SZOAR v Minister for Immigration
[2010] FMCA 180
•16 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOAR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 180 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no breach of s.425 proved by reason that the Tribunal hearing was conducted by video-link – discretion whether to conduct hearing remotely did not miscarry – no breach of s.424A proved – the Tribunal’s conclusions are not “information” for the purposes of s.424A. |
| Migration Act 1958, ss.422B, 424A, 425, 429A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| First Applicant: | SZOAR |
| Second Applicant: | SZOAS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2836 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 March 2010 |
| Date of Last Submission: | 16 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2010 |
REPRESENTATION
| The First Applicant appeared in person. |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2836 of 2009
| SZOAR |
First Applicant
| SZOAS |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are husband and wife, are citizens of Pakistan. The first applicant claims that, while in Pakistan, he rented his house to a member of “Jamaat ud Dawa”. He claims that the party was subsequently banned by the authorities and its members arrested. He claims that the police, believing him to be a member of Jamaat ud Dawa, are seeking to arrest him as well.
The first applicant claims to fear persecution in Pakistan because of his imputed membership of Jamaat ud Dawa.
After their arrival in Australia on 6 March 2009, the applicants lodged an application for a protection visa (the second applicant relying on her status as a member of the family unit). This was refused by a delegate of the first respondent (“Minister”) on 28 May 2009. The applicants then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicants’ application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
Background facts
The facts alleged in support of the applicants’ claims for protection visas are set out on pages 4 – 12 of the Tribunal’s decision (Court Book (“CB”) pages 96 – 104).
The first applicant made the following claims in the protection visa application:
a)he lived in Lahore but had a house in Okara which he rented to a Mr Hassan, the general secretary of Jamaat ud Dawa;
b)one day, when he went to collect the rent, he discovered that his house had been sealed by the government. A friend advised him that Mr Hassan had been arrested the night before and that the first applicant himself was wanted by the police as he was thought to be a member of Jamaat ud Dawa. He was advised that the police had already come to the premises three times in search of him;
c)he returned to Lahore. A few days later, while he was at work, he received a phone call from his wife, the second applicant, who told him that the deputy superintendent of police in Lahore had come “with force” to arrest him. His wife advised him not to come home;
d)there being no law or justice in Pakistan, he and the second applicant decided to escape to the countryside;
e)the Jamaat ud Dawa has been banned and most of its members have been arrested. He has no link with the party but fears that if he returns to Pakistan he will be treated as a member, arrested and sent to gaol; and
f)he and the second applicant travelled to Australia on a visa for medical treatment.
The applicants provided two documents to the Minister’s department in support of their application for protection visas. The first document, a report headed “Case number [XXX] at Police Station B-Division Okara”, states that on 6 December 2008 the police conducted a raid at the first applicant’s home in Okara and attempted to arrest “Hassan”, an “active member of Jamat-ud-Dawa”. The second document, dated 10 February 2009 and headed “Proclamation requiring the appearance of a person accused”, states that the first applicant was accused of committing an offence under section 87 of the Pakistani penal code and that a warrant had been issued for his arrest but that he had not been found. The document states that the first applicant was required to appear in court on 10 February 2009.
At the Tribunal hearing on 4 August 2009, the first applicant made the following additional claims:
a)he and the second applicant came to Australia to seek medical treatment as they have not been able to have children. This caused the second applicant a lot of distress;
b)they have not received any medical treatment since coming to Australia because they do not have the funds. They planned to sell the house in Okara but have not been able to;
c)the house in Okara is divided into three portions. The first applicant and his two brothers were each given a portion upon their marriages, although the property itself remained in their father’s name;
d)the first applicant owns two-thirds of the property as his elder brother gave him his portion. It is this portion which was locked up by the police. His other brother has taken possession of his portion and he lives there;
e)his other brother was questioned by the police after 10 February 2009 when the warrant was issued. His brother told the police that he had no connection with the first applicant as they were arguing and did not speak to each other;
f)the police also spoke to his father sometime after 10 February 2009. His father informed the police that Hassan was not known to him and that the first applicant was responsible;
g)his portion of the property was still locked up by the police. However, he had heard that the police were shortly to release the property at which point he would be able to sell his portion and follow up on medical assistance in relation to helping his wife have a baby;
h)despite the warrant for his arrest, he did not experience any difficulties when he departed Lahore airport for Australia as his friend worked at the airport and got him through all the channels;
i)in response to the Tribunal’s stated concerns about the genuineness of the documents he had submitted to the Minister’s department, the applicant said that he did not read the documents which he had submitted as he is a civilised person and does not like reading such documents;
j)he did not know why the police waited until February 2009 to look for him; and
k)he went into hiding after the police came to his house in Lahore on 17 February 2009 and spoke to his wife.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the first applicant claimed in his protection visa application that the police had come looking for him on three occasions in early December (2008) when Hassan was arrested. This was not consistent with his claim at the hearing that the police only became aware of his interest in the Okara property sometime after 10 February 2009 when they spoke to his father;
b)the first applicant constantly referred throughout the hearing to his wife and the pain she was enduring because of the applicants’ inability to have children, leaving the Tribunal with the impression that the first applicant was just “going through the motions” by attending the hearing and was, in fact, more concerned with the second applicant’s depression rather than with any claims of persecution in Pakistan;
c)the first applicant could not explain why the police, if they sought to arrest him in December 2008, took no action until February 2009 when they purportedly went to his house in Lahore and spoke to his wife;
d)the first applicant’s evidence that the police might be releasing his house in the near future was, in the Tribunal’s view, at odds with his claim that the police still want to detain him and have issued a document requesting his attendance at court;
e)the Tribunal was of the view that, had the police been interested in speaking to the owner of the property, they would have contacted the first applicant’s father much sooner than February 2009. Further, and having taken into account the independent country information relating to Jamaat ud Dawa, the Tribunal was of the view that the police would have sought to arrest the first applicant in December 2008 had they indeed suspected him of being a member of that group;
f)in the Tribunal’s view, the first applicant would have been familiar with the contents of the two documents if they had truly related to him;
g)having taken into account the sections of the Pakistani Penal Code referred to in the two documents, the Tribunal concluded that neither of the sections was relevant to the allegations which the first applicant claimed were being made against him; and
h)the Tribunal found that the first applicant’s evidence was fundamentally lacking in credibility and, for these reasons, rejected all his material claims.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
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).
2.The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in s.424A which relevantly states…
It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the credibility problems in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue.
Breach of s.425
The first ground alleged in the application was particularised as follows:
(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 be present in 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.
The Tribunal wrote to the applicants on 13 July 2009, saying that the hearing it proposed to hold would be undertaken remotely, with the applicants being in Griffith and the Tribunal being elsewhere. The copy of that letter, reproduced at CB 81, discloses that, as part of that invitation to a hearing, the Tribunal said:
If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible.
That invitation to a hearing was issued pursuant to the Tribunal’s obligations under s.425 of the Act, which relevantly provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 424C(1) or (2) applies to the applicant.
…
Significantly, for the determination of this aspect of the application, s.429A of the Act provides:
429A Oral evidence by telephone etc.
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
Clearly, the Act permits hearings to be conducted remotely and by video-link. The procedural fairness requirements of Tribunal hearings are codified in div.4 of pt.7 of the Act: s.422B. Section 429A is part of div.4 of pt.7. The consequence of this is that an applicant has no common law right to be in the same room as the Tribunal when a hearing takes place.
In dealing with an allegation effectively identical to the one being made in these proceedings, Reeves J concluded in SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 that s.425 of the Act did not require that an applicant have the opportunity to appear before the Tribunal in person. In this regard, his Honour expressly referred to s.429A, observing that that provision provided the Tribunal with power to conduct hearings remotely.
His Honour also observed that the Tribunal has discretion whether to use the power under s.429A. It may be in some circumstances that a miscarriage of discretion amounts to jurisdictional error. However, there is no suggestion here that the applicants objected to the Tribunal hearing being conducted by video-link. Indeed, the Court Book contains evidence which is quite to the contrary of that proposition. On
1 July 2009 the Tribunal wrote to the applicants, inviting them to a hearing in Sydney on 4 August 2009. A Tribunal file note is reproduced at CB 79 and records that the first applicant rang the Tribunal:
… to request that his hearing be held as a videoconference as he is in Griffith and is not in a position to travel to Sydney.
It can only be assumed that it was in response to that request that the Tribunal’s letter of 13 July 2009, inviting the applicants to a hearing conducted by video-link, was issued. Moreover, the first applicant has not suggested that he and his wife suffered any impediment in the presentation of their evidence and the arguments which they wished to make because the invitation to the hearing under s.425 was, in the circumstances, something other than a real and meaningful one, or that theirs was anything other than a real and meaningful hearing. Certainly, nothing of that sort was raised at the Tribunal hearing itself, the Tribunal’s decision recording that:
I asked the applicant if he wished to add anything further. He said he did not. I asked if he wished to provide further documents. He said he did not. He said he did not want to do anything further in relation to the application. (para.59)
Nothing has been put in evidence which would tend to throw doubt on the correctness of that statement. In the circumstances, the applicants have not proved that the Tribunal’s discretion miscarried by deciding to conduct the hearing by means of a video-link.
But, in any event, miscarriage of the discretion is not the real question. The real question is whether the Tribunal discharged its duty to conduct the review required of it by the Act: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]. I have not been taken to any evidence which would suggest that this was the case. Consideration of the Tribunal’s decision record does not suggest this, and I do not conclude that the Tribunal was guilty of jurisdictional error on the basis that, on this occasion, the video-link procedure prevented it from conducting a proper review and led to a constructive failure to exercise jurisdiction.
For these reasons, I find that the first asserted ground of review is not made out.
Failure to honour undertaking and breach of s.424A
In the second allegation, the applicants allege that the Tribunal undertook to invite them, pursuant to s.424A of the Act, to comment on credibility problems in the evidence they presented and that it failed to honour that undertaking. The allegation therefore has two parts, the first being the alleged fact of the undertaking and, secondly, the Tribunal’s obligations under s.424A.
Dealing first with the Tribunal’s duties under s.424A, that section relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
…
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department …
The Tribunal is only required to notify “information” to an applicant. In broad terms, “information” means facts. It certainly does not mean conclusions or concerns arising out of the evidence before the Tribunal. This was made conclusively clear by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190. In particular, the plurality said:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”
does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. (at 1196 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ)
What the applicants describe in their application to this Court as “credibility problems in my evidence” were no more than conclusions drawn by the Tribunal from the evidence before it. It concluded that the first applicant’s evidence was not credible but conclusions are not “information” for the purposes of s.424A. For this reason, the Tribunal had no obligation to give the undertaking which the applicants allege.
Turning now to whether any such undertaking was given, it should be noted that there is no evidence of such an undertaking. There is no correspondence from the Tribunal reproduced in the Court Book which substantiates this allegation, nor does the Tribunal summary of what was said at its hearing give the allegation any evidentiary support. The applicants have adduced no evidence to support the allegation, such as, for instance, a transcript of Tribunal hearing which recorded the Tribunal giving the alleged undertaking.
Consequently, I find that the applicants have not proved that the Tribunal gave the undertaking alleged, with the result that the second allegation made in the application fails on the facts.
Submissions today
At the hearing today, the applicants alleged that the Tribunal did not consider their claims carefully. The applicants did not explain what this meant, although they did go on to say that their claims were “considered lightly”.
It might be that the applicants were alleging a lack of good faith on the Tribunal’s part, or that it failed to undertake a proper hearing, or to properly consider their claims and evidence. I am satisfied that the Tribunal did consider the claims and evidence advanced by the applicants. I am also satisfied that proper and careful consideration was given to those claims and that evidence and that none of the criteria for a finding of a want of bona fides, as discussed in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 755-757, were present in this case.
However, the impression I received from the applicants’ submissions was that, in reality, they simply disagreed with the Tribunal’s finding on the merits of the visa application and reasoned that such a decision represented a failure to give proper consideration to their claims and evidence. That is to say, the real allegation is not that the Tribunal failed to do its duty but that its decision was wrong.
If I am correct in this conclusion, then it must be said that such an argument does not demonstrate jurisdictional error on the Tribunal’s part. Factual conclusions on matters not going to jurisdiction, including conclusions on the merits of applications, are not reviewable by the Court as they fall entirely within the Tribunal’s responsibilities. A disagreement with the Tribunal’s findings on the merits is not a basis to find reviewable error. So if I properly understand this to be the real basis of this allegation, I can only conclude that it does not amount to a basis upon which jurisdictional error can be found.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 29 March 2010
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