FEDERAL COURT OF AUSTRALIA SZJDS v Minister for Immigration and Border Protection [2014] FCA 51 Citation: SZJDS v Minister for Immigration and Border Protection [2014] FCA 51 Appeal from: SZJDS v Minister for Immigration [2013] FCCA 1383 Parties: SZJDS v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 2041 of 2013 Judge: JAGOT J Date of judgment: 12 February 2014 Catchwords: MIGRATION Legislation: Migration Act 1958 (Cth) Cases cited: SZJDS v Minister for Immigration [2013] FCCA 1383 Date of hearing: 12 February 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 15 Counsel for the Appellant: There was no appearance by the appellant Counsel for the First Respondent: R Francois Solicitor for the First Respondent: J Nand of Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2041 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZJDS Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: JAGOT J DATE OF ORDER: 12 FEBRUARY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2041 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZJDS Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: JAGOT J DATE: 12 FEBRUARY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT The appeal 1 This is an appeal from a decision of the Federal Circuit Court of Australia (SZJDS v Minister for Immigration [2013] FCCA 1383). The primary judge dismissed an application for judicial review of the decision of the Migration Review Tribunal (MRT) which had affirmed the decision of the Minister for Immigration and Border Protection (the Minister) to cancel the appellant's Subclass 426 (Domestic Worker (temporary) – Diplomatic or Consular) visa (work visa). 2 The appeal was listed for hearing at 2.15 pm today. As the appellant was not in Court at that time, the Court Officer contacted him on a telephone number he had notified to the court earlier. The appellant said he was sick and would not be attending the hearing. He said also that he had called the Court to give notice to this effect earlier in the day. He could not say whom he called or recall their telephone number, however. 3 The Minister submitted that the appeal should be determined in the appellant's absence. I agree. The appellant's excuse for not appearing is inadequate. No evidence to support his claim of illness has been provided. I have also had the advantage of reading the written submissions of both the appellant and the first respondent. For the reasons set out below, I am satisfied the appeal has no merit. Background 4 The procedural and factual history of the case is set out in the primary judge's reasons at [1]-[16] and the MRT's reasons at [1]-[4] and [12]-[31]. The appellant first came to Australia in February 2005 to be employed as a private domestic worker to a diplomatic official of the United Arab Emirates Embassy in Canberra. The appellant's employment with the Embassy "did not go well". His working conditions and remuneration were not in accordance with the conditions on his visa. When the appellant ultimately decided to leave the Embassy, the Embassy withdrew its sponsorship of him and notified the Department of Immigration and Citizenship (the Department) of this fact on 30 September 2005. On the same day, the appellant applied for a protection visa. 5 The appellant's protection visa application was ultimately unsuccessful. The appellant also sought and was refused Ministerial intervention under s 417 of the Migration Act 1958 (Cth) (the Act). It is important to note that the decisions of the Refugee Review Tribunal (RRT) and the Department in respect of the appellant's protection visa application are not themselves under review in these proceedings. 6 On 11 November 2005, a delegate of the Minister decided to cancel the appellant's work visa under s 116(1) of the Act. On 6 November 2009, the Department reissued a decision notice on the basis that it considered that the appellant had not been properly notified of the Minister's decision. The appellant sought review by the MRT. On 6 February 2013, following a remittal by the Federal Court, a newly constituted MRT affirmed the decision to cancel the appellant's work visa. 7 The MRT's decision under s 116(1) of the Act involved two questions. First, was there a ground for cancelling the appellant's work visa under s 116(1)(a) on the basis that the circumstances which permitted the grant of the visa had ceased to exist? Second, if there was a ground for cancellation under s 116(1)(a), should the MRT exercise its discretion to cancel the appellant's work visa? The MRT answered the first question in the affirmative. As to the second question, the MRT considered a range of factors, some favourable to the appellant and some unfavourable. One factor, of significance to this appeal, was the appellant's unsuccessful application for a protection visa. In respect of this, the MRT's decision record included the following statement (set out at [14] of the primary judge's reasons): The applicant has had his claims formally assessed and has exhausted merits and judicial review relating to his protection visa application, and his request for Ministerial intervention under s.417 of the Act was unsuccessful. In addition, the outcome of the Department's assessment of his claims in relation to the possible exercise of the Minister's powers under s.48B of the Act was not favourable. The outcome of these assessments is that it has not been accepted that the applicant is owed protection obligations, or that his circumstances otherwise provide a basis for recommending Ministerial intervention. As the applicant has confirmed that no new matters have arisen in relation to these claims, the Tribunal is satisfied that cancellation of the visa would not lead to the applicant's removal in breach of Australia's non-refoulement obligations. 8 On 8 March 2013, the appellant sought judicial review of the MRT's decision on the following grounds: 1. The [MRT] made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant's visa cancellation by the Minister's delegate. 2. The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it. 3. The [MRT] denied the applicant natural justice and procedural fairness pursuant to s.425, s.424A and s.425A of the Migration Act 1958. 4. The applicant was deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicant whose interest has adversely affected by the decision as it did not give the opportunity to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognised as a denial of procedural fairness. 9 On 10 September 2013, the primary judge dismissed the appellant's application. The grounds of appeal 10 The appellant appeals the primary judge's decision on two grounds: 1. The Hon. FM Court in its decision ignored some legal issues which were not clearly explained in the judgment given on 10 Sept 2013. The Hon. Court has denied the applicant's natural justice. There is no reason to make decision in favour of the respondent. 2. The Tribunal did not follow the procedural fairness in reviewing the applicant's visa cancellation. It is apparent that Tribunal has not acted in accordance with the law. 11 The crux of the appellant's complaint appears to be in respect of the weight which the MRT placed upon the decisions of the RRT and the Department in respect of his previous protection visa application. The appellant contends that the MRT failed "to comply with the relevant section of the Migration Act" and that the MRT was "biased by the Refugee Review Tribunal's decision". 12 The grounds lack substance. Aside from an allegation of bias, which is dealt with below, neither the grounds of appeal nor the appellant's written submissions identify any specific legal error or failure to accord procedural fairness on the part of either the primary judge or the MRT. To the extent that the appellant relies upon ss 424A, 425 and 425A of the Act as stated in his original application before the Federal Circuit Court, these provisions only relate to the review of protection visa decisions. They were irrelevant to the appellant's application to the MRT. The primary judge dealt with the provisions applicable to the MRT's proceedings (at [17]) and found that the MRT had fully complied with them. More generally, there is nothing to suggest that the MRT did not give the appellant fair notice of, and a fair opportunity to address, the matters which the MRT was considering and which were adverse to the appellant's application. 13 As to the appellant's contention that the MRT was "biased", the primary judge was correct to find that the MRT's decision was not affected by bias. As the primary judge said: 20. The applicant himself put up to the Tribunal that his personal circumstances were one such ground. His personal circumstances included the fact that he did not believe that it was safe for him to return to Bangladesh or the UAE. Those were matters that the Refugee Review Tribunal considered, the courts considered on review and the Minister considered through the applications under s.417, and for the exercise of his powers under s.48B. 21. The Tribunal was perfectly entitled to take these things into account. Essentially, it felt that the applicant had exhausted every possible channel of persuading the authorities in this country that he genuinely had a concern about returning to Bangladesh. Perhaps the only one left out was the applicant's concern of returning to a country he had not been in for 14 years. But the Tribunal looked at this and came to a conclusion upon it. In my view, the Tribunal was entitled to take the course that it did. 14 I agree. While the MRT was required to take a "fresh look" at the decision to cancel the appellant's work visa, the same was not true in respect of the appellant's earlier application for a protection visa. It was not an opportunity for him to seek, indirectly, a further merits review of the decision of the RRT. There is nothing to give rise to any reasonable apprehension that the MRT had prejudged the appellant's application. To the contrary, the MRT offered the appellant the opportunity to raise any new matters in relation to the claims agitated in his protection visa application and review. He confirmed that there were none. Conclusion 15 The appeal should be dismissed. The applicant should pay the first respondent's costs of the appeal. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 13 February 2014