SZOQA v Minister for Immigration - [2011] FMCA 213

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOQA & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 213

MIGRATION – Application to review decision of the Refugee Review Tribunal – whether s.425 of the Migration Act requires that the Tribunal member and applicant are physically present in the one place for the hearing – application dismissed.

Migration Act 1958 (Cth), ss.36, 424A, 425, 426A, 429A

SZLLY v Minister for Immigration and Citizenship (2009) 107 ALD 352; [2009] FCA 185
SZOAR v Minister for Immigration and Citizenship [2010] FCA 777

First Applicant:

SZOQA

Second Applicant

SZOQB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2039 of 2010

Judgment of:

Barnes FM

Hearing date:

23 March 2011

Delivered at:

Sydney

Delivered on:

23 March 2011

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $4,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2039 of 2010

SZOQA

First Applicant

SZOQB

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 23 August 2010. The Tribunal affirmed the decisions of the delegate not to grant the applicants protection visas.
The applicants, who are husband and wife and citizens of India, arrived in Australia on 23 December 2009. For convenience, further references to “the applicant” are references to the applicant husband, the first applicant.
The applicants applied for protection visas in January 2010. The application was refused and the applicants sought review by the Tribunal of the delegate’s decision which had been made on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention and hence that his wife did not meet the criteria for such a visa either.
The applicants sought review of the delegate’s decision by the Refugee Review Tribunal. On 15 July 2010 the applicant attended a hearing conducted by video conference link between the Tribunal in Sydney and the applicant in Griffith. His wife was invited to but did not attend the hearing.
On 29 July 2010 the Tribunal wrote to the applicants inviting them to comment on information under s.424A of the Migration Act 1958 (Cth). In its reasons for decision the Tribunal recorded that it did not receive any response to its letter of 29 July 2010. It summarised the applicants’ claims as made in connection with the protection visa application, at the Departmental interview and at the Tribunal hearing.
In essence, the applicant claimed that he was a businessman from Gujarat in India and a BJP supporter and that he could not return to India because he was at risk of harm, having been “persecuted by Muslim thugs”.
His claim was that his problems arose out of difficulties he had with a tenant of his wife’s property. He claimed that they moved out of their home and rented it to a named person, who was said to be a “very influential Congress Party leader”.
In his protection visa application he claimed that when he went to the house to collect rent in July 2009, he was forced by people there to sign a piece of paper saying that he had sold the home to the resident of the house (although the “house was…in [his] wife’s name” and that he had reported this to the police, but that they did nothing because the tenant was a very influential Congress Party leader. He also claimed that in August 2009 he and members of the BJP went to the house to “kick…out” the tenant.
The applicant claimed that the next day people came to his parents’ home, attacked the home and fired on them, injuring his father and his uncle. He claimed that although he reported this matter to the police and the tenant’s brother was arrested, he was released the next morning without charge.
In the statement accompanying his protection visa application the applicant claimed that this incident “triggered…a political battle” and that his “party leader told [him] to leave the country for the time being”. He claimed that he feared for his life.
The Tribunal set out the elaboration and variations in these claims made by the applicant at the Departmental interview and at the Tribunal hearing.
In its findings and reasons the Tribunal accepted that the applicant was a citizen of India. I note, for reasons relevant to the grounds relied on by the applicant, that it made that finding based on the applicant’s passport, copies of which had been provided to the Department and the Tribunal.
On the same basis the Tribunal accepted that the applicant’s wife was a citizen of India. Moreover, notwithstanding that the wife did not fill out the part of the protection visa application form applicable to applicants who have their own claims for protection, the Tribunal nonetheless considered her claims to be a refugee, despite the fact that the applicant husband stated that he was not claiming that she had “her own rights to be [a] refugee”, but rather that she was “claiming mainly on property”, albeit she had the “fear” because the home in question was in her name.
The Tribunal observed that it had invited the applicant wife to the hearing but that she did not attend. While the applicant stated that she was ill and could not attend (that “she got wet in the rain and fell sick”), no medical evidence was provided. The husband said that his wife had not seen a doctor. The Tribunal decided not to offer the applicant wife a further opportunity to attend a hearing, having regard to her failure to attend as invited and the absence of any medical evidence in relation to the claim that she was too sick to attend.
It considered the applicant’s claim as a claim to fear persecution for reasons of membership of particular social group, religion and political opinion. However the Tribunal did not accept the claims that the applicant was persecuted in India or that he had a well-founded fear of being persecuted in India if he returned there. Nor did it accept the claims that his wife was persecuted in India or that she had a well-founded fear of being persecuted in India if she returned there.
The Tribunal found “that there were a number of significant inconsistencies and omissions in the evidence [which] significantly undermin[ed] the applicants’ credibility”. It did not accept the applicant’s explanations for such inconsistencies. (This is clearly a reference to the explanations given at the hearing that are set out in some detail in the Tribunal decision).
The Tribunal then referred in detail to a number of inconsistencies and omissions, including the difference between the applicant’s claim in his protection visa application about the name of the tenant and his claim at the hearing that the tenant had an additional name and that his surname had not been mentioned in his original statement because he had forgotten the person’s full name. The Tribunal expressed significant concerns that the applicant did not mention the full name of this person, particularly having regard to his claims about the position of such person who was said to be a very influential Congress Party leader to whom the applicant had rented a property since 2007.
The Tribunal also had regard to the fact that it had been “unable to find any reference” to a Congress Party member bearing either the name given in the protection visa application or the extended name later provided by the applicant. It found this significant, given that one of the bases for the applicants’ claim was that this person rented his property and then tried to force the applicant to sign it over to him, and that this led to the incidents of which the applicant complained.
The Tribunal reiterated its concern that the applicant did not mention the surname of this person until he came to the hearing, either in his written statement or to the Department at interview. In all the circumstances it concluded “the applicant [wa]s not telling the truth about the land dispute or about the threats and attacks on the applicants” and that there was not an influential Congress Party leader of either name given by the applicant who rented the property owned by the wife.
The Tribunal also expressed significant concern about the applicants’ claims that the tenant was in the Gujarat State Parliament and that there were State elections in 2005, in the light of the absence of any evidence that there was a Congress Party member under either of the names given or any variation thereof and having regard to information that there were not state elections in Gujarat in 2005. It rejected these claims and found the applicants’ claim that such person (by either name) “was a State MLA [wa]s not true”. It also referred to information before it that the State of Gujarat was in fact held by the Hindu Nationalist BJP, which had won back-to-back State elections on four occasions between 1995 and 2007.
The Tribunal also addressed the applicants’ claims that they had a well-founded fear of being persecuted for reasons of their religion, on the basis that the tenant was a Muslim. It was claimed that if the property was taken away from the tenant his community could “get together and persecute [either of the applicants] to get the property back”.
The Tribunal was not satisfied that there existed a person of either of the names given by the applicant who was a Muslim and in the State parliament in Gujarat. It did not accept there was a property dispute between the applicants and such a person. It did not accept that the applicants had been persecuted by Muslims because of their religion. It found the applicants’ more general “claims about being persecuted for reasons of their religion [to be] vague and unsubstantiated” and did not accept them.
The Tribunal also set out and discussed a “significant” inconsistency in the applicant’s evidence about what was said to have occurred when the tenant and others attacked his parents’ house, in particular whether people were fired upon or whether the thugs fired in the air. These inconsistencies led the Tribunal to conclude the applicant was not telling the truth. The Tribunal found that no one attacked the applicant, his father or uncle at his parents’ home and did not accept the “claims that the applicant was persecuted by Muslim thugs”.
Nor did the Tribunal accept the applicant’s explanation for an inconsistency in relation to his claims about who was injured after this claimed attack. It found a further inconsistency in the applicant’s claims about who was arrested and what occurred thereafter in relation to whether it was the brother of the tenant or the tenant.
In relation to the applicants’ claims that they had a well-founded fear of being persecuted for reasons of political opinion, the Tribunal noted that, despite his original claims that he was a BJP supporter, the applicant later stated he was not in the BJP. The Tribunal concluded that the applicant was not a member of the BJP.
It had regard to further inconsistencies in the applicant’s claims about the circumstances in which he said he went with a number of people to the house to try to force the tenant out and the number of people who were involved. It “considered the applicants’ claim that the incident triggered a political battle” and the applicant’s explanation for this claim but, having found there was “not a person” of either of the alleged names of the tenant who was a prominent member of the Congress Party, the Tribunal did “not accept that a political battle was triggered” as claimed. The Tribunal found “the incidents’ that the applicant claimed took place as a result of the claimed forced transfer of the property, did not take place”. In the absence of any information about a political battle being triggered in such circumstances, it did not accept that that had occurred.
The Tribunal found that the applicants did not have a well-founded fear of being persecuted for reasons of political opinion and that there was no evidence that they belonged to a political party. It did “not accept that the applicant [had] approached the BJP members to assist him with a property dispute”.
The Tribunal then addressed a number of other significant inconsistencies in the applicant’s evidence, including in relation to where his children were living at relevant times, the significance of inconsistencies in that respect, and the fact that the Tribunal did not accept the explanation the applicant gave at the hearing. It noted that it had written to the applicants inviting them to comment on this information. For reasons which it gave, it concluded the applicant was not telling the truth about where his children were staying. It did not accept that the children had to move because of the claimed problem.
The Tribunal also found that other aspects of the evidence were not credible, such as the claim raised for the first time at the hearing that since the applicant’s wife had not signed the property transfer, the property was still in her name, and “they ha[d] such power that they might kill” her. Nor did it accept unsupported, uncorroborated claims that the tenant had transferred bills to his name and bribed people in the government and changed names in relation to the property.
It also found aspects of the applicant’s evidence in relation to whether he was pursuing proceedings through court and the manner in which that was occurring not to be credible for reasons which it gave, in particular, that he claimed that if he went to court he, his wife and family might be killed, but he also claimed that he had given authority to his brother-in-law to pursue a claim and act in legal proceedings.
The Tribunal did not accept the applicants’ claims that they had “a well-founded fear of being persecuted for reasons of… membership of a particular social group, being the owner of land or the owner of land fraudulently taken by” the named tenant, in essence because it did not accept that there was a person of this name.
Thus, the Tribunal did not accept the applicants’ claims that they had a well-founded fear of being persecuted for a Convention reason, that they had been persecuted or harmed or threatened in the past, or that they were “on the run for three months”. Nor did it accept that the applicant or his family were attacked or that the applicant had reported the matter to the police. It observed that, even if such events had occurred (which it did not accept), the applicant had given evidence that he had sought state protection. The Tribunal was “satisfied that he would be willing and prepared to seek state protection” from the authorities, which, based on his evidence, was adequate state protection.
The Tribunal concluded that there was not a real chance that the applicants would face serious harm for reasons of their religion, political opinion, membership of a particular social group or for any other Convention reason now or in the reasonably foreseeable future if they returned to their country. As the applicants did not satisfy the criterion in s.36(2)(a) of the Migration Act, they were unable to satisfy the criterion in s.36(2)(b) of the Act, which relates to family members. The Tribunal affirmed the delegate’s decision.
The applicants sought review by application filed in this court on 15 September 2010. There is one ground in the application. It is that “[t]he Tribunal failed to provide the applicants with an opportunity to appear before it, and thus failed to comply with the mandatory requirements of section 425(1)” of the Act.
The particulars to this ground are that “Section 425 mandates an oral hearing at which the applicant and Tribunal are physically present (giving the word ‘before’ its natural English meaning, in the context, ‘in front of’) in the one place, in order that the Applicant may present their case” and that “The Tribunal was not physically present at the hearing, because the Tribunal was in Sydney and Applicant was in Griffith, and thus the Applicant did not ‘appear before’ the Tribunal”.
While the applicant did not file written submissions and had nothing to say in initial oral submissions in relation to this ground, in his reply to the first respondent’s submissions he raised a fresh matter. I allowed him to do so and also heard from respondent’s counsel in relation to the applicant’s contention that it was relevant that he was not able to give his passport to the Tribunal at the hearing. This was said to be relevant in relation to his claim that he had lived in England for a couple of months, but had not settled there and come to Australia.
It is convenient to deal first with this specific issue. In the Tribunal reasons for decision the Tribunal noted that at the hearing it had allowed the applicants until 29 July 2010 to provide further documents or information, but that other than copies of their passports and notification of their change of address, they did not provide further information, and, as indicated, did not reply to the Tribunal’s s.424A letter.
As set out above, the Tribunal relied on the applicants’ passports to accept that they were Indian citizens. Included in the court book are copies of extracts from the passports provided to the Department. Insofar as the applicant appeared to contend that some disadvantage flowed from not being physically present and hence able to hand over his passport at the Tribunal hearing, such a claim is not such as to suggest that he was not able to give his passport to the Tribunal for it to be taken into account, albeit not in person. This issue is not indicative of any jurisdictional error.
Dealing more generally with the applicants’ claim, it is that the Tribunal and the applicant have to both be physically present at the same place for a hearing to be conducted in accordance with s.425 of the Act or for the applicants to be provided with the opportunity to appear required by s.425 of the Act.
Section 425 of the Act appears in Division 4 of Part 7 of the Act. It provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising to the decision under review. However, relevantly (and this was not addressed by the applicant) s.429A of the Act, which also appears in Division 4 Part 7 of the Act, is as follows:
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.
This clearly gives the Tribunal a discretion to allow an applicant to appear for the purposes of a hearing under s.425 of the Act by one of the methods provided for in that section.
In this case what occurred was that the applicants sought review by application received by the Tribunal in Sydney on 17 May 2010. In that application, the applicants gave a residential address in Griffith in New South Wales. They also gave a postal address, being a post office box in Mildura in Victoria. The Tribunal wrote to the applicants at that postal address acknowledging receipt of the application and advising them that they must tell the Tribunal immediately if they changed contact details, such as their home address or mailing address.
The court book contains an unexplained case note of the Tribunal bearing the same date as that initial letter, observing that the applicants’ residential address is an address that commenced “3/60” in a street in Griffith. There is no evidence as to why that case note was recorded. I note that the manner in which the residential address was handwritten in the application form may have been taken to read “3-1-6-0” rather than “3/60”, but also that the applicants claimed to live in New South Wales despite the Victorian postal address.

In any event, relevantly, the Tribunal wrote to the applicants at the Mildura postal address by letter of 15 June 2010 inviting them to attend a Tribunal hearing at a date, time and place stated. There is no claim and there is nothing to suggest that the form of that letter failed to comply with the obligations of the Migration Act in relation to a hearing invitation letter. Relevantly, and one may observe, unsurprisingly in light of the information before the Tribunal from the applicants about their home address, the Tribunal stated that the location of the hearing would be at a specified place in TAFE in Griffith. It continued:
Arrangements have been made to conduct the hearing by video conference. The member and interpreter will be in Sydney. If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible.
The letter noted that the applicants “should bring their passport(s) (if available) to the hearing”.
A subsequent Tribunal case note dated 9 July 2010 records a telephone conversation. The review applicant telephoned the Tribunal. It records that he said his hearing the next week had been booked for him to go to Griffith, but he lived in Mildura and that Griffith was too far away for him to travel.
The Tribunal officer recorded that, having checked the records, the officer confirmed the applicant had a post office mailing address in Mildura but that there was a case note stating that his residential address was Griffith. However, when asked if he had ever lived at that address in Griffith, the applicant had said “No.”
The officer recorded that he advised the applicant that checks would be made and he would be called back with an interpreter. A case note of the same date, apparently an hour and a half later, records that the applicant was contacted, using an interpreter, at the Tribunal Member’s instructions, and that the applicant was informed that:
…the hearing scheduled for 15 July will proceed in Griffith as scheduled, or he could attend the hearing in Sydney if he would prefer.
It recorded that the applicant said that Sydney was too far for him to travel and he would prefer to attend in Griffith. There was also a discussion of the language required for an interpreter. The Tribunal confirmed that this would be arranged.
There is no evidence before the court as to whether the applicants returned to the Tribunal the completed Response to Hearing Invitation Form.
There is then a somewhat inconclusive case note dated 12 July 2010, (three days before the scheduled hearing date) of a Tribunal officer recording that, as per the Member’s instructions, he attempted to contact the applicant, that the phone went to voicemail, and that the interpreter left a message for the applicant to call the officer on his extension urgently. The case note records:
I did not provide any information about the possible change in hearing location on the voicemail message.
The Tribunal hearing record for 15 July 2010 records that a hearing was conducted by videolink that was attended by the applicant husband, the video being provided through the Griffith TAFE and the hearing taking from 9.30 am to 1.09 pm.
A copy of a handwritten document, which appears to be a copy of a facsimile sent from Griffith TAFE on 15 July 2010 at 1.23 pm, provides a residential address for the applicant in Mildura.
These are the circumstances in which the applicant contends that there was a failure by the Tribunal to comply with s.425 of the Act. I note first that there is nothing in the evidence before the Court to suggest that the applicant raised with the Tribunal any concern about the conduct of the Tribunal hearing by way of videolink, that is about the method of the conduct of the hearing, as distinct from the fact that he said that it was too far to go to Griffith from Mildura, but then said he would prefer Griffith to Sydney.
Further, the Tribunal gave the applicant the opportunity to provide further documents or information after the hearing. The applicant did not take that opportunity thereafter. There is nothing in the Tribunal decision to indicate that any concern was expressed to it by the applicant about the method of conducting the hearing. Indeed the Tribunal’s account of the hearing suggests that it was extensive and comprehensive and involved a detailed exploration of all of the Tribunal’s concerns in relation to the applicant’s claims. There is nothing in the material before the court to raise any concern about the method of conducting the Tribunal hearing, such as any issues of comprehension or communication, or difficulties occasioned by the fact that the Tribunal and the applicant were not physically present at the same place.
As the first respondent contended, the applicants’ contention that s.425 of the Act requires that both the applicant and Tribunal are physically present in the one place cannot be maintained in the face of s.429A of the Act, which expressly empowers the Tribunal to conduct a hearing by videoconference (that is by “closed-circuit television”). This contention was made on the basis of general principle, the language of the sections and fact that ss.425 and 429A are both in Division 4 of Part 7 of the Act. I accept such submissions, which I note are in accordance with a number of decisions of the Federal Court taking that approach. While not cited, I refer in passing to SZOAR v Minister for Immigration and Citizenship [2010] FCA 777 where a similar issue arose. The Tribunal’s hearing invitation was in the same terms, relevantly including the option to appear in person in Sydney, as was the case in this instance. There are a number of other authorities to the effect that s.429A expressly allows for appearances before the Tribunal to be conducted by way of “closed-circuit television”.
Section 429A is an enabling provision that confers a discretion on the Tribunal. There is nothing in the circumstances of this case to establish that the exercise of the Tribunal’s discretion to conduct the hearing in that way in any way miscarried. In particular, both in the hearing invitation letter and in telephone conversations with the applicant, he was advised that he could attend the hearing in person in Sydney. He did not take issue with the method of the hearing with the Tribunal and there is nothing in the circumstances of this case or the Tribunal’s account of the hearing to raise any suggestion that the hearing could not be or was not conducted fairly and effectively by use of a videoconference link.
Notwithstanding that issues of credit arose and matters relevant to credit were discussed at the Tribunal hearing, there is nothing to suggest that the fact that the applicant was not physically present in any way affected the Tribunal in properly exercising its discretion as to the method of hearing. This is not a case in which a large number of documents had to be handed over and, as indicated, the Tribunal was clearly aware of and was provided with what was in the applicant’s passport, insofar as that was raised by the applicant.
The applicant attended the hearing. This is not a case in which, in relation to the applicant husband, any issue arose as to whether the invitation was a real and meaningful invitation as required by s.425 of the Act.
I note that the applicant wife did not attend the hearing and that although she did not formally make claims to be a refugee, the Tribunal nonetheless considered her claims on that basis. Insofar as she failed to appear, it did determine to proceed with consideration of her claims without taking any further action to allow her to appear before it. If the applicants’ claims are intended to contend that the Tribunal did not exercise its discretion under s.426A or otherwise in relation to the applicant wife reasonably, that is not made out.
In particular, there is nothing to suggest that the method of hearing – or, indeed, the fact that the videoconference was conducted from Griffith and not from a place closer to Mildura – was a matter of concern to her or that it was the reason for the applicant wife’s non-appearance in circumstances where her husband attended in Griffith. There is, for example, no suggestion of any financial inability on the part of the wife to attend the hearing (compare SZLLY v Minister for Immigration and Citizenship (2009) 107 ALD 352; [2009] FCA 185, where the issue was whether there should be a videoconference link to a place close to the applicant or a personal attendance in Sydney. Those were, however, rather different circumstances to those in issue in this case).
Further, in deciding to proceed in relation to the applicant wife’s application, the Tribunal considered the applicant’s claim that his wife did not attend the hearing because “she got wet in the rain and fell sick”, that he did not have a medical certificate for her and that she had not seen a doctor. There is nothing in the circumstances of this case to establish that the Tribunal’s decision in those circumstances not to offer the applicant wife a further opportunity to attend a hearing in the absence of medical evidence, was such as to indicate any failure to comply with s.425 of the Act or a failure to exercise its discretion under s.426A of the Act reasonably, whether because of the method by which the hearing was conducted or otherwise.
Thus, the Tribunal had the power to conduct the hearing by way of videolink. The exercise of its discretion in that respect did not miscarry, particularly having regard to the fact that the applicants were given the option to attend in person at a hearing in Sydney where the Tribunal Member and the interpreter were present and in the absence of evidence or even particulars about the conduct of the hearing or the processes followed by the Tribunal to support any contention that the opportunity required under s.425 of the Act was not afforded to either of the applicants in this case. No failure to comply with s.425 or other jurisdictional error is established on the basis contended for by the applicants.
Accordingly, the application should be dismissed.
RECORDED : NOT TRANSCRIBED
The applicants have been unsuccessful and the Minister seeks costs in the sum of $4,700. The applicant told the court that he was unable to pay that money. However, the applicant’s lack of funds is not a reason for departing from the normal principle that unsuccessful applicants should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 12 April 2011