SZQTU v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2024-07-11|Before: Nicholas J

The appeal be dismissed.
The appellants pay the first respondent's costs of the appeal as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background 1 Before me is an appeal from a judgment of the Federal Circuit Court of Australia (as it was then known) given on 21 July 2020 dismissing the appellants' application for judicial review of a decision of the Administrative Appeals Tribunal dated 23 June 2016 affirming a decision of a Delegate of the first respondent ("the Minister") not to grant the appellants' protection visas. 2 The first appellant and his wife, the second appellant, are citizens of India. The first appellant arrived in Australia in 2008 on a visitor visa, with the second appellant. The appellants have a son who was born to them in Australia the following year. The first appellant applied for a protection visa in August 2008 relying on fear of persecution in India. That application was unsuccessful. The decision not to grant the first appellant a visa was affirmed by the then Refugee Review Tribunal and a subsequent application for judicial review, an appeal to this Court, and two applications to the Minister to exercise his discretion under s 417 of the Migration Act 1958 (Cth) ("the Act"), were also unsuccessful. 3 The appellants' son lodged his own application for a protection visa in 2011. This application was unsuccessful as was the son's application to the then Refugee Review Tribunal for review of the decision. There was another unsuccessful application made to the Minister to exercise his discretion under s 417 of the Act in relation to that application. 4 In September 2013 the first appellant applied for a protection visa on the basis that he had an entitlement to protection arising under the complementary protection provisions, in particular, s 36(2)(aa) of the Act. The second appellant and the son were listed on the visa application as members of the first appellant's family who did not assert any claims of their own. 5 On 19 June 2014 a Delegate of the Minister refused the first appellant's application for a protection visa based on the complementary protection provisions of the Act. That decision was affirmed by the Tribunal. The Tribunal's decision was the subject of the proceeding before the primary judge whose judgment is the subject of this appeal. 6 Various documents were provided to me in support of the appellants' application for an adjournment of the hearing of the appeal. The material (Ex A) shows that the second appellant was diagnosed in 2018 with a terminal illness in respect of which she now receives palliative care. Her husband, the first appellant, cares for her but is suffering from severe depression. The Minister does not dispute the seriousness of either the first appellant's or the second appellant's medical conditions. 7 The matter was allocated to my docket in May 2023. The matter was to be listed for hearing on 25 October 2023 but was instead listed on 2 November 2023 to take account of the second appellant's medical appointments. On 30 October 2023 the appellants wrote to the Court seeking an adjournment of the hearing on medical grounds. The Minister consented to that application. The matter was listed for a case management hearing before me on 4 December 2023, which the appellants also requested be adjourned. The Minister did not consent to that adjournment, which I was also not minded to grant. On 4 December 2023 I fixed the matter for hearing of the appeal. 8 The appellants were represented by counsel before the primary judge but not at the hearing of the appeal. They sought a further adjournment of the hearing of the appeal on what are best described as medical and compassionate grounds. The Minister opposed an adjournment. I declined to grant a further adjournment. I did so because, though the appellants' circumstances are dire, there does not appear that there is any real prospect that they will improve in the foreseeable future.

The Tribunal's decision 9 The Tribunal's reasons describe in detail the difficulties encountered by the Tribunal in conducting a hearing of the application for review of the Delegate's decision due to the first appellant's medical condition. 10 The appellants were invited to attend hearings before the Tribunal in June 2015 and again in August 2015. Those hearings were vacated at the request of the first appellant on the grounds that he claimed to be mentally unwell and unable to attend those hearings. A further hearing was scheduled for 3 November 2015, which the first appellant again sought to have adjourned on medical grounds. During the hearing (which took place via telephone) the second appellant advised that the first appellant was too unwell to speak to the Tribunal. A further hearing scheduled for 21 December 2015 did not proceed due to technical difficulties. A further hearing was scheduled for 14 April 2016. On that occasion, according to the Tribunal, the first appellant "would not engage with the Tribunal even though he was physically present in the video hearing room". The Tribunal was advised by the second appellant that her husband was unable to participate in the hearing and could not speak to the Tribunal. The Tribunal observed in its reasons that this was the fifth occasion that it had sought to conduct a hearing. 11 In its reasons the Tribunal gives a detailed account of subsequent attempts to bring the appellants' review to a conclusion. This included allowing the second appellant an opportunity to provide a statement or outline of evidence that she may wish to give in relation to her husband's claims, and requesting any other documents or submissions that her husband considered relevant to his claims. Some documents were provided in response to the Tribunal's requests for further information. These included medical reports indicating that the first appellant was currently unfit to participate in a Tribunal hearing. 12 On 16 May 2016 the Tribunal wrote to the first appellant advising that in its assessment of the history of the matter and the medical reports, it considered that the first appellant would be unfit for the foreseeable future to participate in a Tribunal hearing. The Tribunal stated, in that letter, that it had decided to complete the review of the first appellant's protection visa application without taking any evidence from him or anyone else in relation to the claims made therein. 13 The Tribunal's reasons show that it considered the first appellant's visa application and the claims made in it. According to the first appellant's claims, he first arrived in Australia in May 2008 on a visitor visa, travelling on an Indian passport which had been issued to him in November 2006. He claimed to have been a farmer in India before travelling to Australia. 14 In his visa application the first appellant claimed that he and his father were both members of the Congress Party in India, that they had been threatened by members of the Bharatiya Janata Party ("BJP") and that BJP members have also tried to harm the first appellant and his family. The first appellant claimed that he would suffer significant harm at the hands of BJP party members if he returned to India. He further claimed that the BJP was trying to take his family's land in India in a Court Case and that, if successful, he and his family would be forced to live in poverty were they to return to India. 15 The Tribunal also referred to written submissions submitted on behalf of the appellants in support of their visa applications. The Tribunal noted that those submissions suggested that the first appellant felt compelled to leave India because of threats made to him and to his father, because of his father's membership of the Congress Party. The submissions stated that the first appellant's father was a leader within the Congress Party and that he was attacked on several occasions because of his political leadership. 16 The submissions also stated that the first appellant joined the Congress Party in 2000 and was actively involved with the Youth Congress Party, the aims of which are to promote democracy in India, promote freedom of speech, and to educate Indians to vote against the BJP. The submissions further stated that the first appellant was questioned and jailed with his wife before coming to Australia in 2008. The Tribunal also referred to various documents attached to the submissions relating to attacks on the first appellant's father and gunshot injuries suffered by him. 17 The Tribunal referred to other documents received by the Department in support of the first appellant's claims including correspondence referring to attacks on his father because of his work on behalf of the Congress Party. That correspondence also referred to the first appellant being in danger. 18 The Tribunal stated at [35] of its reasons that it was not satisfied on the material and information before it that there were substantial grounds to believe that, as a necessary and foreseeable consequence of the first appellant being removed from Australia to India, there would be a real risk that he would suffer significant harm in terms of s 36(2)(aa) of the Act because of his claimed political opinion as a supporter of the Congress Party, or activities undertaken by him on behalf of the Congress Party. 19 The Tribunal stated it was not satisfied the first appellant and his father were members and supporters of the Congress Party or that they carried out activities on behalf of that party which led to them being threatened by the BJP, told to leave the Congress Party, or that attempts were made to harm them. The Tribunal said it was also not able to be satisfied as to the first appellant's claim that he was kidnapped by BJP members, that the first appellant and his wife were questioned or jailed, or that he had been threatened because of his involvement in, and membership of, the Youth Congress Party in India. 20 The Tribunal stated that it was not satisfied any of the appellants was a person in respect of whom Australia owed protection obligations and therefore they did not satisfy the criterion set out in either s 36(2)(a) or (aa) of the Act for a protection visa. For those reasons the Tribunal affirmed the decision not to grant the appellants protection visas.

The Primary Judge's Decision 21 The primary judge referred to the history of the matter and the sole ground of review relied on by the appellants before his Honour. At the hearing before his Honour on 12 June 2019 the appellants' counsel contended that the Tribunal had failed to provide a meaningful invitation to the appellants under s 425 of the Act to appear at the Tribunal hearing and to give evidence and present arguments. In this context, the primary judge referred to the attempts made by the Tribunal to arrange a hearing at which the first appellant could give evidence and make submissions as summarised in the Minister's written submissions to his Honour. 22 Having referred to the history of the matter before the Tribunal, and in the Federal Circuit Court, the primary judge observed that the review application before the Tribunal "could not be extended indefinitely, but rather had to be brought to a determination within a reasonable period of time". His Honour stated at [32]-[33]: [32] However, the simple fact of the matter is that the First Applicant was unlikely ever to be able to meaningfully participate in a hearing before the Tribunal. This fact did not militate that the review application must be put on hold indefinitely. At the time of the decision of the Tribunal s.420 of the Act (now s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) provided that the Tribunal was under a duty to deal with a review in a "fair, just, economical, informal and quick" manner. In the context of the circumstances of this case Gyles J observed in Applicant s296 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1166 at [6] as follows: [6] … There can be no general disagreement with the proposition that the Tribunal is under a duty to deal with a review in a 'fair, just, economical, informal and quick' manner (s 420). There will be circumstances where the incapacity of an applicant is such that the review by the Tribunal simply must take place without the benefit of oral evidence or oral contribution from that applicant. [emphasis added by primary judge] [33] These observations of Gyles J were considered and accepted by Smith FM in SZOGP [(2010) 244 FLR 139] at 154 [51]. Further, having considered other relevant authorities Smith FM concluded in SZOGP as follows: [57] … I have concluded that no procedural unfairness attended the present Tribunal's decision to proceed to make a decision without taking evidence from the applicant wife, on the assumption that rights of fair procedure can be implied. Such an implication must, on any view, impose only such procedural obligations on the Tribunal which are consistent with the statutory scheme which governs its proceedings, and are appropriate to the particular circumstances of the matter. As I have concluded above, the statutory scheme includes a statutory obligation on the Tribunal to complete its review without undue delay, even where an applicant becomes incapacitated from participating in a hearing for the foreseeable future. [emphasis added by primary judge] SZOGP was noted by the Tribunal at [14] of its Decision Record … His Honour concluded that the Tribunal conducted its review in accordance with its statutory obligations and, in particular, its obligation under s 425 of the Act.

The Appeal 23 The appellants did not file any written submissions or make any oral submissions addressing the primary judge's reasoning. The grounds of appeal in the appellants' notice of appeal are as follows: 1. The Hon Judge 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. 2. The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT. (Errors in the original) 24 The Minister submitted that the matter referred to in ground 1 was not raised before the primary judge. On this point I am inclined to give the appellants some latitude. Ground 1 refers to a breach of statutory obligation and, in the present context, I would understand the second limb of ground 1 to refer to what counsel for the appellants submitted to the primary judge was a failure on the part of the Tribunal to comply with the statutory obligation imposed by s 425 of the Act. The first limb of ground 1 was not the subject of any submission either before the primary judge or to this Court and is therefore rejected. Ground 2 is also rejected due to its lack of specificity. It is therefore only necessary for me to consider the second limb of ground 1.

Consideration 25 Section 425(1) provides the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Also relevant is s 420(1) as it stood up until its repeal in 2015, which provided (in respect of the Refugee Review Tribunal): The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. 26 In the present case it is clear that the Tribunal issued to the first appellant a number of invitations to give evidence and present arguments in relation to the decision under review. Such an invitation must not be "a hollow shell or an empty gesture": see Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 at [35]-[36] per Hely J. His Honour's observation was referred to with approval by the plurality (Hayne, Kiefel and Bell JJ) in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [61] where their Honours, referring to s 360(1) of the Act (the wording of which is identical to s 425(1)) said: Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal's knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture [Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 at 366 [36] per Hely J] and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty. 27 There is no reason in this case to think that the invitations extended to the appellants were not meaningful. It is apparent from the Tribunal's reasons that it went to considerable lengths over an extended period to arrange for an oral hearing to take place. That there was no oral hearing was due to the inability of the first appellant to participate in such a hearing, something which the Tribunal accepted was due to the state of his mental health. 28 In circumstances where the first appellant was unlikely to be fit to participate in an oral hearing at any time in the foreseeable future, I think the preferable view of what occurred is that the first appellant was afforded the opportunity to participate in an oral hearing, but that due to circumstances beyond both the first appellant's and the Tribunal's control, he was not able to take advantage of that opportunity. This was not a case in which another postponement or adjournment of the hearing, even for an extended period, was likely to change matters. The case was one in which, as Gyles J put it in Applicant S296 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1166 at [6], "the incapacity of an applicant is such that the review by the Tribunal simply must take place without the benefit of oral evidence or oral contribution from that applicant." 29 In the present case it was open to the Tribunal to proceed without hearing oral evidence or oral arguments from the first appellant. The Tribunal's power to proceed to determine the first appellant's application for review was not conditional on the first appellant being competent to present oral evidence or oral arguments: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [45] per Gummow and Hayne JJ. 30 The Tribunal found that it was likely that the first appellant would be unfit to participate in a hearing for the foreseeable future. There is no reason to doubt the correctness of that finding, which was made by the Tribunal more than seven years ago. The medical evidence relied on by the appellants in this Court included a medical report prepared earlier this year stating that the first appellant continues to suffer from depression and poor mental health. The Tribunal's finding was open on the material before it and was not legally unreasonable. Given that finding, it cannot be said that the decision to proceed with the review without having evidence and argument presented orally by the first appellant was legally unreasonable or otherwise in breach of any express or implied limitation on the Tribunal's powers.

Disposition 31 The primary judge's decision was correct and the appeal must be dismissed. The appellants must pay the Minister's costs of the appeal. 32 I previously referred to the appellants' dire circumstances. A request for Ministerial intervention has apparently been lodged by the appellants pursuant to s 417(1) of the Act which I was informed by the Minister's solicitor is ongoing and that no determination has yet been made. The Minister's solicitor quite properly drew my attention to s 417(7) of the Act. In the circumstances, I will do no more than draw to the Minister's attention the seriousness of the second appellant's medical condition and the undisputed medical evidence in Ex A on which my findings at [6] above were based. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.

Migration Act 1958(Cth)ss 36(2)(aa), 417, 420(1), 425

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