SZCIS v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1859 | Case summary

Background 4 The appellant is a citizen of India who arrived in Australia on 7 October 2002. He lodged an application for a protection visa on 6 November 2002. He claimed in a statement accompanying his application for a protection visa that he fears persecution for reasons of political opinion imputed to him by the fact the he had helped militant Muslims by providing them with shelter. He claimed that he had been detained and interrogated by the State Police in the Punjab and that both the ruling party and the militants whom he had helped would harm him if he returned to India. 5 A delegate of the respondent refused to grant the appellant a visa. He applied to the RRT for a review of that decision. The RRT invited the appellant to attend a hearing to be held on 17 October 2003. The appellant informed the RRT that he would attend the hearing. However, on 2 October 2003 the RRT informed the appellant that the hearing would be re-scheduled and that it would be held on 31 October 2003. 6 Although it appears that the appellant's adviser told the RRT by telephone that the appellant would attend the hearing the appellant did not attend at the time and place scheduled for the hearing. The RRT proceeded to make a decision pursuant to section 426A of the Migration Act 1958 (Cth) ("the Act") without taking any steps to enable or allow the appellant to appear before it. 7 The RRT handed down its decision on 2 December 2003, as I have already said. The RRT was not able to be satisfied of the appellant's claims because of the "limited, vague and unreliable" evidence which it said was available to it. For that reason it concluded that it could not be satisfied that the appellant had a well-founded fear of persecution for a Convention reason. 8 The learned Federal Magistrate dealt with the claims made in the application for review as well as a number of other claims set out in written submissions which the appellant filed at the commencement of the hearing in the Federal Magistrates Court. 9 The first ground in the application for review was concerned only with the merits of the RRTs decision; her Honour therefore rejected it. 10 The second ground raised procedural fairness. Her Honour considered this in light of the failure of the appellant to attend the hearing to which he had been invited and she found that once the RRT had properly invited the appellant to attend a hearing there was no procedural unfairness resulting from his failure to attend. Her Honour cited the decision of a Full Court in S58/2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 283 at [26] as authority for the proposition that an applicant cannot complain of a lack of procedural fairness if an application is rejected because the appellant failed to take up the opportunity to attend. 11 The next ground is bad faith. The appellant failed to establish the factual contentions on which he relied in support of this ground. Her Honour could not find any suggestion in the evidence that the RRT had failed to make an honest attempt to undertake the task before it. She cited the decision of Allsop J in NAAG of 2003 v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 195 ALR 207. 12 The fifth ground was bias. Her Honour was not satisfied that the evidence established either actual or apprehended bias. She referred to the principles stated by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 and Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425. 13 The learned Federal Magistrate next dealt with the fourth and sixth grounds in the application which alleged that the RRT had mixed up facts and that its decision did not reflect the material facts of the claim. Her Honour found that the RRT adequately articulated all aspects of the appellant's claim in its decision. Accordingly, her Honour rejected the fourth and sixth grounds. 14 The first new ground raised in the written submission was that the RRT had failed to consider the claim of persecution because of the appellant's Sikh ethnicity. However, her Honour found that there was no suggestion in the material before the Tribunal that the appellant had experienced persecution on that basis and accordingly that the claim was not raised by implication. 15 The next ground was that the RRT failed to investigate the appellant's claim "with the independent country information like Amnesty International". Her Honour found that there was no obligation on the RRT to make such investigation and, in any event, the decision turned on the inadequacy of the material before the RRT. Accordingly, there was no need for reference to country information. 16 The final ground raised before her Honour was compliance with section 424A of the Act. Her Honour found that there was no obligation imposed on the RRT by that section because the RRT did not rely on any information as the reason or part of the reason for affirming the decision under review. Her Honour found that the principles stated by the majority in SAAP were not enlivened because the statements made in the protection visa application were repeated in the application for review in the RRT.

Discussion 17 I turn next to the grounds raised in the notice of appeal. It is convenient to deal first with the Muin ground. The claim under Muin cannot succeed. First, the decision of the RRT did not turn on adverse country information. Second, the appellant did not establish before her Honour and has not attempted to establish on appeal the necessary facts to support a claim; see NADR of 2001 v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 124 FCR 467 at [24] - [26] per Kiefel J, with whom Spender J agreed. 18 The notice of appeal does not take issue with any of the reasoning of the Federal Magistrate. Her Honour's reasons were based upon a thorough consideration of the principles governing the review of administrative decisions. Her Honour's reasons are consistent with the authorities which she cited in relation to bias and bad faith. Her Honour's decision was also consistent with and recognised the authorities on the obligation of the RRT to consider the claims made by an applicant; see Dranichnikov v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 197 ALR 389. Nothing turns on the fact that the learned Federal Magistrate gave the citation of the Full Court of the Federal Court rather than the High Court citation. 19 The decision of the RRT turned on the RRT's assessment of the material put forward by the appellant in support of his application for a visa which was repeated and relied upon in his application for review of the delegate's decision. As a Full Court said in Minister for Immigration, Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17], there are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction. 20 Reference was made in that case to an earlier decision in which it was pointed out that s 65 of the Act requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question had been satisfied. 21 It is for an applicant to put before the Tribunal such evidence as he or she wishes to in support of the application, the application being an inquisitorial process; see Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. 22 The appellant appeared before me in person. He also filed a written submission. The essential point which he raised before me was that the decision of the RRT was made without giving him an opportunity to appear and that this was the result of a mistake by his migration adviser. He said that his essential point is that he was duped by his adviser and that that is the reason why he could not attend the hearing before the RRT. 23 The question which therefore arises is whether the exercise of power by the RRT was authorised in circumstances where it had under s 425 of the Act invited the appellant to attend the hearing and give evidence. The learned Federal Magistrate found at paragraph 10 of her reasons for judgment that the RRT had properly invited the appellant to the hearing. This seems to me to be a finding that the invitation complied with the provisions of s 425A of the Act. 24 Authority for the RRT to proceed to make a decision on the review without taking action to enable an applicant to appear before it is found in s 426A(1) of the Act. There are two conditions to the authority contained in that subsection. The first is that the applicant has been invited under s 425 to appear before the RRT. The second is that the applicant does not appear before the RRT on the day on which or at the time and place at which the applicant is scheduled to appear. 25 There was no dispute before the learned magistrate that either of those conditions were fulfilled. Those matters were not raised on the appeal and, indeed, the appellant very fairly told me that the RRT had jurisdiction to proceed when he did not appear. Quite apart from the appellant's concession, it is plain that the RRT was entitled to proceed to make the decision as it did without taking any further action to enable the appellant to appear before it. The RRTs decision was made within its jurisdiction. 26 Although it seems on its face to be unfortunate that the appellant was duped by his adviser, it is established that the legislation contemplates that in the circumstances contained in Part 7 of Division 4, the scheme of the Act expressly contemplates that an applicant will not attend a hearing and that this will include cases involving no fault on the part of the applicant. As Sundberg and Hely JJ said in VNAA v MIMIA [2004] 136 FCR 407 at [16], notwithstanding this the RRT is authorised to proceed to decide the review in the applicant's absence. 27 Accordingly, even if, as the appellant contends, he was duped by his adviser, that is no answer to the authority of the RRT to make a decision on the review without taking any further action to allow or enable him to appear before it. It follows that the learned Magistrate was correct to find that there was no jurisdictional error on the part of the RRT and, in particular, that the RRT was authorised to proceed to make its decision without taking further action to enable the appellant to appear. 28 For these reasons the orders that I will make are that the appeal be dismissed with costs. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

SZCIS v Minister for Immigration, Multicultural and Indigenous Affairs

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Cases Cited (9)