SZALS v Minister for Immigration

[2004] FMCA 255

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZALS v MINISTER FOR IMMIGRATION [2004] FMCA 255

MIGRATION – Review of RRT decision – where applicant claims well-founded fear of persecution based on his Indo-Fijian ethnicity – where country information before Tribunal did not uphold applicant’s claims – whether applicant was afforded a proper hearing as required by s.425 Migration Act – where entire hearing lasted 33 minutes – whether Tribunal prevented applicant from giving evidence and presenting arguments by talking over applicant – whether length of hearing relevant to whether applicant afforded procedural fairness.

Migration Act 1958 (Cth), ss.422B, 425

Mazhar v MIMA [2000] FCA 1759
WAHP v MIMIA [2004] FCAFC 87
MIMA v Yusuf (2001) 206 CLR 323
Dranichnikov v MIMA (2003) 197 ALR 389
Htun v MIMA [2001] FCA 1802
Ratumaiwai v MIMA [2002] FCA 311
Applicant VFAP v MIMIA [2003] FCA 1532
MIMA v Rajalingham [1999] FCA 719
S154/2002 v MIMA [2003] HCA 60
SZAJF v MIMIA [2004] FCA 291

Applicant: SZALS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 690 of 2003

Delivered on: 7 May 2004

Delivered at: Sydney

Hearing date: 23 April 2004

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Mr M Jones, Solicitor

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 690 of 2003

SZALS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a Fijian citizen of Indo-Fijian ethnicity and of the Muslim religion. He arrived in Australia on 1 November 2001 and on 8 November 2001 applied for a protection (class XA) visa. On 12 December 2001 a delegate of the Minister wrote to the applicant providing him with relevant extracts of country information which he was invited to comment upon and address. On 23 January 2002 the delegate refused the protection visa application. On 13 February 2002 the applicant lodged an application for review with the Refugee Review Tribunal. The applicant was invited by the Tribunal to attend a hearing before it on 25 February 2003 which he did. On 27 March 2003 the Tribunal determined to affirm the decision under review.

2. The applicant’s claim to have a well-founded fear of persecution for the convention reason of religion was based upon the fact that on two occasions whilst walking between the Mosque and his home he and others had been attacked by Fijian nationals and on one occasion he had lost a tooth. He claimed to hold a general fear of returning to Fiji because he believed that this type of incident might occur again. He said in his documentary material that he had been unable to identify his attackers and therefore had not involved the police. Before the Tribunal the applicant said at [T-6]:

   “That I think – how I  … because they have got – they are coming from another part of the Island. Its called Horo. And that’s the trouble they are making. So we already report – all the time we report them to the police station. Well sometimes they are … our cases and sometimes they do not come – and I think its … report is still there in the station.”

   Later in the Transcript the applicant indicated that when the police asked who was responsible for the attacks “they were pointed to a general area of the native Fijian population, they just turned their vehicles around and went away.” The applicant indicated to the Tribunal that he believed that the attacks upon Muslim Indo-Fijians had increased after September 11.

3. The Tribunal in its findings and reasons explained that it had put independent country information to the applicant which indicated that no attacks had taken place:

   “upon Indo-Fijians (Muslim or otherwise) anywhere in Fiji during the period  2000-2001.”

   The Tribunal preferred this independent country information to the evidence produced by the applicant and stated:

   “On the totality of the evidence before the Tribunal, it finds the application is based on more on problems associated to general law and order, on allegations which are not supported by ICI and speculation. It follows that the Tribunal finds on the whole of the evidence before it that the applicant has no genuine subjective fear of persecution. As a result there is no basis for the applicant’s claims that he has a well-founded fear of persecution if he returns to Fiji now or in the foreseeable future.”

4. The basis upon which the applicant seeks to impugn the decision of the Tribunal is a narrow one. He argues that the requirement under s.425 Migration Act “to 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” must be understood in the context of the investigative function of the Tribunal and the legal requirements of procedural fairness or natural justice as codified in s.422B. A Tribunal will not comply with s.425 if it invites the applicant to appear and then does not allow him or her a proper opportunity to give evidence or present arguments: Mazhar v MIMA [2000] FCA 1759. In this case the applicant says that the total hearing lasted 33 minutes. A tape of the hearing has been exhibited in evidence having being transcribed onto CD formula and this indicates that the normal preliminary information took approximately 7 minutes 30 seconds. The substantive part of the hearing lasted 14 minutes 30 seconds. Following that there was discussion concerning the provision of further documents which was for a time a part of the application but is no longer. The applicant submits that a hearing before the Tribunal, which lasts in substance less than quarter of an hour, “falls so far short of the norm that it should be considered not to be a hearing at all”.

5. The applicant points to several occasions where he says the Tribunal spoke over him. Two of these are found at page 9 of the transcript and one on page 8. The applicant argues that the conduct of the hearing prevented him from giving evidence and presenting arguments.

6. The respondent submits that it is wrong to take extracts out of the transcript or the tape and that the whole hearing should be considered before a decision is taken as to whether or not it constituted a failure to provide a proper hearing within s.425. She argues that when that is done it will be seen that the Tribunal did deal with all the relevant matters put by the applicant, it did put to the applicant the relevant independent country information upon which it made its decision and it did give the applicant an opportunity to raise with it any matters which he believed would influence it in coming to its decision.

7. The duty of a Tribunal in relation to the hearing of reviews of the delegates decision to refuse a protection visa were set out by Lee J in his dissenting judgment in WAHP v MIMIA [2004] FCAFC 87. These matters were not the subject of contrary view from the majority.

   “[3] The role of the Tribunal in conducting a review under the Act is to assess whether the material presented indicates that it could be possible that if the applicant were returned to the country of nationality events involving the applicant may occur which would constitute persecution of the applicant. If so, the Tribunal will be satisfied that the applicant qualifies for the grant of a visa and, pursuant to s 65(1) of the Act, must grant the visa applied for. If the material does not show that such a risk exists the visa must be refused.

   [4] In carrying out that assessment, involving as it does a determination of great importance to an applicant, the Tribunal must act "judicially" and according to law. In so acting the Tribunal does not exercise judicial power, but by reason of the importance of its task, the Tribunal must observe the "practical requirements of fairness" appropriate for the exercise of judicial power. As Sedley J stated in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242 at 258:

   ‘In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts, and public law has since Ridge v Baldwin [1963] 2 All ER 66, [1964] AC 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it "judicial" in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body.’

   [5] Failure of the Tribunal to act "judicially" will necessarily stamp a review procedure as one which has not accorded practical fairness or justice to an applicant. To act "judicially" and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 366-368; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 per Gleeson CJ at [25]-[26], Kirby J at [100]).”

8. It is axiomatic that a Tribunal hearing that is so short that an applicant gets no chance to properly explain his grounds for seeking asylum would not constitute a proper hearing within s.425. But it is equally clear that the length of the hearing alone could not possibly justify such a finding. The transcript must show that an applicant was not given a proper opportunity to express himself and to bring matters which he considered important to the attention of the Tribunal. Equally, the Tribunal must examine all the claims made by the applicant and if it fails to do so then it will have not completed the task upon which it entered: MIMA v Yusuf (2001) 206 CLR 323; Dranichnikov v MIMA (2003) 197 ALR 389; Htun v MIMA [2001] FCA 1802; Ratumaiwai v MIMA [2002] FCA 311; Applicant VFAP v MIMIA [2003] FCA 1532.

9. In these proceedings the applicant documented his claim in very short fashion. He presented a simple factual situation of assaults occurring to him and fellow villagers. He made mention in a general way of some robberies of Indo-Fijian houses. He was asked to speak about these matters and does so commencing at [T-4] and concluding on [T-7]. 

   
   

   [T-7] to [T-9] is mostly a debate between the applicant and the Tribunal about the country information and the alleged incidences of overbearing conduct or talking over the applicant occur in the context of those maters rather than in the context of the original statement.

10. The Courts recognise that attendance before a Tribunal is something which would in general cause applicants considerable anxiety. They may find it hard to express articulately all their fears. Many will leave the room believing that there were things they could have said. But some system has to be created for these claims to be heard and it seems to me that the Tribunal system currently operated, hedged around as it is with Court imposed obligations to understand the situation of an applicant and with provision for interpreters and representatives to attend, is an acceptable response to the problem.  In MIMA v Rajalingham [1999] FCA 719 Sackville J (with North J in agreement) after noting that applicants will often be bewildered or frightened in the unfamiliar environment of a Tribunal hearing noted at [62]:

    “When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question.”

    In S154/2002 v MIMA [2003] HCA 60 Gummow & Heydon JJ, with Gleeson CJ in agreement, said at [57]:

    “[Tribunal] proceedings are not adversarial, but inquisitorial; the tribunal is not in the position of a contradictor of the case being advanced by the applicant. The tribunal member conducting the inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair.”

11. I have listened to the audiotape and I have read the transcript. I have read the reasons for decision. I am not satisfied that the applicant was not granted procedural fairness by the Tribunal. It made it clear to the applicant that it was disinclined to accept his story because of contrary independent country information which the applicant was told about. It made it clear to him that it was disinclined to accept that he had a well-founded fear of persecution for a convention reason because the Fijian government neither condoned nor tolerated inter-racial disharmony and was making a positive effort to prevent it. I accept that the applicant did not agree with her assessment of the situation in Fiji but it is their duty to make a decision on these facts not that of the court. As Tamberlin J commented in SZAJF v MIMIA [2004] FCA 291 at [34]:

    “It is solely a matter for the RRT to assess the relevance and importance of the evidence which is brought before it and this exercise is an integral part of the reasoning process and function of the decision-maker”

12. I accept that some of the things said by the Tribunal particularly those at [T-9] may have been slightly misleading:

    “I don’t know, and I’ll go through again the independent country information and I’ll go through your answers and perhaps things might be different but my initial response is this, as I have just said to you, is I am having a little bit of trouble with it. Is there anything else you wish to add?”

    There then follows a discussion about documents, which is a matter that was not pressed. I am of the view that if one looks at all of the relevant matters, namely the written information before the Tribunal from the applicant, the applicant’s evidence, the discussions between the applicant and the Tribunal and the Tribunal’s reasons for decision the preferable finding is that the Tribunal did act judicially, it did observe the practical requirements of fairness and it carried out its decision making function rationally and reasonably and not arbitrarily. It did provide the applicant with a hearing as required by s.425 and that hearing was not negated by its lack of length or by the Tribunal apparently speaking over the applicant on three occasions. The better view is that the applicant did have an opportunity to put what he wished to the Tribunal and that if he failed to do so it was more a personal failing of his (that could be due to anything from nervousness to not having anything more to say) than a failing of the Tribunal.

13. I dismiss the application. I order that the applicant pay the respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  7 May 2004