SZBXN v Minister for Immigration

[2005] FMCA 1830

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBXN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1830

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in India – asserted breaches of ss.425 and 429 of the Migration Act 1958 (Cth) – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.425, 429

Minister for Immigration v SZAYW [2005] FCAFC 154
SAAP v Minister for Immigration (2005) 215 ALR 162

First Applicant:: SZBXN

Second Applicant SZHUR

First Respondent:

:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG2481 of 2003

Judgment of: Driver FM

Hearing date: 9 December 2005

Delivered at: Sydney

Delivered on: 9 December 2005

REPRESENTATION

The applicants appeared in person

Counsel for the Respondent: Mr M Wigney

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. SZHUR be joined as the second applicant to these proceedings.

2. The Refugee Review Tribunal be joined as the second respondent to these proceedings.

3. The application is dismissed.

4. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2481 of 2003

SZBXN

First Applicant

SZHUR

Second Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 6 November 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  Relevant background facts are set out in paragraphs 1.2 through to 3.1 of written submissions prepared on behalf of the Minister:

   On 4 March 2003 the applicant, a citizen of India, arrived in Australia on a tourist visa together with her husband.    On 10 April 2003 the applicant applied for a Protection Visa (Class XA).  Whilst the applicant’s husband made no claims to be a refugee under the Refugees Convention, he was included in the visa application as a member of the family unit.

   The basis of the applicant’s claim to entitlement to a protection visa was initially set out in a statutory declaration lodged together with her visa application.[1]  Having regard to the narrow grounds of the applicant’s amended application, it is unnecessary to provide any detail of the applicant’s claims.  Suffice it to say that she claimed that she feared persecution in India for reasons of her political opinion. 

   On 30 May 2003 a delegate of the respondent refused the applicant’s (and therefore also the applicant’s husband’s) application for a protection visa. 

   RRT proceedings

   On 13 June 2003, the applicant and the applicant’s husband applied to the RRT for a review of the delegate’s decision.[2]  The applicant nominated herself as the contact person.

   On 5 August 2003 the RRT, in compliance with s 425 of the Migration Act 1958 (Cth) (“the Migration Act”), wrote to the applicant (as the nominated contact person) and invited her and her husband (as the other applicant before the RRT) to attend a hearing to give oral evidence and present arguments in support of their claims.[3]  Only the applicant replied to the hearing application.[4]  In the response, the applicant ticked the box indicated that she wanted to come to a hearing.  She also ticked boxes indicated that other family members included in the application (ie her husband) did not want a separate hearing and that she did not want the RRT to take oral evidence from any witness.  The applicant signed the form under the words “signed on behalf and with the consent of all members included in the application.”

   Consistent with the invitation and the hearing response form, the applicant and the applicant’s husband (who was also an applicant in the proceedings) attended a hearing conducted by the RRT on 7 October 2003.[5]  Also consistent with the hearing response form, and consistent with the fact that only the applicant made claims under the Refugees Convention, only the applicant gave oral evidence at the hearing.[6]  There is no evidence that the applicant, or the applicant’s husband, requested the RRT to take oral evidence from the applicant’s husband.

   The RRT’s decision

   On 6 November 2003 the RRT handed down its decision to affirm the delegate’s decision to refuse the applications for protection visas.[7]  … The RRT found that the applicant was not a credible witness and did not accept those claims upon which the applicant relied to demonstrate to the RRT that she had a well-founded fear of persecution if she was to return to India.[8]

   [1]  court book, pages 31-34.

   [2]  court book, pages 71-74

   [3]  court book, page 77

   [4]  court book, page 80 (see also court book, pages 79 and 81 that accompanied the response to hearing  application form)

   [5]  court book, page 94.

   [6]  court book, pages 94; 104.

   [7]  court book, pages 101 - 124.

   [8]  see in particular court book, pages 118.5; 123.9-124.2.

2. I note that there were two applicants before the RRT, a husband and a wife.  The wife instituted proceedings in this Court by application filed on 18 November 2003.  On 17 June 2004 she filed an amended application.  That is the application on which she relies.  In that amended application the applicant wife seeks to have her husband joined as the second applicant to the application.  That aspect was neither consented to nor opposed by the Minister.

3. Mr Wigney, for the Minister, submitted that if I joined the husband as the second applicant it might follow that although one applicant could succeed the other applicant may fail.  I confirmed with the applicant wife that the only grounds in the application were those set out in the amended application filed on 17 June 2004.  I confirmed with both the applicant wife and her husband that there were no additional grounds.  I ordered that the husband be joined as the second applicant.  In view of the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162 it is appropriate also to join the RRT as the second respondent. I will so order.

4. There remain two relevant grounds in the amended application. The first of these asserts a breach of s.425 of the Migration Act. The particulars given are that, during the course of an oral hearing conducted the RRT told the applicant husband on several occasions that he was not entitled to give evidence. The remaining ground is that the RRT breached s.429 of the Migration Act because it did not give either applicant a private hearing.

5. Mr Wigney, on behalf of the Minister, deals with both of these grounds in his written and oral submissions.  I accept from those submissions and on the basis of the evidence contained in the book of relevant documents filed on 22 April 2004 that the applicant wife was the principal applicant, both before the Minister's delegate and before the RRT.  It was only she who made protection visa claims.  The applicant husband claimed as a member of her family.  In other words, the fate of his application depended upon the fate of her application.

6. The claimed breach of s.425 faces insuperable evidentiary and legal difficulties. There is no evidence that the RRT refused to hear evidence from the applicant husband. I agree with the Minister's written submissions in relation to the asserted breach of s.425. I adopt for the purposes of this judgment paragraphs 5.1 to 5.3 of those written submissions:

   There is a lack of clarity to this particular ground having regard to the application to join the applicant’s husband to these proceedings.  It is unclear whether the complaint is that the applicant’s husband should have been permitted to give evidence in her case, or whether the complaint is that (assuming that the applicant’s husband is joined in these proceedings) the applicant’s husband, as an applicant in his own right, was denied the opportunity to give evidence and present arguments in his own case.

   If the complaint is the former, the hearing response form suggests that the applicant did not request the RRT to take oral evidence from her husband.  This is perhaps not surprising because nothing in the applicant’s claims suggests that the husband was a witness to or was able to give any relevant evidence about the claims that formed the basis of the applicant’s case.  Nor is there any evidence that at the hearing the applicant requested the RRT to take oral evidence from her husband.  In these circumstances there is no merit in the applicant’s ground (1) and it should be rejected.

   If the complaint is the latter, there is no evidence that the applicant’s husband desired to give evidence or present arguments in his own case, no evidence that the applicant’s husband requested that the RRT hear his arguments and evidence in his case and no evidence that the RRT refused to entertain arguments or evidence from the applicant’s husband.  It should be added that, if the Court came to the contrary conclusion, this would justify the making of orders in relation to the applicant’s husband’s application, but not in relation to the applicant’s application.  Nevertheless, in the absence of any evidence this ground must be rejected.

7. It is also clear that both the applicant wife and through her the applicant husband were invited to a hearing by a letter dated 5 August 2003[9]. Although the applicant husband did not receive a separate invitation it was clear that the invitation directed to the applicant wife was also an invitation to him. The applicant wife had nominated herself to receive correspondence on behalf of both of them and the RRT acted consistently with that nomination. In responding to the hearing invitation the applicant wife on behalf of and with the consent of all family members included in the application stated that she did not wish the RRT to take evidence from any witnesses (court book, page 80). The applicant husband had made no claims of his own that required an oral hearing independent from that of his wife. I find that there is no substance to the asserted breach of s.425 of the Migration Act and I reject that aspect of the application.

   [9] court book, page 77

8. There is also no substance to the asserted breach of s.429 of the Migration Act. In this regard I also agree with the Minister's written submissions and adopt for the purposes of this judgment paragraphs 5.4 and 5.5 of those written submissions:

   The contention that there was no private hearing as required by s.429 of the Act must be rejected.

   The requirement created by s.429 of the Act is no more than that the hearing be closed in the sense that it is restricted to particular persons connected with the case and that members of the public are not permitted to enter the hearing room while evidence is being given by the applicant.[10]  The applicant (and the applicant’s husband if joined) rely on nothing more than the fact that the husband was present when the wife was giving evidence.  Because the applicant’s husband was an applicant in the proceedings and had not sought a separate hearing[11] he was plainly connected to the proceedings. There is no evidence that members of the public unconnected with the case were permitted to be present during the hearing. It is immaterial that the applicant was not informed by the Tribunal that she had a right to a private hearing because she received a private hearing (within the meaning of s.429 of the Act) in any event and immaterial that the husband was present whilst the applicant gave evidence.

   [10]  Minister for Immigration v SZAYW [2005] FCAFC 154 at [19] (judgment of Moore J) and [13] (judgment of Weinberg J)

   [11]  court book, page 80 q 2a

9. The interpretation of s.429 of the Migration Act has been conclusively set out by the Full Federal Court in Minister for Immigration v SZAYW [2005] FCAFC 154. The interpretation of the Full Federal Court is that s.429 simply requires the RRT to exclude members of the public from a hearing.

10. Even under my earlier more stringent interpretation of s.429, which was rejected by a majority of the Full Federal Court, there would have been no objection to the RRT hearing applicants together where they had made a single application as members of a single family unit. I reject the asserted breach of s.429 of the Migration Act. There is no other jurisdictional error apparent to me in the decision of the RRT.

11. It follows that the decision is a privative clause decision and the application must be dismissed.  I will so order.

12. Costs should follow the event in this case.  The Minister's actual costs substantially exceed $6,000.  I regard this case as one of no more than average complexity.  The applicants sought the lowest costs order possible if one were necessary.  I see no reason to depart from the figure of $5,000 that would be applicable if this application had been made after 1 December 2005 and so caught by the current prescribed cost scale relating to migration applications.  $5,000 is in my view adequate and proper recompense to the Minister in the circumstances of a case of this complexity. 

13. I will order that the first and second applicants pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.

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

Associate: 

Date:  19 December 2005