reinstated; nor do I consider that the further proposed grounds raise a reasonably arguable point.

3.2    Ground 1

32    As the Minister submitted, it is not clear from ground 1 of the draft notice of appeal whether it is said that the error lay in the Tribunal not receiving evidence from the applicants or in the Federal Circuit Court not receiving evidence from the applicants. In those circumstances the Minister addressed both grounds.

3.2.1    The Tribunal’s decision

33    With respect to the Tribunal hearing and subject to the new further grounds discussed below, the applicant does not identify any evidence which it is said the Tribunal did not receive. Nor is any failure by the Tribunal to receive evidence apparent from the face of its decision. As earlier explained, the Tribunal invited the applicants to a hearing which was rescheduled at the applicants’ request and the first applicant in fact attended the hearing and gave evidence. Submissions on behalf of the applicants were also received and considered by the Tribunal both before and after the hearing.

3.2.2    The decision by the Federal Circuit Court

34    The position with respect to the Federal Circuit Court is more complicated. The primary judge found that he would refuse the application to set aside the earlier orders made on 4 December 2015 on the ground that neither the medical certificate nor anything said by the first applicant provided a satisfactory explanation for the failure by the applicants to appear at the hearing on 4 December 2015. His reasons for so finding were as follows:

3.    Prior to the hearing on four December, medical certificate was received by the Court from a Dr Haasbroek, dated 3 December 2015. The Court treated the medical report is an application for an adjournment, albeit that no contact has been made with the first respondent to formally make an application. The Court found that the content of the doctor’s report was insufficient to explain the failure to attend by the applicants. In support of the application, the applicant made the bold assertion that he was unable to attend due to the severe medical condition of his wife and relied upon the same certificate that the Court had already identified as being insufficient to identify a proper basis upon which the applicants were unable to attend.

4.    From the bar table, the applicant was asked why he had not contacted the first respondent to formally seek an adjournment or identify the difficulty in his ability to attend, and he conveyed that he was trying to get a friend to look after the children and also suggested at one stage that he had a doctor’s appointment that he had to attend, which was why he could not come to Court. Nothing said by the first named applicant provides any satisfactory explanation for the failure of the applicants to appear at the hearing that was listed on 4 December 2015.

35    I raised a concern with the Minister’s legal representative (who did not appear in the Court below) that the reasons of the primary judge did not indicate that he had explained to the first applicant that statements from the Bar Table do not constitute evidence and that, if the first applicant wished to give evidence of his reasons for not attending the first hearing, he would need to give sworn evidence. Related to this, I also raised a concern that the explanation given by the first applicant from the Bar Table was apparently rejected by the primary judge in the absence of any cross-examination challenging that account. In this regard, I note that the Full Federal Court in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (SZRUR) held that a primary judge has a duty to ensure that an unrepresented litigant is aware of the Court’s procedural and evidential rules and that the failure to comply with that duty may result the decision being set aside on the ground of a breach of procedural fairness. Thus, in SZRUR the failure by the primary judge to explain to an applicant that he could not simply assert fraud in submissions made from the Bar Table but needed to give evidence if he wished to press that claim was held to have resulted in a breach of procedural fairness: see also Hamod v New South Wales [2011] NSWCA 375 at [309]-[317]; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [38]-[42].

36    There was no transcript of the hearing before the primary judge. In this regard, the Minister’s counsel indicated that the Minister would, if the application for leave were to turn on this issue, seek leave to obtain a copy of, and to tender, the transcript. However, I accept the Minister’s primary submission that it is ultimately unnecessary for this ground to be determined because any appeal would have insufficient prospects of success in any event for the reasons set out below.

3.3    Ground 2

37    Ground 2 alleges that the primary judge dismissed the application without considering the legal and factual errors of the Tribunal. However, it is apparent that the primary judge did in fact consider the grounds raised by the applicants which are quoted at [27] above. As the primary judge held at [8], it was for the Tribunal to decide whether or not it accepted the whole or part of the first applicant’s evidence. In its detailed statement of reasons, the Tribunal gives rational and intelligible reasons as to why it did not accept the first applicant’s evidence in support of his claims. It is not the case that the Tribunal decided simply not to accept the claims, as ground one of the application for judicial review asserted. Equally, as the primary judge also held at [11], the fact that the Tribunal made adverse findings does not demonstrate an apprehension that the Tribunal may not have approached a consideration of the first applicant’s claims in an impartial way; nor that the Tribunal was biased.

38    Ultimately, it is apparent that the applicants disagree with the factual findings by the Tribunal. However neither the Federal Circuit Court, nor this Court if leave to appeal were granted, has jurisdiction to decide on the evidence whether the Tribunal’s decision is the correct and preferable one as a matter of fact. On the application for judicial review from the Tribunal’s decision, it was open to the Federal Circuit Court only to consider whether the Tribunal’s decision was lawfully made under the Act, that is: whether it was procedurally fair, complied with the standard of legal reasonableness, and otherwise properly applied the relevant provisions of the Act. Equally, this Court would lack jurisdiction on any appeal to undertake any wider enquiry with respect to the correctness of the Tribunal’s decision but must consider rather whether the decision of the primary judge was correct applying the tests explained at [29]-[30] above.

3.4    Further grounds raised by the applicants

39    No issue was raised in the Federal Circuit Court about the Tribunal’s consideration of the fourth applicant’s medical condition. This issue was raised by the first applicant for the first time at the hearing of the application for leave to appeal. As the legal representative for the Minister submitted, the applicant would require leave to raise the ground if leave to appeal were granted because the ground is a new one: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. The first respondent did not oppose the applicants being granted leave to amend their draft notice of appeal, but submitted that leave should be refused to advance the new grounds on the basis they lack merit, and no reasons had been given for the failure to advance these grounds in the Court below.

40    As noted earlier, the applicants filed written submissions following the hearing. Those written submissions provided:

I refer to your letter dated 16 May 2016 to provide reasons in support of my claim for medical condition of the fourth applicant [i.e. my daughter]. I would like to put some facts before coming to the conclusion:

It is true that my daughter … is suffering from congenital heart defect.

She was born in Australia on… October 2013.

She is suffering from the same defect since her birth.

We are constantly trying to provide her with the latest and the finest treatment and hospital in Australia.

We are poor and cannot afford the high cost of surgery and medicines in my home country as cost of treatment is way more expensive than the treatment cost in Australia.

Australia is developed country and use latest technology for the treatment of the person whereas India as developing country and use old equipment for the treatment.

In India, hygiene is not regarded as priority but Australia has its own policies and procedures for the hygiene.

My wife, second applicant in this application, is suffering from serious depression due to my daughter’s illness.

She is totally dependent on me for her daily necessities and as her treatment is in process we can’t change the doctor and medical provider at the very last stage.

She is recovering and need some time to recover completely and take care of my daughter.

As my daughter was born here in Australia, doctors are more responsible for the defect in child as they feel themselves responsible for inability to detect the defect at early stage of pregnancy.

When we talk about Indian doctors, it’s very hard to recognise the genuine doctors and degree holders, as India is well known for the fraud certificates. Moreover trainees are given training on living person that can be dangerous for the person undergoing treatment.

We have threat from other parties in India, which is the reason for applying protection visa in Australia.

So, at last, I would request you to grant me some time till the condition of my child, wife and home country get better.

I would be really thankful to you for the positive decision.

41    As is apparent, the submissions raise grounds relating not only to the fourth applicant’s medical condition, but also to other matters including the second applicant’s medical condition.

42    Attached to the submissions were three documents:

(1)    a letter dated 30 September 2014 from Dr Darren Shepherd to Dr Steven Cooper relating to the fourth applicant;

(2)    a letter dated 20 May 2016 from Dr Rahul Kalon relating to the fourth applicant; and

(3)    a letter dated 3 December 2015 from Dr J Bernard Haasbroek relating to the second applicant.

43    As the Minister submits, the following issues arise from the applicants’ submissions, namely:

(1)    How was the claim relating to the fourth applicant’s medical condition put to the Tribunal and did the Tribunal consider this claim?

(2)    What evidence was provided to the Tribunal in support of the fourth applicant’s medical condition, and did the Tribunal fail to consider evidence such that it committed jurisdictional error?

(3)    Did the Tribunal comply with its s 425 of the Act obligations in respect of the claim relating to the fourth applicant’s medical condition?

(4)    Was the second applicant’s claim to be suffering from serious depression due to the fourth applicant’s medical condition raised with the Tribunal and, if so, did the Tribunal consider this claim?

(5)    Did the Tribunal consider the threats that the applicants’ faced from other parties in India?

3.4.1    The fourth applicant’s medical condition

44    The first applicant submitted at the hearing that the Tribunal had not considered the claim or medical evidence which had been submitted in relation to the fourth applicant’s medical condition. Certainly no mention is made of any such evidence in the Tribunal’s reasons and the implication is that the evidence was not before the Tribunal.

45    Only the letter dated 30 September 2014 from Dr Shepherd predates the Tribunal hearing. However, the Minister denies that that letter was before the Tribunal and no evidence has been led by the first applicant to suggest that this letter was in fact before the Tribunal despite the orders specifically making provision for such evidence (if any) to be led if the applicants wished to pursue this further proposed ground of appeal. Nor in the accompanying submission does the first applicant suggest that this or indeed any of the other documents were put before the Tribunal. In those circumstances, there is nothing which suggests that there would be any merit in the contention raised by the first applicant at the hearing. Rather, it would appear from the first applicant’s submission that he wishes to persuade this Court to grant him some time in Australia until his wife and child get better and the situation in India improves. However, as I have earlier explained, the courts on judicial review have power only to consider the legality of the decision by the Tribunal. Neither the Federal Circuit Court nor this Court have power to grant the applicants any visas or to decide whether they meet the criteria for a visa.

3.4.2    The Tribunal’s compliance with s 425 of the Act

46    The second issue is whether the first applicant’s claim that his daughter had a hole in her heart became a dispositive issue requiring a second invitation to a hearing, given that the issue was raised after the hearing. As the Minister submits, s 425 requires the Tribunal to disclose to an applicant additional issues on the review which were not live before the delegate: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 163 [35]. However, the Tribunal does not have a duty to inform an applicant that it may make different findings because the evidence on which the applicant now relies is different from that before the delegate or because new claims are advanced before the Tribunal: SZHBX v Minister for Immigration Citizenship [2007] FCA 1169 (SZHBX) at [14] (Edmonds J) (application for special leave to appeal to the High Court refused: [2008] HCASL 131). Nor does the Tribunal have a duty under s 425 to inform an applicant that because different claims are made, it will be required to consider whether the evidence supports the new claims: SZHBX at [14]. As such I accept the Minister’s submission that there is no arguable case of a failure by the Tribunal to comply with s 425 of the Act.

3.4.3    The claim relating to the second applicant’s depression

47    The applicants’ submissions also allege that the second applicant is suffering from serious depression due to the fourth applicant’s medical condition. There is no evidence however that any such claim was advanced before the Tribunal. As such, the Tribunal cannot be said to have erred in failing to consider that claim.

3.4.4    The Tribunal’s consideration of the first applicant’s claims to fear harm from other parties

48    Finally, in his further submission, the first applicant’s submissions referred again to the threat of harm relied on which he relied in relation to the claim for a protection visa. However, that claim was expressly considered by the Tribunal and no error in the Tribunal’s consideration of the issue of a jurisdictional kind has been identified or is apparent: see also [37] – [38] above.

4.    CONCLUSION

49    The application for leave to appeal is refused. The first and second applicants are to pay the Minister’s costs of the application as agreed or assessed.

Associate:

Dated:    1 July 2016