SZNQS v Minister for Immigration and Citizenship

THE TRIBUNAL'S DECISION 5 The Tribunal noted that although the appellants had advised the Tribunal that they would be present at the Tribunal hearing, neither had attended nor contacted the Tribunal to explain their failure to attend. In those circumstances, and pursuant to s 426A of the Migration Act 1958 (Cth) ('the Act'), the Tribunal decided to make its decision on the review without taking any further action to enable the appellants to appear before it. 6 The Tribunal noted that the appellants had provided no further material or information to it. It found that the appellant had provided only a very vague outline of his claims, lacking in crucial details. In particular, the Tribunal stated that the appellant had given no details of the nature of his involvement in the BJP, particularly in elections, and had given only a very vague outline of the circumstances of the claimed threats and attacks and targeting of his business. It also referred to an absence of detail in relation to the timing of the claimed incidents or of the circumstances of the appellant's dealing with the police in relation to such incidents. 7 The Tribunal was therefore not satisfied on the evidence before it that the appellant was a person to whom Australia owed 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). As such, the Tribunal affirmed the decision of the delegate not to grant the appellants protection visas.

FEDERAL MAGISTRATES COURT 8 By application filed in the Federal Magistrates Court of Australia on 3 June 2009 the appellants sought judicial review of the Tribunal's decision. 9 Before Federal Magistrate Barnes the appellants claimed, inter alia, that the Tribunal failed to carry out its role in an inquisitorial manner; acted in a 'manifestly unreasonable' manner because it failed to consider the appellants' claims and ignored their claims of persecution; failed to request more information regarding the appellant's persecution for his involvement in the BJP. The appellants' application also contained a reference to bias. 10 At the hearing the appellant alleged that on the day of the Tribunal hearing he had 'left home early but the car broke down'. The appellant said he could not get alternate transport to Sydney and could not inform the Tribunal as he did not speak English. 11 Barnes FM found that there was no jurisdictional error in the circumstances where the material put forward by the appellant did not lead the Tribunal to reach the state of satisfaction required under the Act. 12 The Federal Magistrate also noted that it had not been established that the Tribunal acted in an unreasonable manner, let alone a manifestly unreasonable manner, or in such a way that gave rise to jurisdictional error. Further, it was well established that the Tribunal is not under a general duty to make further inquiries (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224) and this was not an exceptional case in which an obligation to inquire or to obtain readily available further information arose. Nor was there any evidence which supported the appellants' allegation of bias. 13 Barnes FM noted that there was no evidence to support the appellant's claims concerning the non-attendance before the Tribunal. However, Her Honour observed that even accepting his claims to be correct, he did not inform the Tribunal of any difficulties. She also observed that the hearing invitation letter and the letter acknowledging the review application provided the applicant with a contact number for assistance in his language. Her Honour concluded that the events were not such as to establish that the Tribunal failed to meet its obligations to invite the appellants to a hearing in accordance with s 425 of the Act. 14 Having found no jurisdictional error in the Tribunal decision, Barnes FM dismissed the application.

APPEAL TO THIS COURT 15 On 16 November 2009 the appellants filed in this Court a Notice of Appeal from the decision of Barnes FM. The appellants raise the following ground of appeal: 2. The Federal Magistrate Court failed to consider the ground of my appeal such as error of law made by the Tribunal failed to comply with s424 of the Migration Act 1958.

a) The Invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:

i) The invitation did not specify the way in which the additional information may be given.

ii) The invitation did not specify the period within which the information was to be given.

SUBMISSIONS OF THE APPELLANT 16 The appellant appeared before the Court assisted by an interpreter. He informed the Court that he needed further time to stay in Australia. He informed the Court that he prepared his Notice of Appeal with the assistance of a student, but denied that the notice of appeal had been prepared by a migration agent. When it was pointed out to him that he did not attend the Tribunal hearing he said that he did not receive the notice in time. When he was reminded that he had returned a completed Response to Hearing Invitation form which indicated that both he and his wife would attend, he then stated that he had forgotten the date. The appellant was otherwise unable to make any submissions in respect of the Notice of Appeal.

FINDINGS 17 The Court observes that the Tribunal complied with the obligation upon it imposed by s 425 of the Act to invite the appellants to a hearing. The invitation was a real and meaningful invitation (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553). 18 The Court observes, as did Barnes FM, that both the letter acknowledging receipt of the Application for Review and the hearing invitation letter provided a telephone number which could be used if language assistance was required. The appellants did not seek any assistance from the Tribunal, nor did they seek an adjournment of the hearing. In these circumstances, and in the absence of an appearance, the Tribunal was entitled to proceed and hear the appeal as provided by s 426A of the Act. 19 In light of the appellant's non-attendance, the Tribunal only had before it what Barnes FM described as a 'very vague outline of his claims, lacking in crucial details'. 20 Further, no issue arises of the kind which was considered by the Court in SZLLY and Another v Minister for Immigration and Citizenship and Another (2009) 107 ALD 352 where the invitation was held to be unreasonable and therefore invalid because the Court could not be satisfied, pursuant to s 422B(3) that fairness and justice had been afforded to the appellants. In the present circumstances the appellants have received proper notice and as the Tribunal proceeded to provide the hearing and has handed down its decision, there is no power in the Tribunal to hold a second hearing without reviewable error: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30]. 21 The ground of appeal which is raised in these proceedings is one which was not previously raised before the Federal Magistrates Court. No explanation has been provided by the appellants for the failure to do so. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48] the Full Court, referring to O'Brien and Others v Komesaroff (1982) 150 CLR 310 and Branir Pty Ltd and Others v Owston Nominees (No 2) Pty Ltd and Another (2001) 117 FCR 424, held that leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: see also Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. 22 Before proceeding to deal with the merits of the ground sought to be raised, the Court observes that the only ground of appeal is apparently a proforma document which has been repeatedly the subject of appeals in this Court since the decision of Raphael FM in SZNAV and Others v Minister for Immigration and Another (2009) 110 ALD 604. In those proceedings his Honour found that the 'acknowledgement letter' sent by the Tribunal was an invitation for 'additional information' sent pursuant to s 424(2) of the Act. Such decision was reversed by the Full Court on Appeal: see Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109. 23 Given the effect of the above Full Court authority, there is no evidence of any invitation to provide additional information as alleged in the ground of appeal. As the acknowledgement letter cannot be construed as such an invitation (see Minister for Immigration and Citizenship v SZNAV), and the fact that appellants failed to attend the hearing before the Tribunal, there was simply no occasion upon which the Tribunal could have invited the appellants to provide additional information. It follows that this submission is misconceived. 24 Although not applying to the specific facts of this case, the Court notes that subsequent amendments of the Act pursuant to the Migration Legislation Amendment Act (No.1) 2009 have removed any reference to 'additional information'. As such, the distinction between 'information' and 'additional information' relied upon by the appellants is no longer a part of Australian law. 25 Before Barnes FM the appellants alleged that they had departed from their home to attend the hearing but that their car had broken down. The appellant then claimed he could not obtain transport to Sydney and therefore could not attend the hearing. He claimed that he did not inform the Tribunal as he did not speak English. Barnes FM noted that such claim was made for the first time before her. Barnes FM noted that the Tribunal was not informed of their difficulties and that the letter acknowledging receipt of the appellants' Application for Review provided a contact number to provide assistance in the appellants' language. Accordingly, Barnes FM concluded that the Tribunal had not failed to meet its obligations. 26 The Court can find no error in Barnes FM's assessment. The Court observes that the appellant's assertion made before this Court that he overlooked the date for the Tribunal hearing is inconsistent with the explanation he provided to the Federal Magistrate. The Court accordingly places no weight upon the explanation now provided that the date for the Tribunal Hearing was overlooked. 27 The proposed ground of appeal could not succeed. Accordingly, the Court refuses leave to rely upon the grounds set out in the Notice of Appeal. In reaching such conclusion the Court notes that no jurisdictional error is demonstrated by the Federal Magistrate. 28 Since the claims of the second appellant are dependant upon the result of the first appellant's claim, her claim must also fail. It follows that the appeal is dismissed. 29 The first respondent seeks an order that the appellants pay the costs of the appeal fixed in the amount of $2,100. In support, an affidavit of Bernadette Marie Rayment sworn 11 February 2010 has been filed in Court. Having examined the affidavit, the Court considers that the costs claimed are appropriate and accordingly the Court will make an order in that sum. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.