SJSB v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2004-08-18|Before: Mansfield J, Lander JJ

The court: 1 This is an appeal from orders of Mansfield J pronounced on 22 January 2004 dismissing an application under s 39B of the Judiciary Act 1903 (Cth) to quash a decision of the Refugee Review Tribunal ("the Tribunal") made on 6 March 2003. The Tribunal had affirmed a decision of a delegate of the respondent Minister refusing to grant the appellant a protection visa. 2 The appellant is a Sri Lankan national who arrived in Australia on 3 March 2001 on a student visa. He applied for a protection visa on 6 November 2001. The learned primary Judge noted that the basis of the appellant's claim to be a refugee as defined in Art 1A(2) of the Refugees' Convention as amended by the Refugees' Protocol ("the Convention") had been set out in these terms in his application for a protection visa; 'I am a Sinhalese Buddhist National of Sri Lanka. My father has been a native doctor for the last 30 years. He was attached to a hospital in Puttalam and also treated private patients. Among his patients he had Singhalese and Tamils. In Puttalam area, in the eastern suburbs of Sri Lanka, he treated Tamils and later he was suspected of assisting the LTTE. He was arrested in Colombo, together with me. I will send a detailed statement of claim within three weeks' time.' 3 His Honour further noted that the appellant had gone on to claim that he would be arrested and tortured if he were returned to Sri Lanka because he has been suspected of supporting the LTTE. Despite the appellant's undertaking to send a "detailed statement of claim" within three weeks, no further material was adduced in support of his claim. 4 Although the Tribunal was required to conduct a rehearing of the application, the appellant did not avail himself of the opportunity, which arose on his application to the Tribunal for review of the delegate's decision, to amplify the material in support of his application. As the learned primary Judge found, the Tribunal, on 30 January 2003, in accordance with s 425(1) of the Migration Act 1958 (Cth), ("the Act"), invited the appellant to appear before the Tribunal to give evidence and present arguments in relation to the decision under review. However, the appellant did not respond to that invitation. 5 Accordingly, the Tribunal proceeded under s 426A of the Act to make a decision on the review without taking any further action to allow, or enable, the appellant to appear before it. Section 426A provides; '(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.'

6 In dismissing the application for review, the Tribunal said; 'The Applicant's claims as set out in the protection visa application are couched at such a general and vague level that the Tribunal cannot establish the relevant facts. The Applicant claims that he and his father were arrested because his father who is a doctor had treated Tamils. The Applicant provides no time frame as to when these claimed arrests took place, nor any detail as to the outcome of these claimed arrests. The Applicant merely claims that he will be re-arrested and tortured on returning to Sri Lanka. However the Tribunal notes that according to the Applicant's own evidence he departed Sri Lanka legally and without difficulty. Without further detail from the Applicant the Tribunal is unable to be satisfied that because his father treated Tamil patients the Applicant was arrested on suspicion of supporting the LTTE and that the Applicant faces arrest on his return to Sri Lanka. Accordingly, the Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution or faces a real chance of persecution for a Convention reason on his return to Sri Lanka.' 7 The learned primary Judge noted that, to succeed in having the Tribunal's decision set aside, it was necessary for the appellant to show that it had been infected by jurisdictional error; Plaintiff S157/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 211 CLR 317. However, his Honour regarded the so-called grounds of the application as formulaic, misconceived and failing to identify with particularity or at all the requisite jurisdictional error. Nevertheless, he proceeded to examine each "ground" before concluding as follows that none of them could avail the appellant; '[11] … … Grounds 1 and 2 assert that the Tribunal failed to accord procedural fairness to the applicant in connection with the making of the decision. In the absence of particularity, it is difficult to know what the applicant seeks to assert to. There is nothing in the material before me to indicate that the Tribunal failed to accord procedural fairness to the applicant. It complied with the obligation to give him the opportunity to be heard by inviting him to attend a hearing and to give evidence and to make submissions. He simply did not take up that opportunity. The reason why he did not do so is unexplained. There is nothing in the Tribunal's reasons or in the material before me which indicates in any way that the Tribunal failed to accord him procedural fairness in connection with the making of its decision. [12] Grounds 3 and 7 assert errors of law on the part of the Tribunal. Again, I see no foundation for that claim. The Tribunal has correctly identified that the issue before it was whether the criterion specified in s 36(2) of the Act was satisfied. It has correctly identified that its satisfaction depended upon whether the applicant satisfied it that he was a refugee as defined in Art 1A(2) of the Convention. It has correctly referred to decisions of the High Court about the meaning of Art 1A(2) and in particular the meaning of the expression 'having a well-founded fear of persecution for a Convention reason'. I see no basis upon which error of law on the part of the Tribunal is made out. [13] Grounds 4, 5 and 6 are discrete but, in my view, not demonstrated by reference to the Tribunal's reasons or the material before me indicating how the Tribunal came to reach its conclusions. They are that the procedures that were required by law to be observed in connection with the making of the decision were not observed; that the making of the decision was an improper exercise of the power conferred by the Act; and that there was no evidence or other material to justify the making of the decision. I simply see no basis upon which any of those assertions can be made out. If there were particular matters which the applicant wished to refer to the Court, he has not identified them in his application in any way.' Accordingly, at first instance the application was dismissed with costs. 8 The grounds of appeal set out in the appellant's notice of appeal reflect to a large extent the grounds of the application which Mansfield J had severally rejected. Like the earlier grounds, the grounds of appeal are formulaic and completely lacking in particularity. They are in these terms; '2. His Honour erred in failing to find that the Tribunal had not accorded procedural fairness to the Appellant. 3. His Honour erred in failing to find that the procedures that were required by law to be observed in connection with the making of the Decision were not observed. 4. His Honour erred in failing to find that a breach of the rules of natural justice has occurred in connection with the making of the decision. 5. His Honour erred in failing to find that the Tribunal had acted in bias. 6. His Honour erred in failing to find that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. 7. His Honour erred in failing to find that there was no evidence or other material to justify the making of the decision.' 9 Grounds 2 and 3 no more descend to particulars of the alleged failure to accord procedural fairness than the corresponding grounds examined by Mansfield J at [11] of his Honour's reasons. For the reasons there explained, we are likewise unable to discern any denial by the Tribunal of procedural fairness or any failure to observe procedures which were required by law to be observed in connection with the making of its decision. The rules of natural justice are largely synonymous with procedural fairness so it follows that the appellant has likewise failed to make out ground 4 in his notice of appeal. 10 The grounds of the application at first instance did not impute bias to the Tribunal. Naturally, therefore, the learned primary Judge did not consider the issue and it cannot be raised for the first time on appeal. 11 The function of the Tribunal is to review an "RRT-reviewable decision" if a valid application for such review is made under s 412 of the Act. The powers conferred on the Tribunal for the purpose of exercising its function of review include a power to exercise all the powers and discretions that are conferred by the Act on the original decision-maker and a discretionary power to affirm or vary the decision under review; see sub-ss 415(1) and (2) of the Act. Other provisions of the Act circumscribe in specific ways the exercise of the powers to which we have just referred. However, the appellant has identified nothing to indicate that the Tribunal's affirmation of the delegate's decision was an improper exercise of any power conferred on the Tribunal by the Act. 12 Like the learned primary Judge we are unable to uphold the contention that there was no evidence or other material to justify the Tribunal's decision. The traditional "no evidence" ground has received statutory recognition in s 5(1)(h) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act") which enables an application for an order of review of an administrative decision to be made on the ground, amongst others; '(h) that there was no evidence or other material to justify the making of the decision;' 13 However, s 5(3) of the AD(JR) Act stipulates; 'The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.' 14 A decision to grant or refuse a visa is conditioned upon satisfaction as to the matters specified in s 65(1) of the Act which, so far as is relevant, provides; 'After considering a valid application for a visa, the Minister:

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; …

(b) if not so satisfied, is to refuse to grant the visa.'

15 It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. A criterion for a protection visa specified in s 36(2) of the Act is; '…that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

16 It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister's attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister; 'The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.' Moreover, the Tribunal was entitled, in assessing whether the appellant had a well-founded fear of persecution if he were returned to Sri Lanka to take account of the fact noted in the extract quoted at [6] above that "according to the Applicant's own evidence he departed Sri Lanka legally and without difficulty." 17 It follows that, even if the present decision of the Tribunal were not a privative clause decision as defined in s 474 of the Act, it would not be amenable to judicial review on a ground analogous to the "no evidence" ground afforded by s 5(1)(h) of the AD(JR) Act.

Conclusion 18 The appellant, who appeared by means of videoconferencing link with Sydney, was self-represented and assisted by an interpreter. He did not attempt to expand on the grounds in his notice of appeal but sought to rely on changed circumstances constituted by his subsequent marriage to an Australian citizen. That is not a matter to which this Full Court can have regard in the disposition of the appeal. For the reasons which we have explained, the appellant has failed to make out any of the grounds in his notice of appeal. The appeal must therefore be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Dated: 18 August 2004 Counsel for the Appellant: The appellant appeared in person by video link.

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