AZAFB v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: NORTH ACJ DATE: 4 DECEMBER 2015 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before the Court is an appeal from orders made by the Federal Circuit Court on 18 May 2015. The Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal made on 19 May 2014. The Tribunal affirmed the decision of a delegate of the first respondent, then the Minister for Immigration and Citizenship, made on 17 September 2013 not to grant the appellant a protection visa. 2 The central issue in this appeal is whether the Tribunal fell into jurisdictional error by proceeding with the hearing of the review in the absence of the appellant.

THE FACTS 3 In his original visa application, made in January 2013, the appellant provided to the then Department of Immigration and Citizenship an address for receiving documents in Kilburn, South Australia. He later updated that address to an address in Klemzig, South Australia. 4 On 30 July 2013, the delegate of the first respondent sent a letter to the appellant at the Klemzig address inviting him to interview concerning the visa application. On 19 August 2013, the applicant attended that interview. On 17 September 2013, the delegate refused the application for a visa. 5 On 2 October 2013, the appellant applied for a review of the delegate's decision. Question 13 on the printed application form relevantly asked for contact details for the purpose of sending correspondence to the review applicant. The appellant filled in the contact details by providing the Klemzig address and an email address. 6 Question 3 on the printed application form asked for contact details of the appellant in Australia. The appellant completed that question by providing the Klemzig address, his email address and a mobile phone number. 7 On 6 December 2013, the appellant filed a five page written submission with a four page attachment. The submission concluded with a statement signed by Mary Philippa Symonds that she had assisted the appellant in preparing the submission. Her signature was accompanied by a stamp indicating that she was a Commissioner for taking affidavits in the Supreme Court of South Australia. Her mobile phone number was recorded next to that stamp. 8 On 9 April 2014, the Tribunal sent an invitation to the appellant to appear on 19 May 2014 at the hearing of the review. The letter was addressed to the Klemzig address.

THE TRIBUNAL DECISION 9 On 19 May 2014, the appellant did not appear at the hearing. On that day the Tribunal affirmed the decision of the delegate to refuse to grant the appellant a protection visa. The Tribunal explained in its decision: 4. That letter [of invitation to attend the hearing] was addressed to his last given address, provided by himself, which was the same address used by the by the [sic] department. A check was made to see if any change of address had been notified and, none has been. 5. The Tribunal had considered the applicant's claims as presented on file, and, in the letter inviting the applicant to a hearing the Tribunal stated: 6. "The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone." 7. The applicant, although invited, did not appear before the Tribunal on 19 May 2014 to give evidence and present arguments and did not contact the Tribunal prior to close of business on that date. 10 The Tribunal decision outlines a number of concerns regarding the application for review and details further information that the Tribunal would have sought from the appellant had the appellant appeared at the hearing. The decision relevantly states: 52. Had the applicant attended a hearing, as offered, I would have attempted to satisfy myself in regard to this situation. However, as he had chosen not to attend the hearing or to provide any reason for not doing so I am unable to be satisfied in this regard. 53, Equally, I am unable to be satisfied that he made every attempt to seek protection through the authorities since had [sic] has not provided evidence or statement other than that he had no confidence in them. I would have sought further details in this regard but, have been unable to since he did not attend the hearing. 54. He has claimed that his friends in the party had used their influence to have his son come to Australia to study I am unable to be satisfied as to the exact nature of that assistance or if there was any as I have been unable to seek further details concerning that matter. 55. As the applicant was absent from Sri Lanka for such a long period I would have sought further details on his claimed assistance to displaced Tamils by allowing them, through the person with the power of attorney, to settle on his wife's land. 56. As I have been unable to discuss these issues with the applicant I am unable to be satisfied that he faces any consequential harm. 57. He was on notice that this was the case when the letter of invitation to attend the hearing was sent. He has not attended the hearing, nor has be [sic] provided any further submission and I am therefore not satisfied that the applicant meets the criteria for s 36(2)(a) of the Act or that he is a refugee. 11 The Tribunal gave similar reasons for being unable to be satisfied that the appellant engaged complementary protection obligations under s 36(2) of the Migration Act 1958 (Cth) (the Act).

THE APPLICATION TO THE FEDERAL CIRCUIT COURT 12 The appellant then filed an application for review in the Federal Circuit Court. An amended application for review was filed on 2 March 2015, and a further amended application for review was filed on 18 May 2015. So far as is relevant to this appeal, the appellant contended that the exercise of power under s 426A of the Act was legally unreasonable and therefore the Tribunal exceeded its jurisdiction. 13 Section 426A provided as follows: (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled. 14 In support of his application for review the appellant filed an affidavit which stated that in early April 2014 he moved from the Klemzig address to an address in Aberfoyle Park. He said that he notified the change of address to the Department. He said that he did not notify the Tribunal of the change because his Red Cross caseworker told him that he was only required to tell the Department. He said that he did not receive the letter dated 9 April 2014 from the Tribunal. The appellant also said that he first learned of the Tribunal decision when he received a letter dated 22 May 2014 from the Department. That letter was sent to the Aberfoyle Park address. It advised that because the protection visa was refused, the appellant was no longer entitled to receive income support under the Asylum Seeker Assistance Scheme. The appellant attached to his affidavit a copy of a letter dated 30 May 2014 from him to the Tribunal which read in part: I submitted my documents to the RRT in December 2013. I understood from the Tribunal Process that I would be invited to a hearing. I have since discovered that a letter of invitation was sent to me on the 9th April 2014. Unfortunately, the house I was living in at that time was about to be demolished and I had moved out in early April. I had notified my change of address to the Department of Immigration and was told by my Case Worker at Red Cross that that was all I was required to do. I did not realise that I should also have informed the RRT. I presumed that my new address would be made available to the relevant Government departments. Consequently, I did not attend the hearing at the RRT as I did not know a hearing had been scheduled. I understand that a copy of the decision reached by the RRT was also sent to my old address. I now request that a copy of the decision be sent to my current address.

THE JUDGMENT OF THE FEDERAL CIRCUIT COURT 15 On the ground relevant to this appeal the Federal Circuit Court reasoned as follows: 7. It was suggested by counsel for the applicant that there were no reasons provided for the Tribunal proceeding to determine the matter in the circumstances where the applicant did not appear on 19 May 2014 to give evidence and present arguments and where the Tribunal noted that the applicant did not contact the Tribunal prior to the close of business on that date. 8. It is clear in this case, that the reasons of the Tribunal for deciding to proceed to make a decision on the review are disclosed in the reasons when paras.3 to 7 are read with paras.44 to 57. The Tribunal's decision must be read as a whole. It is clear that the Tribunal turned its mind to whether it should proceed with the review and determined to do so in the circumstances where it had notified the applicant consistently with the statutory regime in respect of the authorised address identified in the application for review to the Tribunal. 9. Counsel for the applicant pointed out that the address also included an email address and that there was no evidence to suggest the Tribunal had taken steps to communicate with the applicant by email. It is not a jurisdictional error for the Tribunal to decide in the circumstances of this case to proceed with its decision-making in respect of the review where notification in accordance the authorised address has been provided. It is not necessary for the Tribunal to provide additional email notification and it is not a jurisdictional error for the Tribunal to decide to proceed with the review. In my opinion the decision of the Tribunal to proceed to determine the review cannot be said to lack an evident and intelligible justification. 10. Counsel for the applicant referred to correspondence that had been before the Tribunal which included a submission in which a reference was given by a Ms Simmons [sic] opining as to the credibility of the applicant. Ms Simmons' [sic] reference in that regard included a mobile telephone number. There is nothing in that communication to indicate that Ms Simmons [sic] had adopted the role of acting for or on behalf of the applicant. Nor did the applicant's affidavit suggest that such was in fact the position. 11. The applicant's affidavit asserted a notification to the Department of Immigration of the change of address. It is clear on the evidence in the Court Book that the Tribunal was not informed of any change of address and, to the extent relevant, the letter notifying the applicant of the decision sent on 20 April 2014 was sent to the applicant's identified address in the application for review. The bald assertion by the applicant of a notification of change of address to the Department of Immigration is unsupported by any means of notification. 12. Counsel for the applicant identifies that on 22 May 2015 an officer of the Department sent a communication to what in fact was the applicant's now correct address. That is not a sufficient basis upon which the inference should be drawn that that address was notified by the applicant to the Tribunal. The applicant was in a position to give evidence as to that method of notification, how it occurred and when and has not done so. In any event even if it had been the case that the applicant had notified the department, the obligation on the applicant to exercise a level of responsible diligence identified by Barker J in Ponugoti v The Minister for Immigration and Border Protection [2015] FCA 67 at [56]-[57] means that it was still proportionate for the Tribunal to decide to proceed in the circumstances of the present case even if there had been some communication to the department as alleged by the applicant. In any event notification to the department is not notification to the Tribunal. 13. Further, even if the communication by the applicant were accepted to have occurred in relation to the department, I find that it cannot be said that the decision by the Tribunal to proceed to determine the review lacks an evident and intelligible justification. The facts in this case are clearly distinguishable from the decision in Kaur v The Minister for Immigration and Border Protection [2014] FCA 915. It cannot be said that the discretion under s.426A was exercised unreasonably. I find there was no jurisdictional error as alleged in ground 1 or ground 3. The application is dismissed.

THE GROUNDS OF APPEAL 16 On 9 June 2015, the appellant filed a notice of appeal in this Court which advanced the following grounds: 1. The learned Judge erred in rejecting the evidence of the appellant that he had notified the Department of Immigration of his change of address from Klemzig to Aberfoyle Park prior to 9 April 2014, in the absence of cross-examination or any other basis to do so, and should have found as a fact that the appellant did so notify the Department. 2. The learned Judge erred in finding that the Tribunal gave reasons for its determination under subs. 426A of the Migration Act 1958 (Cth) to make a decision under the review without taking any further action or to allow or enable the appellant to appear before it, and should have found that the Tribunal, while stating in its s. 430 statement what it did, did not state the reasons why it did so. 3. The learned Judge erred in not finding that the Tribunal in determining to proceed under s. 426A had not taken into account the possibility that a consequence of its decision to proceed was that the persecution feared by the appellant could be suffered. 4. The learned Judge erred in that, in the circumstances of this matter: a. not finding that there had been a failure to take into account a relevant consideration in relation to the exercise of power under s. 426A; or b. further or alternatively, not finding the exercise of power under s. 426A lacked an evident and intelligible justification and therefore was legally unreasonable; and c. not holding that the Tribunal's decision was thereby affected by jurisdictional error.

FURTHER EVIDENCE ON APPEAL 17 The appellant sought to rely on an affidavit affirmed by his solicitor, and filed on 25 September 2015, which demonstrated through documents obtained from the Department through a Freedom of Information request that the appellant's address was updated in the Department's records to the Aberfoyle Park address on 13 May 2014. Counsel for the Minister did not object to the admission of this evidence.

CONSIDERATION 18 Section 426A is one of many provisions within Part 7 of the Act dealing with the review of protection visa decisions. The central obligation of the Tribunal under s 414 is to review decisions. How it is to conduct that review is specified in Div 4 of Part 7. The scope and purpose of Part 7 of the Act is to ensure that the Tribunal performs the function of review. 19 Section 426A confers a discretionary power. It is presumed that the legislature intended the power to be exercised reasonably. 20 What constitutes that standard relevant to the present appeal was explained by the plurality (Hayne, Kiefel and Bell JJ) in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 in the following passages: 68 ... The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. ... 72 ... Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. ... 76 As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. ... Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. [Footnotes omitted.] 21 When faced with an allegation that a decision is legally unreasonable, the Court is not asked to substitute its view of the merits of the exercise of the discretion. It exercises a supervisory function determining whether the decision conforms with the standard of reasonableness. 22 In the present case the Tribunal explained why it proceeded in the absence of the appellant. It said that the appellant was invited to appear and did not respond to the invitation. The Tribunal also said at [4]: That letter was addressed to his last given address, provided by himself, which was the same address used by the by the [sic] department. A check was made to see if any change of address had been notified and, none has been. 23 Thus the Tribunal checked the address on the letter of invitation with the address previously used by the Department, and checked, presumably in its own records, to see whether there was any indication of any notification of a change of address. These steps were taken by the Tribunal to determine whether the applicant may not have received the invitation to the hearing. That was, of course, an obvious thing to do in the circumstances. 24 The steps were obvious in the circumstances because, as was known to the Tribunal, the appellant had appeared at the hearing before the delegate, and had filed a substantial and serious written submission in the Tribunal. These factors suggested that the appellant intended to pursue the application for a visa and to attend the hearing. Further, the nature of the application demonstrated that if the claims made were established the appellant was at risk of serious harm if returned to Sri Lanka. 25 The Tribunal had in its own records in the application for review the mobile phone number of the appellant. 26 Further, for the purpose of the hearing the Tribunal created a document entitled "Hearing Record". The document recorded all the details relevant to the hearing such as the place and time of the hearing. The document listed the witnesses to be called and the name of the member conducting the hearing. It seems to have been prepared in advance of the hearing so that the details of what occurred on the day could be inserted. The document included the name of the appellant and his mobile phone number written opposite his name. The obvious purpose of recording the mobile phone number was to provide a method which would allow the Tribunal to contact the appellant. Elementary common sense demanded that the Tribunal at least attempt to phone the appellant on the mobile phone number which it had in its records. To fail to do so was legally unreasonable. The Tribunal fell into jurisdictional error by not seeking to contact the appellant on the phone number which he had given the Tribunal. 27 The primary judge set out in his judgment the particulars of the grounds of application for review. The particulars included an assertion that the appellant provided the Tribunal with his mobile phone number. The primary judge did not deal with this factor. It was the critical factor which rendered the exercise of discretion unreasonable. It was determinative of the case. 28 Even if this factor had not been determinative of the case, the reasoning of the primary judge should not be upheld. In the circumstances outlined it was unreasonable for the Tribunal not to utilise the other information in its own records to attempt to contact the appellant. In addition to the mobile phone number it could have used the email address provided by the appellant. Furthermore, the statutory declaration filed in support of the application which was before the Tribunal indicated that Ms Symonds had assisted the appellant in formulating the written submission. Her mobile number was on the declaration. As she had assisted the appellant in formulating the written submission, contacting her was a likely way of getting in touch with the appellant. It is now clear, by virtue of the further evidence admitted on appeal, that an enquiry of the Department on 19 May 2014 would have shown that the appellant had notified the Department of his change in address. The primary judge had no good reason to reject the evidence of the appellant that he had notified the Department of the change of address, particularly in the absence of any cross examination. As the appellant received a letter from the Department on 22 May 2014 at the Aberfoyle Park address there was an almost irresistible inference that the appellant had notified the change before the date of the hearing on 19 May 2014. 29 The appellant has established that the decision of the Tribunal to proceed in his absence was legally unreasonable. He has thus established ground 4(b) of the notice of appeal. It is unnecessary to consider the other grounds of appeal. 30 In the result the appeal will be allowed with costs, the decision of the Tribunal will be quashed and the matter returned to the Tribunal for determination in accordance with law. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice North.