SZLJT v Minister for Immigration and Citizenship
[2008] FCA 933
•23 May 2008
FEDERAL COURT OF AUSTRALIA
SZLJT v Minister for Immigration and Citizenship [2008] FCA 933
SZLJT and SZLJU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 228 OF 2008
GRAHAM J
23 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 228 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLJT
First AppellantSZLJU
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
23 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS:
1.That the appeal be dismissed.
2.That the appellants pay the respondent Minister’s costs fixed in the amount of $2,000.00.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 228 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLJT
First AppellantSZLJU
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
23 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Section 65 of the Migration Act 1958 (Cth) (‘the Act’) relevantly provides:
‘65(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
…
(ii) The other criteria for it prescribed by this Act or the regulations have been satisfied; …
…
is to grant a visa; or
(b) if not so satisfied, is to refuse to grant the visa.’
The relevant criteria for the purposes of this case are contained in s 36(2) of the Act which provides as follows:
‘36(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b)a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.’
The reference in the section to the Refugees Convention is to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the reference to the Refugees Protocol is to the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Hereafter I will collectively refer to the Convention as amended by the Protocol as the ‘Refugees Convention’. The Refugees Convention relevantly provided a definition of ‘refugee’ as follows:
‘A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
…(2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it.’
In Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 (‘Khawar’) at [61]–[62] McHugh and Gummow JJ made certain observations concerning the words of the definition of refugee in the Refugees Convention. Those observations were cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 at [16]. What their Honours relevantly said in Khawar was:
‘61 This passage presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality “owing to” fear of persecution for reasons of membership of [relevantly in that case] a particular social group, which is well founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself “of the protection of” the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition.
62 The definition of “refugee” is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to “protection” is to “external” protection by the country of nationality, for example, by the provision of diplomatic or consular protection, and not to the provision of “internal” protection provided inside the country of nationality from which the refugee has departed.’
Proceedings before the Refugee Review Tribunal (‘the Tribunal’) are not adversarial but inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. A Tribunal member conducting the inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance and for the Tribunal to decide whether his claim has been made out. It is not part of the function of the Tribunal to seek to damage the credibility of an applicant’s story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation.
The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57]-[58]).
The first applicant, who is identified for the purposes of these proceedings as ‘SZLJT’, was born in Shabdalpura in India, on 26 August 1977. His wife, who is identified for the purpose of these proceedings as ‘SZLJU’ was born in Sokhda in India on 11 September 1982. They have a son born on 23 April 2004 but he remains in India.
On 26 July 2006, the appellants obtained Indian passports. On 8 March 2007, they obtained visas permitting them to enter Australia on a temporary basis. On 1 April 2007 they arrived in Australia and on 7 May 2007 applied for the grant of Protection (Class XA) visas. In the visa application, the first appellant provided a statement which indicated, amongst other things, that he was a member of Vishwa Hindu Parishad (‘VHP’), the main aim of which was to create unity in the nation and to protect the Indian culture. The first appellant was or claimed to have been the treasurer of the Gujarat region office of VHP in Ahmedabad, a large city in Gujarat state.
In his statement he complained that there was an organisation known as Student’s Islamic Movement of India (‘SIMI’) which hated the work of VHP and were angry with the first appellant and considered the first appellant to be their enemy. In his statement he asserted that SIMI members were always keeping their eyes on the first appellant, that SIMI frequently threatened him by telephone, that on the occasion of a Hindu festival SIMI activists attacked members of the VHP but they managed to rush to a safe place to save themselves. He alleged that on the occasion of another Hindu festival he was in a truck representing the Mansa town VHP. He claimed that SIMI activists came to the procession and attacked the appellants. Once again the appellants were able to escape without injury. He claimed that there was a later attack by SIMI activists on himself and his wife and that he was seriously injured and hospitalised for 10 or 12 days. He claimed that he went to the police but the police could not do anything.
On 19 May 2007 a delegate of the Minister refused the applications of the appellants for protection visas. The appellants filed an application in the Tribunal on 12 June 2007 seeking review of the Minister’s delegate’s decision. By letters dated 21 June 2007, directed to the residential address given by the appellants in their application for review to the Tribunal, and 28 June 2007, directed to the address for correspondence provided by the appellants in their application for review to the Tribunal, the appellants were invited to attend a hearing of the Tribunal at the Griffith Police Service, 41-47 Railway Street, Griffith, New South Wales, to give oral evidence and present arguments. In the letters the Tribunal said:
‘The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.’
Each of the copy letters reproduces registered post labels that appear to have been added to the originals of the copies. Evidence tendered in an application to the Federal Magistrates Court of Australia, from which the current appeal has been brought, demonstrated that the letter directed to the first appellant at the address for correspondence provided by the appellants, dated 28 June 2007, was posted by registered post to the first appellant on 28 June 2007. Australia Post records confirm that such posting occurred. Notwithstanding the provision of the invitations to attend the hearing proposed by the Tribunal, the appellants did not attend at the appointed place and appointed time on 27 July 2007.
In his reasons for judgment, Scarlett FM recorded the following:
‘13.The applicant told the Court that neither he nor his wife had attended the hearing because they did not receive the s.424A invitation letter until after the hearing had taken place on 30th July. [I would observe that the relevant section providing for invitations to be extended to appear at a Tribunal hearing are given under s 425 and not s 424A.] The applicant explained that the post office box which he had given as his address for correspondence was in fact the post office box of a friend, and that the friend had left and it took a lengthy period of time for him to obtain a copy of the letter. I note, however, that the applicant’s home address that appears on his amended application [in the Federal Magistrates Court] is the same as the residential address on the application for review by the Refugee Review Tribunal.’
Sections 425, 425A, 426, 426A, 441A and 441C of the Act relevantly provide as follows:
‘425(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.
…
425A(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) … by one of the methods specified in section 441A; …
…
(4)The notice must contain a statement to the effect of section 426A.
426(1)In the notice under section 425A, the Tribunal must notify the applicant:
(a)that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
…
426A(1) If the applicant(a)is invited under section 425 to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
…
441A …
…(4)Another method [of giving a document to a person] consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then despatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:(i)the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii)the last residential or business address provided to the Tribunal by the recipient in connection with the review.
…
441C …
…(4)If the Tribunal gives a document to a person by the method in subsection 441A(4) … the person is taken to have received the document:
(a)if the document was despatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; …
…’
As the Full Court said in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [35] ‘… s 425 is directed to the invitation, rather than the hearing itself …’. However, it is implicit from the terms of s 425(1) that not only must an appropriate invitation be extended but also it should be followed by a corresponding hearing at which the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review will be afforded to the applicant.
In VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 (‘VNAA’) the Tribunal had given the required invitation to the applicant seeking review by posting it by registered post to both the mailing address provided and also to the residential address given on the application. The latter copy was returned marked ‘return to sender’ and ‘no such address’. The applicants claimed that they did not receive either copy. Sundberg and Hely JJ, with whose reasons for judgment Gyles J expressed his general agreement, said at [14] ‘Section 425 merely requires the Tribunal to invite an applicant to appear’.
Their Honours proceeded to conclude that there had been no failure on the part of the Tribunal to comply with s 425. They said at [15]:
‘15 There was no breach of s 425, as alleged in the notice of appeal. The Tribunal invited the appellants to appear to give evidence and present arguments. The invitation and the notice of the time and place of the hearing were embodied in the one document, as ss 425 and 425A contemplate. …They were sent to the appellants’ address for service at their last residential address appearing on their application for review. By force of s 441C(4) they are taken to have received the document seven working days after the date it bears. As the primary judge said, the fact that they did not become aware of the invitation does not displace the effect of s 441C. … Section 426A empowered the Tribunal to decide the review in the absence of the appellants and without taking any further action to allow or enable them to appear before it. We agree with the primary judge when he said:
“If the applicants’ argument were right, the Tribunal would be required in each case to be affirmatively satisfied that the invitation under s 425 had actually come to the notice of the applicants. To proceed in the absence of such affirmative satisfaction would, on the applicants’ argument, convict the Tribunal of jurisdictional error. That argument flies in the face of the statutory scheme discernible in ss 441A and 441C and must, I consider, be rejected.”’
On 13 August 2007 the Tribunal decided that the decision of the Minister’s delegate not to grant the appellants Protection (Class XA) visas should be affirmed. That decision was handed down on 4 September 2007. In its reasons the Tribunal provided considerable detail of the claims made by the first appellant in his application for a Protection (Class XA) visa. It did make reference to certain country information in relation to SIMI, but there was no obligation on the Tribunal to give particulars of that country information to the appellants under s 424A of the Act, it being information which fell within s 424A(3)(a) of the Act.
In the FINDINGS AND REASONS of the Tribunal, it said:
‘In the present case the applicant has provided only the broad outline of his claims which leaves much to be explained, both with regard to his own claimed involvement in the VHP and with regard to the occasions on which he claims he and his wife were attacked by the activists of SIMI. …’
The Tribunal was unable to be satisfied on the evidence before it that the first appellant was attacked by SIMI activists as he claimed, nor was the Tribunal able to be satisfied that the police had accused the first appellant of committing a serious crime, as he had also claimed. The Tribunal was unable to be satisfied on the evidence before it that the first appellant had a well-founded fear of being persecuted for a Convention reason if he returned to India.
By an Application filed 27 April 2007, the appellants applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the decision of the Tribunal. On 10 December 2007 the appellants caused an Amended Application to be filed. That application came before Scarlett FM for hearing on 7 February 2008, who on that day ordered that the application be dismissed and that the appellants pay the respondent Minister’s costs fixed in the sum of $3,500.00. His Honour allowed four months to pay that amount. I am unable to discern any error at all in the reasoning of the learned Federal Magistrate and am quite unable to discern any jurisdictional error on the part of the Tribunal.
It was perfectly open to the Tribunal, in the light of the matters claimed in the protection visa application and the non-attendance of the appellants or either of them at the appointed hearing before the Tribunal, to refuse to grant the visas applied for, not being satisfied that the criteria for a Protection (Class XA) visa sought by the first appellant had been satisfied. The Notice of Appeal which was filed in this Court on 21 February 2008 specified as the relevant ground of appeal:
‘1. The FM failed to find the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.
(a)There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).’
An order was sought as follows:
‘1.Leave be granted to include additional grounds for review of the decision of the Tribunal on the grounds of jurisdictional error.’
As previously observed, there was no relevant failure by the Tribunal to comply with the requirements of s 424A(1) of the Act.
When invited by the Court to indicate whether there were any ‘additional grounds for review’, the first appellant said, ‘No, I don’t think’. When asked in respect of ground 1 was there anything that he wanted to say, there was no response. When asked why he was before the Court, there was no response. When asked why he filed a Notice of Appeal, there was no response. When asked whether he had anything that he wanted to say about the Tribunal decision, he indicated that he did not wish to say anything.
The present case is an example of a most inappropriate course being followed by applicants for Protection (Class XA) visas. The appeal is totally without merit and involves the taxpayers of Australia being put to the very considerable expense of entertaining what, at the end of the day, is an appeal that should never have been instituted.
The appeal should be dismissed with costs.
24
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 18 June 2008
The First Appellant appeared in person. The Second Appellant did not appear. Counsel for the First Appellant: V McWilliam Solicitor for the First Appellant: Clayton Utz The Second Respondent filed a submitting appearance.
Date of Hearing: 23 May 2008 Date of Judgment: 23 May 2008