BZAAO v Minister for Immigration

[2011] FMCA 514

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZAAO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 514

MIGRATION – Review of Refugee Review Tribunal decision – jurisdictional error – protection visa – failure to investigate the applicants’ claims – requirement for appearance before Tribunal – appearance may be by video link – nature of inquiries to be undertaken – duty to inquire in fact duty to review – bias in reasons alleged – no bias evident.

Migration Act 1958, ss.420(1), 420(2)(a)-(b), 424A, 425, 425(1), 425(a), 429A, 474

Amalgamated Society of Engineers v Adelaide Steamship Co Limited (Engineers Case) (1920) 28 CLR 129
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
Minister for Immigration and Multicultural Affairs v Yusuf  [2001] HCA 30; (2001) 206 CLR 323
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668http://

First Applicant: BZAAO

Second Applicant: BZAAP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFGUEE REVIEW TRIBUNAL

File Number: BRG 1221 of 2010

Judgment of: Burnett FM

Hearing date: 8 June 2011

Date of Last Submission: 8 June 2011

Delivered at: Brisbane

Delivered on: 8 June 2011

REPRESENTATION

The First Applicant appeared in person

The Second Applicant appeared in person

Solicitors for the First Respondent: Clayton Utz

Solicitors for the Second Respondent: Clayton Utz

ORDERS

1. That the application of each of the first and second applicants filed 8 August 2010 be dismissed.

2. That the applicants pay the respondents’ costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 1221 of 2010

BZAAO

First Applicant

BZAAP

Second Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 10 November 2010 the Refugee Review Tribunal affirmed a decision made by a delegate of the Minister not to grant the applicants Protection Class XA Visas.

2. The applicants, who claim to be citizens of India arrived in Australia on 10 May 2010 and applied to the department for Protection Class XA Visas on 11 May 2010.

3. The delegate decided to refuse the grant of visas on 11 August 2010 and notified the applicants of that decision and their review rights by letter dated 11 August 2010.

4. The delegate refused the visa applications on the basis that the first named applicant is not a person to whom Australia has a protection obligation under the Refugees Convention.

5. So far as the second applicant is concerned she is the wife of the primary applicant and has made her application on the basis of her membership of the applicant’s family unit.

6. The result of her application will follow the result in the first applicant’s application.

7. The tribunal ultimately conducted a hearing of the matter after undertaking the usual steps including interviews with the hearing ultimately being conducted on 13 October 2010. 

8. As I have earlier noted, the applicants were unsuccessful and following the result before the tribunal, have applied to this court for judicial review of the tribunal’s determination.

9. In their application to this court, which was made on 8 December 2010, they seek first, an order in the nature of certiorari setting the purported decision of the tribunal aside.  Second, an order for prohibition to restrain the respondent from giving any further effect to the purported decision.  Third, an order in the nature of mandamus remitting the matter back to the tribunal to be determined according to law and finally, an order for costs.

10. The grounds of the application are three fold, although the paragraph numbering does not run numerically.  The grounds are expressed as follows. 

Ground 1

1. The tribunal failed to provide the applicant with an opportunity to appear before it and thus failed to comply with the mandatory requirements of s.425(1) of the Migration Act1958 (Cth) (the Act), the particulars of which are:

   i)Section 425 mandates an oral hearing at which both the applicant and the tribunal are physically present giving the word “before” its natural English meaning in the context of in front of, in the one place, in order that the applicants may present their case and;

   ii)the tribunal is not physically present at the hearing because the tribunal was in Melbourne and thus the applicant did not appear before the tribunal.

Ground 2

1. Ground 2 which is noted as (3) in the grounds of application, the applicants satisfy the four key requirements of the Convention definition as detailed in page 2 and 3 of the tribunal decision.  The tribunal had not considered this aspect and therefore committed a factual and legal error.

Ground 3

1. Ground 3, which is noted as ground 4 in the application, is the tribunal has failed to investigate the applicants’ claim specifically the ground of persecution in India.  Therefore the tribunal’s decision dated 10 November 2010 was affected by actual bias constituting judicial error.

2. As I noted at the outset, the applicants in these proceedings claim to be citizens of India. After having made application for Protection Class XA Visas and having had those applications refused they then applied to the tribunal. After receipt of the applicants’ application the tribunal wrote to the applicant pursuant to s.425 and s.425(a) of the Act advising the applicant that it was unable to make a favourable decision on the material before it and invited the applicant to attend the tribunal on 13 October 2010 via video link from Victoria, where the tribunal was located to Queensland where the applicant was located.

3. Correspondence in the respondent’s bundle of relevant documents demonstrates that the process of arranging for the matter to proceed by way of video hearing appears to have been consensual.

4. For instance, in a diary note made on 14 September 2010 recording the conversation between the male applicant and a departmental officer it noted that the officer had said, in a recent letter sent to the applicant, which the applicant at that time had not received, that a video hearing had been set for him.  It does not appear, from the note, that there was any challenge to the medium of a video conference.

5. Subsequently, on 5 October 2010, the applicant in fact wrote to the tribunal indicating that he was “trying my best to attend but flights are too expensive and I can't afford at the moment and tried by bus (Paradise Coaches).  The schedule time in Mackay is very tight, 11.30 and I am worried about to take risk.  Therefore I kindly request you, that if you can arrange me the hearing at Rockhampton.  Please consider my request and do the need form.”

6. Subsequently, on 8 October there was a further telephone conversation between the male applicant and an officer of the department where she noted in her diary record of the conversation that she informed the review applicant and asked that he advise his wife that he is entitled to attend the hearing.  She noted that she understood from her conversation that both the applicant and his wife, the second applicant, would attend.  Again, there is nothing in the diary note to indicate any objection to a video conference.

7. Subsequently the matter proceeded by video conference at Rockhampton as the first applicant has indicated to me today in submissions made to the court.

8. After having heard the case, the tribunal ultimately concluded, first, that it did not accept the first applicant as a credible witness.  The tribunal member was not satisfied that the applicant had witnessed any murder which is a material matter placed before the Tribunal in terms of the claim for convention status.

9. Further, that the tribunal member did not accept that the applicant was harassed or threatened by the Communist Party workers so that he would not give evidence in court.  The Tribunal found that the applicant’s claims were vague and implausible, such that they were not credible.

10. It found that any harm that may befall him in relation to political unrest at election times in Kara would not be due to him being a member of the Congress Party but rather were as a result of random acts of violence.

11. It found that he could have successfully relocated within India as the violence was localised and ultimately concluded that he did not hold a well-founded fear of persecution for a Convention reason.  As a result of that, the Tribunal concluded that neither the applicant nor the second applicant, met the definition of refugee as provided for in the Convention.

12. So far as the court’s approach to this application is concerned, the court has jurisdiction to review certain decisions. It is, however, limited in that the court cannot review privative clause decisions. This decision is a privative clause decision and accordingly may only be reviewed if there can be demonstrated jurisdictional error such that the decision is not protected by s.474 of the Act.

13. The concept of jurisdictional error is well settled and is best summarised by the observations of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf[1] where their Honours cited, with approval, a passage in Craig v South Australia[2] which held that:

    “An administrative tribunal falls into error which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or at least on some circumstances to make an erroneous finding or reach a mistaken conclusion and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is a jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

    [1] [2001] HCA 30; 206 CLR 323

    [2] [1995] HCA 58; (1995) 184 CLR 163

14. As a matter of primary consideration, the minister may only grant a visa if he is satisfied that the criteria described for that visa by the Act and Regulations have been satisfied.  In that regard, the issue in this case was whether or not the applicant was a refugee.  That is a person who:

    “owing to a well-founded fear of being persecuted for reasons of race, religion, nationally, membership of a particular social group or political opinion is outside the country of his nationally and is unable or owing to such fear, unwilling to avail himself of the protection of that country.”

15. That was the point that was determined against the applicant in his application.   

16. Dealing then with the grounds which are advanced by the applicant against the application: First, that the tribunal failed to give the applicant an opportunity to appear before it. This ground and the supporting particulars complain that the tribunal was under an obligation to have the applicants “appear before the tribunal.” That is to say that the applicants asked for the court to adopt a literal approach to the meaning of the words “the statute” in s.425.

17. When assessing the meaning of the words in s.425, the court must have regard to s.429A. Section 429A provides that for the purposes of the review of a decision the tribunal may allow the appearance by the applicant before the tribunal or the giving of evidence by the applicant or any other person to be by:

    a)Telephone or;

    b)Close circuit television or;

    c)Any other means of communication.

18. As a matter of general statutory interpretation, the fundamental rule of interpretation to which all other rules are subordinate is:

    “That a statute is to be expounded according to the intent of the Parliament that made it and that intention has to be found by an examination of the language used in the statute as a whole.  The question is what does the language mean and when we find what that language means in its ordinary sense it is our duty to obey that meaning even if we think the result is inconvenient or impolitic or improbable, see Amalgamated Society of Engineers v Adelaide Steamship Co Limited (Engineers Case) (1920) 28 CLR 129 at 161-162 per Higgins J.”

19. So much has been stated more recently by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 where their Honours McHugh, Gummow, Kirby and Hayne JJ stated at [78]:

    “The duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning, that is the legal meaning, will correspond with the grammatical meaning of the provision but not always.  The context of the words, the consequences of literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

20. I should hasten to add that in this case there is nothing to indicate that anything other than the conventional approach ought to be adopted.  That is the literal meaning of the words are to be given meaning by the meaning that the legislature intended them to have when reading the legislation as a whole.

21. In other words, one cannot look in isolation at one particular section without considering how it interacts with other sections and in particular in this case, interaction between s.425 and s.429A.

22. Furthermore and by way of expansion upon the construction of the interaction between s.425 and s.429A regard must be had to s.420 for that informs and amplifies the approach which is advanced on behalf of the respondents. Section 420 provides:

    “ (1)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.

    (2)    The Tribunal, in reviewing a decision:

    (a)is not bound by technicalities, legal forms or rules of evidence; and

    (b)must act according to substantial justice and the merits of the case.”

23. It can be seen by reference to the manner in which the tribunal conducted this proceeding that it has sought to achieve the principal objective provided for in s.420 by the provision of a video conference which is consistent with the tribunal’s powers under s.429A.

24. So much is also consistent with the requests made by the applicant as was identified by him in his letter addressed to the tribunal on 5 October 2000 where he identified to the tribunal the financial constraints upon him appearing at the tribunal’s premises in Melbourne but rather seeking an appearance at a more convenient location such as Mackay or as in the result occurred, Rockhampton.

25. There is, in my view, no doubt that properly construed s.425 permits appearance by way of video link and in this instance the applicant did appear by that means. It cannot be said in the circumstances that the tribunal therefore failed to comply with mandatory requirements under s.425(1) and on that basis, ground 1 must fail.

26. In ground 2 the applicant contends that the tribunal was in error in its finding that he did not satisfy the elements in the Convention definition of refugee.  In part, when addressing this ground in his oral submissions, he also addressed ground 3 in similar terms.  The effect of his oral submission was that he did not have sufficient time to prepare for the tribunal and he did not do any investigation regarding these matters.

27. There is nothing in the hearing timetable, that is the time taken from the time the application was first lodged with the tribunal to the time of hearing, to indicate that the application was disposed of with any undue or unreasonable haste.

28. Indeed, the tribunal wrote to the applicant requesting that he provide further material to it being a request, pursuant to s.424A of the Act that the applicants have an opportunity to provide further information addressing in respect of matters which might form the reason or part of the reason for the tribunal affirming the decision under review.

29. The applicant responded to those requests as well as by providing initial information which was the subject of review by the tribunal.  There is nothing to suggest, in the manner in which the tribunal conducted itself and/or the material that was supplied to the tribunal by the applicant, that there was any shortage of time or any inability by the applicant to reasonably respond to those request.

30. Ultimately, what the applicant truly seeks, in this instance, is merits review.  The tribunal has determined the matters which I have earlier identified as matters of fact.  They were matters which were open to the tribunal to determine on its own account.  As earlier courts have said factual issues are matters for resolution at first instance and accordingly for this court to then engage in what, is in essence, merits review is impermissible.  See generally the observations of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407. On that basis the second ground fails.

31. The third ground advanced by the applicant is that the tribunal failed to investigate the applicant’s claims.  It contends that that failure demonstrated actual bias.  The position of the tribunal in terms of its role has been, again, expressed on numerous occasions previously and is well settled and that is as stated by the High Court in Minister for Immigration and Citizenship v SZIAI[3] where, at paragraph [25], the court stated:

    “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to reference of a “duty to inquire” that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review.”

    [3] [2009] HCA 39

32. Likewise in Minister for Immigration and Citizenship v SZGUR[4] the High Court, at [1] said:

    “The function of the Refugee Review Tribunal in reviewing decisions under the Migration Act has been described as inquisitorial. That designation does not mean that there is any general duty imposed on the tribunal as part of its review function to use or consider using its investigative powers to obtain information relevant to review.”

    [4] [2011] HCA 1

33. From a review of the tribunal’s decision there appears to have been a fulsome review and detailed consideration of the material placed before the tribunal.  The Tribunal does not appear to have omitted to inquire into any area that ought reasonably have been apparent to it as requiring investigation.  It has, in essence, conducted a review on the merits of material placed before it and there is no evidence of unreasonable omission.

34. It follows that there has been no basis for a suggestion the tribunal has failed in its notional, and I emphasise notional, duty to inquire and that the tribunal has in fact acted consistent with its duty to review.

35. It is also contended that this failure amounted to actual bias.  So far as bias is concerned in this context, the Federal Court in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs[5] stated at [36]:

    “Actual bias arising from prejudgment involves a state of mind by the decision-maker whilst exercising the decision-making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be present.  The question is not whether a decision-maker’s mind is blank, it is whether it is open to persuasion; see: Minister for Immigration and Multicultural Affairs v Jia per Gleeson CJ and Gummow J.  That decision also stresses that a party asserting actual bias on the part of a decision-maker carries a heavy onus.  The allegation must be “distinctly made and clearly proved”.”

    [5] [2002] FCA 668

1. The court continued, at [38]:

   “In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.  Reasons for decision reflect conclusions reached at the end of the decision-making process and if the decision is against the party complaining, the expression of advice findings on credit and fact are an inevitable part of the expression of the reasons.  The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision-maker before and whilst the matter was under consideration nor of prejudgment of the issues that fell for decision.”

2. In this instance, as can be seen from a review of the tribunal’s reasons, the reasons clearly expound the basis upon which the tribunal reached its final conclusion.  They demonstrate no basis for an inference of bias or prejudgment on the part of the tribunal towards the applicant.  There is no other material placed before the court which would demonstrate, sustain or lend weight, in any form, to any allegation of bias on the part of the tribunal.

3. Ultimately, it would seem that the applicant’s contention in respect of this ground again reflects his unhappiness with the decisions which leads then to a consideration of the merits which, as I have earlier noted, is impermissible in the context of an application of this kind.  It follows that the third ground fails.

4. In the result, the application, on the part of the applicant fails and I am satisfied that the tribunal’s decision should stand.  It follows that because the first applicant’s application fails, so too must the second applicant’s application also fail.

5. My order will be that the application of each of the first and second applicants is dismissed.

6. The application having failed there is no reason that the usual order, that is that costs follow the event ought not follow.  In this instance I will direct that the applicant pay the respondent’s costs of and incidental to the application to be fixed in the sum of $5,865.00.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date:  21 July 2011