BZAET v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 On 31 March 2014 in BZAET v MIBP & Anor [2014] FCCA 605 a Judge of the Federal Circuit Court dismissed the appellant's application in which the appellant sought constitutional writs with respect to a decision of the Refugee Review Tribunal ("the Tribunal") dated 19 June 2013. The Tribunal had affirmed a decision of the delegate of the first respondent ("the Minister") dated 4 September 2012 not to grant the appellant a Protection (Class XA) visa. 2 The appellant is a citizen of India. He arrived in Australia on 20 November 2008 on a Student (Class TU, Subclass 573) visa as a dependant spouse. The appellant subsequently divorced his wife and lodged an application for a Protection (Class XA) visa on 23 May 2012. 3 The appellant claimed to fear harm from the relatives of his former wife because of the dissolution of their marriage. The appellant claimed that he would not be able to obtain protection from the authorities in India because "anyone can bribe them". 4 On 29 August 2012 the appellant attended an interview with a delegate of the Minister. On 4 September 2012, the delegate made a decision refusing to grant the appellant a Protection (Class XA) visa. The delegate was not satisfied that the claimed harm related to Convention grounds because the harm was in respect of a personal family matter. The delegate also did not accept that the Indian authorities would not protect the appellant as there was no evidence before the delegate which indicated that the appellant would be treated "differentially" and was satisfied he would have the same level of State protection as other citizens of India. The delegate found that relocating within India was a "safe and reasonable option" for the appellant. 5 On 20 September 2012, the appellant lodged an application for review of the delegate's decision with the Tribunal. On 15 April 2013, the Tribunal wrote to the appellant and invited the appellant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The Tribunal's letter also notified the appellant that if he failed to attend the hearing, the Tribunal might make a decision without taking any further action to allow or enable him to appear before it. 6 On 10 May 2013 the Tribunal received a medical certificate from the appellant which stated that he was "NOT fit for his normal work/study from 8 May 2013 to 22 May 2013 inclusive". The Tribunal agreed to postpone the hearing. 7 On 21 May 2013, the Tribunal wrote to the appellant and advised that his request for postponement was granted and invited him to attend a rescheduled hearing on 19 June 2013. 8 On 14 June 2013, the Tribunal received another medical certificate from the appellant which stated that he was "unable to continue his normal duties from 10 June 2013 to 21 June 2013". On the same day the Tribunal contacted the appellant and advised that a detailed medical report and reasons why he would be unable to attend were necessary to support an application for an adjournment. The appellant confirmed that he would attempt to obtain such evidence and that if he could not he would attend the hearing. 9 The appellant did not appear at the hearing on 19 June 2013 and did not contact the Tribunal to explain his failure to attend. The Tribunal found that it was unable to satisfy itself of the claims raised in the appellant's application.