FEDERAL COURT OF AUSTRALIA

SZVST v Minister for Immigration and Border Protection [2016] FCA 1069

ORDERS

THE COURT ORDERS THAT:

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

COLLIER J:

1    This is an appeal from a Federal Circuit Court decision dated 9 May 2016, where the primary judge dismissed the appellant’s amended application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal). In its decision the Tribunal affirmed the decision of the delegate of the Minister not to grant the appellant a Protection (Class XA) visa.

Background

2    The appellant is a citizen of Bangladesh. He arrived in Australia on a false Indian passport (which appeared on its face to have been issued on 19 November 2012) and was granted a visa referable to that passport on 22 August 2013. The appellant then applied for a protection visa under the Migration Act 1958 (Cth) (the Migration Act) on 19 September 2013 in a name claimed by the appellant to be his true name.

3    The appellant alleged that he feared being killed or physically harmed by Muslims extremists in Bangladesh, on account of him being Buddhist. The appellant claimed that he and his family had been persecuted in Bangladesh, as members of a Buddhist minority, and that his father was beaten and killed by a local Muslim leader in relation to a land dispute. He said that his family land was taken over by that local Muslim leader. The appellant claimed that his mother was forced to flee her home and live with her sister due to threats and physical torture by persons who had taken over their family land. Further, the appellant stated that false charges had been laid against him in Bangladesh (in relation to keeping firearms) and that he did not attend court for this matter.

4    The appellant stated that he feared returning to Bangladesh as he believed he would be killed by the Muslim group or that he would face harm from the police for the firearm charges against him. Finally, the appellant feared that if he were to travel to Bangladesh through India he would be harmed by Indian authorities because he had used a false Indian passport.

Tribunal decision

5    The appellant sought review of the delegate’s decision in the Tribunal. The Tribunal hearing took place on 24 October 2014 after being adjourned once after the Tribunal had been informed that its letter notifying the appellant of the hearing had been sent to the incorrect address, and that the appellant wished to seek legal representation.

6    At the rescheduled hearing on 24 October 2014 the appellant requested that the hearing be adjourned again. The Tribunal refused his request. (I note that this refusal is of particular importance to the present appeal, and will return to it later in this judgment.)

7    The Tribunal upheld the decision of the delegate of the Minister. It found that while the appellant had been truthful about some of the claims he made, he had exaggerated or fabricated others. In particular, the Tribunal had concerns about the appellant’s claims in relation to the circumstances surrounding the death of his father, the harm suffered by his mother, the evidence concerning an attack on the appellant in 2011, and the evidence about the firearms charges against the appellant. The Tribunal concluded that there were many discrepancies in the appellant’s evidence and the documentary reports he had supplied.

8    The Tribunal concluded that Australia did not owe the appellant protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act, as the Tribunal was not satisfied that the appellant had a real chance of being persecuted, based on his religion, if he returned to Bangladesh, nor was it satisfied that the appellant had a genuine fear of harm.

Federal Circuit Court decision

9    On 9 May 2016, the primary Judge dismissed the appellant’s amended application for judicial review of the decision of the Tribunal.

10    The ground of review upon which the appellant relied in the Federal Circuit Court were as follows:

1.    The Tribunal erred refusing to grant the Applicant an adjournment, the Tribunal made a decision so unreasonable no reasonable person would have made it.

Particulars

The Tribunal erred refusing to grant the applicant an adjournment in circumstances where the Applicant was unrepresented in the hearing, had difficulties in finding and instructing a lawyer/agent, was impecunious, had missed important opportunities to advance his cause due to an erroneous address for notice being provided to the Department of Immigration.

11    The appellant was legally represented in the Federal Circuit Court proceedings. Counsel for the appellant argued that the appellant’s application for adjournment in the Tribunal was re-enlivened by communications received from the Tribunal. The primary Judge was not satisfied that any communications from the Tribunal or any exchanges which occurred at the commencement of (or during) the hearing were treated as the appellant making a formal application for adjournment. Even had that been the case, the primary Judge considered that the appellant had indicated he was ready to proceed, and it was reasonable for the Tribunal to proceed on that basis.

12    Further, the primary Judge held that there was nothing which suggested that the appellant did not have a genuine hearing, or that there was any jurisdictional error made by the Tribunal in refusing to grant the appellant’s request for an adjournment. His Honour observed that proceeding with the Tribunal hearing when the appellant might have be able to obtain legal representation did not mean that the Tribunal had proceeded on an unreasonable basis, particularly where no lawyer was identified by the appellant. The missed opportunities referenced by the appellant were due to the appellant’s own conduct, and not the result of conduct of the Tribunal.

Appeal to this Court

13    At the hearing of the appeal both the appellant and the Minister were represented by Counsel. The Court granted leave to the appellant to file an amended notice of appeal, which set out the following grounds of appeal:

1.    GROUND ONE:

His Honour erred in failing to discern that there had been a denial of procedural fairness in circumstances where the Appellant:

a)    Was unrepresented;

b)    Could not properly brief a lawyer due to late notice of proceedings;

c)    There was no abandonment of his application for an adjournment nor intelligible justification for refusing it.

2.    GROUND TWO:

His Honour erred in failing to find that the Tribunal had acted unreasonably in refusing the Appellant’s adjournment application:

a)    His Honour erred in finding that the Appellant was not disadvantaged in circumstances where he was not represented and yet, at paragraph [28] of the decision, giving weight to the fact that the Appellant was unable to identify a lawyer;

b)    His Honour erred in holding that the missed opportunities to advance his case were as a result of that Appellant’s “own conduct” at paragraph [29] in circumstances where the erroneous notification of an address was not due to the Appellant’s own conduct and nor was it an attempt to evade his responsibilities to keep the Tribunal informed.

The case of the appellant

14    The focus of the submissions of Counsel for the appellant was the exchange between the appellant and the Tribunal member at the hearing in relation to possible adjournment of the hearing. A copy of the transcript of the hearing was included in the Court book. Relevantly, after explaining the nature of the hearing to the appellant the Tribunal member asked the appellant’s witness to:

wait outside, it might be a while before we need you.

15    Subsequently the transcript recorded the following exchange:

Now before we start, you’ve made a couple of requests for the Tribunal to postpone the hearing so you can get yourself a lawyer.

Yes, yes I did.

Your application was lodged with the Tribunal in March, about seven months ago, so why haven’t you {indistinct}

Because I didn’t have any job or any money that I could actually hire a lawyer, I was completely helpless in this matter.

So do you think this now, or that you can now hire yourself a lawyer?

Yes, I have a part-time job now.

When did you start working?

About a month.

So why haven’t you found yourself a lawyer a month ago?

I did, I went to Res (interpreter: “I don’t know what that means, res”) and they have given me some tips.

So you’re… you have had the assistance of a lawyer, and you’ve had seven months since the application was made, and you’ve had more than a month’s notice before this hearing. So under the circumstances I didn’t think it was appropriate to postpone your hearing, given that you’ve had time and opportunities to get yourself legal representation.

I was always ready and prepared, but I thought I needed the last file from Immigration which I got last {indistinct}, which I got printed on Tuesday. Because, when I met this lady I told her what {indistinct} she was and I was in a very difficult situation, she said we’ll take your files from Immigration. Then find a lawyer, and move the case forward.

Hrm, I guess my question is why didn’t you, if you thought you needed files from Immigration, why didn’t you ask for these files back in March? Why is all of this being done three days before the hearing when your case has been here for seven months?

I was actually prepared to come but when I told them – he’s pointing to the lady – they said if you need a lawyer, and help, time is needed.

So you’re ok to go ahead, your friend, your representation wants to postpone the hearing, is that what you’re saying to me?

Yes, I am always prepared, but they said let’s try to get it postponed once so then we can have the case presented better.

OK, well I think it’s fair for us to go ahead, since you’re willing, and you’re prepared, and you have all your papers ready.

Yes, I am ready.

16    In relation to this material the appellant submitted, in summary:

    The Tribunal’s refusal of the appellant’s application for an adjournment was critical.

    It denied him a reasonable opportunity to present his case, or alternatively was a decision that was so unreasonable no reasonable person would have made it in the individual circumstances of the matter.

    The unrepresented status of the appellant was ultimately fatal to his application for adjournment and his substantive application before the Tribunal.

    The Tribunal did not direct itself to the fact that it was dealing with an unrepresented litigant.

    The Tribunal did not direct itself to the difficulties the appellant was experiencing in receiving notice of the hearing, and the fact that it was not the fault of the appellant.

    The refusal of the Tribunal to adjourn meant that vital documents obtained by the appellant pursuant to freedom of information requests could not be provided to a potential lawyer.

    The Tribunal took into account communications between the appellant’s witness and the appellant in a manner which could not occur had the appellant been represented.

    The reliance of the Tribunal on the “willingness” of the appellant to proceed should be viewed as a concession which would not have been made had the appellant been properly represented. Rather, the statement of the appellant that he was willing to proceed with the hearing was ambiguous, and should be viewed as his willingness to give evidence if called upon to do so.

    In deciding to proceed with the hearing the Tribunal did not take into account the inherent disadvantage this would cause the appellant.

    In determining that the appellant had “ample time” to obtain a lawyer the Tribunal failed to have regard to difficulties the appellant faced in receiving a notice.

    The appellant did not understand that his failure to attend the hearing before the delegate meant that his credit was in issue before the Tribunal.

    The appellant had experienced difficulties in both instructing and obtaining a lawyer.

Consideration

17    While the appellant has raised a number of points referable to the decision of the Tribunal, ultimately I am satisfied that the appeal cannot be substantiated. I have so concluded for the following reasons.

18    First, it is common ground that the appellant had initially provided the Tribunal with an incorrect mailing address, with the result that he failed to attend the initial hearing scheduled before the Tribunal. However it is equally clear that once the Tribunal was informed of this irregularity, on 30 September 2014 it rescheduled the hearing, giving the appellant almost four weeks’ notice of the rescheduled date of 24 October 2014. This was in circumstances where the appellant had lodged an application for review of the delegate’s decision on 22 March 2014, more than six months earlier. Objectively, the appellant had ample time to organise his affairs for the rescheduled hearing of 24 October 2014.

19    Second, I am not satisfied that, as Counsel for the appellant contended, the Tribunal “railroaded” the appellant into agreeing to proceed with the hearing of 24 October 2014 notwithstanding that he was not ready and had sought an adjournment.

20    The appellant was clearly unrepresented before the Tribunal, however whilst undesirable from the appellant’s perspective the obligation rested on the appellant to organise such representation. At the time of the Tribunal hearing of 24 October 2014 there was no evidence to suggest that the appellant had any prospect of obtaining legal representation. Certainly he was not in a position to positively advise the Tribunal of such prospective appointment (including the identity of any such practitioner). In this respect I note the approach of the Full Court in Zaoui v Minister for Immigration and Citizenship [2012] FCAFC 70, where their Honours observed in the circumstances of that case that there was nothing to suggest that, even had an adjournment been granted, there were any real prospects of the appellant there obtaining legal representation.

21    Further, while I consider there could be substance – albeit slight – to the appellant’s submission that he did not dispute the Tribunal’s decision to proceed with the hearing for cultural reasons and/or because he did not wish to appear unprepared before the Tribunal, I am satisfied from the transcript that the Tribunal believed the appellant was ready to proceed and that the Tribunal so believed on reasonable grounds.

22    Third, I am not satisfied that the Tribunal treated the appellant unfairly in inviting his witness to leave the hearing room at the beginning of the hearing while it engaged with the appellant. Although Counsel for the appellant described the witness as the appellant’s “advisor”, this seems to represent some overstatement of the role played by the witness at the Tribunal hearing. Certainly there is nothing to suggest at the commencement of the Tribunal hearing that the appellant had informed the Tribunal that his witness was, in fact, his “advisor”.

23    Fourth, I am not satisfied that the Tribunal improperly refused the appellant time to make further submissions. The transcript indicates rather that the Tribunal engaged with the appellant, and was sceptical of additional submissions his witness forecasted providing after the hearing, when the appellant himself indicated that he had nothing further he wished to add. In particular I note the following exchange between the Tribunal, the appellant and the witness at the conclusion of the hearing after the witness had given evidence:

(So.) That… I think that’s all I want to say to you.

Thanks very much for that. Mr [appellant], was there anything else that you think we need to talk about? Is there anything else you’d like to tell me before we conclude this hearing?

Uhh… I wouldn’t want to add anything, except to request to be treated… fairly.

Well there’s nothing else; we’ll conclude the hearing.

T.. can I just add one thing.

Sure.

Um… I would ask that, you give [appellant] some time after today to add any further submissions that he might think ---

Well look, he has just indicated that he doesn’t wish to provide any further information to the tribunal, and he’s indicated that in full. So –

Sorry?

He has just indicated that he does not wish to provide any further submissions to the tribunal. He hasn’t asked for more time; he doesn’t get more time, we have discussed that in the commencement of the hearing. Um…

No I didn’t mean more time now but I meant… you know, maybe… 10 days or something that he could find –

So is there anything else that you wish to tell me that we haven’t discussed today or do you need more time to provide any further submissions?

Uh no… I would, uh, again request, that whatever decision is made about me is done after, uh… thinking {indistinct} and fairly.

24    In my view this exchange supports a finding that the appellant did not wish to make further submission after the hearing.

25    Fifth, I understand that the appellant made a freedom of information request on or about 8 October 2014, namely a little more than two weeks before the rescheduled hearing. I also understand that the material sought by the appellant had not been received by him at the time of the Tribunal hearing. However while Counsel referred to “vital documents” sought to be obtained by the appellant pursuant his freedom of information request, the nature of such documents and the manner in which they would or could have affected the appellant’s case before the Tribunal has not been convincingly explained to me. I am not persuaded that the refusal of the Tribunal to adjourn its hearing pending receipt of the appellant of material pursuant to a freedom of information request resulted in a denial of justice.

26    Finally, I am not satisfied that the decision of the Tribunal was unreasonable in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], namely lacking an evident and intelligible justification, as claimed by the appellant.

Conclusion

27    The appropriate order is that the appeal be dismissed with costs.

28    In conclusion I note and appreciate the appearance of Mr Bodisco as pro bono Counsel for the appellant, and the helpful submissions provided by Counsel in support of the appellant’s case. Appeals in the migration jurisdiction of the Court raise significant challenges for appellants whose first language is not English, and who are not conversant with the difficult questions of administrative law which can arise in such appeals. The assistance provided by pro bono Counsel to appellants as well as the Court in these cases cannot be understated.

Associate:

Dated:    1 September 2016