SZHWT v Minister for Immigration - [2006] FMCA 1570

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHWT v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1570

MIGRATION – Refugee – applicant child – claims to fear persecution based on applicant’s parents’ claims to persecution in India that had been previously rejected by the Refugee Review Tribunal and had been the subject of unsuccessful judicial review – no “new” claims presented by the applicant – failure to “understand” the applicant’s claims – denial of procedural fairness – bias or the apprehension of bias – no reviewable error – application dismissed.

Migration Act 1958, s.425

SZEOS & ORS v Minister for Immigration [2005] FMCA 1529
SZEOS v Minister for Immigration & Multicultural Affairs [2006] FCA 149
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28

Applicant:

SZHWT

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3728 of 2005

Judgment of:

Nicholls FM

Hearing date:

6 October 2006

Date of Last Submission:

6 October 2006

Delivered at:

Sydney

Delivered on:

24 October 2006

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondents:

Mr. T. Reilly

Solicitors for the Respondents:

Phillips Fox

ORDERS

The name of the respondent Minister be amended to read “Minister for Immigration and Multicultural Affairs”.
In upholding the respondent’s Notice of Motion, the application is dismissed.
The applicant’s litigation guardian pay the first respondent’s costs set in the amount of $3,750.
The Registrar of this Court communicate with the panel lawyer engaged to provide advice in this matter and to be satisfied that the lawyer understands the role expected of lawyers on the panel and in particular the difference between providing legal advice to an applicant and making written submissions to a Court and the provision of evidence to a Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3728 of 2005

SZHWT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These proceedings come before me by way of a Notice of Motion filed by the respondent Minister on 15 June 2006 seeking summary dismissal, pursuant to Rule 13.10 of the Federal Magistrate Court Rules 2001 (“the Rules”), of the application filed in this Court on

19 December 2005. That application seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 November 2005 to affirm the decision of a delegate of the respondent Minister made on 24 August 2005 to refuse a protection visa to the applicant.
The applicant, whose parents are both nationals of India, was born in Australia in 31 March 2005. I note that leave was granted for the applicant’s father to be appointed as his litigation guardian by a Registrar of this Court at the first Court date in this matter on

31 January 2006.
The applicant’s claims to protection, made on his behalf by his father, can be found in his application for a protection visa, reproduced in the Court Book (“CB”) at CB 2 to CB 27. The application for review did not contain any additional claims. The Tribunal invited the applicant to attend a hearing in support of his claims on 22 November 2005.

The applicant’s father attended the hearing on the applicant’s behalf and gave evidence. The Tribunal’s (brief) account of what occurred at the hearing is set out in its decision record reproduced at CB 54. The Court also has before it a transcript (“T”) of the hearing conducted by the Tribunal. This is the annexure to the affidavit of Zoe McDonald, a solicitor employed by the solicitors for the respondent.
The applicant’s claims to protection were expressed in the protection visa application in the following terms (CB 20):
“Our Application is in Immigration
[Name of the applicant’s father] (Father)
[Name of the applicant’s Mother] (Mother)
[Name of the applicant’s brother] (Brother)”
“We ran away from our country because we were being threatened to be killed by my in-laws because we belong to different race, we been hit many times. For the sake of our kids please gives us a chance to live in peace over here, we have really been through a lot, I a sure you would understand if you was in my state.
Thanking you
(Father of Son)” (errors in original)
Short answers to other questions repeated the claim of fear to harm from the in-laws and an assertion that they (the parents) unsuccessfully asked the authorities for help.
The respondent’s Notice of Motion sought summary dismissal expressly pursuant to Rule 13.10(b) and 13.10(c):
“13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)…
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”
Although not identified by reference to the relevant part of Rule 13.10, the respondent also sought dismissal on the basis that no reasonable cause of action was disclosed in relation to the proceedings.
This mirrored the wording of Rule 13.10(a) of the Rules as it was prior to the recent amendments. In all the circumstances, it was appropriate that leave be granted to the first respondent to amend this ground of the Motion, to better reflect the current wording in the rules.
In support of the Motion, the respondents relied on the affidavit of Zoe McDonald, a solicitor in the employ of the respondent Minister’s solicitors, sworn on 9 June 2006. This affidavit was read into evidence before me at the hearing. Based on both the affidavit, and the Court Book in this matter, I relevantly note the following:
1)The applicant’s parents and sibling arrived in Australian on 8 March 2004.
2)On 27 May 2004 they lodged an application for a protection visa with the first respondent’s Department.
3)This was refused by a delegate of the respondent Minister on
2 June 2004.
4)On 10 June 2004 the applicants applied to the Tribunal for review of that decision.
5)On 27 August 2004 the Tribunal (differently constituted) affirmed the decision of the delegate of the respondent Minister not to grant a protection visa to the parents and sibling of the applicant currently before this Court (see annexure “A” to the affidavit of Zoe McDonald).
6)On 18 October 2004 the applicant’s parents and sibling applied for review of that decision in the Federal Magistrates Court and this application was dismissed by Federal Magistrate Lloyd-Jones on 28 October 2005 (see SZEOS & ORS v Minister for Immigration [2005] FMCA 1529 – annexure “B” to the affidavit of Zoe McDonald).
7)On 15 November 2005 the applicant’s parents and sibling appealed this decision to the Full Federal Court of Australia, and on 22 February 2006 Stone J. dismissed the application (see SZEOS v Minister for Immigration & Multicultural Affairs [2006] FCA 149 – annexure “C” to the affidavit of Zoe McDonald).
8)On 5 August 2005 the applicant (by his father acting on his behalf) made his application for a protection visa (CB 2 to CB 29).
In his application to the Court, filed 19 December 2005, the following can be discerned (I note that the application has clearly been drafted from the applicant’s parents’ perspective):
1)That the applicant will be tortured as his parents had “a kid without getting married with in-laws consent”.
2)He will face persecution based on his caste.
3)The applicant’s family is not able to relocate in India, particularly with children.
4)That the applicant should be afforded protection as he has not “been overseas to India where the government is bad”.
5)The decision maker failed to understand the applicant’s situation.
6)There is no “proof” available as the applicant’s parents stated they “just packed our bags and ran away”.
7)That the applicant should be allowed to stay a least on a temporary basis.
The applicant filed an amended application on 30 May 2006 complaining:
“1.That the appellant was denied procedural fairness and natural justice in that he was unable to present his claim in fair and reasonable manner because the tribunal member:
(a)interrupted the appellant before he could present the case for his son.
(b)spoke over the appellant when he attempted to present the case for his son.
(c)did not independently assess any information at the hearing because no information was allowed to be presented at the hearing.
(d)relied solely on another Tribunal decision N04/49307, the tribunal then being differently constituted, as the basis for rejection of the appellant’s right to present his case on behalf of his son; and
(e)did not arrive at any independent determination based on his own assessment of facts, having rejected the appellant’s right to present his case for his son or to a hearing at all.
2.As a result the appellant was intimidated by the member attitude to his son’s application, and was reluctant to continue with his attempt to present his son’s case.” (errors in original)
Mr. Reilly’s submission in support of the Motion was that, with reference in particular to the transcript of the hearing that no new claims were advanced on behalf of the applicant before the Tribunal to those that had been earlier put forward by the parents in their application considered by a differently constituted Tribunal.
The respondent’s submission was that in these circumstances, and with what was put forward in the amended application, the applicant has no reasonable prospect of successfully prosecuting his complaint before the Court.
The applicant's father sought to submit two documents to the Court:
1)The first headed “Amendment Letter” was as follows:
“1) The tribunal made a error in failing to find that in-laws would do something to the kid, who has’nt been there as he was born here.
2) Failing to understand what the parents been through, burning of my Mrs hand, she being locked in the room, father being threatened and beaten, failing to understand they would attack the kid too.
Hoping for a favourable outcome.
Thanking you.”
I agreed with the applicant that I would take this letter into account and that I would treat this letter as his written submissions to the Court.
2)A document that was prepared by the lawyer through the Court's Legal Advice Scheme. The letter has no addressee on it. In all however, it appears to be a mixture of submission, legal assertion and legal advice provided to the applicant's father. After being satisfied that the applicant's father understood the privileged nature of any legal advice provided to him, I agreed, following his insistence that I do so, to accept this document as further written submissions in support of his son's claims.
In all, the applicant's complaints as put by his father before this Court are:
1)The Tribunal was in error in failing to find that the applicant could be harmed by his in-laws.
2)The Tribunal failed to understand that the parents had experienced harm and that this harm would also be visited upon the son in the future if he were to go to India.
3)The applicant was denied procedural fairness in that his father was prevented from presenting his claims in a fair and reasonable manner. This complaint relies on certain assertions as to the Tribunal's conduct at the hearing that it conducted with the applicant's father.
4)The Tribunal did not arrive at any independent determination, but rejected the applicant's “right to present his case”.
5)The applicant's father was “intimidated” by way of the Tribunal member’s “attitude” to his son’s application, and was reluctant to continue to present his son's case at the hearing.
The crux of the Tribunal’s decision was that the applicant’s parents had put not any “new claims” in relation to their son. That is, having put their own claims for a protection visa to both the Minister's Department and to a differently constituted Tribunal, those claims were not seen as coming within the relevant definition of refugee pursuant to the Refugees Convention (a decision which was subsequently subjected to judicial review in which no error could be discerned). The parents did not present anything “pertinent” to the applicant, such as to cause the Tribunal to provide a successful outcome in his application (CB 54.7).
In my view, the relevant documentation before the Court now supports the Tribunal's view of what had been presented before it and is the basis for its finding in this matter. The application for a protection visa (CB 20 CB 23 in particular) reveals the family's assertions that they would be killed by the applicant's father’s in-laws if they were to return to India. At CB 21 in particular, it is asserted on behalf of the applicant that he would be killed by the in-laws (presumably for the same reasons). The applicant’s parents made no further assertions on the applicant's behalf at the time of lodging the application for review.
The transcript of the hearing reveals that the Tribunal, having put the applicant's father on the notice that his claims had been heard and rejected and could not be reviewed by this Tribunal, asked the applicant's father (T3.9):
“Tribunal Member: So what are your son's claims ?”
The applicant father responded with (see T4.1):
“MR SZHWT [applicant’s father]: So it is basically the same thing as, like, us, because he is born and we are in Australia, right, and then we actually - we told the Immigration: could we please club it together with - with our application, but the Immigration said: we can't club it because - because his application is separate, because your decision – I mean, our decision is already made. So his decision, that's got to be made separately so, yes”
What follows in the ensuing pages is the Tribunal’s attempt to extract from the applicant's father whether the applicant was seeking to rely on circumstances that did not derive from the applicant’s parents’ claims that had already been dealt with. At T4.4:
“MR SZHWT [applicant’s father]: We lodged the application and we came here and then, yes - and that's what we did, we lodged the application.
Tribunal: Okay. Well, if his claims are the same as your…
MR SZHWT [applicant’s father]: Yes. We basically just wanted…
Tribunal: …I can't revisit your claims.
MR SZHWT [applicant’s father]: Right”.
Tribunal: So I can't re-open them to the sake of him.
MR SZHWT [applicant’s father]: Okay.
Tribunal: Because they have been dealt with in their entirety at this stage - at the merits review stage.
MR SZHWT [applicant’s father]: Right.”
The transcript also reveals that the applicant's father told the Tribunal that the family were seeking temporary stay in Australia and it appears that this may have been based on some request for humanitarian consideration of the claims. The Tribunal clearly put the applicant's father on notice (T6.7) that it was not possible to make a favourable decision on refugee grounds for the applicant son and, at (T6.8), that the Tribunal did not have the power to grant “temporary residence”.
In all, looking at the transcript, I cannot see that any additional claims were put forward in relation to the applicant at the hearing. At its highest the applicant's claims before the Tribunal were that he would be killed by his grandparents (the “in-laws”) for the reasons put forward by the applicant’s parents and in particular the applicant's father. I cannot see in all the material before me that there is anything before the Tribunal to indicate that the applicant's fears (clearly in circumstances expressed on his behalf by his parents) were anything more than fears deriving solely from the same circumstances as those which was alleged in relation to his parents. In my view, it was open to the Tribunal to find that the applicant's parents’ claims were fully examined and were unsuccessful (and decision judicially reviewed) and that as no new claims had been made in relation to the applicant, and as the parents relied “at all stages of the current process on claims they had already presented about themselves” (CB 54.4), that in these circumstances it could not be satisfied that the applicant faced a real chance of Convention related persecution in India (CB 54 .8).
The applicant's complaint now, as expressed in the “Amendment Letter”, that the Tribunal was in error in failing to find that the “in-laws” and would “do something to the kid”, in all the circumstances does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Further, the complaint that the Tribunal failed to understand what the parents had “been through” and that they had been threatened and beaten by the in-laws, is clearly nothing more than an attempt to re-agitate before the Tribunal their own circumstances, which were of such nature as to not satisfy the Tribunal, differently constituted, that a protection visa should be granted.
This also is referred to in much of the originating application to this Court where it can be seen that the applicant’s parents again complain about the Tribunal decision based on their own circumstances. Further, to the extent that the originating application asks the question as to why the applicant could not be given some “temporary stay” in Australia (which is what the applicant's father asked for on the applicant’s behalf at the hearing) clearly the Tribunal dealt with this claim (CB 54.7).
It found that the request for the Tribunal to consider a range of temporary visa options was outside the Tribunal's power. I can see no error in the Tribunal's approach in this regard.
The originating application also asserts that the application in relation to the applicant “is totally a different application”. To the extent that this can be seen to be a complaint that the Tribunal did not separately assess the applicant's claims, then the applicant's father has not put forward any evidence and nor was he able to point to anything in the material before the Court now, to show that the applicant son's claims were different to his own claims, previously unsuccessfully put before the Tribunal. The short answer to the applicant father's complaint now in this regard, is that there was nothing “new” or additional on behalf of the applicant put before the Tribunal. The Tribunal was clearly aware that the applicant was born in Australia (the applicant's father before me complained that the Minister’s delegate had made an error in noting the applicant’s country of birth as “India” (CB 54.3), but clearly this was not an error before the Tribunal) and that the claims in relation to the applicant were based on the fact that if he returned to India he would be subjected to the same harm from the in-laws and their family members as had the applicant’s parents in the past. The originating application asserts now that the “government and Law is bad” in India but there is nothing to show that there was anything in the material before the Tribunal to indicate that the applicant’s parents were putting forward additional claims in this regard in relation to the applicant, which the Tribunal failed to address.
In all therefore, from the complaints set out in the originating application and “Amendment Letter”, the applicant's complaints either amount to a request for impermissible merits review or a complaint that the Tribunal failed to accept the seriousness of the applicant’s parents’ claims or failed to deal with the applicant's claims on a separate basis. For the reasons set out above the Tribunal clearly dealt with the applicant's claims as presented to it (that is as a part of the applicant parents’ complaints) and found that it could not be satisfied that the applicant was a person to whom Australia owed protection obligations. In my view, this finding was open to the Tribunal on what had been put before it and I cannot see that the claim for relief has any reasonable prospect of success on the basis of these complaints.

The applicant's complaint derived from the amended application filed on 30 May 2006 asserts that the applicant was denied procedural fairness before the Tribunal in that his father was unable to present his claims in a fair and reasonable manner. Further, that the Tribunal member by his conduct and attitude intimidated the applicant’s father such that he was reluctant to continue with his attempt to present his son's case. The particulars in the amended application of this conduct are:
1)The Tribunal “interrupted” the applicant father and spoke over him as he attempted to present his case.
2)The applicant’s father was not allowed to present any information, and that this was the reason that the Tribunal did not independently assess any information.
3)The Tribunal rejected the applicant's father's right to present his case for his son or “to a hearing at all”.
In addition, at the hearing before me, the applicant’s father added (from the Bar Table) that the Tribunal member was upset with him and if the Court was to listen to “the tape” (of the hearing before the Tribunal) “you probably hear his tone changing all the time”.
The evidence before the Court of what occurred at the hearing is contained in the Tribunal's own account in its decision record (albeit brief - CB 54). But far more importantly is the annexure to the affidavit of Zoe McDonald, being a transcript of the hearing that the Tribunal conducted. The applicant's father asserts that he was interrupted by the Tribunal member before he could present his case with his son.
The transcript reveals (T3) that after the applicant gave an oath to enable him to give evidence, that the Tribunal's initial focus was the son's claims, in the context of the applicant father’s claims having already been rejected:
“Tribunal member: Thank you very much. Okay. Now, what are your son's claims? Your claims have been heard and rejected.
MR SZHWT [applicant’s father]: Yes.
Tribunal member: And can't be re-opened. You know that, don't you?
MR SZHWT [applicant’s father]: Yes.
Tribunal member: So what are your son's claims?
MR SZHWT [applicant’s father]: So it is basically the same thing as, like, us, because he is born and we are in Australia, right, and then we actually - we told the Immigration: could we please club it together with - with our application, but the Immigration said: we can't club it because - because his application is separate, because your decision – I mean, our decision is already made. So his decision, that's got to be made separately so, yes”
On what is before me I cannot accept the applicant father's complaint that he was not given an opportunity to present his son's claims.
The very first question that he was asked by the Tribunal, after being sworn to give evidence, was to describe the applicant son’s claims.
His answer was “basically the same thing as, like, us…” Further, it was the applicant’s father himself (T4.8) who put forward the suggestion that the family did not want to live permanently in Australia but were looking for a few years of temporary residence so that the children could “get bigger” and that it may then be possible to relocate to a different part of India.
In terms of procedural fairness therefore, the applicant, through his father, was given the opportunity at the hearing of putting forward his claims. The very first question asked by the Tribunal of the father was to outline those claims. The Tribunal clearly complied with its statutory obligation to invite the applicant to a hearing pursuant to s.425 of the Migration Act 1958 (“the Act”) and the applicant’s father attended on the applicant's behalf. From the beginning of the hearing the Tribunal focused on the critical question of the son's claims and the closely related issue of whether there were any claims that were separate to the parents’ claims (which had already been dealt with by a different constituted Tribunal).
The applicant's father also complains that the Tribunal member’s conduct (that is the interruptions, being spoken over, his tone and attitude) was such as to prevent the applicant's father from putting forward the son's claims. Further, that he was so intimidated that he was reluctant to continue with his attempts to present his son's claims. The applicant's complaint of the denial of procedural fairness before the Court now has two elements. The first is whether the applicant's father was given a real opportunity to present the applicant's case and was given an opportunity by the Tribunal to put forward his claims. Secondly, whether the Tribunal member, by his conduct, was impartial, such that it could be said that he acted with bias or that there was the apprehension of bias.
In relation to both these aspects, the only evidence put before the Court is the transcript of the hearing. There was nothing from the applicant’s father to object to the transcript. When I pressed him at the hearing before me to take the Court to the parts of the transcript which would support the assertions made in the amended application, the applicant’s father pointed to T10.8 and submitted that at this point of the hearing, when the Tribunal stated that the applicant's father did not appear at the appointed time to the hearing, the Tribunal member “started getting upset” and that his tone was angry.
I cannot see that the applicant's complaint about a denial of procedural fairness, whether as a complaint of a denial of an opportunity to put forward claims, or as a complaint of bias or the apprehension of bias on the part of the Tribunal member, is made out on the material that has been put before the Court. I should just note for the applicant's father's benefit that an allegation of bias must be supported by evidence, if for no other reason than such an allegation implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome of the matter. Actual bias requires evidence of prejudgement by the decision maker in the sense that he or she is so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence may be presented (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127]). Further, allegations of the apprehension of bias must be reasonable to succeed and the standard of reasonableness is to be determined by reference to the apprehension of a fair minded lay observer or properly informed lay person observing the Tribunal process (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28).
As I have already noted the applicant was given an opportunity by way of a hearing (through his parents) to put forward his claims.
The applicant's father exercised this opportunity on the applicant's behalf. That the Tribunal's first question was essentially a question that provided the opportunity for the son's claims to be put forward, is evident on a plain reading of the transcript. Further, in my view, the Tribunal, by drawing the applicant's father's attention to the situation that the claims as they had been presented to date (in relation to the applicant, as scant as these were) were not different to the claims presented by the applicant's parents in their application, clearly put the applicant's father on notice of a significant element in the consideration of the application. This was that the son's application was not an opportunity for the parents to re-agitate the merits of their claims before the Tribunal. This also put the applicant’s father on notice of the fact that to succeed the applicant would need to satisfy the Tribunal that he had other claims beyond that of his parents and beyond that asserted in the protection visa application. On any plain reading of the transcript, I cannot see that the applicant's father was interrupted such that he could not present his case. Clearly, from the first question, he was given that opportunity and was clearly on notice as to the context in which his son's claims needed to be provided, in order to produce an outcome different to that of his own.
Nor can I see that the Tribunal member “spoke over” the applicant's father when he was attempting to present his son’s case. The question at T3.9: “So what are your son's claims?” is answered at T4.1: “Basically the same thing as, like, us…” I cannot see that this very clear and simple question and answer was affected in any way by interruption by the Tribunal or by the Tribunal “speaking over” the applicant’s father. While parts of the transcript clearly show questions and answers that are incomplete, these appear consistent with a “conversational” to and fro between the Tribunal member and the applicant's father. In some instances, it is the applicant's father who, at best, completes the thought started by the Tribunal, but in other senses could be said to have “spoken over” the Tribunal member. See for example T4.4:
“MR SZHWT [applicant’s father]: We lodged the application and we came here and then, yes - and that's what we did, we lodged the application.
Tribunal member: Okay. Well, if his claims are the same as yours…
MR SZHWT [applicant’s father]: Yes, We basically just wanted…
Tribunal:… I can't revisit your claims.
MR SZHWT [applicant’s father]: Right.”

I cannot see that such an exchange reveals conduct on the part of the Tribunal member such as to have denied the applicant's father the opportunity of putting his case on behalf of his son.

In relation to the applicant's father's assertions that the Tribunal was aggressive and spoke in an angry tone, none of this is evident from the transcript. The applicant's father asserted at the hearing before me that this was evident from the tape of the hearing. However, despite opportunity, the applicant's father on his behalf did not seek to put any tape of the Tribunal hearing before the Court for this, or any other, purpose. In all, on the evidence before the Court, I cannot see that there is any reasonable prospect of the applicant successfully prosecuting a complaint based on the member's conduct at the hearing.
I should note the submission drafted by the panel lawyer. The purpose of the drafting of the document is not clear. In part it appears to be a report to the Court by the panel lawyer about the advice given to the applicant, and the processes that the lawyer employed in giving the advice to the applicant (his father). In another part it appears to be the lawyer's advice to the applicant as to the prospects of success of the application and in another part, the lawyer's assertion that because the Tribunal member took the view that the applicant’s parents were the subject of an earlier unsuccessful “decision for refugee status”, the applicant's father had no right to be heard to present his son's case. In addition, that the hearing tape indicated a continued course of conduct where the applicant’s father was “interrupted each time he attempted to present his son's case”.
As to the first assertion, the transcript of the hearing (the only evidence before the Court now of what occurred at the hearing before the Tribunal) clearly shows as I have already set out, that an opportunity was given to the applicant's father to put forward the son's claims. In my view, it is not a fair reading of what the Tribunal did at the hearing to say that there was an assertion that the applicant's father had no right to be heard. He was clearly given the opportunity to put forward his son's claims. As also set out above, the Tribunal’s reminder to the applicant’s father that it was not able to re-hear his claims, was in the circumstances appropriate so as to ensure that the father understood that this was not an opportunity for pressing his and his wife's claims, but the applicant son's claims. This is understandable, given that up to that point the only material put before the Court (the statements made in the protection visa application) were to the effect that essentially, the son, on going to India, would be harmed by the in-laws for the reasons that his parents had been harmed in the past. The “written submissions” by the panel lawyer make reference to the hearing tape and also make reference to the fact that the applicant's father “was reminded” that if the further information were to be filed it must be done by way of affidavit.
I note from the Court’s file that the applicant's father attended the first Court date in this matter on 31 January 2006. There, orders were made, amongst others, that the applicant was to file and serve any additional affidavit containing additional evidence including a transcript by
25 May 2006. The applicant’s father (and I emphasise that the applicant's father had it explained to him that there was no necessity to provide to the Court the details of any legal advice provided to him) in any event, pressed the Court to take the document prepared by the panel lawyer into consideration. This document clearly indicates that even if he had not fully understood the orders of the Court made at the first Court date, he would have clearly been on notice of the need to have provided to the Court evidence in a proper evidentiary context. The applicant’s father did not pursue that opportunity and the Court clearly can only proceed on the evidence that has been put before it.
I note that the applicant's father had over four months from the time of obtaining his legal advice to have taken whatever action in this regard he may have wished to take. I should just note that there are aspects of the advice in the written document from the panel lawyer that do, in my view, warrant the Court’s Registrar ascertaining from the lawyer the exact nature and purpose of the document. Clearly, if this was by way of assistance to the applicant by drafting written submissions there are many parts of the document that have gone beyond the proper scope of submission and are clearly in the nature of legal advice to an applicant, touching openly on prospects of success which are clearly not appropriate for written submissions to be put to a Court. I will ask the Registrar to pursue this with the panel lawyer.
In all however, I cannot see that the applicant's complaints put forward through his amended application, what his father said on his behalf at the hearing before the Court, or in those relevant parts of the lawyer's “submissions”, show that the applicant has any reasonable prospect of successfully prosecuting a claim based on a denial of procedural fairness and in particular, based on the Tribunal member's conduct at the hearing. In my view, the critical issue is that at the beginning of the hearing the Tribunal specifically and clearly gave the applicant's father the opportunity to put forward the applicant's claims. I cannot see that this critical question was affected by any factor that would have prevented the applicant's father from doing so. He presented the applicant’s claims and they were, in essence, the same as his.
On what is before the Court now, and taking into account the full opportunity afforded to the applicant’s father to present the applicant's case before the Court, I cannot see that there is any reasonable prospect of successfully prosecuting this matter if it were allowed to proceed to a final hearing. On this basis, in upholding the respondent’s Notice of Motion, the application to the Court is dismissed. In these circumstances, it is not necessary to look at the other grounds contained in the Notice of Motion.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 24 October 2006