SZOPV v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the respondents' costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 This is an appeal from a decision of the Federal Circuit Court dismissing an application under s 476 of the Migration Act 1958 (Cth) ("the Act") against a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 11 August 2015. The Tribunal affirmed a decision of the Minister's delegate not to grant the appellant a Protection (Class XA) visa. The appellant was self-represented at the hearing but was assisted by an interpreter. The appellant said, through the interpreter, on a number of occasions, that he had difficulty in presenting his case because he lacked legal representation and funds to obtain legal representation. 2 The appeal arises from a second valid application for a protection visa lodged by the appellant on 18 February 2014. He had previously made a valid application on 23 November 2009 which had been refused by the Minister's delegate on 22 April 2010. The delegate's refusal had been affirmed by the Refugee Review Tribunal on 17 August 2010. An appeal from the decision of the Refugee Review Tribunal had been dismissed by the Federal Circuit Court on 24 March 2011 and an appeal to this Court from that decision was also dismissed. A subsequent application for special leave to appeal to the High Court was dismissed on 1 December 2011. On 21 December 2011 the appellant applied for Ministerial intervention under ss 48B and 417 of the Act but the application was unsuccessful. 3 At the time of his first application, s 48A prevented the appellant from making another application after the refusal of the one which he had made on 23 November 2009. However, in SZGIZ v Minister for Immigration and Citizenship & Anor (2013) 212 FCR 235, the Full Court decided that visa applications which had been decided by a delegate before the introduction, on 24 March 2012, of the complementary protection criteria in s 36(2)(aa) of the Act, were entitled to make another valid application on the basis of criteria against which they had not previously applied and had not previously been assessed. Section 48A has since been amended with effect from 28 May 2014, but the appellant was entitled to make a further application and did so on 18 February 2014. 4 The second application for a Protection (Class XA) Visa was based on the grounds of complementary protection under s 36(2)(aa) of the Act. That application was refused by the Minister's delegate on 4 July 2014. On 31 July 2014 he applied to the Administrative Appeals Tribunal to review that decision but his application was unsuccessful on 11 August 2015. On 11 September 2015 he applied for judicial review of the Tribunal's decision to the Federal Circuit Court which was dismissed by Judge Street on 4 February 2016. The present appeal was made on 24 February 2016 from that decision. 5 The appellant is a national of the Republic of India who arrived in Australia on 11 October 2009 on a Tourist (Sub-Class 676) Visa. He had claimed in his first application that he had been falsely implicated in a number of criminal cases in India in retaliation for his involvement in a student wing of a political party during his student years from 1993 until 1995. He claimed that there had been a witch hunt by the Government in his State of Kerala and that as a result that he had been required to move some 70 kilometres from his home town. He claimed that he had been wrongly implicated whilst in Tamil Naidu of the murder of a Mr Ajay. His claim was that he had been wrongly implicated of the murder by members of the Communist Party and that he continued to be under threat of death from supporters of the Communist Party. 6 The appellant's claims in the first application were repeated in his second application. He confirmed at the interview with the delegate considering his second application that he had nothing to add to the claims that he had made in the first application. The appellant, however, referred to a court document from the High Court in Kerala and was given further time to provide a copy of the document, but none was provided. On 4 July 2014 the Minister's delegate refused the appellant's second application for a Protection Visa finding that the appellant's claims were not credible. The application was refused because the decision-maker was not satisfied about the truth of the appellant's claims. 7 On 31 July 2014 the appellant applied to the Tribunal to review the delegate's decision refusing his application for a visa. He was initially invited by the Tribunal to attend a hearing on 2 September 2015. That invitation was sent to him by letter dated 14 May 2015 to the address which the appellant had indicated as his address for service. The meeting was rescheduled for 11 August 2015 and the appellant was invited to attend, again by letter, the rescheduled meeting. The second letter dated 10 July 2015 was also sent to the appellant's address for service, which had remained unchanged. The Tribunal received no response from the appellant to either of the letters which it had sent. 8 On 4 August 2015 the Tribunal sent the appellant a text message on the appellant's telephone number to remind him of the meeting which was to take place a week later. The mobile telephone number had been provided by the appellant in his interview in his review application. On 10 August 2015 another text message was sent to the appellant reminding him of the hearing which was then scheduled to occur the following day. He did not appear at the hearing before the Tribunal on 11 August 2015 and the Tribunal did not receive any communication from him either to explain his non-appearance or to request that the hearing be adjourned. On that day the Tribunal decided to make its decision on the review pursuant to s 426A of the Act without taking any further action to enable the appellant to appear before it. 9 The appellant's grounds of appeal from the Federal Circuit Court's decision are: 1. The Hon Judge failed to consider that the second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information. Particular: The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act. 2. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. Neither ground has merit or is able to succeed. 10 The first ground of appeal challenges the basis upon which the Tribunal decided to proceed to hear his application in light of his failure to appear. In particular it contends that the Federal Circuit Court failed to consider that the Tribunal had failed to comply with the requirements in s 424A, read with s 424AA, in that particulars were not given to him of the information the Tribunal considered would be part of the reason for affirming the decision under review to enable him to understand why that information was relevant to the review and the consequences of it being relied upon, and to invite him to comment upon or to respond to that information. However, there was no such information relevant to the Tribunal's decision that could support the ground of appeal to this Court. Furthermore, the ground was not one which had been raised by the appellant in his application to the Federal Circuit Court for review of the decision of the Tribunal. 11 The second ground of appeal raises primarily a complaint that there had been a failure to consider his claim in terms of section 91R of the Act. However, the claim under section 91R was in relevantly identical terms to those in his first application which had been rejected. There was no part of that claim that relied upon new grounds of the kind contemplated by the second application. Furthermore, the appellant's claim had been rejected on the basis of not being satisfied of the truth of his claims. 12 The second ground of appeal also refers to the Tribunal's decision as being manifestly unreasonable. It is conceivable that this reference in the grounds should be understood as seeking to rely, as a separate ground, upon the decision in AZAFB v Minister for Immigration and Border Protection & Anor [2015] FCA 1383, where North ACJ found that the Tribunal's exercise of its discretion under s 426A was legally unreasonable because the appellant's mobile number in that case had been listed on the hearing record in that case but there had been no attempt to call the appellant on the number. 13 The Minister's submissions in the present application deal with that reference, and the decision in AZAFB, as a potential ground of appeal in the current proceeding and submitted both that it should not be followed and that it is distinguishable. I need not consider whether it should not be followed because it is plainly distinguishable. In this case, there were two attempts by the Tribunal to make contact with the appellant through the mobile number which was available to the Tribunal. Both attempts failed, and as is clear, even from what the appellant said in Court today, it was bound to fail because the number was not active at the time. 14 Accordingly, the appeal will be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.