FEDERAL COURT OF AUSTRALIA

SZNJE v Minister for Immigration and Border Protection [2016] FCA 803

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellants are to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The Appellants are husband and wife. They are citizens of India. The husband was born in 1987; the wife was born in 1986.

2    They travelled to Australia in September 2008. They lodged applications for protection visas. Of present relevance is the fact that a delegate of the Minister refused those applications in April 2014. Applications seeking review were then filed with the then Refugee Review Tribunal.

3    Before the Tribunal, the Appellants initially indicated that they could attend a hearing on 22 December 2014. A request, however, was made to adjourn that hearing. The hearing was adjourned to 7 January 2015. On 2 January 2015 a further request was received to adjourn the hearing. The Tribunal refused that adjournment. The basis upon which the first adjournment was granted and the basis upon which the second adjournment was sought was the pregnancy of the wife. The Tribunal published its reasons for affirming the delegate’s decision on 6 February 2015.

4    On 5 March 2015 the Appellants filed an Application in the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision. The grounds upon which they sought review were expressed in that Application as follows (without alteration):

1.    The Second Respondent committed jurisdictional error by failing to address the applicant’s claim in the way it was made:

a.    The applicant stated in his protection visa that he was a follower of Asu Ram Bapu in India. The applicant witnessed two young boys killed in Gurkal and the applicant protested against the killing of the young boys.

b.    The applicant received death threats from the Guru.

c.    The Tribunal failed to consider whether or not the applicant in India was at risk of harm from Guru followers and not able to access effective protection.

2.    The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

3.    The Tribunal’s decision was unjust and made without taking into account the full gravity of applicants circumstances and consequence of claims. The Tribunal did not consider the applicants who had been under immense and intimidating pressure from Guru.

5    The hearing before the Federal Circuit Court took place on two days – 2 October and 26 November 2015. It would appear from the reasons of that Court that the Judge formed the view that the grounds of review as set forth in the Application “contained vague and relatively meaningless assertions”: SZNJE v Minister for Immigration & Anor [2015] FCCA 3427 at [2]. The husband, apparently, told that Court “that he no longer relied on those grounds…”. He wished to re-focus attention upon the decision of the Tribunal to refuse to adjourn the hearing on 7 January 2015. The hearing before the Federal Circuit Court was accordingly stood over from 2 October 2015 to 26 November 2015 to allow for the filing of evidence of the wife’s condition and for the preparation of submissions. No further evidenced was filed. The Application was dismissed at the resumed hearing.

6    A Notice of Appeal was filed in this Court on 10 December 2015. The Grounds of Appeal are there set forth as follows (without alteration):

1.    The Hon. Judge failed to consider that the Tribunal misconstrued the risk of significant harm as set out in s.36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the exercise of risk and fear of significant harm to the applicant upon his return to India.

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.

7    There was no appearance for the Appellants when the matter was called on for hearing. Inquiries were made by the interpreter and it transpired that the Appellant husband was on a train and on his way to Court. The matter was stood down for over half an hour in order to enable him to appear. Awaiting an appearance was the solicitor for the Respondent Minister, and the interpreter who was to provide services to the Appellants and the Court. Albeit belatedly the Appellant husband appeared. He was unrepresented and appeared on behalf of his wife. The appeal ultimately proceeded to hearing.

8    The appeal is to be dismissed with costs.

The reformulated grounds of review

9    On any view of the matter, there has been a degree of vacillation or flexibility in the manner in which the Appellants seek to challenge the decision of the Tribunal and, more relevantly, the decision of the Federal Circuit Court Judge.

10    Whether the primary Judge was correct in his characterisation of the grounds of review as first advanced before the Federal Circuit Court as containing “vague and relatively meaningless assertions” can presently be left to one side. On one view it could well have been concluded that grounds of review could readily have been understood as alleging a failure on the part of the Tribunal:

    to address the claim(s) as made;

    to reach the requisite state of “satisfaction … in accordance with the provisions of the Migration Act”; and

    to take “into account the full gravity” of the Appellants’ circumstances.

The primary Judge nevertheless may well have been correct in making the observation that “[t]hese same grounds have appeared in many applications before this Court and appear to have been directly copied from those other cases”: [2015] FCCA 3427 at [2]. The repetition by claimants seeking review of grounds in the same format, or in very similar format, to that employed by different claimants in different circumstances is a problem which has arisen before in this area of the law: e.g., SZQZH v Minister for Immigration and Citizenship [2012] FCA 1251 at [17] to [18] per Foster J. As has previously been said, claimants do themselves no justice by transposing (without thought) grounds of review directed to different facts and different circumstances: SZUXI v Minister for Immigration and Border Protection [2015] FCA 1475 at [19] per Flick J. Those persons purportedly advising claimants to do so certainly provide them with no assistance.

11    But such considerations need not be pursued further for either of at least two reasons.

12    First, it would appear from the reasons for decision of the primary Judge that the Appellants abandoned reliance upon the grounds of review as first formulated. The ground of review as ultimately advanced before the Federal Circuit Court was alleged error on the part of the Tribunal in refusing to grant a further adjournment.

13    Second, a reading of the reasons for decision of the Tribunal exposes the fact that each of the matters referred to by the Appellants in the grounds of review as first formulated was taken into account and addressed by the Tribunal. The Tribunal, it should be noted at the outset, made the following general observation:

35.    The Tribunal had significant concerns about the credibility of the applicants. The Tribunal did not find the applicants to be credible, truthful, or reliable witnesses in relation to matters central to, and related to, their claims. The Tribunal’s concerns are set out below.

The Tribunal thereafter went on to separately address in detail the credibility of the husband and that of the wife. In respect to the husband, the Tribunal noted that there were “a number of significant differences between the claims made in the statement that was submitted in support of the first protection visa application; the current protection visa application forms; and the evidence given to the Tribunal, as put to (both) applicants pursuant to s.424AA of the Act”. Eight such differences are then set forth. The Tribunal concluded this part of its analysis of the claims made as follows:

64.    Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has fabricated an account of events upon which he has based his protection claims.

As one instance of the concerns expressed by the Tribunal, its reasons for decision record in part as follows:

Findings of fact in relation to the applicant’s claims concerning the Guru on the basis of the complementary protection criteria

66.    On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant followed the Guru, that he saw or became aware of two boys being killed, that he took any steps in this regard or protested against this or anything else, that he came to the adverse attention of the Guru or his followers for any reason, that he was threatened, beaten, his shop destroyed, that he or any members of his family have been of interest to the Guru before he left India, or since he left. The Tribunal does not accept the assertion that the applicant is a “whistle-blower who exposed Asaram Babu”. The Tribunal does not accept that there is any reason for anyone to impute the applicant as a whistleblower, nor as a follower of the Guru, nor is there reason to consider that the applicant faces any harm from the Guru or his followers.

The Tribunal went on to separately address the wife’s credibility and made similar adverse assessments.

14    It matters not whether it was an informed decision on the part of the Appellants to abandon the grounds of review as set forth in their Application filed on 5 March 2015. Although it is unnecessary to reach any concluded view, it nevertheless would not appear that any of the grounds as initially formulated in the Application as first filed in the Federal Circuit Court had any prospect of success.

15    The sole ground of review as ultimately advanced for resolution by the Federal Circuit Court was the allegedly wrongful refusal on the part of the Tribunal to further adjourn the hearing before it.

16    Before the Tribunal, the Appellant husband appeared by way of video-link; the wife appeared by way of telephone. In recounting its reasons for refusing the second adjournment, the Tribunal concluded in relevant part as follows:

20.    The Tribunal initially invited both applicants to appear on 22 December 2014 to give evidence and present arguments. By way of a Response to the Hearing Invitation signed and dated 5 December 2014, both applicants had confirmed they would attend the hearing. Thereafter, two requests for postponement were received. The Tribunal granted the first request, and postponed the hearing to 7 January 2015. A further request for postponement was received on 2 January 2015, which was refused by the Tribunal. On both occasions, the ground relied upon for the request was that the wife was pregnant and due to give birth in late January 2015. Although the Tribunal agreed to grant the first postponement, it noted that the medical evidence indicated that the wife was subject to regular medical check-ups, and did not suggest that she could not attend a hearing. Therefore, the Tribunal refused to grant the request for a three month adjournment of the hearing (for both applicants), and scheduled the hearing for 7 January 2015. A further request for adjournment was made on 2 January 2015, however the medical evidence again did not suggest that she could not attend a hearing on 7 January 2015, and the Tribunal refused to again postpone the hearing, providing the same reasons. On 6 January 2015 the Tribunal was informed that the applicant would attend the hearing (which was scheduled by video link to the closest location to the applicants, Hay Hospital), but that the wife would not attend because she is pregnant and due to give birth at the end of January 2015. A Tribunal case officer telephoned the agent’s office and repeated that the hearing would not be postponed, but that the wife could give evidence by telephone if she wished.

In rejecting the argument founded upon a wrongful refusal of an adjournment, the Federal Circuit Court Judge relevantly concluded:

[9]    … there is nothing before the Court to show that the condition of the wife applicant prevented her from having a real and meaningful opportunity to give evidence and present arguments. In my view, the assertions in the letter, coming from a person not medically qualified and without support from any qualified medical practitioner, must be given little weight. However, in my view, even if accepted, the assertions in the letter do not support the claim that the wife applicant was not in a position to have a real and meaningful opportunity to give evidence.

Conclusion

[10]    For that reason, there was no breach by the Tribunal of its obligation to invite the applicants to attend a hearing to give evidence and to present arguments. Further, on the state of the material before the Tribunal, it was not unreasonable for it to refuse to grant an adjournment as requested by the applicants. The reason given by the Tribunal for its refusal was that the medical evidence before it did not establish that the wife applicant was unable to attend the hearing.

[11]    In my view, that was a reasonable basis for the refusal to adjourn the hearing and for that reason, the Tribunal did not fall into the error of unreasonably failing to exercise one of the powers given to it for the purposes of review. The power in this Court to review decisions of the Tribunal under s 476 of the Migration Act 1958 (Cth) is such that the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. The applicants have failed to do that in this case and so the application must be dismissed.

The grounds of appeal

17    The Grounds of Appeal as expressed in the Notice of Appeal set forth two Grounds of Appeal.

18    At the outset of the hearing of the appeal, there was some degree of uncertainty as to whether the Appellant husband sought to again challenge the refusal on the part of the Tribunal to adjourn the hearing on 7 January 2015. Albeit perhaps inelegantly expressed, it was understood that he retained a residual concern as to the decision of the Tribunal not to further adjourn the hearing on that day.

19    Difficulties arise as to the grounds of challenge which should now be entertained.

20    If attention is confined to the first Ground of Appeal, that is an argument which was not raised before the Federal Circuit Court. Normally a party is bound by the conduct of his case at hearing and will not be permitted to pursue a different course on appeal: Metwally v University of Wollongong (1985) 59 ALJR 481 at 483. But leave to raise a new argument may be granted where it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ.

21    Notwithstanding the consent of the Respondent Minister to permit this new ground of appeal to be raised, leave to do so should be refused. It is an argument without substance. The Tribunal set forth the manner in which it construed s 36(2A). No error is manifest in its exposition of that provision. Leave to raise a new argument should not normally be granted where the new argument has no reasonable prospects of success.

22    Leave to raise the first Ground of Appeal is thus refused.

23    If attention is focussed upon the second Ground of Appeal, that was an argument initially raised in the grounds of review in the Application filed in the Federal Circuit Court. But that argument was abandoned.

24    Although a party may be permitted to raise on appeal arguments which were not previously advanced before the primary judge, a party should not normally be permitted to abandon grounds of review before the primary judge and then seek to resurrect those same grounds – or much the same grounds on appeal: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], (2001) 64 ALD 9 at 24 per Gyles J; SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [33] to [34]; SZLWE v Minister for Immigration and Citizenship [2008] FCA 1343 at [19]. To do so would be to render the first hearing a “preliminary skirmish” (Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ; Sobey v Nicol [2007] FCAFC 136 at [72], (2007) 245 ALR 389 at 403 to 404 per Branson, Lindgren and Besanko JJ) and transform the hearing of an appeal into a hearing at first instance.

25    It is nevertheless not in the interests of justice now to allow an argument which was previously abandoned to be resurrected on appeal where there is no merit in the argument. The Tribunal in its reasons for decision in any event did “take into account the full gravity” of the Appellants’ circumstances. It addressed each of the claims made and addressed in detail its reasons for questioning the credibility of both the husband and the wife.

26    Albeit for different reasons, the Grounds of Appeal as set forth in the Notice of Appeal are thus each rejected.

The refusal of the adjournment – s 425 & an invitation to appear

27    The rejection of the only two Grounds of Appeal as set forth in the Notice of Appeal would normally doom the appeal to failure.

28    But the Appellants are unrepresented. And they continue to express concern regarding the refusal of the Tribunal to further adjourn the hearing before it on 7 January 2015. Their concern was founded upon an inability on the part of the wife to attend the place of hearing on the day nominated.

29    However their concern is expressed, it is upon the facts of the present case a concern without substance.

30    It is a concern without substance because the Tribunal did invite the Appellants to appear. At the adjourned hearing on 7 January 2015 the husband appeared by way of video-link and the wife participated by way of telephone.

31    Each limb to this conclusion should be separately addressed.

32    First, the necessity for applicants to be “invited” to appear before the Tribunal is sourced in s 425 of the Migration Act 1958 (Cth) (the “Migration Act”) which provides as follows:

Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

The fundamental importance of the obligation imposed by this section and of the opportunity to appear and give evidence cannot be underestimated. Any “subversion”, for example, of the obligation “also subverts the observance by the Tribunal of its obligations to accord procedural fairness to applicants for review”: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [32], (2007) 232 CLR 189 at 201 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. A failure to extend an opportunity to appear and present arguments in those circumstances in which the section operates constitutes jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCA 126 at [38], (2003) 128 FCR 553 at 561. But the obligation imposed is an obligation to “invite the applicant to appear”. There is no requirement for the Tribunal to take steps to ensure that the applicant in fact attends or accepts the invitation. Once the invitation is extended, it is a matter for the applicant whether he wishes to accept or reject it. The “obligation ceases if an applicant fails to respond to an invitation (s 425(2)(c))”: Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 at [36], (2009) 238 CLR 489 at 501 per French CJ, Heydon, Crennan, Kiefel and Bell JJ.

33    Second, the husband appearing by way of video-link and the wife by way of telephone were valid means of appearance authorised by s 429A of the Migration Act. Section 429A of the Act as it was then in force conferred a discretionary power to permit “the appearance by the applicant[s]” by one or other of the means there specified. Section 429A provided as follows:

Oral evidence by telephone etc.

For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:

(a)    telephone; or

(b)    closed-circuit television; or

(c)    any other means of communication.

Section 441 at the time provided as follows:

Sittings of the Refugee Review Tribunal

(1)    Sittings of the Tribunal are to be held from time to time as required, in such places in Australia as are convenient.

(2)    The Tribunal constituted by a member may sit and exercise the powers of the Tribunal even though the Tribunal constituted by another member is at the same time sitting and exercising those powers.

Section 441(1) presumably was a direction that the convenience of the applicant (and his advisers) as well as that of the Tribunal and the Commonwealth Respondents were to be taken into account. Section 5(a) of the Administrative Procedure Act in the United States (5 USC § 554(b)) is, by way of contrast, more certain in its terms when it expressly provides in part as follows:

In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives.

Since the incorporation of the Refugee Review Tribunal within the Administrative Appeals Tribunal in July 2015, it may be noted that ss 18C and 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (the “Administrative Appeals Tribunal Act”) confer comparable powers to ss 441 and 429A respectively.

34    The Administrative Appeals Tribunal is also required to make itself “accessible” to its users: Administrative Appeals Tribunal Act, s 2A. It has been noted that although the Tribunal maintains registries in each State capital city and in Canberra, it will on occasion travel to regional centres to make itself accessible to applicants who have difficulty travelling. The Tribunal also retains a power to take evidence from an applicant “inside or outside Australia”, but the convenience of the applicant overseas must be balanced against any potential to “disrupt” the conduct of the hearing itself: Re Murray and Commissioner of Taxation (No 2) [2012] AATA 450 at [14]. To avoid the disruption of the Tribunal sitting overseas, there have been instances of the Tribunal exercising the power to take evidence from outside Australia by way of video-link, where it is in the interests of the administration of justice to do so: Seymour v Commissioner of Taxation [2016] AATA 397 at [79] to [80].

35    A person may nevertheless be denied a reasonable opportunity to be heard – and denied an opportunity to “appear” – where a hearing is held at a place that a party cannot attend: e.g., Ex parte Bourke (1898) 19 LR (NSW) 370; Woodley v Woodley and Meldrum [1928] NZLR 465.

36    “Section 425 imposes an obligation on the Tribunal to provide a real and meaningful invitation …”: Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 at [53], (2015) 149 ALD 552 at 565 to 566 per Yates J. Circumstances may be envisaged where an “invitation” for an applicant “to appear” falls short of that required by s 425 of the Migration Act where (for example) the place at which the hearing is proposed to be held is manifestly inappropriate and where the means of communication envisaged by s 429A may not be adequate to ensure that the applicant has a meaningful opportunity “to give evidence and present arguments”.

37    But no such questions arise in the present case. The Appellant husband took no issue with the adequacy of the means by which both he and his wife participated in the adjourned hearing on 7 January 2015. No question arose, for example, of the need to ask questions of one or other of them by reference to documents which could only be accommodated by their appearance in person.

38    In such circumstances, to the extent that the Appellant husband sought, on the hearing of the appeal, to re-canvass not the Grounds of Appeal as formulated in the Notice of Appeal but his challenge to the decision of the Tribunal to refuse a further adjournment of the hearing, any such argument should be rejected. The Federal Circuit Court Judge was correct to reach the conclusion that he did when that argument was previously advanced for resolution.

CONCLUSIONS

39    To the extent that the first Ground of Appeal seeks to raise an argument not previously raised before the Federal Circuit Court Judge, leave to do so should be refused. The argument sought to be raised is without substance. The first Ground of Appeal is otherwise rejected.

40    The second Ground of Appeal should also be rejected.

41    The Appellant husband accepted that the Appellants should pay the costs of the appeal in the event that the appeal was dismissed. The Appellants should be ordered to pay costs. An opportunity, however, was sought to pay any such costs by instalments. That is a matter best left to the First Respondent to resolve.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellants are to pay the costs of the First Respondent.

Associate:    

Dated:    13 July 2016