FEDERAL COURT OF AUSTRALIA SZSQN v Minister for Immigration and Border Protection [2014] FCA 214 Citation: SZSQN v Minister for Immigration and Border Protection [2014] FCA 214 Appeal from: SZSQN v Minister for Immigration and Border Protection [2013] FCCA 1849 Parties: SZSQN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 2292 of 2013 Judge: RARES J Date of judgment: 26 February 2014 Legislation: Migration Act 1958 (Cth) Cases cited: SZIAI v Minister for Immigration (2009) 259 ALR 429 applied SZSQN v Minister for Immigration [2013] FCCA 1849 referred to Date of hearing: 26 February 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 16 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Mr P Knowles Solicitor for the First Respondent: Sparke Helmore IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2292 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSQN Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 26 FEBRUARY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. 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 2292 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZSQN Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE: 26 FEBRUARY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Circuit Court refusing the appellant constitutional writ relief in respect of a decision of the Refugee Review Tribunal dated 19 February 2013 that affirmed the decision of the Minister's delegate not to grant the appellant a protection visa: SZSQN v Minister for Immigration [2013] FCCA 1849. Background 2 The appellant is a citizen of India who entered Australia on 9 July 2009 as a dependant of the holder of a student visa. That visa was held by his wife. In his application for his protection visa made on 9 May 2012, he claimed that he had separated from his wife on 15 November 2009 after a "huge misunderstanding". He claimed that his wife's family in India were influential, constantly threatening to kill him and constantly harassing him. He claimed to have "escaped" from Brisbane and come to Sydney to get away from them, but that the harassment continued both here and against his family in India. He claimed that his wife's family could track him down and have him killed if he returned to India. 3 The appellant was invited by the delegate for an interview scheduled for 12 July 2012 but provided medical evidence that he was not able to attend on that day. He did not attend the rescheduled interview on 7 August 2012 and gave no explanation for his inaction. Unsurprisingly, the delegate found that he was not satisfied that the appellant was entitled to a protection visa. That led to the appellant's application for review before the Tribunal. The proceedings in the Tribunal 4 On 20 November 2012, the Tribunal wrote to the appellant advising him that it had considered all of the material before it relating to his application but was unable to make a favourable decision on that information alone. The letter invited him to give oral evidence and present arguments at a hearing on 15 January 2013. The letter informed the appellant that, if he did not attend the hearing and there was no postponement granted, the Tribunal might make a decision on his case without further notice. The appellant contacted the Tribunal and satisfied it on medical evidence that he was not able to attend on the scheduled date. As a result, the Tribunal sent him a letter on 16 January 2013 advising that the hearing had been postponed and inviting him to attend on 14 February 2013. The appellant did not appear before the Tribunal on the new date and it then proceeded to act, pursuant to s 426A of the Migration Act 1958 (Cth), by making its decision. 5 The Tribunal found that the appellant's claims were vague, lacked detail and insufficient for it to be satisfied that the events he claimed to have occurred were true. Therefore, it did not accept that the alleged consequences of those claimed events would occur in the future. It then set out a number of examples of matters about which it was concerned that were not adequately explained in the material before it, including, for example, what the "huge misunderstanding" was that led to his marital separation, or the circumstances and nature of the threats he alleged had been made. 6 Accordingly, the Tribunal found that it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason, or that there were substantial grounds for believing, that as a necessary and foreseeable consequence of the appellant being removed from Australia to India, there was a real risk he would suffer significant harm within the meaning of ss 36(2)(a) or (aa) of the Act. The proceedings in the Federal Court 7 The grounds of the appellant's application before the trial judge were as follows: "1. The Second Respondent committed jurisdictional error by failing to comply with mandatory provisions of the Act. Particulars: (a) The Second Respondent acted on the assumption that the applicant had received its invitation to appear before the Tribunal prior to 14 February 2013. On account of the mistake of the third party the Tribunal inadvertently failed to discharge its statutory duty. By consequences Tribunal decision is not a decision at all in law. (b) My point is that having missed the invitation letter, the Tribunal did not make any other attempt to contact me to attend in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A. (c) The Tribunal decision was fundamentally influenced by not receiving evidence from me at hearing. In the Tribunal's reasons for decision the Tribunal mention the negative impact on its decision of not having had the opportunity to obtain further information." 8 In his affidavit dated 8 March 2013, in support of his application in the Court below, the appellant identified his concern as "the Tribunal decision was fundamentally influenced by not receiving evidence from me". 9 His Honour referred to the appellant informing him that he had moved to a new address prior to, or around, 16 January 2013, but had not provided that address to the Tribunal and, accordingly, he had not received notice of the Tribunal's rescheduling of the hearing. 10 His Honour found that the Tribunal had discharged its statutory obligation to notify the appellant of the initial hearing and the Minister had proved that the letter advising the appellant of the rescheduled hearing on 14 February 2013 had been sent to him at his last given address in accordance with ss 425A and 441A of the Act. He held that whether or not the appellant's failure to notify his change of address had affected the communication to him of the postponed hearing date, the Tribunal was entitled to proceed under s 426A in those circumstances. In any event, as his Honour said, there was no evidence that the appellant sought to foreshadow or explain to the Tribunal why he had failed to attend the rescheduled hearing. 11 Next, his Honour held that the Tribunal had not failed to comply with s 424A of the Act. That was because all it had done was to identify in its reasons matters in the appellant's claim for a protection visa that it was not satisfied about and might have wished to explore with him, had he attended the interview. For those reasons, the trial judge dismissed the application. This appeal 12 The notice of appeal set out two grounds: "1. The Hon. Judge failed to consider that the Tribunal had denied the applicant procedural fairness because the Tribunal's decision was fundamentally influenced by not receiving evidence from the applicant at hearing. 2. The learned Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. The Tribunal has failed to investigate Applicant claims, specially the grounds of persecution in India." 13 The appellant, as a lay person, was unable to advance any legal argument. He told me that he was not happy with the decisions of his Honour or of the Tribunal and that he feared for his life if he returned to India. 14 I reject the first ground of appeal. His Honour considered the issue of whether the Tribunal had denied the appellant procedural fairness. He correctly determined that the Tribunal was authorised by s 426A to proceed as it did once the appellant failed to attend the re-scheduled hearing on 14 February 2013. 15 The second ground made assertions about unspecified "legal and factual errors" in the decision of the Tribunal and the Tribunal having failed to investigate the appellant's claims. That ground has no substance. The alleged errors are entirely unparticularised and, from my consideration of the Tribunal's reasons, I cannot perceive any jurisdictional error in the way in which it determined the review. The Tribunal had no function independently to investigate the appellant's claims, particularly when he failed to attend at a hearing before it to assist it in exploring with him matters that, at the time of the issue of the invitation to the hearing, it had notified him that it was unable to resolve in his favour without such a hearing and submissions from him. It is plain beyond argument that the Tribunal had no general obligation to make inquiries or to investigate independently the appellant's claims. Its function was to review the delegate's decision: SZIAI v Minister for Immigration (2009) 259 ALR 429 at 436 [25] per French CJ, Gummow, Heydon, Hayne, Crennan, Kiefel and Bell JJ. It did so. Conclusion 16 For these reasons, the appeal must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 13 March 2014