SZBFM v Minister for Immigration - [2005] FMCA 451

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBFM & ANOR v MINISTER FOR IMMIGRATION

[2005] FMCA 451

MIGRATION – Review of RRT decision – where second applicant requested to leave hearing room whilst first applicant gave evidence – where second applicant not recalled – where second applicant wished to be heard – whether failure to permit her to remain in hearing room constituted a breach of s.425 Migration Act 1958.

Federal Magistrates Court Rules 2001
Migration Act 1958, s.422B, 425

NALQ v Minister for Immigration [2004] FCAFC 121
STPB v Minister for Immigration [2004] FCA 818
Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Minister for Immigration v SCAR [2003] FCAFC 126

First Applicant:

SZBFM

Second Applicant:

SZBFN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1626 of 2003

Judgment of:

Raphael FM

Hearing date:

2 March 2005

Delivered at:

Sydney

Delivered on:

13 April 2005

REPRESENTATION

Counsel for the Applicant:

Mr I Archibald

Solicitors for the Applicant:

Michaela Byers, Solicitor

Counsel for the Respondent:

Ms V Hartstein

Solicitors for the Respondent:

Australian Government Solicitor

THE COURT DECLARES

The decision of the Refugee Review Tribunal dated 19 November 2002 to be void and of no effect.

THE COURT ORDERS THAT

The application be remitted to the Tribunal, differently constituted, to be heard and determined according to law.
The Respondent pay the costs of the applicants assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1626 of 2003

SZBFM & SZBFN

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The two applicants in these proceedings are citizens of Lebanon who arrived in Australia on 9 January 2001. On 23 February 2001 they lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 21 June 2001 a delegate of the Minister refused to grant a protection visa and on 11 July 2001 the applicant applied for review of that decision. The applicants were invited on 11 September 2002 to attend a hearing which took place on 22 October 2002. On 25 October 2002 the Tribunal determined to affirm the decision not to grant the applicants protection visas and it handed down that decision on 19 November 2002. The application to the Tribunal having been made before the coming into force of s.422B of the Migration Act 1958 (Cth) (“the Act”) is to be dealt with on the basis that the common law as regards the natural justice hearing rule applies and the failure to accord natural justice constitutes a jurisdictional error taking the proceedings out of the category of privative clause decisions. The Tribunal was also bound by the provisions of s.425 which is in the following form:
Tribunal must invite applicant to appear
(1) 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.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
It is not suggested that in relation to these proceedings any part of subsections (2) or (3) apply.
The principal applicant in the proceedings was the husband. But his wife was also an applicant who completed form D for “A Member of the family unit who does NOT have their own claim to be a refugee but who is included in this application” [CB 24] The wife was included in the application to the Refugee Review Tribunal [CB 48]. On 11 September 2002 the husband received a hearing invitation [CB 56] the letter is in the following form:
Primary Applicant

Applicant’s Address
11 September 2002
Dear Primary Applicant
Your Application for Review – Primary Applicant’s name; Secondary Applicant’s name
Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them.
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
Hearing of the Tribunal
We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.
If you want to come to a hearing it will be on:
Date:    Tuesday, 22 October 2002

Time:     10.00AM Please arrive at least 15 minutes before the start of the hearing

Place:   Level 29, Pacific Power Building, 201 Elizabeth St, Sydney

Important information about your hearing
The Tribunal will only change this hearing date for good reasons. If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.
You must bring your passport to the hearing.
“Response to Hearing Invitation” form
Please read and complete the enclosed form carefully and:
tell us if you are coming to the hearing or not coming to the hearing
complete the “Witnesses” part of the form if you want the Tribunal to get oral evidence from another person; please note the Tribunal does not have to get evidence from any person you name
send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send must be in English or translated by a qualified translator
answer all the other questions on the form and return the completed form and any new documents or written arguments by 27 September 2002.
We have enclosed a brochure that explains what will happen on the day of the hearing. You can also find more information about the Tribunal and its procedures on our website: as appears in the original]
There was a response to hearing invitation completed by the husband who indicated that he did not wish a separate hearing for other family members; it indicated that the applicant required a female interpreter from which I could draw an inference that he expected his wife to give evidence and named a witness [CB 58] – [CB 59]. The hearing information form noted the applicant, the name of the witness, the wife as a related applicant and an advisor.
The transcript of the hearing appears at [CB 110] – [CB 125]. The wife also gave evidence before me. At [CB 111] the member says:
“Member: Firstly I am going to ask your witness and observer to leave the room and I will get them to come back later on. If you could be back in probably about an hour.”
I am satisfied from the evidence of the wife that the reference to the “observer” was a reference to her. She was, of course, not an observer at all. She was an applicant. At [CB 112] the Tribunal asked the husband a number of questions about his wife. If the wife had been in the room she would have been able to answer those questions herself. The wife gave evidence that when she arrived at the hearing room she was asked her name and her husband was asked his name. I am satisfied the Tribunal was made aware of who the wife was. I notice from the wife’s cross-examination by Ms Hartstein for the Minister that she did not tell the Tribunal that she wished to speak, although she had told her husband that she wanted to give evidence. She thought that they would both have an opportunity to give evidence. She left the room because she was told to do so. She did not go back and was not present in the room when the actual witness spoke. She waited outside for the whole time that her husband was inside. There was some suggestion that the answers from the husband to questions on the transcripts indicate that the wife was not well. The wife confirmed that she was well during the whole time and I am satisfied that the answers on transcript related to a previous sickness of the wife and not to her condition at the time of the hearing.
I am satisfied that for reasons that I need not speculate upon and which are in all probability entirely innocent or the result of an oversight or misunderstanding, the wife, an applicant to the Tribunal, who could have given evidence which may have corroborated evidence of her husband whose credibility the Tribunal impugned, was not given an opportunity to attend a hearing.
It has been said clearly that the invitation extended under s.425 of the Act must not be an empty gesture: Minister for Immigration v SCAR [2003] FCAFC 126 at [33]; NALQ v Minister for Immigration [2004] FCAFC 121 at [30] – [32]; STPB v Minister for Immigration [2004] FCA 818 at [27]; Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16]. The applicant must be provided a real opportunity to do that which he or she is invited to do, namely give evidence and present argument. As the full court said in SCAR at [33]:
“Pursuant to s.425 of the Act the tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to be heard an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or empty gesture: Mazhar v MIMA (2000) 183 ALR 188 at [31].”
An applicant who is not present in the hearing room for the whole of the hearing can not do either of those things. It has quite correctly not been suggested to me that the applicant could have hammered on the door and demanded to be let in or passed a message through the court officer. Firstly she had been told to go away for at least an hour and secondly the duty is on the Tribunal to provide her with the opportunity and not upon her to insist upon her rights. The Tribunal process is fraught for all applicants and the situation for a Lebanese woman with little English is not likely to be any less so.
I am satisfied that the actions of the Tribunal constituted a breach of s.425 of the Act which itself constitutes a jurisdictional error. I propose to remit back to the Tribunal the decision in respect of both applicants. There may well have been evidence that the wife could have given to corroborate that of her husband and he is entitled to take that opportunity, which he was not able to avail himself of whilst she was not in the room.
I find the decision of the Tribunal to be void and of no effect. I will order the necessary constitutional writs if requested to do so, but otherwise will order that the applications for review be remitted to a Tribunal differently constituted to be heard and determined according to law.
The applicants were represented. I order that the respondent pay the applicants’ costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: