SZNNE v Minister for Immigration

[2009] FMCA 1271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNNE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1271

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZNNE” and “SZNNF”.

Migration Act 1958 (Cth), ss.91X, 424, 425A , 426, 427, 429A, 441A
Migration Regulations 1994 (Cth), reg.4.35D

Abebe v The Commonwealth of Australia [1999] HCA 14
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) FCR 547
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528
SZJTK v Minister of Citizenship & Citizenship [2008] FCA 1712
SZJYD v Minister for Immigration [2007] FMCA 452
SZJYD v Minister for Immigration & Citizenship [2007] FCA 798
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703

First Applicant: SZNNE

Second Applicant: SZNNF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 975 of 2009

Judgment of: Lloyd-Jones FM

Hearing date: 2 September 2009

Delivered at: Sydney

Delivered on: 18 December 2009

REPRESENTATION

Solicitors for the Applicants: The first applicant appeared in person with the assistance of a Gujarati interpreter

Counsel for the Respondents: Ms N Johnson (solicitor)

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed on 24 April 2009 is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 975 of 2009

SZNNE

First Applicant

SZNNF

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicants are husband and wife and are citizens of India.  The applicant wife’s claims are not separate to the applicant husband’s claims and so for the purposes of this judgment the applicant husband will be identified as the applicant.

2. The applicant was born in Itla Mehsana, Gujarat and is Hindu.  He states that he owned a company called Thakor & Son.  In a statement attached to his Protection (Class XA) visa application, he sought protection for the following reasons:

   i)He became a member of the Vishwa Hindu Parishad in 1992 and in December 1992 he had to protect his area from Muslim mobs when Babri Masjid Ayodhy was demolished.

   ii)He became well-known to Muslim extremists because he aided funding for victims of communal violence.

   iii)On 27 February 2002 a communal riot resulted as Muslim mobs torched two train cars carrying activists in Godhra.

   iv)Muslim mobs committed arson on the applicant’s business and house and the applicants had to therefore leave their home.

   v)The police arrested and interrogated the applicant upon suspicion that he was a Hindu radical.

   vi)The applicant was again arrested on 1 February 2008.

3. The applicants arrived in Australia on 21 August 2008 and applied to the Department of Immigration & Citizenship for Protection (Class XA) visas on 30 September 2008.  On 20 December 2008 a delegate of the Minister for Immigration refused to grant the application for a Protection visa and the applicants were notified of this decision by way of letter on 20 December 2008.  The applicants applied for a review of this decision with the Refugee Review Tribunal (“the Tribunal”) on

   
   

   15 January 2009 and the Tribunal affirmed the delegate’s decision not to grant the applicants a Protection visa on 3 April 2009.  It is this Tribunal decision, of Ann O’Toole (case number 0900281) that is the subject of these proceedings.

4. A Court Book (“CB”) was prepared by the first respondent’s solicitors and marked Exhibit “A” is the only evidence before the Court.

5. The original application filed on 24 April 2009 contains the following grounds:

   1. The Tribunal failed to provide the applicant with an opportunity to appear before it, and it thus failed to comply with the mandatory requirements of section 425(1).

   Particulars

   (i) Section 425 mandates an oral hearing at which both the applicant and the Tribunal are physically present (giving the word ‘before’ its natural English meaning, in the context, of ‘in front of’) in the one place, in order that the applicant may present their case.

   (ii) The Tribunal was not physically present at the hearing, because the Tribunal was in Sydney, and thus the applicants did not ‘appear before’ the Tribunal.

   2. The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

   3. The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India.  Therefore, the Tribunal decision dated 3 April 2009 was effected by actual bias constituting judicial error.

6. At the first Court date on 13 May 2009 the applicant indicated that he wished to participate in the Court-sponsored panel advice scheme and an advisor was allocated to him.  A conference was organised but the applicant failed to attend.  Written advice was forwarded to the applicant.  At the first Court date leave was also granted for the applicant to file and serve an Amended Application giving complete particulars of each ground of review relied upon by 20 July 2009.  The applicant elected not to avail himself of this opportunity.  Neither did he file a short written outline of submissions prior to the hearing.

Tribunal decision

1. The Tribunal wrote to the applicants on 9 February 2009 validly inviting them to attend a hearing on 24 March 2009 to give oral evidence and present argument in support of their case.  The Tribunal organised a hearing via video link and advised the applicant that he should contact them if he wished to attend in person (CB 64-65).  The applicant accepted the invitation to the hearing (CB 66-67) and attended by video link on 24 March 2009 (CB 68-69).

2. The Tribunal considered the applicant’s claims and accepted that he had a farm in India where he grew crops.  The applicants had two sons who resided with an uncle and saw their parents infrequently.  The Tribunal acknowledged that there had been clashes and riots between Muslims and Hindus in this area of India (CB 81.5).

3. However, it did not accept the remainder of the applicant’s claims on the basis of his inconsistent evidence given to the Department in his Protection visa application, at the Department interview and to the Tribunal.  In particular, it relied on the applicant’s evidence regarding the dates of birth of his sons, where he resided in India and his alleged arrest and detention, in concluding that he was not a credible or truthful witness (CB 81-82).  The Tribunal was not satisfied that the applicant faced a real chance of suffering serious harm in the reasonable foreseeable future for a Convention reason (CB 82).

Consideration

Ground one

1. In this ground the applicant claims he was not provided with an opportunity to appear before the Tribunal to give evidence pursuant to s.425 of the Migration Act 1958 (Cth) (“the Act”). The particulars assert that the applicant was not physically present at the Tribunal hearing and therefore did not “appear before” the Tribunal. The Tribunal letter dated 9 February 2009 validly invited the applicant to attend the hearing on 24 March 2009 via video link from Victoria. The invitation letter contains the following statement:

   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. 

2. Section 429A of the Act provides that the Tribunal is entitled to arrange for an applicant to appear by telephone, closed circuit television link or any other means of communication. This section is an empowering provision which allows the Tribunal, on its own motion, to arrange a hearing where the Tribunal and the applicant are physically separate. In SZJTK v Minister of Citizenship & Citizenship [2008] FCA 1712, Reeves J stated at [10]:

   In relation to ground one above, the Federal Magistrate held that the Tribunal was entitled to arrange for an applicant to appear by closed circuit television or any other means of communication under s.429A of the Act and that section was an empowering provision which allows the Tribunal, on its own motion, to arrange a hearing where the Tribunal and applicant are physically separate citing SZJYD v Minister for Immigration & Citizenship [2007] FMCA 452.

3. In SZJYD v Minister for Immigration [2007] FMCA 452, Smith FM said at [30]:

   30. …in my opinion, s.424A is an empowering provision allowing the Tribunal on its own motion to arrange a hearing in which the member constituting the Tribunal is physically separated from the hearing room at which the applicant has attended, and to conduct the hearing by way of “closed circuit television”.

   This was upheld on appeal in SZJYD v Minister for Immigration & Citizenship [2007] FCA 798.

4. The invitation issued by the Tribunal (CB 64-65) appears to comply with the provisions of the Act in particular with ss.425, 425A, 426(1) and 441A(4) of the Act and reg.4.35D of the Migration Regulations 1994 (Cth). Although this was not raised by the applicant in ground one, the hearing invitation satisfies the requirements of the Act and does not in any way contribute to an alleged breach of s.425.

5. I agree with the written submissions prepared by Ms Johnson, solicitor for the respondents.  There is nothing in the Tribunal decision to indicate that the applicants were not offered a real and meaningful invitation, that they had been confused during the hearing as a result of the video link or were confused in some other way which prejudiced them in presenting their case.  In the Tribunal decision it is recorded that evidence was given by video link.  The Tribunal went on to say at [34]:

   After some initial discussion, the Tribunal asked the applicants if they had any difficulty with the interpretation.  They stated that they could understand everything.

   There is no further reference to the video link or that the applicants experienced any problem with its use.  In the circumstances this ground cannot be sustained and should be dismissed.

Ground two

1. This ground of review is made without particulars or any submissions to support this claim.  The Tribunal – using its standard approach under the heading “Definition of refugee” in paras.10-19 of the decision record – clearly sets out the four key elements of the Convention definition.  This was acknowledged by the applicant in the pleaded ground.  However the applicant did not refer to the balance of the Tribunal decision to indicate that these elements were not considered.  On a fair reading of the decision, the Tribunal considered the four elements of the Convention definition (CB 72-74) as well as the claims that the applicant made in his Protection visa application, at the interview with the delegate and at the Tribunal hearing (CB 74-80).

2. The Tribunal formed the view that the applicant was not a credible or truthful witness given the inconsistencies in his evidence.  In respect of this issue, the Tribunal member is the sole arbiter of the facts and such findings were open to the Tribunal to make on the material before it and were within its jurisdiction: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) FCR 547 at 558-9; W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and RD Nicholson JJ. Although the applicant is obviously displeased with the conclusions of the Tribunal that is not an indicator of jurisdictional error: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272. This ground cannot be sustained and should be dismissed.

Ground three

1. This unparticularised ground raises two issues, being that the Tribunal failed to investigate the applicant’s claims (especially the ground of persecution in India) and that the decision was affected by actual bias.  The Tribunal determined on the evidence before it that it was not satisfied, on the basis of available information, that the applicant’s claims were truthful or credible.  The Tribunal is not required to make further enquiries (Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12) and has no duty to investigate the applicant’s claims (NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18]-[21] per Jacobson J).

2. Sections 424 and 427 of the Act confer power on the Tribunal to obtain information but does not impose an obligation or duty to exercise such a power, see SGLB per Gummow and Hayne JJ at [43]:

   …whilst s.427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose a duty or obligation to do so. Rather, s.426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from the witness (such as a medical practitioner or psychiatrist, such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus the Tribunal is under no duty to enquire.

3. The Tribunal has no general duty to make its own enquiries in order to make an applicant’s case, see Abebe v The Commonwealth of Australia [1999] HCA 14 at [187] per Gummow and Hayne JJ:

   …framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant.  Such assumptions, if made, would be wrong.  The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention has a well founded fear of persecution for a convention reason.  The Tribunal must then decide whether that claim is made out. 

   In the circumstances I am satisfied that this ground cannot be sustained and should be dismissed.

Conclusion

1. The applicant in these proceedings is a self-represented litigant who appeared with the assistance of a Gujarati interpreter. The applicant has been provided with legal assistance to present his review application and although he applicant failed to attend the conference with his panel advisor, he was provided with written advice. However, it is clear that he had no understanding of the issues before the Court and how he may present his case. The applicant appears to have relied upon an unidentified agent who has very limited knowledge of the provisions of the Act. I am satisfied that all the issues identified in the application have been satisfactorily addressed by Ms Johnson in written and oral submissions. On a fair reading of the decision it is not apparent that any other ground of review exists which suggests that the Tribunal made a jurisdictional error in its decision-making process. Consequently the application should be dismissed.

2. I am satisfied that an order for costs should be made in this matter.  I order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: 

Date:  18 December 2009