SZOCI v Minister for Immigration
[2010] FMCA 336
•10 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOCI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 336 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424AA, 424A, 425, 426A |
| Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 SZLLY v Minister for Immigration and Citizenship (2009) 107 ALD 352; [2009] FCA 185 SZNJE v Minister for Immigration and Citizenship [2010] FCA 76 |
| First Applicant: | SZOCI |
| Second Applicant: | SZOCJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 64 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 10 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2010 |
REPRESENTATION
| First Applicant: | In person |
| Counsel for the First Respondent: | Mr P Reynolds |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 64 of 2010
| SZOCI & SZOCJ |
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 18 December 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 and citizens of India, arrived in Australia in June 2009 and applied for protection visas. The applicant husband completed Part C of the application form as an applicant who wished to submit his own claims to be a refugee. The applicant wife completed Part D as an application for a member of the family unit.
The application was refused by a delegate of the first respondent and the applicants sought review by the Tribunal. On 1 October 2009 the Tribunal wrote to the applicants inviting them to attend a Tribunal hearing on 9 November 2009 in Melbourne. The address to which the Tribunal wrote was an address in Victoria that was provided in the review application.
In a letter dated 2 November 2009 to the Tribunal from the applicant husband headed Request to Change Hearing Place, a copy of which is included in the material before the court, the applicant gave an address in Mundubbera, Queensland for any correspondence. He stated that having been unsuccessful in finding work in Victoria, he and his wife had moved to Mundubbera. The letter continued:
But unfortunately I am not getting enough work and my financial condition is not good so I can’t afford to travel from Mundubbera QLD to Melbourne to attend the Hearing on 9 November 2009…
The applicant stated that he requested a hearing in Mundubbera.
The Tribunal wrote to the applicants on 5 November 2009 stating that on 2 November 2009 it had received a request that the hearing be postponed, that the presiding member had agreed to the request and the hearing had been rescheduled. The letter set out details of the postponed hearing to be held on 19 November 2009 at a location in Brisbane, Queensland and advised that arrangements had been made to conduct the hearing by video conference with the member and interpreter in Melbourne, but that if there was a preference to attend in person in Melbourne the applicants should contact the Tribunal as soon as possible.
The letter also advised that the applicants should contact the Tribunal if they were unable to attend the hearing and that if they failed to attend the hearing the Tribunal may make a decision without taking any further action to allow or enable them to appear before it.
In its reasons for decision the Tribunal recorded that the applicant husband appeared before it on 19 November 2009, but stated that his wife had not attended the hearing because she was “unwell”, “feeling very bad; she had a cold, the flu and was coughing. She had not sought any medical attention”. The Tribunal recorded that it “indicated that if the applicant provided evidence (such as a medical certificate) within seven days that his wife was unwell then it would provide her with another opportunity to give evidence to the Tribunal”.
Before turning to the findings and reasons in relation to the applicant husband, I note in relation to the applicant wife that the Tribunal recorded that it had not received any medical evidence that indicated she was medically unfit to attend the hearing on 19 November 2009, that it was satisfied she was invited to appear before it to give evidence and present arguments regarding the issues arising in her case and that she had been advised that if she failed to attend the hearing the Tribunal may make a decision without taking further action to allow or enable her to appear before it. In those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth), the Tribunal decided to make a decision on the review without taking any further action to enable the applicant wife to appear before it.
The Tribunal reasons for decision summarised the evidence given at the hearing and matters raised with the applicant husband.
The Tribunal addressed the applicant’s claims that he was a Hindu farmer who lived in a village dominated by Muslims. In connection with his protection visa application he had claimed that a particular named Muslim dominated Hindus by interrupting cultural activities, that he had connections with an underworld gang and had been arrested many times and had contacts with many politicians. Relevantly the applicant claimed that this person planned to build a factory in the village close to the applicant’s land and that he wanted to “grab” that land due to “a water problem at his site”. The applicant husband claimed that he refused to sell and that this person procured false documents showing that his wife owned the land and forced the applicant’s family to vacate their land. The applicant claimed that his home was attacked twice by this person and “his gang”, that they complained to the police but that no action was taken, and that after the applicant sold some of the land to a third party this person tried to kill both the applicant husband and wife on two occasions.
The applicant claimed if he returned to India his life would be endangered by this person as it would be hard to live anywhere other than the village due to the applicants’ age and their lack of relatives and friends elsewhere. He claimed that this person would chase them to any other location through his contacts.
The applicant elaborated on these claims at the Tribunal hearing. The Tribunal recorded that the applicant told it that he had been verbally and physically abused and threatened by this person and that he would be killed if he did not give him the land. However that the applicant resiled from certain of the claims in his protection visa application, including the claim that a factory was planned by this person, that the applicant had reported his problems to the police, that he had sold part of his land to a third party and that the feared person had interfered with cultural activities.
In its reasons for decision the Tribunal expressed concern about the veracity of the applicant’s claims and evidence. It referred to a number of significant inconsistencies between the protection visa application claims and what the applicant told the Tribunal at the hearing. It also had regard to the applicant’s inability to explain how he could afford to purchase the land in question and why relatives had bought the land for him. The Tribunal did not understand why the applicant’s relatives would have paid for his airfare and expenses to Australia, rather than providing money to assist him to resolve the land dispute. It also found that some of the applicant’s evidence was illogical and inconsistent in relation to whether the land in question had been left vacant after he came to Australia.
The Tribunal found that the applicant’s claim that as a Hindu he was unable to obtain protection from the authorities was not consistent with country information about the part of India in question.
The Tribunal also had regard to inconsistencies between the applicant’s claims for protection and his claims about his background in his visitor visa application in which he claimed to be a businessman and provided a considerable amount of supporting documentation. The Tribunal found that this material cast considerable doubt on the applicant’s claims and did not accept that the detailed and extensive supporting documentation was fraudulent and obtained as a result of paying a bribe as the applicant claimed at the hearing.
Based on inconsistencies, vagueness in oral evidence, country information and the material in the visitor visa application, the Tribunal did not accept that the applicant’s only income in India was as a farmer. Nor did it accept that a Muslim neighbour was attempting to seize the applicant’s land and threatening to kill him, that he and his wife had been verbally and physically abused by this well-connected Muslim neighbour, or that the police would fail to protect him. It found that the applicant did not have a well founded fear of persecution.
In the alternative, the Tribunal found that even if it were to accept that the applicant was being harassed by a neighbour who wanted his land, the essential or significant reason why this person wanted the land was because of its amenity to water, and not for a Convention reason. The Tribunal also found that the authorities would not discriminatorily withhold protection from the actions of such person for any Convention reason. Hence it concluded that even if it accepted the applicant’s account, his fear of persecution was not for any Convention reason and he was not a refugee within the meaning of the Refugee Convention. Consequently it also found that the applicant wife did not have a well founded fear of persecution for a Convention reason.
The applicants sought review by application filed in this court on 15 January 2010. The applicant husband attended the hearing on his own and his wife’s behalf.
There are four grounds in the application. The applicants did not file written submissions. The applicant husband had nothing to add to what was in writing, other than to say that the application was correct.
The first two grounds in the application allege a failure to comply with s.424A of the Migration Act, first on the basis that:
The Tribunal ignore (sic) its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence…
Insofar as this is a contention that inconsistencies had to be put to the applicant under s.424A of the Act, inconsistencies do not fall within the concept of information in s.424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [19]). Insofar as it refers to an “undertaking” on the part of the Tribunal, no such undertaking is apparent on the material before the court. It is the case that in the course of the hearing the Tribunal recorded that it discussed with the applicant the contents of his visitor visa application, that it put this material to the applicant pursuant to s.424AA of the Act and that the applicant indicated he would like to make a written response in relation to what the Tribunal had put to him. The Tribunal indicated that the applicant could provide a written response within 14 days of the hearing. Hence, the Tribunal afforded the applicant an opportunity to comment on the information in the visitor visa application in accordance with s.424AA. Thus no obligation to put this material to the applicant in writing arose under s.424A. (see s.424A(2A)). Further, while the Tribunal gave the applicant the opportunity to provide a written response within 14 days, it recorded that no further information, submission, or medical evidence was received from the applicant subsequent to the hearing. The applicant does not claim that he in fact provided such information to the Tribunal. No jurisdictional error is established on the basis contended for in ground 1 of the application.
The second ground is that the Tribunal failed to comply with s.424A by failing “to give the applicant before the hearing the information it had about law and order in Gujarat and other independent information it had about Gujarat”. However country information is within the exception to the operation of s.424A(1) in s.424A(3)(a) of the Act, and no failure to comply with s.424A is established in relation to such information. I note for the sake of completeness that it is apparent from the Tribunal account of the hearing that it raised the issue of why the applicant did not go to the police and the fact that Muslims were in the minority in the area in which he lived in the course of the hearing. Ground 2 is not made out.
The third ground is that the “applicants satisfy the four key elements of the Convention definition”, that the Tribunal did not consider this aspect and thereby “committed factual and legal error”. Insofar as this ground seeks merits review, merits review is not available in this court. Moreover the Tribunal did in fact consider the application of the elements of the Refugee Convention insofar as was necessary to do so given its factual findings, in particular that there was no Convention basis for the claimed fear of his Muslim neighbour. No jurisdictional error is established on this basis.
The last ground in the application is that the Tribunal “failed to investigate” the applicant’s claim, “specially (sic) the grounds of persecution in India” and that therefore the Tribunal decision was affected by actual bias constituting what I think is meant to be a reference to “jurisdictional” (rather than “judicial”) error.
First, while the duty to inquire has been considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 in circumstances which allow some scope for a failure to make an obvious inquiry about a critical fact to be seen as a failure by the Tribunal to carry out a review, this does not mean that there is a general duty to inquire as appears to be contended for in this ground.
The applicant did not elaborate on the grounds in his application either in written or oral submissions and did not identify what inquiry the Tribunal was said to have failed to carry out, let alone why such inquiry could be seen as obvious and as relating to a critical fact (SZIAI). Nor is anything apparent on the material before the court that would be within any “duty to inquire” as considered in SZIAI. As there was no such failure to inquire, the allegation of actual bias on that basis is not made out.
Nor is there anything in the material before the court indicative of either actual or apprehended bias. It is a rare case in which actual bias will be established on the basis of the Tribunal reasons alone (see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, SZHVL v Minister for Immigration and Citizenship [2008] FCA 356). This is not such a case. Rather, the decision record reveals that the Tribunal was aware of the law to be applied, considered the applicant’s written and oral claims, gave him an opportunity to elaborate on his claims and to address its concerns, considered independent country information and assessed the applicant’s claims in view of the applicable law and on the evidence before it.
Rejection of the claim that the applicant had a well-founded fear of persecution does not establish either actual or apprehended bias. It does not indicate that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). Nor is it such as to lead a fair-minded and informed person to reasonably apprehend that the decision-maker might not have brought an impartial mind to bear on the decision (see NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328). I note in that respect that the Tribunal went on to consider that even if it were to accept that the applicant was harassed by a neighbour who wanted his land as claimed, on his own evidence that person was not motivated by any Convention reason. This ground is not made out.
I raised with counsel for the first respondent the issue of whether any concerns arose from the manner in which the Tribunal dealt with the applicant’s application for a hearing in Queensland or the manner in which the Tribunal considered and made its decision on the review in relation to the applicant wife given her absence at the hearing.
The Tribunal clearly considered the applicant’s request that the hearing be in Queensland, as he could not afford to travel to Melbourne. It agreed that the hearing could be postponed and the hearing was re-scheduled in Queensland, albeit not in the applicant’s home town of Mundubbera as requested but rather in Brisbane. The Tribunal also indicated that the hearing could be conducted by video conference, but that if the applicants preferred to attend in person in Melbourne they could contact the Tribunal.
In some circumstances where an applicant claims an inability to attend in person a scheduled hearing for financial reasons, an issue may arise as to whether or not an applicant has been given a real and meaningful invitation to a hearing. (See SZLLY v Minister for Immigration and Citizenship (2009) 107 ALD 352; [2009] FCA 185). However this was not an issue raised by the applicant and given that the applicant husband attended the Tribunal hearing it cannot be said that he was denied any opportunity, let alone a real opportunity, to attend the Tribunal hearing, or that the Tribunal failed to extend the hearing invitation required under s.425 of the Act. In contrast, in SZLLY a Tribunal had not accepted that the cost of travelling from country New South Wales to Sydney was a valid reason for re-scheduling a hearing or organising a video hearing. The applicant in that case did not attend the hearing. The Tribunal made its decision on the review without taking any further action to enable the applicant to appear before it. Perram J accepted, on the basis of the applicant’s claim to the Tribunal about his financial circumstances, that the appellant was financially unable to attend the hearing and found that there was no real invitation to a hearing as required by s.425 of the Act.
As indicated, in this case the applicant husband did attend the hearing. There is no basis for applying the principles in SZLLY or to indicate that the invitation in that respect was not real and meaningful. (See generally, SZNJE v Minister for Immigration and Citizenship [2010] FCA 76).
The applicant wife did not attend the hearing. The applicant’s letter of 2 November 2009 referred only to the applicant husband’s financial circumstances. Even if this was seen as extending to the applicant wife, the applicant husband attended the Tribunal hearing and raised no issue about the costs of attendance in relation to his wife. Rather he said she had not attended the hearing because she was unwell. Thus no issue of whether the Tribunal failed to comply with s.425 because of the place at which the hearing was held arises in relation to the applicant’s wife’s failure to attend. The invitation to the wife was real and meaningful. The hearing was postponed and re-scheduled to enable both applicants to attend in Queensland rather than having to travel to Melbourne and no further issue was taken by either of the applicants with the location of the hearing. (Cf SZLLY and SZNJE).
The other issue in relation to the applicant wife arises because the Tribunal treated the applicant wife as a person who made her own claims for protection, consistent with the written claims in the protection visa application and notwithstanding that she had completed a protection visa application as a member of the applicant husband’s family unit. In those circumstances the Tribunal recorded that it had not received any medical evidence to indicate that the applicant wife was medically unfit to attend the Tribunal hearing, notwithstanding that the opportunity to provide such evidence had been afforded through the applicant husband, and decided pursuant to s.426A of the Act to make a decision on the review in relation to the wife without taking any further action to allow or enable her to appear before it.
As pointed out for the first respondent, no issue was raised about the wife’s non-attendance at the Tribunal hearing in these proceedings. The applicant wife did not attend the hearing today and no issue was raised in this respect by the applicant husband. In any event, consistent with the approach taken in SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789 and NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 this is not a case in which the Tribunal’s exercise of its discretion under s.426A miscarried or in which there could be said to be a breach of s.425 (cf SZLLY) assuming that these provisions are applicable given that the evidence raised the possibility that the applicant wife had her own protection claims, albeit that she had not brought her application on that basis.
The Tribunal asked the applicant wife, through her husband, to provide supporting material to make good her claimed inability to attend the Tribunal hearing. It did not receive any such material and in those circumstances there is nothing to show that the Tribunal either failed reasonably to consider its discretion under s.426A of the Act or that the invitation afforded to the applicant wife was not a real and meaningful invitation.
No jurisdictional error is established on the material before the court in relation to the place of the Tribunal hearing or the Tribunal’s procedure in relation to the applicant wife.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 20 May 2010
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