SZEFR v Minister for Immigration

[2005] FMCA 1050

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEFR & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 1050

MIGRATION – Refugee – actual bias – breach of s.424A – reliance on High Court decision in Muin and Lie.

Migration Act 1958, ss.426A(1), 422B, 425, 424A

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, [18]-[20
Mazhar v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 183 ALR 188
NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121

Applicant: SZEFR & ANOR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2598 of 2004

Judgment of: Nicholls FM

Hearing date: 5 April 2005

Date of Last Submission: 12 April 2005

Delivered at: Sydney

Delivered on: 5 August 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. J. Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. A writ of certiorari be issued quashing the decision of the Refugee Review Tribunal made on 16 July 2004.

2. The matter be remitted to the Refugee Review Tribunal, differently constituted to redetermine the review application according to law.

3. The Tribunal be joined as a party to these proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2598 of 2004

SZEFR & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review filed on 20 August 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 July 2004 and handed down on 6 August 2004 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicants.

2. The applicants, who are husband and wife, are both Indian nationals who arrived in Australia on 18 May 2003 and lodged an application for a protection visa on 10 June 2003. Only the applicant husband made specific claims pursuant to the Refugee Convention (Court Book 17 to CB 20). The applicant wife applied as a member of his family group (CB 25 to CB 29). The applicant husband's claims assert persecution on religious and political grounds on the basis that he is a Hindu and a supporter of the Bharatiya Janata Party (BJP) who lived in an area in India which was predominantly Muslim. He claimed that following an earthquake several homes on which he had been working collapsed and that the owners blamed him. He further asserted that he was threatened, and that he and his family were attacked by Muslim extremists.

3. The application to this Court asserts eight numbered grounds of one sentence each. The ninth says, “I will provide more details later”. The grounds are totally devoid of any particularity, are formulaic and are strikingly similar in their presentation, form, content and style to a number of other applications seen in this Court.

4. The applicants attended at the first Court date in this matter on
   15 September 2004. On that date the applicants signed Short Minutes of Order, which subsequently became orders of the Court by consent. Amongst others, the following orders were made:

   “2) The applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant in this application to the Court and any evidence upon which the applicant proposes to rely by 10 November 2004.

   4) The substantive application be listed for hearing at 10:15 a.m. on 17 March 2005.

   5) The applicant to file and serve written legal submissions 14 working days before the hearing date.”

5. No amended application giving full particulars has been filed in this matter. The applicants however, did file written submissions on 21 February 2005. The submissions, amongst other things, sought an adjournment of the hearing of the matter before me for a period of four weeks. The applicants claimed that they wanted an opportunity to engage a “recognised barrister” to represent their case, that they were waiting for some funds from overseas and that it would take four weeks to receive these funds. I note, that although it was not related to the applicants’ request for a new hearing date, the hearing date in this matter was in fact changed from 17 March 2005 to 5 April 2005.

6. The applicants both appeared at the hearing before me, were legally unrepresented and assisted by an interpreter in the Hindi language. The applicants had not served the respondent with their written submissions. Following a short adjournment, Mr. Smith who appeared for the respondent was content to proceed. On resuming the applicants claimed that they had not received the written submissions of the respondent. Mr. Smith tendered two documents, which I subsequently marked into evidence as Respondent's Exhibit 1 (“RE 1”) and Respondent’s Exhibit 2 (“RE 2”). The first document was a letter from the respondent to the applicant dated 23 March 2005 enclosing, by way of service, a copy of the respondent submissions. The second document, dated 28 October 2004, was a letter from the respondent's solicitors to the applicant enclosing, by way of service, a copy of the Supplementary Court Book (SCB) in this matter. The applicant wife then claimed that they had received the SCB but not the submissions.
   I note that those letters were sent by post to the applicants’ address for service. The applicants later said at the hearing before me, that they had been working away from home. In any event, notwithstanding that I was satisfied that the applicants had been properly served with both documents, I gave the applicants further time following the hearing before me, to file any further written submissions. I did this on the basis that they were unrepresented before me even though they put to me at the hearing that they did have some assistance from a “student” in drafting their written submissions and were from a non-English-speaking background.

7. The applicants sought an adjournment of the hearing before me on the basis that they wanted more time to arrange legal representation. The applicants confirmed that they had been referred to a panel lawyer on the Court's Legal Advice Scheme, but said that they had experienced difficulties in contacting this lawyer. In any event, the applicants had indicated in written submissions that they had attempted to arrange legal representation privately and were waiting for funds from overseas. When I put to the applicants that their application had first been filed on 20 August 2004 and they had appeared at the first Court date on 15 September 2004, and sought an explanation as to why they had been unable to arrange such representation in the five or six months already available to them, they were unable to provide any explanation. The applicants had already achieved a further two week extension in the time for the hearing and said nothing to me which would show that they had any prospect of obtaining the legal advice that they said they wanted. When pressed for an explanation as to the inability to arrange the legal representation in the ample time already available to the applicants, the applicant husband’s response was:

   “Can you give us some time and send us back to the Tribunal then we will submit the documents.”

   This was a reference to documents that the applicants claimed that they had been waiting for to arrive from India. Two such documents dated
   3 June 2003, and 9 July 2003, were attached to their [first] written submissions. It was clear that both documents were really linked to the issues before the Tribunal and were relevant to the merits review conducted by the Tribunal. They would not however support any need for an adjournment of the hearing before me. In the absence of any explanation as to why they had been unable to arrange legal representation in the time available and in the absence of anything put to me to show there was any prospect of obtaining such representation in the foreseeable future, I could see no real purpose in granting the adjournment. In refusing the adjournment, I noted also with the applicants that I intended to provide them with a further period to make any additional written submissions that they may wish to make. The applicant husband pressed the issue of wanting more time to file documents, as he said, “from home”. In this regard, I explained to the applicants that these were documents that were relevant to the Tribunal's consideration, and they had not said anything to show relevance to the Court’s role of looking at whether the Tribunal had made any “legal error”. For the Court to be able to refer the matter back to the Tribunal there would need to have been some legal error in what the Tribunal has done.

8. The applicants sought review by the Tribunal of the delegate of the respondent’s decision on 22 August 2003. A copy of their application is a CB 39 to CB 42. The applicants were represented by a migration adviser and nominated him as the authorised recipient in relation to correspondence about their application. (CB 40) The applicants’ stated reasons for making the application to the Tribunal were:

   “Please refer to the above DIMIA file reference No. CLF 2003/32215. We strongly believe that decision made by the case officer is incorrect and liable to be set aside. A detailed submission will be filed later on.” (CB 41)

   On 14 April 2004 the Tribunal wrote to the applicants advising that it had considered the material before it, but was unable on this material, to make a decision in their favour. It invited the applicants to a hearing before the Tribunal to be held on 20 May 2004 and asked the applicants to complete and return a “Response to Hearing Invitation” form. I should note that although the Tribunal wrote to the applicants inviting them to a hearing some 7½ months after they had made their application to the Tribunal, no detailed submission as promised by the applicants in their application, was sent to the Tribunal in that period, nor indeed did the applicants make any detailed written submission up until the time of the Tribunal's decision on 16 July 2004, some
   11 months after they made application to the Tribunal. The applicants did complete the “Response to Hearing Invitation” form and indicated that they did not want to come to a hearing. The following handwritten note however, was placed on the form adjacent to this advice:

   “I am waiting for document from India. If possible give me time more for Interview (Hearing). At least 2 months more after 20/07/2004 because I want some document from India I am waiting for document.”

   This was received by the Tribunal on 13 May 2004 and is at CB 48. On the same day the Tribunal responded to the applicants, refusing any postponement of the hearing. (CB 49) The applicants did not attend the hearing and the Tribunal proceeded to make its decision pursuant to s.426A(1) of the Migration Act.

9. In the application for review of the delegate’s decision the applicants requested the Tribunal to refer to the respondent’s Departmental file and promised a detailed submission, which even with the assistance of a migration adviser, was not submitted. The Tribunal summarised the applicants’ claims in its decision record and set this out at CB 58.5 to CB 60.5. It saw the applicants’ claims as being a well founded fear of persecution on the basis of religion and political opinion. The applicant wife did not make any specific refugee related claims, only the applicant husband made claims under the Refugee Convention. The applicant wife relied on membership of his family. The applicants’ general religious and political difficulties were compounded by way of their claim that they suffered heavy losses in their construction business due to an earthquake and were the subject of threats from owners of buildings on which the applicant husband had worked, which had collapsed in the earthquake. He claimed to be a Hindu and a supporter of the BJP (a Hindu Party) and that he came from a village where there was a large population of Muslims. Following constant threats to his life, the applicant lodged a complaint with police but he claimed that due to corruption the police showed no interest in providing safety and took no action against the culprits. He claimed that family members of those killed in the earthquake are still looking for him, that he is a strong supporter of the BJP, and that the danger continues because police are helpless in protecting them.

10. In its “Findings and Reasons” the Tribunal found:

    1)That the applicants’ claims were vague and lacking in detail in relation to the consequences of damage to buildings following an earthquake in 2001. (CB 61.4)

    2)That the applicant [husband], while claiming that the owners of the damaged buildings were seeking to harm him and blamed him for damage to their property, in the broader context, he also claimed that he feared persecution as a Hindu, but provided no information about how these two factors are linked in any way. In essence the applicant did not provide enough detail to show how this persecution was related to a Convention ground. (CB 61.5)

    3)In relation to the claim that the applicant had been harmed by the Muslim extremist groups the Tribunal found that insufficient information was provided as the applicant did not specify when these attacks occurred or give any details of the circumstances of these events. (CB 61.7)

11. The Tribunal noted that there was inter ethnic violence in 2001 in the applicants’ state of Gujarat, but that the applicant [husband] did not leave India until May 2003, some considerable time after the events complained of. (CB 61.9) The Tribunal found that it would be reasonable to assume that the applicant would have left India as soon as possible if he truly feared harm as a result of this inter ethnic violence and noted that this delay suggested that there was no real urgency in the applicants’ need to depart the country. The Tribunal found that based on the vague claims and limited information provided it could not be satisfied that the applicant [husband] was pursued following damage to buildings in an earthquake in 2001, and on the information available, it could not be satisfied that there was a real chance that the applicant would suffer harm amounting to persecution for any Convention reason if he returned to India. (CB 62.5) The applicant wife’s application depended on the outcome of the husband’s claims.

12. Following the hearing before me, the applicants filed another written submission, consistent with the opportunity that I had provided to them. Noting that the applicants had not filed any amended application as required, I therefore looked at the written submissions, and what they said to me at that the hearing before me, to discern the grounds upon which they now relied. These would be discerned as:

    1)Actual bias on the part of the Tribunal.

    2)A breach of s.424A of the Migration Act

    3)A reliance on the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.

13. The applicants’ first complaint, that the Tribunal was biased and did not act in good faith, appears to be based generally on a complaint that the applicants are not satisfied with the findings of the Tribunal, and that the Tribunal made the decision without “any investigation”, even though the applicants asserted that they were persecuted by the Indian authorities in that they were not protected from Muslim extremism. The applicants’ claims in this regard, in the absence of anything else, go nowhere near showing bias or bad faith on the part of the Tribunal. At the hearing before me, I explained to the applicants that, allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member, by their attitude and conduct, can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of bias carry with them an onus that the allegations must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicants would need to present more that just the conclusion reached by the Tribunal to support this claim. Alleged apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28, [27]-[32]). In the absence of any particularity or anything further, it could not in the circumstances of this application, be sufficient to show bias or apprehended bias on the part of the Tribunal. In relation to any allegation that the Tribunal acted in bad faith, the claim in this case fails the test in Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, [18]-[20] because the allegation is not clearly alleged and proved, and no personal fault or absence of honesty on the part of the decision maker has been made out.

14. The applicants’ one complaint that has some particularity is that the Tribunal ignored the request for more time to submit documents in support of their case. The applicant husband has attached to the latest written submission copies of letters, which may be the documents which he had claimed to be waiting for. The first document is dated
    3 April 2005, the second document is dated 10 June 2004, and the third is dated 6 April 2005. The applicants now ask that their application be returned to the Tribunal so that these documents could be considered. There are two interrelated aspects to this claim. The first is the issue of the invitation to the hearing, and the second relates to the issue of giving the applicants more time to obtain documents from India.

15. The application for review to the Tribunal was made in August 2003 and to the extent that there is an obligation under the rules of natural justice to provide a hearing to applicants, then as s.422B operates in this case, the provisions of Division 4 of Part 7 of the Act are an exhaustive statement of this obligation. In this regard s.425 of the Act provides that the Tribunal must invite the applicants to appear before it to give evidence and present arguments. It is clear that the Tribunal wrote to the applicants and invited them to a hearing. The applicants received the letter and responded to it. To that extent the technical requirements of s.425 were met. The obligation on the Tribunal however, is that it must give the applicants a real opportunity to attend an oral hearing to present their case. It is clear that the hearing invitation must not be “an empty shell or a hollow gesture.” (Mazhar v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 183 ALR 188 at [31]). A Tribunal must ensure that applicants have the opportunity to put all their claims to the Tribunal and that they are not discouraged by the Tribunal from presenting information on critical claims. The issue then for this Court is whether it was unreasonable of the Tribunal to refuse an adjournment of the hearing in the circumstances of this case. The applicants clearly indicated that they did not want to come to a hearing, but by the handwritten notation the applicant husband clearly qualified this by seeking an adjournment of the hearing date to enable them to obtain documents from India. The Tribunal's decision record at CB 60.3 sets out how the Tribunal dealt with this matter. The Tribunal noted that the applicant advised the Tribunal in writing that he did not wish to attend the hearing, but that he also requested that the hearing be postponed for a further two months to enable him to obtain documents from India. The Tribunal notes that it considered the request, but decided not to postpone the hearing and that it advised the applicant accordingly, but gives no reasons for this decision. The Tribunal further notes that the applicant did not attend the hearing scheduled for 20 May 2004 and that the matter was therefore determined on the evidence available to the Tribunal. The Tribunal's obligation is clearly to ensure that applicants have the opportunity to put all their claims to the Tribunal and that they are not discouraged by that Tribunal from presenting information on critical claims.

1. The Full Federal Court decision of NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121, upheld the decision of Federal Magistrate Driver of 9 October 2003 to dismiss the application. The issue turned on the question of whether the Tribunal had breached procedural fairness, as a result of a failure to comply with the relevant statutory requirements of s.425 of the Act, by proceeding with the hearing in the absence of the appellant. In that case the applicant accepted the Tribunal’s invitation to attend a hearing, but requested an adjournment. The applicant’s migration adviser wrote to the Tribunal a day before the hearing date, advising that the applicant requested that the hearing be adjourned due to a medical condition and a surgical procedure that he was to undergo after the hearing date. The request for adjournment was refused by the Tribunal unless a medical certificate could be provided by the applicant. In the absence of any such certificate the Tribunal proceeded to make a decision. At [24] the Court said:

   “… that insufficient reason had been advanced to adjourn the hearing… The simple information that the appellant was undergoing a hernia operation after the hearing and that he was sick was not…‘objectively persuasive enough’ to warrant an adjournment of the Tribunal hearing.”

   Therefore, the question was whether the decision of the Tribunal to refuse an adjournment was procedurally fair in the absence of any such certificates or affidavit evidence and in light of the “reasonable request” for further evidence supporting the request for adjournment by the Tribunal. The Court decided that there was no breach of s.425, nor a breach of the requirements of procedural fairness. However, the case before me today is different in its circumstances because the applicant was not provided an opportunity to explain the relevance of the further documents that he wished to obtain from India. The Tribunal refused the adjournment without any “reasonable request” for further evidence to support the request made by the applicant. The Tribunal failed to question whether the information that the applicant sought to present advanced a sufficient reason to adjourn the hearing. The applicants’ request for time to obtain further documentation in the case before me could amount to a reason “objectively persuasive enough” to warrant an adjournment, as these documents may have contained information critical to his claims and hence may have denied him an opportunity to present all his claims fully before the Tribunal.

2. In looking at the reasonableness of the Tribunal's decision in this regard, it is clear that the Tribunal has given absolutely no indication in its decision record for the decision that it made to refuse the adjournment. It is true that the applicants gave no indication to the Tribunal as to the nature of the documents that they were waiting for, or why they were relevant to their claims already before the Tribunal. Nor did the applicants explain the difficulties that they are faced with in obtaining the documents. In fact no mention is made of any difficulties before the Tribunal. In this context, I note that the applicants made the application to the Tribunal on 22 August 2003 and the date on the “Response to Hearing Invitation” form was 8½ months later, on 8 May 2004. Further, the applicants were also represented by a migration agent and there is nothing in the material before me, nor have the applicants asserted that the migration agent sought to make any representations on their behalf in seeking the adjournment of the hearing, to enable the documents to be obtained from India. Even further, there is nothing before me to show that the copies of the five documents which the applicants have now submitted to the Court were in fact the documents that the applicants had referred to in the handwritten notation to the Tribunal. Beyond mere assertion in their submissions now, there is nothing before me to connect these documents with the documents referred to by the applicants.

3. In relation to all five of the documents now put forward by the applicants, the two documents attached to the first written submissions are dated June and July 2003, well before the events complained of now by the applicants, that is the invitation to hearing and the adjournment request, which occurred in April and May of 2004. The applicants made no specific reference to these documents in their request to the Tribunal and while there is nothing to show that these documents were in the possession of the applicants, equally the documents because of their date must have been in existence for at least 10 months prior to the events of April and May 2004. It was always open to the applicants to have referred, even in general terms to the two documents. In relation to one of the three documents submitted with the second set of written submissions to this Court, from Kalol City police station, I note that while the document itself appears to be a photocopy, the date of the document “10/06/04” appears to have been added to the copy, and is not reproduced as part of the original document. All of these three documents however, on their face, clearly postdate the events of April and May 2004.

4. But even with all of these factors, the test for this Court is whether the Tribunal has acted reasonably in all the circumstances. Even though it would have been open to the applicants to have attended the hearing and to have pressed for further time to obtain the documents from India, there is nothing before me in the Tribunal's reasons to show that the Tribunal properly understood the context within which the applicants had indicated they did not want to come to the hearing and critically that the Tribunal properly dealt with the applicant’s request within that context. There is nothing in the Tribunal's letter of 13 May 2004, refusing the postponement request, reproduced at CB 49, to show that the Tribunal addressed the issue of the outstanding documents. In my view, it is not so much the refusal of the adjournment of the hearing in itself that is the critical issue, but the failure of the Tribunal to deal with the applicants’ claims that there were further documents in support of their claims. This is the critical issue as to whether the Tribunal has given the applicants a reasonable opportunity to fully present their case. The Tribunal clearly notes in its decision record at CB 60.4 that the applicant wanted a further two months to enable him to obtain documents from India. The only reasonable assumption in all the circumstances is that these were documents that the applicant husband claims would have supported his case. The Tribunal's decision on their review application subsequently, clearly turned on the “vague claims”, “limited information”, and “claims lacking in detail”, for finding that it was not satisfied that the applicants were able to show that there was a real chance of harm amounting to persecution for a Convention reason. In these circumstances the failure by the Tribunal to properly deal with the applicants’ claim, that there was further information to assist their case, was not a reasonable act in all circumstances. The Tribunal focused on the hearing. But there is nothing before me to show that it dealt in any way with the applicants’ claims that there were further documents to be submitted. This is especially critical given that the Tribunal's findings turned to a very large extent on the fact that the applicants’ claims were lacking in detail. While the Tribunal clearly focused on the hearing as the opportunity to present their case, the applicants had clearly indicated that this was not sufficient to enable them to fully make out their claims. The Tribunal’s failure to deal with this aspect of the applicant’s approach to it is an error on that the part of the Tribunal going to jurisdiction in that it is a failure to provide a reasonable opportunity for the applicants to present their case. Accordingly I will make orders to quash the Tribunal decision and have the matter remitted to a differently constituted Tribunal for reconsideration.

5. In relation to the applicants other complaints, there is nothing before me to show any breach of s.424A, nor that the applicants could succeed in any claim pursuant to the Muin and Lie decisions. Nor for that matter, as I have already said, have the applicants put forward anything to show bias or bad faith on the part of the Tribunal. The issue turns on the Tribunal’s failure to adequately deal with the applicants’ request for more time to submit documents in support of their claims. The Tribunal focussed on the invitation to the hearing, and did not deal with the request for more time to submit further evidence. This, as I have said, is an error on its part that requires the matter be remitted to the Tribunal.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  August 2005