SZOAM v Minister for Immigration
[2010] FMCA 327
•13 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOAM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 327 |
| MIGRATION – Review of decision of Refugee Review Tribunal – complaint that applicant wife wanted to appear before Tribunal – Tribunal provided several opportunities for applicant wife to appear – Tribunal discharged obligation under s.425 – Tribunal entitled to proceed without giving further opportunity to appear – Tribunal gave applicant wife opportunity to provide information in writing – Tribunal utilised s.424AA instead of s.424A – Tribunal dealt with applicant’s objections to relocation – Tribunal considered all claims and integers – no bias – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 420, 422B, 424A, 424AA, 425, 425A, 426A, 427, 441A, 429A Migration Regulations 1994 (Cth), reg.4.35D |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 SZFDV v Minister for Immigration & Citizenship [2007] HCA 41; (2007) 233 CLR 51 S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; 216 CLR 473 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 WAEE v Minister for Immigration & Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 Welivita v Minister for Immigration (unreported) 18 November 1996 per Lindgren J, Mehenni v Minister for Immigration & Multicultural Affairs [1999] FCA 789; (1999) 164 ALR 192 NAEU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 259 Applicant N 403 of 2000 v Minister for Immigration & Multicultural Affairs [2000] FCA 1088 Erduran v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 150; [2002] FCA 814 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SZLBE v Minister for Immigration & Citizenship [2008] FCA 1789 NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 |
| First Applicant: | SZOAM |
| Second Applicant: | SZOAN |
| Third Applicant: | SZOAO |
| Fourth Applicant: | SZOAP |
| Fifth Applicant: | SZOAQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2810 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing dates: | 18 March 2010 & 11 May 2010 |
| Date of Last Submission: | 11 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2010 |
REPRESENTATION
| First and Second Named Applicants: | Self Represented |
| Third, Fourth, and Fifth Named Applicants: | First Applicant Litigation Guardian |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 18 November 2009 is dismissed.
The first and second named applicants pay the first respondent’s costs set in the amount of $6,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2810 of 2009
| SZOAM |
First Applicant
| SZOAN |
Second Applicant
| SZOAO |
Third Applicant
| SZOAP |
Fourth Applicant
| SZOAQ |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 18 November 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 October 2009, which affirmed the decision of a delegate of the first respondent Minister to refuse protection visas to the applicants.
Background
The applicants are all nationals of India who arrived in Australia on 20 August 2008. They are husband and wife, and their three children aged 12, 9 and 7, who applied for protection visas on 30 September 2008. (See Court Book – “CB” – CB 1 to CB 46.) It appears that only the applicant husband (“the applicant”) made claims to be a refugee. His wife (“the applicant wife”) and children did not assert any claims to be refugees in their own right, but applied as members of his family unit. (See CB 25, CB 31, CB 36 and CB 42.)
Claims to Protection
The applicant’s claims to protection were set out in a statement which he submitted on 25 November 2008 (CB 51 to CB 52). He claimed that he was involved in a business, but also wrote articles for newspapers and weekly publications, advocating an anti-racist position.
He claims that in February 2008 he wrote about a certain person, and his colleagues, and their involvement in communal rights in Godra and Gujurat. The article described the killing of Muslims in a particular incident as “genocide”.
This evoked threats from the “RSS” (a political party) and its allies (extremist Hindu groups), including telephone calls to his office and mobile phone. In late February 2008 he was threatened, in his home, in front of his family, by a local RSS leader and his workers. He was told that he had 24 hours to leave India. They returned two days later. After being threatened that the house would be burned, the family escaped and ultimately left India. The applicant claimed that the Indian authorities were unable to protect him, and that the family was unable to relocate to another part of India.
The Delegate
The delegate found that he was not satisfied that the applicant would be persecuted if he were to return to Kerala (CB 64.2). The delegate, to a large extent, did not accept most of the applicant’s factual account of what he said had occurred (CB 64). Further, the delegate appears to have found that the applicant could safely relocate within India (CB 65).
The Tribunal
The applicants sought review by the Tribunal on 28 January 2009 (CB 67 to CB 70). All the applicants were invited to attend a hearing before the Tribunal scheduled for 8 April 2009 (CB 73). The applicants responded on 17 February 2009 that they would all attend (CB 75).
On the day of the scheduled hearing the applicant delivered “by hand” a written submission, with documents attached. He claimed that he had “mistakenly” omitted from his original application to say that “his enemies” had also attacked his wife in a “lorry accident”, and that his wife was now a “handicapped women” (sic: woman) as a result.
The applicant and his wife attended on 8 April 2009. The hearing continued for over two and a half hours (CB 107 to CB 108). It was then adjourned, ultimately, until 30 April 2009 (see CB 109, CB 111). On 29 April 2009 the applicant sought a further adjournment because his wife had a “pain” in her “right foot”. (See CB 114, and the medical certificate at CB 115.) The applicant advised that if the Tribunal did not allow an adjournment, he would attend the hearing on his own, without his wife. The Tribunal refused a further adjournment (CB 118).
The applicant attended on 30 April 2009. However, a further hearing was scheduled for all the applicants to be held on 3 June 2009 (CB 119). On 18 May 2009 the applicants indicated that they would all attend (CB 127). On 3 June 2009 the applicant sought yet another adjournment of the hearing scheduled for that day. He again cited his wife’s inability to attend. He advised that she did wish to give evidence at some time (CB 129).
The hearing proceeded on that day. Only the applicant attended (CB 136). The Tribunal, however, scheduled yet another hearing for 23 June 2009 (CB 138). All the applicants were invited.
The applicants indicated that they would all attend (CB 140). However, by facsimile communication on 23 June 2009 the applicant advised that he and his wife could not attend due to medical appointments concerning the serious state of his wife’s leg (CB 141). The applicant asked for “another hearing date after couple of days.”
While the Tribunal appeared concerned that a couple of days did not appear to be consistent with the claimed seriousness of the wife’s condition (possible amputation of her leg), and by the possibility of postponing the hearing indefinitely, the hearing scheduled for 23 June 2009 was nonetheless cancelled (CB 123).
A further hearing date was scheduled for 2 July 2009 (CB 146). Again, the applicants indicated that they would all attend (CB 149). Yet again, the applicant telephoned on 1 July 2009, and advised that his wife was unwell and that she could not attend. He advised that he would submit further information to which he had previously referred (CB 150). The hearing scheduled for 2 July 2009 was cancelled (CB 150 to CB 151).
On 2 July 2009 the applicant wrote to the Tribunal and advised that he and his wife had met with an orthopaedic surgeon and that he had been advised that x-rays and scans were required before deciding to amputate her leg. The applicant also advised that his wife was due to consult a psychologist on 8 July 2009 because she had a “mental problem”. The applicant sought another hearing date (CB 153).
The Tribunal wrote to the applicants by letter dated 2 July 2009 (CB 155). The Tribunal advised that it would now give the wife the opportunity to provide her “evidence” in writing to the Tribunal. The applicants were given until 27 July 2009 to provide any further “information”. They were told that if the information was not received within the period allowed, the Tribunal would proceed to make its decision (CB 155).
The applicant responded by letter dated 27 July 2009. He stated that he had further documents to submit, including newspaper reports from India. The applicant sought more time to enable him to do this. He also set out that his wife continued to have medical difficulties. He wanted another hearing because “she would like to meet you and tell something to you” (CB 60).
On the direction of the relevant Tribunal member on 28 July 2009 an officer of the Tribunal advised the applicant that no further hearing would be held, and that if he wished to submit any further information, he should do so immediately (CB 162).
The Tribunal proceeded to make its decision on what was before it. In its decision record the Tribunal noted additional claims, or elements to the claims, made by the applicant at the hearing with him on 8 April, 30 April, and 3 June 2009 ([27]-[115]). In addition, the Tribunal noted the claims made for the first time, in his letter of 7 April 2009, relating to his wife’s accident in 1995 (CB 77).
The additional claims were:
1)He had experienced problems with Hindu extremists in 2004 and 2005.
2)He had been targeted by his brother-in-law at this time. The brother-in-law appeared to have been associated with those opposed to the applicant.
3)In June 2008 he wrote a book about, amongst other matters, religious riots in India. This was followed by an article he wrote in December 2008.
4)“People” made threats against him in January 2007.
5)On 15 August 2007 his car was stopped and he was threatened. In July 2009 the applicant’s parents were questioned as to his whereabouts by people who broke into their home.
The Tribunal accepted that the applicant was a Muslim from Malappuram in Kerala, India. In chronological order of claims, the Tribunal found that:
1)It did not accept that the accident involving his wife in 1995 was a deliberate attack on her. It gave reasons for its conclusion that the accident was not “… other than a tragic accident” ([131]).
2)There was evidence, which it preferred, that the applicant did not have fears for his safety, nor for his family, as a result of his speaking out against a certain person in 2004 ([132]).
3)The claims relating to his brother-in-law did not have a Convention nexus ([133]).
4)The applicant did not have a subjective fear of persecution in relation to the claimed events of 2007 ([134]).
5)It accepted that a particular person and his associates made threats against the applicant in December 2008, and that the applicant and his family left their home, and ultimately relocated to Mysore in March 2008 ([137]-[138]).
6)While the applicant was generally a credible witness, he exaggerated aspects of his claims, particularly in relation to his circumstances whilst in Mysore ([138]).
7)It accepted that the applicant’s parents had been the subject of a break-in at their house. But did not accept that it related to the applicants, or their claimed problem. Nor did it accept that the attackers asked for him ([139]).
8)The applicant’s difficulties were confined to his local area in Malappuram. But that the harm he feared there from Hindu extremists would not extend to other parts of India. The Tribunal found that he could reasonably and safely relocate away from his home area ([140]-[147]).
In all, the Tribunal found that the applicant did not satisfy the criterion set out in s.36(2) for the grant of a protection visa. As a result, his wife and children did not satisfy the relevant criterion in s.36(2)(b). The delegate’s decision was therefore affirmed.
Before the Court
The application to the Court contains five generally unparticularised grounds. The applicants have also filed written submissions which are largely in identical terms to the grounds as pleaded. They are signed by the applicant. Written submissions had also been filed on behalf of the Minister.
At the First Court Date in this matter the applicant was appointed the litigation guardian for his children for the purposes of these proceedings. The applicant wife did not appear at that time.
At the hearing before the Court on 18 March 2010 the applicant and the applicant wife appeared in person. An interpreter in the Malayalam language was provided. Ms A Mitchelmore appeared for the first respondent.
In submissions the applicants were unable to add anything of substance to what, it must be said, are formulaic complaints in both the application and written submissions, which are often seen in identical terms before this Court.
One additional complaint made before the Court at that time was to complain generally that the Tribunal did not ask any questions of his wife, that she was unable to attend the “second” hearing because of her injury, and that the wife wanted “to talk to the Tribunal”.
During the course of the hearing before the Court I became concerned as to the level and standard of interpretation provided by the interpreter. For example, I noted the lack of “contemporaneous” interpretation, the failure to “automatically” respond to what was being said (and therefore, necessarily, to be interpreted), and the constant referral to the applicants in the third person, which raised the inference that what was being said by the interpreter was not the direct language of the parties.
My concerns were confirmed by the applicant who, when asked, said that generally he had “not completely” understood what the interpreter had been interpreting. While this may have been a reference to the subject matter, I determined that the hearing should be adjourned to another day, and that another interpreter in the relevant language should be provided.
Both the applicants and the respondent were also given the opportunity to make further written submissions on the question of whether the Tribunal had properly discharged its obligations in relation to the applicant wife, pursuant to s.425 of the Act. A date for a final hearing was ultimately determined after the period of opportunity for the written submission had elapsed. Written submissions were filed by the Minister. Nothing further was received from the applicants.
At the resumed hearing on 11 May 2010 the applicant and the applicant wife again appeared in person. They were assisted by a different interpreter in the Malayalam language. Ms Mitchelmore appeared for the first respondent. No difficulties arose in relation to this interpreter.
At the resumed hearing the applicant reiterated that his wife wished to have a “face to face” hearing with the Tribunal. No details were provided. Nor was the applicant wife able to specifically state what it was that she wanted to tell the Tribunal in person, that could not be put in writing.
In addition, after understanding that the lack of submission of medical certificates to corroborate the seriousness of his wife’s medical condition was a factor in the Tribunal not according the applicant wife a further opportunity to appear (see also the Minster’s further submissions of 25 March 2010 at [9]), the applicant submitted that he had not received the letter from the Tribunal dated 23 June 2009 (CB 146), requesting that medical evidence be provided as to the applicant wife’s inability to attend.
Ground One
Ground one in the application asserts a breach of s.424A. The second paragraph of the applicants’ written submissions is in identical terms. Unfortunately, neither the ground as pleaded, nor the written submissions, nor what the applicant told the Court at the hearing, shed any light on what “information” is said to have been caught by the obligation in s.424A(1).
The reference in the pleading and submission to the need for the Tribunal to send the applicant “such information” before making up its mind to “dismiss” his application, would suggest that this is a complaint that the Tribunal should have sent its proposed findings for comment to him before making its final decision. The applicant appears to rely on the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 (“SAAP”) for this proposition.
I cannot see that SAAP supports the applicant’s proposition, given what was subsequently said in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) about what constitutes “information” for the purposes of s.424A. To the extent, therefore, that the complaint may be the Tribunal should have given the applicant the opportunity to comment on its view of his evidence, such views of course are not “information” for the purposes of s.424A(1) (SZBYR at [17]-[18]).
In any event, the information which may be said to be information that the Tribunal considered “would be” the reason, or a part of the reason, for affirming the decision under review is as follows:
1)The evidence and materials provided by the applicants to the Tribunal for the purposes of the review falls within the exception contained in s.424A(3)(b) from the obligation in s.424A(1).
2)Written information provided by the applicants in relation to their protection visa applications is information which comes within the exception set out in s.424A(3)(ba) from the obligation in s.424A(1).
3)Information that the applicant gave orally to the Minister’s department is not “information” caught by s.424A(3)(ba). Nor is the information contained in the applications for visitor visas to Australia made by the applicant and his family.
The only account before the Court of what occurred after the Tribunal hearing is that contained in the Tribunal’s decision record. The applicants have not put any evidence before the Court to challenge that account. This reveals that both sets of information referred to in (3) above were discussed at the hearing, such that it could be said that there was a basis to infer that this was information that, at least at that time, the Tribunal considered “would be” the reason, or a part of the reason, for affirming the decision under review. (See [55]-[56], [60], [105]-[106].)
However, the Tribunal also specifically told the applicant that such information may form the reason, or a part of the reason, for affirming the decision under review. That action, the language used by the Tribunal, and the opportunity proffered for the applicant to comment, all invoked the relevant parts of s.424AA.
The Tribunal ascertained whether the applicant was satisfied with the opportunity provided at the hearings to comment, or whether he wanted more time to comment. The Tribunal’s account reveals, ultimately, that the applicant is reported as having said that he did not require further time. Noting that earlier at the “first” hearing ([67]) the Tribunal told the applicant that there would be an opportunity to comment. This was provided at the subsequent hearing.
In all, the Tribunal utilised the avenue in s.424AA in this regard. Given the facultative relationship between s.424A and s.424AA, and s.424A(2A), the Tribunal discharged its obligation pursuant to s.424A(1) (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 – “SZMCD”). Ground one is not made out.
Ground Two
Ground two asserts that the Tribunal “failed to consider properly” whether the applicants would suffer “serious harm” if they were required to relocate within India. Paragraph 1 in the applicant’s written submissions is in identical terms.
I cannot see that there is error in the Tribunal’s consideration of this matter. The Tribunal found that the applicant did have difficulties, and did face harm in his local area from February 2008. The Tribunal quite properly, however, then considered whether protection would be afforded to the applicants in another part of India, and whether it was reasonable for the applicants to so relocate. (See, in particular, Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 – “Randhawa”, at 441 per Black CJ.)
In my view, its analysis was consistent with relevant authorities to which the Tribunal clearly had regard. (See Randhawa, SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18, SZFDV v Minister for Immigration & Citizenship [2007] HCA 41; (2007) 233 CLR 51.) Nor did the Tribunal expect the applicants to modify their behaviour (S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; 216 CLR 473). Further, the Tribunal clearly dealt with the applicant’s objections, and issues, in relation to relocation (Randhawa at 442-443 and SZMCD at [124]). (See [113] and [138]-[147].) This ground is not made out
Ground Three
In ground three the applicants complain that the Tribunal failed to consider an integer of the applicant’s claims. Namely, “whether or not a liberal Muslim in India was at risk of harm from Hindus, and not able to access effective protection.” The ground appears to assert that the Tribunal failed to consider that the applicant was not able to access effective protection, and that it failed to do so in circumstances where it found the applicant to be a credible witness.
Other than for an absence of any reference to the latter part of the sentence above, the applicants’ written submissions are in identical terms, and do not provide further assistance in understanding the complaint.
It is the case that the Tribunal is required to consider all claims made by an applicant, and all aspects of those claims. This includes claims which can be said to clearly arise from the circumstances presented. It does not require, however, any consideration of any claim that may subsequently occur to an applicant after the Tribunal has made its decision, nor one that does not clearly arise from the circumstances presented (Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79], VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration & Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]-[47]).
It must be said that, on any plain reading of the material before the Tribunal, I could not see any description of the applicant as a “liberal” Muslim. Nor, for that matter, can I see that the applicant claimed to fear persecutory harm because he was a “liberal” Muslim, or perceived as such by those from whom he claimed to fear harm. That is, extremist Hindus.
The applicant’s relevant and unequivocal claim was that he wrote newspaper articles, initially against racism, but ultimately about “crimes against humanity and Muslims” perpetrated by certain (local) state political leaders in Gujarat. This provoked the enmity and response from extremist Hindus.
It was not any perception about the applicant’s religious conviction or religious attitude, “liberal” or otherwise, that provoked this response. It was the critical newspaper articles. This is what the Tribunal considered, and accepted, as it related to his home area in Malappuram in Kerala. The Tribunal, however, then went on to consider that even in these circumstances the applicant could reasonably and safely relocate with his family away from his home state to another part of India. The Tribunal dealt with the applicant’s claims in this regard as put, and as can be said to arise from the circumstances presented.
In submissions the respondent suggests that even if the material before the Court were read “liberally” the applicant’s status as a “liberal Muslim” was not advanced as a basis for persecution “per se”, but rather as a reason as to why he wrote the newspaper articles. The Minister points to the Tribunal’s acceptance that in early 2008 he raised the ire of radical Hindus because of an article he wrote. Ultimately, the Minister submits that the Tribunal found that the applicant could reasonably and safely relocate in these circumstances, and that this finding is not attendant with error.
I have difficulty with the initial premise of this submission. That is, that his status as a “liberal Muslim” was advanced as the reason as to why he wrote the articles. Factually, the applicant himself explained, beginning with his initial written statement put in support of his protection visa application (CB 51 to CB 52) that his reason, or motivation, for writing the articles was to expose certain political leaders, who were Hindus, and their crimes. I cannot see that this involved a particular “liberal”, or “Muslim”, or even “liberal Muslim” reason.
While the motivation of an applicant may be of some assistance, it is the motivation of the persecutor that is critical in establishing the necessary Convention connection between the harm feared and the establishment of an objective basis that the fear is well founded (Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, Welivita v Minister for Immigration (unreported) 18 November 1996 per Lindgren J, Mehenni v Minister for Immigration & Multicultural Affairs [1999] FCA 789; (1999) 164 ALR 192 per Lehane J, NAEU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 259 per Madgwick J, with whom Merkel and Conti JJ agreed.).This is to be contrasted with cases involving “conscientious objectors”, not relevant here, where the motivation of the persecutor was emphasised (Applicant N 403 of 2000 v Minister for Immigration & Multicultural Affairs [2000] FCA 1088 per Hill J and Erduran v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 150; [2002] FCA 814 per Gray J).
In any event, even if it could be said that the applicant was driven by some “liberal Muslim” views to write the articles, his fear of persecutory harm was said to arise from the publishing of the articles themselves, not from any generally held “liberal Muslim” or even “Muslim” or even “liberal” views. The Tribunal addressed the applicant’s claims as presented. Ground three does not succeed.
Ground Four
Ground four asserts that the Tribunal had “no jurisdiction” to make its decision because its ‘reasonable satisfaction” was not arrived at in accordance with the requirements of the Act.
No particulars whatsoever are provided, unless the complaint about s.424A in ground one could be seen in that light. If that is the case, then this ground fails for the reasons already set out above.
For the remainder, this is a case to which s.422B applies, making the provisions of Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48], Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83). I cannot see any failure in relation to any of the relevant requirements of the Act. This ground does not succeed. (See further below in relation to the applicant wife and s.425.)
Ground Five
In ground five the applicants assert that they satisfy the four key elements of the UN Convention (Relating to the Status of Refugees), and that the Tribunal did not consider this “aspect”.
First, the Tribunal set out the relevant law in its decision record in the usual unexceptional terms, not only as it arises from the Convention and implemented in the Act, but also as to enhancements to what is set out in the Convention. (See [6] at CB 165 to [19] at CB 167.)
But far more importantly, there is nothing in the material before the Court to show that it misunderstood, or misapplied, the relevant test applicable to this case. What the applicant’s formulaic complaint fails to recognise is that the Tribunal accepted that the applicant feared harm in his local area because of the expression of his political opinion through the writing and publishing of newspaper articles. But its finding that the fear was not well founded, as it applied to the whole of India, was open to it to make on what was before it. It was open to the Tribunal to reach this conclusion. It gave cogent reasons.
I cannot see that the Tribunal failed to ask the right questions required of it. Namely, whether there is a well founded fear of Convention related persecution, and whether the fear is well founded in relation to India as a whole. That the Tribunal made findings of fact that the applicants now dispute does not, for that reason alone, allow the intervention of this Court to grant the relief sought. This ground does not succeed.
Ground Six
Ground six asserts actual bias on the part of the Tribunal because, the applicants claim, the Tribunal failed to investigate the claimed grounds of persecution in India.
I note such relevant authorities on the question of bias (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
As Ms Mitchelmore submitted, the serious question of bias involves a state of mind of the Tribunal member that, while exercising the power conferred by the Act, was so committed to a predetermined conclusion as to be incapable of alteration whatever the evidence presented, or open to persuasion no matter the arguments presented. Such an allegation must be “distinctly made and clearly proved.” (See, in particular, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 – “SCAA”.)
In the current case the applicants have not specifically referred to any evidence to even suggest any assertion that the Tribunal did not bring an open mind to the proceedings. Even at its best, the alleged failure to investigate the applicant’s claim to fear persecution in India can only be seen as a disagreement with the Tribunal’s conclusion. Such disagreement, without anything further, does not support, let alone make out, bias.
The only evidence the applicants have put before the Court is the Tribunal’s decision record attached to the applicant’s affidavit of 17 November 2009, filed with the application. As noted in the Minister’s submission, and as observed in SCAA per von Doussa J (at [38]), it will be a “… rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.”
This is not one of those cases. The Tribunal’s decision record, and indeed the material in the Court Book, reveals that the Tribunal gave careful consideration to what the applicant put before it. It gave a number of opportunities for both the applicant and the applicant wife to appear. (See further below.) I cannot see that ground six can be made out.
Other Consideration
During the course of the fist occasion of the hearing before the Court, I raised, for the sake of completeness, given the unrepresented status of the applicants before the Court, the issue of the Tribunal’s invitations to hearing, the wife’s claimed inability to attend and her absence from the subsequent hearing after the first occasion on 8 April 2009, and ultimately the Tribunal’s action in proceeding to a decision without offering her a further opportunity to appear before it.
The applicants complain now that the applicant wife did want to give her evidence to the Tribunal in person, and was not able to do so because of her injury.
In subsequent written submissions Ms Mitchelmore has helpfully set out a table as to relevant events (at [4]). I adopt this table for the purposes of this judgment. It should be read in conjunction with [7]-[20] above:
Hearing Date Response Outcome 8 April 2009 (CB 73) All five applicants to attend (CB 75). All five applicants attended on that day. The hearing was not completed. 23 April 2009 (CB 109) Rescheduled before response provided. Postponed because the applicant husband was not available (CB 109). 30 April 2009 (CB 111) All five applicants to attend (CB 113). On 29 April 2009, the applicant wrote to the Tribunal stating that he could not attend because his wife had a pain in her right leg, and included a medical certificate from the auburn Rd Family Medical Centre (CB 114).
The Tribunal directed the applicant to attend the hearing on 30 April, and he did attend. At his request, the Tribunal adjourned the hearing.3 June 2009 (CB 119) All five applicants to attend (CB 126-127). On 3 June 2009, the applicant wrote to the Tribunal indicating that his wife could not attend and requesting another hearing date (CB 129).
The Tribunal proceeded on that day with the applicant.23 June 2009
All five applicants to attend (CB 140).
On 23 June 2009, the applicant wrote to the Tribunal indicating that his wife had an appointment with a specialist on 30 June 2009 and asked the Tribunal to give another hearing date (CB 141).
2 July 2009 (CB 146) All five applicant to attend (CB 149). On 1 July 2009, the applicant advised the Tribunal that his wife was not well and would not be able to attend the hearing (CB 152-153).
I particularly put to Ms Michelmore at the “first” hearing before the Court the terms of the Tribunal’s letter (sent by an officer of the Tribunal to the applicant) of 24 June 2009 and the Tribunal’s reference to (at CB 148):
“The Tribunal wishes to make you aware that in the event that your wife is not able to attend the hearing on 2 July 2009 because of her medical condition or for any other reason it will become necessary for the Tribunal to take her evidence by way of a written statement or alternately by telephone. The Tribunal is not in a position to offer the opportunity of another hearing.”
[Emphasis added.]
The question is, in all the circumstances: did the Tribunal discharge its obligation pursuant to s.425 of the Act in relation to the applicant wife, such as to enable it to proceed to a decision without giving her a further opportunity to appear and give her “evidence”?
First, the applicant was the only one of all the applicants to advance claims to be a refugee. While he relied, in part, on the motor vehicle accident in 1995 involving his wife as part of his claims, she did not, nor did he on her behalf, advance any independent claims to be a refugee.
In all, the Tribunal issued six invitations to, relevantly, the applicant wife to appear before it (CB 73, CB 109, CB 111, CB 119, CB 138, CB 146). She appeared at the first occasion on 8 April 2009. There is nothing before the Court to indicate any failure of its statutory obligations in this regard. All relevant statutory and regulatory requirements were met. (I have in mind the requirements in s.425A(3), 441A(4), 441C of the Act, and reg.4.35D(b) of the Migration Regulations 1994 (Cth). Nor do the applicants complain about this.
The complaint derives from what happened at the conclusion of that hearing and thereafter. The Tribunal’s account of what occurred at the hearing on 8 April 2009 is unchallenged before the Court ([24] at CB 168 to [67] at CB 178). This reveals that the Tribunal extensively questioned the applicant about his claims, and that “new” aspects of his claims were raised. This hearing, noting the need for the use of an interpreter, lasted for about two hours and forty minutes (CB 107).
At the end of the hearing the Tribunal indicated that there was not “sufficient” time “available” to conclude the hearing on that occasion. The Tribunal stated ([67] at CB 178):
“The Tribunal put to the applicant that there are other matters that it wishes to raise and other information it needs to put to him. It indicated that the available time was not sufficient. The Tribunal said it would resume the hearing and at that resumed hearing the Tribunal indicate that it would also speak to the applicant wife. The Tribunal put to the applicant that he would have the opportunity to respond to information which the Tribunal believes is adverse to him and may form the basis for affirming the decision under review. The Tribunal said that he would then be offered to the opportunity to respond either at another hearing or in writing if he wished.”
The Tribunal wrote to the applicant, and relevantly, the applicant wife, on 14 April 2009 and scheduled a further opportunity for 30 April 2009. This date had been arrived at after a telephone discussion between a Tribunal officer and the applicant as to availability. (See CB 111.5.)
As set out above, the applicant wife was unavailable on that date. The applicant attended and gave further evidence ([73]-[78] at CB 179 to CB 181). The Tribunal further adjourned the hearing from 30 April 2009 to 3 June 2009 at the applicants’ request to enable the applicant wife to attend to her claimed medical matters, and in particular, for her to attend an appointment with a medical specialist scheduled for 4 May 2009. (See [78] at CB 181.)
The Tribunal confirmed this in writing. Its letter of 30 April 2009 (CB 119) again complied with all the relevant statutory and regulatory requirements. I note, particularly, the Tribunal’s statement that if the applicants failed to attend, the Tribunal may proceed to a decision without taking further action to enable the applicants, including the applicant wife, any further opportunity to attend (CB 119.8).
This adjournment was granted at the applicant’s request, relieving the Tribunal of the need to comply with the relevant notice period (see SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 at [13] per Bennett J). But, in any event, more than the otherwise prescribed period was granted. It was more that reasonable in the circumstances.
It was clear that this adjournment was granted to enable the applicant wife to attend and give her evidence ([78] at CB 181). The scheduled date was 3 June 2009.
On this date the applicant attended. The applicant wife did not, despite having earlier indicated to the Tribunal that she would attend (CB 127).
At this hearing, the applicant gave further evidence ([82]-[113] at CB 181 to CB 189). In relation to his wife’s absence the applicant told the Tribunal that she wanted to “speak to the Tribunal personally a number of times” ([114] at CB 189). He told the Tribunal that he was hopeful that with “good” medication she may be able to attend in person. He asked for a further opportunity for this. The Tribunal agreed to a further opportunity and said it would attempt to make it on 23 June 2009 ([114] at CB 189). The Tribunal put him on notice that if she was unable to attend, she may have to give her “evidence” in writing.
The Tribunal wrote to the applicants to confirm this on 4 June 2009 (CB 138). Again, the letter noted that any failure to attend may result in no further opportunity being given, relevantly, to the applicant wife to attend.
The applicant wife indicated that she would attend (CB 140). On the day of the scheduled hearing the applicant advised the Tribunal that she could not attend and asked for “a couple of days” (CB 141).
A Tribunal officer advised the applicant that the Tribunal member was not willing to “delay the process indefinitely” and invited the applicant wife to submit “information in writing or by telephone” (CB 142).
Nonetheless, the Tribunal wrote to the applicants on 23 June 2009 and scheduled yet another hearing for 2 July 2009. This letter again included advice as to the possible consequence if the applicant wife did not attend (CB 146).
On 24 June 2009 the Tribunal wrote again to the applicants and included the statement quoted above at [71].
Neither the applicant nor, relevantly, the applicant wife, attended on 2 July 2009. The Tribunal wrote to the applicant on that date and advised, amongst other things (CB 155.5):
“As foreshadowed in its letter of 24 June 2009 the Tribunal will now invite [the applicant wife] to provide her evidence to the Tribunal in writing.
The information should be received by 27 July 2009. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.”
I agree with Ms Mitchelmore that at that point the Tribunal clearly indicated that no further opportunity was to be provided to the applicant wife to attend a hearing. The Tribunal indicated that it was prepared to give her an opportunity to put anything further to it in writing.
In its letters of 24 June 2009 and 2 July 2009 the Tribunal made reference to the applicant wife providing her “evidence” by way of “written statement”.
In its decision record the Tribunal made repeated references to it having told the applicant that if his wife was unable to attend a hearing, she could “provide her evidence in writing” or by telephone. (See [114] and [118].)
There is, of course, no problem with an applicant giving oral evidence by telephone, given the provision of s.429A. Such a course of action would satisfy the obligation in s.425 to invite an applicant to appear before the Tribunal to give evidence.
The issue is whether the offer that the wife could give evidence in writing satisfied the obligation in s.425 to invite an applicant to attend at a hearing to give evidence.
Section 429A sets out the alternative ways by which an applicant may be allowed to appear, or to give evidence, to the Tribunal. Section 429A((a)-(b)) provides that this may be done by telephone, close-circuit television, or (by virtue of s.429A(c)): “any other means of communication.” On its face this may be wide enough to encompass the giving of evidence in writing, given that this is a form of communication.
The problem with this interpretation is that it appears inconsistent with the legislative scheme envisaged in s.427, where the relevant powers of the Tribunal are set out in relation to the taking of evidence on oath or affirmation (s.427(1)(a)), and the requirement that a person appearing before it take either an oath or an affirmation (s.427(3)(c)), and that such an oath or affirmation is to be that the “evidence” given is true (s.427(5)).
Ultimately, the circumstances of this case do not require resolution of this problem. I am persuaded, on balance, by the Minister’s submission that where the Tribunal made such references to the giving of “evidence”, that this was a broad statement to encompass the applicant wife being able to tell the Tribunal what her husband had repeatedly said she wanted to say in person, in circumstances where the Tribunal had decided that it would no longer continue to offer the applicant wife the opportunity to attend at a hearing.
That is, reasonable notice to attend a hearing (after 8 April 2009) on a number of occasions had been given, the applicant wife did not attend at any of those occasions, and ultimately, the Tribunal, at least as at 2 July 209, had decided, following the latest failure to attend, that the applicant wife had been offered the opportunity to appear, either in person or by telephone, and had not provided a satisfactory explanation for this non-attendance such as to compel a further opportunity.
In this regard, I note that the applicant had already been given some leeway by the Tribunal in relation to the applicant wife’s claimed medical difficulties. I agree with the Minister that s.425 did not require the Tribunal to continue to offer the applicant wife the opportunity to attend in circumstances, and particularly, where no medical evidence, despite the specific request by the Tribunal, was submitted to support her claimed severe medical difficulties (SZLBE v Minister for Immigration & Citizenship [2008] FCA 1789, NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121).
The reference to “evidence” given in writing is seen in the circumstances of a lay Tribunal making a broad reference to the applicant wife being able to communicate what she wanted to say in writing to the Tribunal. This view is supported by the Tribunal’s interchangeable references to the applicant wife providing “information”. I accept that this lay Tribunal which, after all, is not bound by the “legal forms or rules of evidence” (s.420(2)(a)), was seeking to give every opportunity to the applicant wife to communicate with it, even after the time for her appearance in person, or by telephone, had well and truly passed.
That part of the letter of 2 July 2009 quoted above (at [89]), together with the juxtaposition of the two paragraphs referring to evidence, and the subsequent reference to that “evidence” as “information”, reveals that the Tribunal was not using the word “evidence” in any technical sense to refer to the opportunity in s.425.
The Tribunal had “foreshadowed” in its letter of 24 June 2009 (CB155), and subsequently confirmed with the applicants on 28 July 2009 (CB 162), after the date for the provision of any “information” from the applicant wife had passed, that if the applicant wife did not attend the hearing scheduled for 2 July 2009, no further opportunity would be offered to her.
Although no reference is made by the Tribunal to s.426A of the Act, it is clear that on 2 July 2009, when the applicant wife did not appear, the Tribunal proceeded on the basis that no further opportunity was to be provided to her to attend, although she could put something to it in writing.
The Tribunal discharged its obligations to the applicant wife pursuant to s.425. She had numerous opportunities to attend a hearing. She attended only once, but her husband’s evidence was such that the Tribunal could not complete the hearing on that occasion.
Thereafter, the applicant wife did not attend on each subsequent occasion offered over a period of three months. This is despite her initial indication, in respect of each occasion, that she would attend, only to withdraw her attendance “at the last minute”. At no point in any of the numerous communications did the applicants communicate the length of the wife’s incapacity, or inability, to attend. This was despite claiming that they attended doctors on a number of occasions, where such an enquiry could have at least been made, and some estimate given. At most, the applicant, on his wife’s behalf, asked for a “couple of days”, which was granted.
The only medical certificate provided was that dated 2 April 2009 (CB 115) which did not indicate any severe disability. The certificate stated that she had “right foot pain” and would not be able to attend an “appointment” with the Tribunal on 30 April 2009.
No other medical certificates were provided to support the claim of severe disability, and therefore inability to attend a hearing.
Before the Court the applicant husband claimed that he did not receive the Tribunal’s letter of 24 June 2009 where, amongst other things, the Tribunal asked for a medical report from the doctor that the applicants had said they were to consult on 30 June 2009. The letter specifically requested that any such report provide a “… likely timeframe for planned further treatment” (CB 148.7).
On what is before the Court, the letter was sent by registered post to the same address for service as the many other letters sent by the Tribunal to the applicants. There was nothing from the applicants to say that they did not receive any of the other letters.
Further, in a discussion with a Tribunal officer on 2 July 2009 the applicant confirmed that this address for correspondence was the address at which he wanted correspondence sent (CB 154).
In any event, in the circumstances, even if the applicants did not receive this letter, no medical certificates were provided by the applicant after the end of April 2009. The submission of that one certificate would suggest that the applicants understood the benefit to be obtained in providing such certificates, if not the importance of doing so.
What remains is that the Tribunal gave the applicant wife every opportunity to appear. No evidence was provided in relation to, nor did the applicants really say, how long she was to remain incapacitated. In the circumstances, the Tribunal was entitled to then proceed in the way that it did. Noting, of course, that the Tribunal continued to offer the opportunity for the applicant wife to submit “information”.
No error is revealed.
Conclusion
For the applicants to succeed, the Court would need to discern jurisdictional error (at least). As no such error is evident, the application is dismissed.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 13 May 2010
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