SZBIO v Minister for Immigration - [2005] FMCA 465

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBIO & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 465

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in Fiji – whether the RRT breached s.429 of the Migration Act 1958 (Cth) considered – RRT taking evidence from second applicant in the presence of the first applicant – applicants members of a single family unit – relevant claims made by the first applicant – no reviewable error found.

Federal Court Rules 1976
Migration Act 1958 (Cth), s.429

SZAFE v Minister for Immigration [2003] FMCA 410
SZAYW v Minister for Immigration [2004] FMCA 796

First Applicant:

Second Applicant:

Third Applicant

SZBIO

SZBIP

SZBIQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1741 of 2003

Judgment of:

Driver FM

Hearing date:

12 April 2005

Delivered at:

Sydney

Delivered on:

12 April 2005

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones
Michael Jones, solicitor

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The first and second applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
The time for an appeal to the Federal Court be extended to 42 days from today, pursuant to rule 52.15 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1741 of 2003

SZBIO, SZBIP, SZBIQ

Applicants

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 30 June 2003 and handed down on 29 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants; a husband, wife and their daughter from Fiji who have made claims of persecution as Indian Fijians at the hands of indigenous Fijians. The applicants arrived in Australia on 7 April 2002 and on 15 May 2002 they lodged an application for a protection (class XA) visa with the Minister's Department. On 3 July 2002 the Minister's delegate refused to grant protection visas and on 2 August 2002 the applicants applied for review of that decision to the RRT.
The proceedings in this Court commenced with the application for judicial review filed on 26 August 2003. The application raises a single ground, namely that the RRT failed to exercise its jurisdiction because it did not give either the first or the second applicant a private hearing as required by s.429 of the Migration Act 1958 (Cth) (“the Migration Act”). The ground is advanced jointly and separately for each applicant. Mr Jones, for the applicants, prepared written submissions which were filed on 6 April 2005. As to evidence, in addition to the court book filed on 10 December 2003, I have available to me a transcript of a hearing conducted by the RRT on 3 June 2003 (exhibit A1). Mr Reilly, for the Minister, also prepared written submissions which were filed on 7 April 2005 in my chambers.
The applicants rely upon two earlier decisions of mine, namely SZAFE v Minister for Immigration [2003] FMCA 410 and SZAYW v Minister for Immigration [2004] FMCA 796. I understand that the latter decision is subject to appeal before a Full Court of the Federal Court.

I understand that that appeal has not yet been heard.
The relevant facts are straightforward and are set out in Mr Jones' written submissions. The RRT wrote to the first applicant on 9 April 2003[1], inviting the applicants to a hearing. All three applicants are identified. The letter required the first applicant to tell the other applicants about the letter and asked him if he wished to reply to the RRT on their behalf. The letter also instructed the first applicant to complete and return a Response to Hearing Invitation form which was attached to the letter. The form as completed appears on page 101 of the court book and was lodged with the RRT on 24 April 2003. As Mr Jones notes, the form included a question:
[1]Court book, page 99
If your application includes other family members does any family member want a separate hearing?
A tick appears in the box marked "No" beside that question. The form is signed by the first applicant under the words "Signed on behalf of and with the consent of all family members included in the application". As I have already noted a hearing was conducted by the RRT on 3 June 2003. The transcript establishes that the first and second applicants at least attended the hearing and that they were affirmed to give evidence together. On page 3.6 of the transcript the presiding member informed the second applicant that she was to wait outside while he heard evidence from the first applicant. She was told that she would be invited back in to the hearing room when the presiding member had completed questioning the husband. Then on page 17 of the transcript the presiding member is recorded as arranging for the second applicant to come back into the hearing room. Then the presiding member asked the second applicant some questions apparently in the presence of the first applicant. Mr Jones submits that this procedure constitutes a breach of s.429 of the Migration Act based upon my earlier judgments referred to. He submits that the Migration Act in relation to protection visas does not distinguish between primary and secondary applicants and that s.429 entitles each and every applicant to a private hearing whether or not those applicants are members of a single family unit.
Mr Reilly submits, first, that my decision in SZAYW, which is subject to appeal, is wrong but that in any event both decisions are distinguishable on the facts. I agree that the decisions are distinguishable. My decision in SZAFE concerned a husband and wife in circumstances where the applicant wife indicated during the course of a hearing that she felt uncomfortable giving certain evidence in the presence of her husband. I found that in those circumstances the applicant wife should have been heard privately. There is no such indication in the present case. SZAYW concerned unrelated applications that were heard as part of a tandem hearing arrangement in circumstances where several applicants gave evidence in support of other applicants. I found that the procedure followed in that case breached s.429.
This case concerned members of a single family unit who, while they had made separate applications to the Minister's Department, were treated as having made a single application before the RRT. No relevant claims were made by the second and third applicants independently of the claims of the first applicant. On behalf of the second and third applicants, the first applicant had expressly declined the opportunity for a separate hearing for those secondary applicants. Nevertheless, it would have been open to the applicant wife to ask to speak to the presiding member privately if she had wanted to. She did not make any request.
As I noted at paragraph 19 of SZAFE, there will be circumstances in which a presiding member may consider that applications should be heard at the same time. Such a circumstance may be where separate applications are made by members of a single family unit and the claims made in the applications depend in whole or part upon one another. In those circumstances I said it may be desirable, even necessary, for there to be a single or tandem hearings. The argument is even stronger where members of a single family unit make a single application and expressly decline the opportunity for a separate hearing. I did not intend, in my judgment in SZAYW, to depart from that proposition. The principles I set out in SZAYW related to unrelated applicants.
Where there is no indication to the RRT that a member of a family unit needs to be heard privately there is, in my view, nothing in s.429 that requires a private hearing for an applicant who is not making separate claims. In this case the principal applicant who made all the relevant claims gave his evidence in private. He was present when his wife was questioned but, in my view, that procedure did not constitute any breach of s.429.
The argument advanced by Mr Jones in this case takes the principles set out by me in SZAYW and SZAFE too far. I find that there was no breach of s.429 in the procedure followed by the presiding member.
Even if I were wrong in that view I would in the exercise of my discretion decline to grant relief. On my reading of the decision and reasons of the RRT the applicants received a most generous and sympathetic hearing by the presiding member. There is no indication whatsoever that the procedure followed by the presiding member disadvantaged them in any way. There are no relevant credibility findings that might be determined differently on a fresh hearing. The decision turned essentially on country information relating to the present situation in Fiji. In my view, a further hearing before the RRT in these circumstances would be futile. Even if jurisdictional error based on a breach of s.429 could be identified, and I find that it cannot, relief in the form of constitutional writs requiring a further hearing should be refused.
I therefore dismiss the application.
On the question of costs, the application having been dismissed Mr Reilly, on behalf of the Minister, seeks a costs order against the first and second applicants. I agree that costs should follow the event as against the adult applicants upon the dismissal of their application. Mr Reilly seeks an order for costs fixed in the sum of $4,000. That is consistent with other orders made in matters of similar complexity.

I am satisfied that costs of that order have been incurred by or on behalf of the Minister when assessed on a party and party basis. Mr Jones, on instructions, did not wish to be heard on costs.
I will order that the first and second applicants pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000. I will further order that the time for an appeal to the Federal Court be extended to 42 days to today pursuant to rule 52.15 of the Federal Court Rules 1976.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 14 April 2005