SZNEQ v Minister for Immigration - [2010] FMCA 264

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNEQ v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 264

MIGRATION – Application for judicial review of RRT decision – grounds not made out.

Migration Act 1958, ss.424A, 427(1)(d)

SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712
SZJYD v Minister for Immigration and Citizenship [2007] FMCA 452

Applicant:

SZNEQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2322 of 2009

Judgment of:

Burchardt FM

Hearing date:

6 April 2010

Date of Last Submission:

6 April 2010

Delivered at:

Melbourne

Delivered on:

27 April 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Mr B. Wee

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYG 2322 of 2009

SZNEQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 27 August 2009. The application raises a number of matters which he says constitute jurisdictional error on the part of the Tribunal.
In my view, none of the applicant’s criticisms of the Tribunal can be made out and the application should, for the reasons which follow, be dismissed with costs.

Introductory Facts

The following matters are taken from the decision of the Tribunal and/or the written submissions of the parties, and are uncontroversial.
The applicant is a citizen of India, born on 3 August 1977, who follows the Sikh religion. He has described himself as non-English speaking in correspondence, but plainly has at least some command of English.
The applicant arrived in Australia on 14 May 2008 on a business visa and applied for a refugee protection visa on 26 June 2008.
The application was rejected by a delegate of the first respondent on

23 September 2008 and on 16 October 2008 the applicant applied for a review of that decision to the Tribunal.
On 31 October 2008, the applicant was invited to appear before the Tribunal but on 1 December he wrote saying that he was ill and unable to attend. His application for an adjournment was rejected the same day, and on 30 December 2008 the Tribunal made a decision affirming the decision of the delegate.
On 19 March 2009 that decision was quashed and the matter was returned to the Tribunal.
On 4 May 2009 the Tribunal issued an invitation to the applicant to appear. The invitation was in writing and is at CB111.
The hearing was due on 2 June 2009, almost a month after the letter of invitation.
The letter indicated that the hearing would take place by video conference from Melbourne (the applicant is now living in Victoria but was living in NSW when he filed his application for review) to Sydney where the Tribunal was sitting.
Relevantly, the letter said:
“Arrangements have been made to conduct the hearing by video conference. The Member and interpreter will be in Sydney. If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible.”
The applicant did not contact Sydney to indicate any desire to attend in Sydney, and a hearing took place on 2 June 2009 by video conference.
On 4 June 2009, the Tribunal sent the applicant a comprehensive s.424A letter (CB117 to 121), to which the applicant replied on 25 June 2009 (CB122).
Relevantly for these purposes, the applicant, having asserted that his fear of persecution was well-founded, went on to say:
“I want to provide evidences from India relevant to my claims. I have already contacted relevant persons and trying to obtain those documents as proof of my persecution I suffered in India. It may take about 6 (six) weeks to obtain those documents.
I believe if I am able to provide those documents it may be of assistance to you to make a decision favourable to me.
I request your honour to grant me an extension of 6 weeks time from 30 June 2009 until 15 August 2009.”
The Tribunal on 2 July 2009 granted the applicant an extension to

10 August 2009, only five days less than the applicant had requested.
The applicant forwarded a further letter to the Tribunal on 8 August 2009 (CB125 to 126), but did not provide any further documentation. The letter also did not seek any further extensions of time in which any such documentation might be provided.
As earlier indicated, the Tribunal handed down its decision on

27 August 2009.

The Applicant’s Claim

The applicant has articulated his claims in three tranches, so to speak. The first tranche consisted of the original grounds of application. That application filed on 22 September 2009 has three grounds.
The first two grounds are as follows:
“1. The Tribunal eared in law amounting to jurisdictional errors to find “The Tribunal does not find the applicant to be a credible, truthful and reliable witness though” though I have attempted to explaing the reasons of my harm for my political and religious belief at the time of interview. The Tribunal failed to find that I was a member of a political organisation and I was ever harassed, threatened or mistreted by any Sikh group, party or organisation and refused my claim. The Tribunal disregarded the harms I experienced prior to my departure from India for my religious and polical background and made errors of jurisdiction.
2. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to consider that I faced and continued to face significant threat to my life if returned back to India despite the fact that I was harassed, arrested, detained, mistreated and suffered harm at the hand of authorities for the reason of my membership, involvement in or association with Sikh organisations.” [sic]
In my view, these are so clearly matters of merit review that they require no further consideration.
The third ground is a complaint that the video link-up had prejudiced the applicant. The ground relevantly states:
“I was not comfortable to answer questions presented to me by the Tribunal in relation to my claims in the interview via video link. The Tribunal involved a contravention of s.424A of the Migration Act and hence jurisdictional error.”
The second tranche of the applicant’s claim is set out in his amended application filed on 12 February 2010, as supported by written submissions filed on the same date.
The first ground is that the Tribunal failed to afford the applicant procedural fairness, and is particularised in three subparagraphs. The first two, once again, are in my view clearly straightforward merits review and do not require further consideration. The third ground (c) is not in any way particularised and was not the subject of any separate submission.
The second ground, albeit that it is also numbered 1, is an alleged failure on the part of the Tribunal to comply with s.424A of the Migration Act 1958 (“the Act”). This matter raises the failure of the Tribunal to extend time until 20 January 2009 as the applicant was “stressed, isolated from his community and had no support during his sickness and due to his long time unemployment in Australia that he was suffering from financial difficulties as well”.
The ground goes on to itemise at (b) and (c) several other alleged failures which are, as is the ground I have just quoted from, clearly concerned with the first Tribunal hearing. The only part of the ground that might be said to apply to the decision under consideration now is the assertion that the failure of the Tribunal to grant an extension of time meant that the applicant did not have “a reasonable opportunity to present his evidence and comments before the Tribunal adequately in an environment conducive to the applicant to explain or provide further information in support of his application for review” (ground 1(c)).
The next ground (ground 2) raises again the procedural fairness issue and the alleged refusal of an extension of time, and the third ground is again said to be a failure to comply with s.424A of the Act.

In substance, however, that does no more than repeat the issue about the extension of time and the reasonable opportunity of presenting a case.
Ground numbered 4 complains that the Tribunal, despite being on notice about the applicant’s health problems, continued to oblige the applicant to identify his claims, and the Tribunal failed to exercise its powers pursuant to s.427(1)(d) of the Act.
The ground numbered 5 is a complaint of apprehended bias on the part of the Tribunal member on the footing that the applicant’s case was so obviously credible that no reasonable Tribunal could have reached any other conclusion.
The final ground asserted is that the Tribunal was determined, in effect, to repeat its decision in the first Tribunal hearing. In substance, it is an allegation of pre-judgment amounting to bias.
The written submissions of the applicant, although slightly more extensive than the grounds in the amended application, essentially traverse the grounds of application in terms that repeat but add nothing to the grounds in the application itself.
In the hearing before the Court, the applicant concentrated his submissions on the video conference aspect of the matter. He said he was not able properly to clarify his points and that communication was not clear, and that he was not used to video conferencing facilities. He said he did not hear the questions clearly and, therefore, did not reply clearly. He referred to certain facts about his arrest in Punjab. He went on to say that there were other matters he could not remember at the moment, but that if he were asked, he would be able to answer and clarify.
In my opinion, the complaints of the applicant, taken as a whole, are:
(a)his complaint about video-link, being in substance a complaint that he was not in fact offered a properly opportunity to appear at the Tribunal and to present his case;
(b)his complaints about the failure of the Tribunal to grant an extension of time until 15 August, rather than 10 August 2009; and
(c)a complaint that the failure of the Tribunal to believe the applicant’s case was, given the asserted cogency of the case, one that no reasonable Tribunal could properly have reached.
Insofar as I have itemised various other complaints such as bias above, they are in my view so misconceived as not to require further attention. It is plain upon their face that they cannot be made out.

The Video-link Issue

It is well established that an applicant must be given a real opportunity to appear before the Tribunal. Here, however, I think that the applicant was given such an opportunity.
There is no assertion on the applicant’s materials that he at any stage during the hearing conducted by video-link actually raised any issues as to its adequacy or otherwise. There is nothing to indicate that the technology was not functioning properly and the applicant has not sought, for example, to put transcript of the proceeding before the Court to illustrate any difficulties such as those he has hinted at.
I accept that it is open to the Tribunal, as a matter of power, to conduct a hearing by video-link. The applicant did not have to be physically present before the Tribunal (SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [23]).
The Tribunal had after all informed the applicant, who had moved from New South Wales to Melbourne of his own volition, that he could attend in Sydney if he wished to do so, by its letter dated 4 May 2007 (CB111). The applicant did not do so.
In SZJYD v Minister for Immigration and Citizenship [2007] FMCA 452 at [30], Smith FM accepted that s.429A empowered the Tribunal to conduct a hearing by video-link, and that finding was not overturned on appeal. Other decisions of members of this Court, referred to in the written submissions of the first respondent, have adopted a like position.
In the circumstances, I am persuaded that the Tribunal had the power to hear the applicant properly by video-link and in the particular circumstances of the case was entirely reasonable in doing so.

No jurisdictional error is shown by this course of action.

The Extension of Time Point

Here again I accept that the applicant must be given a fair and reasonable opportunity to prepare and present his case. The reality is, however, that by the time the matter was coming to a head when the applicant wrote to the Tribunal on 25 June 2009 requesting extra time, he had had over a year in Australia since his first application for a refugee visa to start preparing his case.
In any event, the Tribunal gave the applicant all but five days of the amount of time he requested. The applicant at no stage repeated his request for further time and provided none of the foreshadowed documents that the extension had been supposed to produce.
This ground is not made out.

The Unreasonableness Claim

Here the applicant claims in substance that his case was so overwhelming that no reasonable Tribunal could have rejected it. This is clearly impermissible merits review. Furthermore, having read the decision of the Tribunal, and also the s.424A letter together with the applicant’s response, the least one could say is that the Tribunal’s decision was open to it on the facts as recorded. In my view, the Tribunal was well seized of its task and made findings well open to it upon the evidence and materials before it.

Conclusion

In my view, there is no force in any of the applicant’s contentions and the application should be dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 27 April 2010