CEW16 v Minister for Immigration and Border Protection

BEFORE THE TRIBUNAL 4 The appellants applied to the Tribunal for review of the delegate's decision. In their application, they indicated they agreed with the Tribunal communicating with them by email and supplied an email address for that purpose. However, after making the application for review, the appellants did not make any further contact with the Tribunal or lodge any further material with the Tribunal in support of their claims. The Tribunal sent the appellants an invitation to appear at a hearing on 13 July 2016 to the email address they had provided to the Tribunal, but they did not respond to that invitation and did not attend at the hearing held on that date. The first appellant has confirmed this morning, without further detail, that the failure to appear was by 'a mistake'. 5 The Tribunal proceeded, five days later, to make a decision on the application for review without taking further action to enable the appellants to appear before it. The Tribunal took this step pursuant to s 426A of the Migration Act 1958 (Cth). The Tribunal affirmed the decision not to grant the appellants protection visas. It noted that under s 5AAA of the Act, it is clear that the responsibility lies with an applicant to specify all particulars of the claim to be a person in respect of whom Australia owes protection obligations and to provide sufficient evidence to establish such a claim. The Tribunal considered that country information did not support attacks on Ashrams in the relevant geographic proximity. It found the first appellant's involvement with the Congress Party were very vague and the materials in support were very brief. Separately, in any event, the Tribunal had regard to country information, and in light of that information and the brief claims made by the appellants, could not be satisfied that the first appellant's claims were genuine. Therefore, it was not satisfied that a protection visa should be granted. 6 The Tribunal took into account other factors, including the fact that, despite the claim that the first appellant's family in India had been targeted, the appellants' two children remained in India.

IN THE FEDERAL CIRCUIT COURT 7 The appellants sought judicial review of the Tribunal's decision by the Federal Circuit Court, from which this appeal proceeds. 8 Before the Federal Circuit Court, the appellants advanced six grounds of review. 9 The first ground was to the effect that the Tribunal acted on the assumption that the appellant had received its invitation to appear before the Tribunal. However, due to a mistake by a third party, the Tribunal inadvertently failed to discharge its statutory duty so its decision is not a decision at all in law. 10 As to that, the primary judge held that there was no error established, as the Tribunal complied with its obligations in relation to inviting the appellants to appear at the hearing and was empowered to proceed to make its decision without taking any further steps to enable the appellants to appear before it. 11 The second ground of review in the Federal Circuit Court was that, having missed the invitation letter, the Tribunal did not make any other attempt to contact the first appellant to attend the hearing. Further it became imperative that, before the Tribunal member made a decision to dismiss the application, such information was required to be sent to the appellants to enable them to make comments in order for full compliance with s 424A of the Act. 12 The primary judge was not satisfied that any error was established as the Tribunal did not act unreasonably in proceeding to a decision in the manner that it did. There was no non-compliance with that section or otherwise with the Act. 13 The third ground of review was that there was failure to comply with the mandatory requirement under s 424A, read with s 424AA of the Act, to give the appellants clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the appellants understood why that information was relevant to the review, the consequence of that information being relied upon and to invite the appellants to comment on or respond to that information. The same argument was repeated; namely, that there was no satisfactory written invitation. 14 Once again, as this ground overlapped considerably with ground 1 and ground 2, the Federal Circuit Court held that there was no non-compliance with s 424A of the Act. The primary judge also noted that it was difficult to see how the Tribunal could have used s 424AA of the Act if the first appellant did not attend the hearing. Additionally, the appellants had not identified what 'information' attracted the obligation under s 424AA of the Act. 15 The fourth ground of review on which the appellants relied in the Federal Circuit Court was that the Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Act and construed erroneously and narrowly the existence of risk to life and fear of significant harm to the first appellant on his return to India. 16 The primary judge was not satisfied there was anything to indicate that the Tribunal had misconstrued the risk of fear or significant harm in its decision. 17 The appellants raised a fifth ground of review before the Federal Circuit Court, which was that the Tribunal had no jurisdiction to make the decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Act. 18 The primary judge held that the Tribunal did explain its reasoning in a cogent and intelligible manner and that the findings made by the Tribunal were probative of the material that had been put before it. 19 The sixth ground of review by the appellants in the Federal Circuit Court was more general: that the first appellant had satisfied the key elements of the definition in the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention) as detailed (at [7]-[10]) of the Tribunal decision: 7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. 8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention). 9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. 10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion'). 20 The appellants complained that the Tribunal had not considered this question and therefore committed a legal error. 21 The primary judge held that this ground did not establish any error as it was merely an assertion as to satisfaction of the key elements. Further, the Tribunal did consider those claims and was not required to uncritically accept the claims simply because they were made. 22 The primary judge explained (and also explained to the first appellant in the hearing below) that the relevant issue for the Federal Circuit Court was whether the Tribunal, in sending its invitation for the hearing to him, complied with all the relevant obligations under the Act. The primary judge noted that the first appellant had also, in effect, asked the Federal Circuit Court to reconsider the merits of his claim to protection and that, even if his failure to attend the Tribunal hearing was because of some mistake, the Court had no power to intervene to grant him another hearing before the Tribunal simply because he made a mistake. 23 The primary judge explained that the Tribunal is obliged to invite an applicant to a hearing pursuant to s 425(1) of the Act to give evidence and make arguments in relation to the issues of review. His Honour concluded that the Tribunal had fulfilled its statutory requirements under s 425A of the Act. His Honour set out, in some detail, how it had done so (at [31]-[34]) as follows: 31. The Tribunal complied with all of its relevant obligations. On the evidence before the Court, it fulfilled all of the statutory requirements. In particular, I note that the Tribunal complied with what is set out in s.425A of the Act. On the evidence, the invitation to the hearing was sent by one of the methods set out in the Act. That is, it was sent to the last email address provided by the applicants for the purposes of receiving correspondence (see s.441A(5)(b) of the Act). 32. As I sought to explain to the first applicant, the letter of invitation dated 27 June 2016 (CB 90 to CB 95) complied with all the relevant notice periods. Even if some "mistake" had occurred, and as the first applicant explained before the Court today, the "mistake" was that he received the invitation, and he took some time in getting someone to explain it to him, this cannot assist the applicants in circumstances where the Tribunal's invitation was sent in compliance with its statutory obligations. 33. As the Minister correctly submits, the applicants are deemed to have received the invitation in accordance with the provisions of s.441C of the Act, even if they did not actually receive it. As the Minister again correctly submits, s.441C of the Act does not operate to allow or to create some rebuttable presumption such as to allow the Court to consider any alternatives (SZUUR v Minister for Immigration and Border Protection [2016] FCA 123; (2016) FCA 123 at [43], citing Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172). 34. That deals in part with the complaint as it is set out in ground 1 of the application. However, as noted above, the applicants have not put this before the Court in any evidentiary context. The first applicant's explanation of the "mistake" that he said occurred also does not assist him for reason that he did receive the invitation, which was properly sent to him. (Emphasis added.) 24 The primary judge dismissed the application for judicial review.

THE APPEAL TO THIS COURT 25 The appellants have raised two grounds of appeal. 26 The first ground of appeal is that the primary judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the appellants' claim and ignoring 'the aspect of persecution and harm' in terms of s 91R of the Act and that the Tribunal failed to observe the obligation, which amounted to a breach of its statutory obligation. 27 The second ground of appeal is that the primary judge had dismissed the case without considering the legal and factual errors contained in the decision of the Tribunal. 28 Technically, the appellants would require leave to seek to rely upon these new grounds because those grounds were not raised in the Federal Circuit Court. Such leave would be granted only if it is expedient in the interests of justice to do so. 29 It is unnecessary to approach the question of leave in any technical way because the Minister does not claim any prejudice by the grounds being raised and it is possible to consider the grounds on their merit and to determine whether leave should be granted to raise them. 30 In the hearing before me, the first appellant confirmed he had received the submissions for the Minister prior to the hearing and an interpreter translated the entire hearing to the first appellant. 31 In essence, the only submission made by the first appellant is the same submission that was made before the primary judge, to the effect that although he received the notice from the Tribunal, he did not attend the Tribunal hearing by mistake. 32 I turn to consider each of the grounds of appeal advanced now. 33 The first ground of appeal is that the primary judge should have found that the Tribunal acted in a manifestly unreasonable way in dealing with the claim and in ignoring persecution. This ground is unparticularised, but to the extent that it contends a failure to recognise the relevant existence of persecution, this ground is an impermissible attempt to review the merits of the claim. This course of review is not open to me on this appeal. 34 As to the question of unreasonableness, in my view, the Tribunal set out its reasons cogently, and the primary judge has fully and accurately assessed the content of the reasons and accurately summarised the legal position concerning notice of the hearing. The Tribunal did proceed to evaluate the appellants' claims as well as it could in the circumstances given the non-appearance of the appellants. 35 As to the second ground of appeal, that the primary judge dismissed the case without considering the legal and factual errors contained in the decision of the Tribunal, I am unable to accept this unparticularised ground can be made out. It is clear that the primary judge did carefully consider the arguments advanced and delivered measured reasons for his non-acceptance of the grounds of review.

CONCLUSION 36 In these circumstances, neither of the grounds of appeal can succeed. Leave to rely on those new grounds will be refused. There is no other ground of appeal. The appeal must be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.