SZNJE v Minister for Immigration
[2009] FMCA 1110
•26 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNJE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1110 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.65, 91R, 414, 425, 426A |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 SZLLY v Minister for Immigration and Citizenship (2009) 107 ALD 352; [2009] FCA 185 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 |
| Applicants: | SZNJE & SZNON |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1308 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 26 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2009 |
REPRESENTATION
| First Applicant: | In person |
| Counsel for the Respondents: | Ms Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $5,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1308 of 2009
| SZNJE & SZNON |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 23 April 2009 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants, who are husband and wife, arrived in Australia from India in September 2008 and in October 2008 applied for protection visas. Their application was refused by a delegate of the first respondent and they sought review by the Tribunal. On 23 February 2009 the Tribunal wrote to the first applicant (referred to for convenience as the applicant) inviting him and his wife to attend a Tribunal hearing in Sydney on 1 April 2009.
On 20 March 2009 the Tribunal wrote again advising that due to circumstances beyond its control the presiding member was unable to conduct the hearing on that day and advising of a new hearing date of 20 April 2009, again specifying the location of the hearing in Sydney. In each of these letters the Tribunal advised that the applicant should contact it immediately if he was unable to attend the hearing on that date and that if he failed to attend, the Tribunal “may make a decision without taking any further action to allow or enable [him or them] to appear before it”.
On 8 April 2009 by letter faxed to the Tribunal the applicant requested that his hearing be conducted by video link from Griffith New South Wales stating: “I have no means of transport and would find it very difficult and expensive to get to Sydney. It would also take me a long time.”
Also provided to the Tribunal was a completed Response to Hearing Invitation form in which it was indicated that the applicant husband would take part in the Tribunal hearing but that the applicant wife would not take part in the hearing.
On 9 April 2009 the Tribunal wrote to both applicants by letter headed “REQUEST FOR VIDEO HEARING” acknowledging that on 8 April 2009 it had received a request that the hearing be heard by video link. However, it stated:
Unfortunately, the Tribunal is unable to organise a video link-up at the scheduled time of the hearing.
The hearing will therefore proceed as set out below…
The Tribunal then repeated the details that had been provided in the letter of 20 March 2009 indicating that the hearing would be on 20 April 2009 in Sydney (although the Tribunal referred to an earlier letter of 9 April 2009, there is no evidence of any such letter). In any event, the Tribunal set out in full the details of the hearing date, time and location in Sydney. It again advised that it would only change the hearing date for “good reason” and asked the applicants to “[p]lease contact the Tribunal immediately if you are unable to attend the hearing on this date”, noting again that if the applicants failed to attend “the Tribunal may make a decision without taking any further action to allow or enable [them] to appear before it”.
For the sake of completeness I note the Tribunal also advised the applicants that if they had any questions, they could contact a Tribunal officer on a number provided or telephone the Tribunal’s national enquiry line on a number given. Contact details for the Translating and Interpreting Service for language assistance were provided.
The applicant completed a further Response to Hearing Invitation form dated 14 April 2009 in which he indicated that he would attend the hearing. No response was given for the applicant wife. He indicated that he required a Gujarati interpreter.
However the applicant did not attend the hearing at the time and place scheduled for 20 April 2009.
In its reasons for decision the Tribunal set out the fact of the invitation to a hearing, the postponement and the fact that the applicant had requested a video link hearing on 8 April 2009. The Tribunal stated that it considered this request but was unable to arrange for the hearing to be conducted by video link. The Tribunal recorded that it “wrote to the applicants on 9 April 2009, advising them of this and setting out the details of the hearing again” and that “if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice”.
The Tribunal also referred to the Response to Hearing Invitation form provided on 13 April 2009 (which is the date that the document bears although it is signed 14 April 2009), in which the applicant indicated that he would attend the hearing. The Tribunal recorded that “[t]he applicants did not appear before the Tribunal on the day, and at the time and place at which they were scheduled to appear” and nor did they contact it to “seek a postponement” or “give any reason as to why they could not attend the hearing at the scheduled time” on 20 April 2009. In those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth), the Tribunal decided to make its decision on the review without taking further action to enable the applicants to appear before it.
The Tribunal set out the claims in the protection visa application that the applicant and his wife were followers of a named guru in India, that two children had been found dead in the Gurkal (an establishment akin to a school or convent established by the guru), that a police investigation revealed that the guru and his men were involved in the killing, that an issue of sexual exploitation came to light and that the applicant came to know that these people had tried to extend this behaviour towards his wife. He claimed that when he “tried to expose these people” they “became his enemies”, “assaulted him”, “destroyed some property and threatened to kill him” and that “[t]hey had connections with the police and were friends with the mafia”. He claimed that “[h]is life was in danger” wherever he was in India. He also referred to bomb blasts and terrorist activities in his local town.
The Tribunal found: “Not having had the opportunity to obtain further information from the applicants at a hearing, there is insufficient evidence before the Tribunal, such as the nature and length of his involvement, for the Tribunal to find that the first named applicant was in fact a follower of this guru as he claims”. While it accepted, based on independent information, that “two children were found dead in the Gurkal, associated with the guru”, it did not have any independent evidence before it in relation to the applicant’s claims that the police investigation revealed that the guru and his men were involved in the killing. As it had not had the opportunity to obtain further information at a hearing it was not satisfied that this was the case.
The Tribunal stated that as the applicants did not attend the hearing it had not been able to obtain information in a number of respects. The Tribunal was not satisfied that the claim of sexual exploitation associated with the guru was true in the absence of further details or independent information. It referred to the absence of details about the applicant’s claimed attempts to expose these people and on that basis found that he did not attempt to expose the guru and his followers. The Tribunal also referred to the absence of detail in relation to the applicant’s claims about what the guru’s followers had done in relation to assaulting him, destroying his property and threatening to kill him.
The Tribunal noted that no details as to the time of the incident, who was involved, the extent of the damage, nature of the assault or injuries had been provided and found that the applicant husband was not assaulted in his shop by followers of the guru.
In the absence of details in writing or at a hearing or independent information to support the claims about the guru’s connections with the police and the mafia, the Tribunal found that there was no such connection. It also found that there was insufficient evidence to base a finding that the guru had followers and ashrams all over India so that it was not safe for the applicants to return to India.
The Tribunal referred to the fact that the applicant had not provided a copy of the claimed local newspaper article about bomb blasts and bombs in his town. The Tribunal had not been able to find such an article and it did not accept the claims in this respect.
In essence the Tribunal found that the applicant husband had provided so few details concerning his claims that it was not satisfied that he was at risk of harm or persecution.
While the applicant wife had completed protection visa application forms as a member of her husband’s family, the Tribunal found that the written statement made claims in regards to her status as a refugee on her behalf and assessed those claims.
However, not having had the opportunity to obtain information at the hearing, the Tribunal found there was insufficient evidence on matters such as the nature and the length of the applicant wife’s claimed involvement with the guru, for it to find that she was in fact a follower of the guru. It also found that there was insufficient evidence in support of her claim to find that the applicant wife had been sexually assaulted or that any attempt had been made by the guru’s followers to assault her or that she would not be safe or her life would be endangered if she returned to her home.
The Tribunal was not satisfied that the applicants were persons to whom Australia had protection obligations under the Refugees Convention and affirmed the decision of the delegate.
The applicant sought review by application filed in this court on 28 May 2009. The first applicant attended a directions hearing held on 18 June 2009 at which time orders were made for the filing of any amended application and written submissions. No amended application or written submissions were filed by the applicants.
In the hearing today the first applicant was given the opportunity to address the grounds in his application. He did not do so, but raised a fresh matter to which I will return.
The first ground in the application is that the Tribunal failed to accord the applicant procedural fairness because it failed to carry out its role in an inquisitorial manner when it made “contrary” findings that there was insufficient evidence before it as to the nature and length of the applicant’s involvement with the guru to find that the applicant was a follower of the guru; that there were no details of the claimed issue of sexual exploitation and no independent information and that it was therefore not satisfied this claim was true; and that the applicant did not attempt to expose the guru and his followers. In addition it is said the Tribunal failed to accord procedural fairness by the weight it gave to the claims of the applicants, insofar as it did not accept them or found that there was insufficient evidence.
It was submitted that the Tribunal erred in not assessing the applicant’s claim in the manner required under s.414 of the Migration Act, thus giving rise to a breach of a statutory provision amounting to jurisdictional error.
Ground two is a contention that the Tribunal acted in a manifestly unreasonable manner towards the applicant because of its failure to consider the applicant’s claims in accordance with the Refugee Convention.
Issue was taken with the fact that the Tribunal accepted that two children were found dead in the Gurkal associated with the guru but concluded that it was not satisfied that the applicant was at risk of harm or persecution. It was submitted that the Tribunal acted in a manifestly unreasonable way in dealing with the applicant’s claims and “ignoring the aspect of persecution or serious harm in terms of Sec. 91R of the Act”.
The third ground in the application is that the Tribunal erred in “failing to request more information regarding the Applicants’ persecution for their following of [the guru] and their worship of him”.
As indicated, the applicant had nothing to add to these grounds in oral submissions. Insofar as grounds one and two take issue with the Tribunal findings, in particular its factual findings, merits review is not available in this court. The Full Court of the Federal Court pointed out in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] – [16], that a legislative regime which requires a positive state of satisfaction as to whether protection obligations are owed mandates refusal of an application if that state of satisfaction is not reached. As the Full Court stated in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] – [5]:
In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.
In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.
Similarly in this case the applicants failed to attend the hearing. In those circumstances the Tribunal was unable to satisfy itself that they had a genuine subjective fear of persecution or had experienced particular mistreatment or harm. As in NAST, the Tribunal in this case also listed a number of significant matters about which it would have wished to satisfy itself at a hearing. As it was not satisfied that the applicant faced a real chance of persecution for a Convention reason it was bound to affirm the decision of the delegate of the first respondent to refuse to grant the applicants protection visas.
It was open to the Tribunal to have regard to the absence of detail provided by the applicants. As stated in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 and as Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 made clear, s.65 of the Act requires a visa application to be rejected in the absence of a positive finding of satisfaction. In other words the Act does not require the visa to be granted in the absence of an adverse finding.
It was open to the Tribunal to find that there were insufficient details and that on that basis it could not be satisfied with particular aspects of the applicants’ claims. No lack of procedural fairness is established in the manner contended for by the applicant.
Moreover it was not unreasonable for the Tribunal not to reach the positive state of satisfaction required. As in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5], in these circumstances it was an inevitable consequence that the applicants would fail.
It has not been established that the Tribunal failed to consider the claims made by the applicant or that it acted in a manifestly unreasonable manner by virtue of the fact that it did not reach the positive state of satisfaction required under s.65 of the Migration Act. It considered the claims of both applicants. The fact that it was not satisfied that the applicants were at risk of harm notwithstanding that it accepted that two children had been found dead in the Gurkal associated with the guru does not establish manifest unreasonableness. The Tribunal considered this claim, which it accepted, but did not accept the applicant’s claims in relation to the nexus between this event and his and his wife’s claimed fear of persecution. Neither ground one nor ground two in the application is made out.
Nor is ground three made out. While the Tribunal has the power to obtain further information it is not under a general obligation to investigate an applicant’s claims or to consider utilising such permissive statutory powers as might enable it to do so (see SZGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1644 and also VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459, WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 and W389/01A v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 407; [2002] FCAFC 432). This is not a case in which the Tribunal undertook to conduct an investigation or where the circumstances were such that such an obligation arose. Nor is it a case in which it is apparent that there was readily available information relevant to the applicants’ claims which the Tribunal could and should have obtained.
Insofar as any of these grounds relate to the applicants’ failure to attend the Tribunal hearing, I note that in the Tribunal invitation letter it advised the applicants that it had considered the material before it, but was unable to make a favourable decision on that information alone. It is apparent that the Tribunal wished to further explore the applicants’ claims with them, but was not able to do so by reason of their failure to attend the hearing. It has not been established that the Tribunal erred in the manner contended for in ground three of the application.
In the hearing today the applicant contended that he had asked the Tribunal for the Tribunal hearing to be conducted by way of video link. He suggested that initially the Tribunal agreed to a video link hearing and that it then told him that it would not be possible. When I endeavoured to clarify this claim the applicant (who had not raised such a claim in his application or affidavit) claimed that the Tribunal told a person from the Migrant Resource Centre in Griffith by telephone that he could have a Tribunal video hearing. He claimed that somebody else spoke to the Tribunal for him and that he filled in the Response to Hearing Invitation form and sent a request for a video link to the Tribunal.
There is no evidence before the court to support the applicant’s claims in relation to the alleged telephone conversation between someone at the Migrant Resource Centre and the Tribunal or that it was his understanding that the Tribunal had said that he could have a video link hearing. In any event, even proceeding on the basis that the applicant was told by a person at the Migrant Resource Centre that the Tribunal had indicated that he could have a video link, rather than confirming this he made a request to the Tribunal in writing for a video link. The Tribunal refused this request in writing for reasons it gave and that it addressed in its reasons for decision.
The evidence before the court is that on 20 March 2009 the Tribunal invited the applicant to a hearing on 20 April 2009. A hearing response form was completed on 8 or possibly 6 April 2009 in which the applicants indicated that the husband, but not the wife, would take part in the Tribunal hearing scheduled for 20 April 2009. On 8 April 2009 the applicant sent a facsimile to the Tribunal requesting that in his hearing he have a video link up from Griffith, New South Wales. He stated that he had no means of transport, would find it difficult and expensive to get to Sydney and that it would take him a long time.
The applicant’s concern appears to be that the Tribunal did not give him a video link hearing. I take this to be a contention that the Tribunal failed to comply with s.425 of the Migration Act in not giving him the opportunity to attend the hearing in the manner in which he had sought to attend.
As counsel for the first respondent pointed out, such an issue arose in SZLLY v Minister for Immigration and Citizenship (2009) 107 ALD 352; [2009] FCA 185. However in the particular factual circumstances of this case, I am not satisfied that the applicant has established that there was any failure by the Tribunal to comply with s.425 of the Act or that it was not open to the Tribunal to make a decision on the review without taking further action to enable the applicants to appear before it, consistent with s.426A of the Act. In contrast to the position in SZLLY (where an applicant maintained and continued to maintain, both before and after the scheduled hearing time, an inability but willingness to attend a Tribunal hearing conducted by video link) in this case, while the applicant did seek a video link in his faxed letter dated 8 April 2009, the Tribunal advised him on 9 April 2009 that it was unable to organise a video link up at the scheduled time for the hearing. In contrast, in SZLLY the Tribunal had advised the applicant that it did not accept that the cost of travelling from Griffith to Sydney was a valid reason for rescheduling his hearing and organising a video hearing but did not refer to these considerations in the Tribunal reasons for decision. In this case, the reason given by the Tribunal appears in its reasons for decision. It stated, after referring to the request for a video link of 8 April 2009:
The Tribunal considered this request but was unable to arrange for the hearing to be conducted by video link. The Tribunal wrote to the applicants on 9 April 2009, advising them of this and setting out the details of the hearing again.
Critically, it was after the Tribunal’s notification that a video link could not be arranged, that the applicant completed a further Response to Hearing Invitation form in which the applicant husband indicated that he would attend the Tribunal hearing.
In these circumstances, where the applicant indicated that he would attend the Tribunal hearing which he had been advised would be held in Sydney, the approach taken by Perram J to very different factual circumstances does not compel a conclusion that the Tribunal failed to comply with s.425 of the Act, either on the basis of the principles considered by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 or otherwise.
It has not been established that in this case the hearing invitation was a hollow shell or an empty gesture or that the Tribunal failed to provide a real and meaningful invitation. In contrast to the situation in SZLLY, this is not a case in which the Tribunal simply issued a pronouncement that the applicant’s proffered reason for seeking a video link was not a valid one. Rather, it advised that it was unable to organise a video link at the scheduled time of the hearing. It advised the applicant of that hearing time and, importantly, also advised him to contact it immediately if he was unable to attend and that it would only change the hearing date for good reason. Moreover, it provided him with contact details including interpreter services which there is no suggestion that he utilised. It was in that context that the applicant accepted the Tribunal’s invitation and indicated that he would attend the hearing in Sydney.
In relation to the applicant wife, I note that the first Response to Hearing Invitation form indicated that she would not attend the Tribunal hearing. There is no suggestion that the request for a video link in any way related to her, as distinct from the applicant husband who sought the link for him to attend the Tribunal hearing. There was no breach of s.425 in the manner in which the Tribunal met its obligations in relation to the applicant wife.
The applicant also raised for the first time today in concluding submissions a claim that his wife was in hospital having a baby and that this was also a reason he could not attend the hearing. However he confirmed that he had not informed the Tribunal of this fact.
While in some circumstances, a Tribunal may fail to comply with s.425 where it is not aware of the full circumstances (as in SCAR where unbeknownst to the Tribunal, the applicant was not in a fit mental state at the time the hearing took place), I am not satisfied that the circumstances in this case are of that nature. I note that the applicant wife in the initial Response to Hearing Invitation form indicated that she would not be attending the Tribunal hearing. There was no suggestion that she was unable to do so. Her husband indicated that he would attend.
I also note that there is, in any event, no evidence before the court to support the claims in this respect.
In these circumstances the Tribunal was entitled to proceed as it did without allowing any further opportunity to the applicants to appear before it. No failure to comply with s.425 or other breach of the Migration Act in relation to the invitation to the Tribunal hearing is established on the material before the court. As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicants have been unsuccessful and the Minister seeks costs in the sum of $5,300. The applicant told the court that he had no money. However the applicant’s lack of funds is not, in the circumstances of this case, a reason from departing from the normal principle that unsuccessful applicants should meet the costs of the first respondent. I consider that the amount sought is appropriate in light of the nature of this and other similar matters. I note, however, that the applicant’s lack of funds may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
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