SZOZE v Minister for Immigration - [2011] FMCA 300

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOZE v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 300

MIGRATION – Review of decision of the Refugee Review Tribunal – whether there was a breach of procedural fairness – whether there was a failure to make an inquiry – no critical fact to be easily ascertained – no denial of procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.414, 425, 425A, 426, 426A, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 187 ALR 117; (2002) 76 ALJR 598
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 922
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; (2009) 83 ALJR 1123
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 154 FCR 572
SZHVR v Minister for Immigration and Citizenship [2008] FCA 776

Applicant:

SZOZE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 193 of 2011

Judgment of:

Nicholls FM

Hearing date:

21 April 2011

Date of Last Submission:

21 April 2011

Delivered at:

Sydney

Delivered on:

13 May 2011

REPRESENTATION

Appearing for the Applicant:

Mr M Newman

Solicitors for the Applicant:

Newman & Associates

Appearing for the Respondents:

Ms S Burnett

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 8 February 2011, and amended on 21 April 2011, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,260.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 193 of 2011

SZOZE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made under s.476 of the Migration Act 1958 (Cth) (“the Act”) on 8 February 2011, and amended on 21 April 2011, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 January 2011 which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The applicant is a national of India who first arrived in Australia on
12 September 2004 and departed on 10 December 2004. He subsequently re-entered Australia on 4 February 2005, and he and his wife and two minor children (aged 11 and 3 respectively) applied for protection visas on 6 July 2010 (Court Book – “CB” – CB 1 to CB 45). Relevantly, only the applicant husband made claims to be a refugee. His wife and children applied as members of his family unit. They did not advance claims to be refugees in their own right. Nor were any such claims advanced by the applicant on their behalf (CB 25 to CB 43).
The applicant’s claims to protection were set out in a written statement (CB 43 to CB 45). These were that he feared persecutory harm from the Indian authorities because of the perception that he, his father and brother were supporters of militant groups arising out of the family’s printing business having printed materials for them.
The delegate refused the application on 13 September 2010 (CB 54 to CB 66).

The Tribunal

The applicant and his family applied for review to the Tribunal on 27 September 2010 (CB 67 to CB 70). In this application the wife relevantly declared (CB 70.5):
“Unless I advise the Tribunal otherwise, I authorise the Tribunal to communicate with Applicant 1 [in context her husband] or his or her authorised recipient about this application.”
Purported declarations from the two children were also included (CB 70.6).
By letter dated 28 September 2010 the Tribunal wrote to all the applicants, sent to the address for service and, consistent with the declarations, addressed to the applicant (CB 71). The letter acknowledged receipt of the application. Relevantly, the letter also stated (CB 71.6):
“… If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.”
By letter dated 19 October 2010 and sent by registered post to the address for service and addressed to the applicant, the Tribunal invited all the applicants to a hearing scheduled for 7 December 2010 (CB 72 to CB 73). A “Response to Hearing Invitation” form was enclosed.
This form was returned to the Tribunal. It was signed by the applicant and dated 5 November 2010. In answer to the question: “Will you take part in the Tribunal hearing scheduled for 7 December 2010?” the indication was “yes” for each of the four applicants (CB 74.4).
By letter dated 1 December 2010, but sent by facsimile on 6 December 2010, the applicant wrote to the Tribunal in the following terms:
“I am writing in regards to my hearing scheduled on 7 December 2010.
I am not well and my wife is suffering from acute influenza possibly swine flu with high fever.
We may be quarantined for further observation. It would be ideal if an alternate hearing date is granted for we are waiting for the medical result.”
Accompanying this letter and also sent by facsimile on 6 December 2010 was a medical certificate signed by a doctor from the “Campsie Medhealth Centre”:
“This is to certify that [the applicant’s wife] is, in my opinion, suffering from acute influenza possibly swine flu with high fever, generalised ache and diarrhoea and will not be fit for duty from Friday, 3 December 2010 to Tuesday, 7 December 2010 inclusive.”
The Tribunal responded by letter dated 6 December 2010 and sent by express post to the applicant at the address for service. In part the letter advised:
“Dear Mr [Applicant], Mrs [Applicant Wife], Mr [Applicant Child] and Mr [Applicant Child],
REQUEST FOR POSTPONEMENT – MR [APPLICANT], MRS [APPLICANT WIFE], MR [APPLICANT CHILD] AND MR [APPLICANT CHILD]
I am writing about the applications for review made by you in relation to decisions to refuse to grant Protection (Class XA) visas.
On 19 October 2010 we sent a letter inviting you to attend a hearing at the Tribunal on 7 December 2010 to give evidence and present arguments relating to the issues arising in your case. On 6 December 2010 the Tribunal received a request that the hearing be postponed. The Presiding Member has agreed to the request and the hearing has been rescheduled.
The new hearing date and time are set out below. Please note that all other hearing details are unchanged.”
Another “Response to Hearing” form was enclosed.
This was returned to the Tribunal by facsimile on 9 December 2010.

It indicated that only the applicant would attend. No indication was made one way or the other as against the names of the applicant’s wife or the children (CB 80.5). The letter was signed by the applicant and dated 9 December 2010 (CB 81).
The applicant attended the hearing on 10 December 2010. The applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred. Relevantly, the Tribunal reported:
“[22] The applicant appeared before the Tribunal on 10 December 2010 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
[23] The Tribunal noted that the applicant wife was not in attendance. The applicant stated their children had to go to a medical check-up and she had also gone. The Tribunal indicated that it had already adjourned the matter and there was no medical evidence before it that indicated his wife could not attend. The applicant indicated he had sent a fax saying he would be attending. The Tribunal asked the applicant if his wife had anything to add to the evidence. He indicated there was nothing she wanted to say. The Tribunal indicated in these circumstances it would proceed.
[24] The applicant stated he and his wife had completed the forms and wrote their statements. He stated he had read it and it was correct and he did not want to add anything.”
Following the hearing, the Tribunal wrote to all the applicants by letter dated 13 December 2010 and sent to the applicant at the address for service. The letter invited all the applicants to comment on certain information that the Tribunal said would, subject to comments, be the reason or a part of the reason for affirming the delegate’s decision (CB 91 to CB 93).
A response dated 3 January 2011 was sent on 5 January 2011. It was signed by the applicant (CB 94 to CB 97). For reasons which will become clear, the following is relevant to the applicant’s complaint (CB 97.7):
“… I am happy to attend a hearing to explain the above details and other discrepancies [in his evidence and claims]. My wife is also willing to come for a hearing.”
The Tribunal proceeded to make its decision on 13 January 2011.

It noted in its “Findings and Reasons” (at [40] at CB 109):
“The Tribunal has noted that the applicant stated in his response to the letter sent after hearing that he is happy to attend another hearing to explain the above details and discrepancies and that is [sic] wife is also willing to come for a hearing. However the Tribunal considers that in the circumstnaces [sic] of this case, it has given both the applciant [sic] and his wife sufficent [sic] opportunities to comment or respond on their case. Accordingly, it has proceeded to make a decision without taking any further action.”
The Tribunal did not find the applicant to be a credible witness.

Its reason was that: “… major parts of his story continued to change with each telling…” ([43] at CB 110). It gave examples of these inconsistencies ([43] – [44] at CB 110).
As to the applicant’s wife and children, the Tribunal found (at [46] at CB 111):
“No specific Convention claims were made by or on behalf of the other applicants. The fate of the other applicant’s application therefore depends on the outcome of the first named applicant’s application”.

Before the Court

The application to the Court contained only one applicant. The applicant’s wife and children were not included. That is, the applicant’s wife was not a party to these proceedings. Nor was any application made to join her as a party subsequently.
At the hearing before the Court Mr M Newman appeared for the applicant. Ms S Burnett appeared for the respondent Minister.
Leave was granted for the applicant to file an amended application in the following terms:
“The Tribunal erred in its jurisdiction and in law when it (a) failed to exercise procedural fairness by failing to inquire of the first named applicant if he had informed the second named applicant – in discharge of his undertaking – of the rescheduling of the hearing and (b) by not having procedures in place such as individual application forms.”
During the course of the hearing Mr Newman submitted that the applicant no longer pressed part “(b)” of the amended application.

Consideration

As pleaded in the amended application, the sole complaint is that the Tribunal erred in the exercise of its jurisdiction in failing to inquire of the applicant if he had informed his wife of the rescheduling of the hearing.
The argument was that the applicant had previously given an undertaking to the Tribunal to do so. This apparently was a reference to what appears, in part, above the applicant’s signature on the application for review (at CB 70):
“Ø if this application includes more than one applicant, I undertake to inform each other applicant of the contents of any communication from the Tribunal and reply to the Tribunal for them.”
Although the submissions before the Court ranged further than this complaint, just for the moment focussing on this complaint, it is an assertion that the Tribunal had a duty, arising from some procedural fairness obligation, to make such an inquiry. The two limbs of the application therefore are a breach of procedural fairness and a failure to make an inquiry.
It was initially unclear in submissions whether the failure to accord procedural fairness was in relation to the applicant’s wife or the applicant, or even to both. To the extent that it may have been an assertion of a failure only to accord procedural fairness to the applicant’s wife then, given that she was not an applicant before the Court, this would have raised difficulty in the Court granting relief to her.
In written submissions the failure of procedural fairness appears to have been asserted on behalf of the applicant’s wife. Given that the “Notice of Appointment of Solicitor” filed in these proceedings by Newman & Associates was only in relation to the applicant, it is clear that the solicitors did not purport to represent the applicant wife, nor presumably have any instructions from her to do so.
In any event the submission does not reveal error on the part of the Tribunal.
Mr Newman relied on Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 187 ALR 117; (2002) 76 ALJR 598 (“Bhardwaj”) per Gaudron and Gummow JJ at [23] to [25] to assert that the applicant’s wife was denied procedural fairness in the conduct of the review by the Tribunal.
Dealing first with the duty to inquire, the applicant did not refer or rely on any authority for this part of his argument. There is no general duty on the Tribunal to inquire (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 922 per Gleeson CJ at [19], per Gummow and Hayne JJ at [33] to [43], per Callinan J at [124]; note Kirby J contra at [74]). However there may be a limited or special set of circumstances where the Tribunal is required to make a particular inquiry as part of its conduct of the review pursuant to s.414 of the Act (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 per French CJ and Kiefel J at [23]).
In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429; (2009) 83 ALJR 1123 (“SZIAI”) this was expressed as (at [25]):
“… The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review…”
The difficulty for the applicant is that whether or not he told his wife of the rescheduling of the hearing, in the circumstances, is not a critical fact to supply a sufficient link to the outcome such as to constitute jurisdictional error.
As set out above, at the hearing the applicant plainly told the Tribunal that his wife had no evidence to give. The report was that he said there was nothing she wanted to say. In these circumstances therefore, there was no critical fact to be easily ascertained such that it could be said to link to the outcome.
Nor is this situation altered by the applicant’s subsequent statement in his response to the Tribunal’s letter that his wife was willing to come to a hearing. Again there is nothing here to show that she had anything of relevance to say, let alone a fact critical in the review which could be linked to the outcome.
Further, the applicant’s submissions before the Court never rose above the point that the Tribunal should simply have made the inquiry of the applicant.
In one sense, this was a curious argument – the implication possibly being to impugn the applicant before the Court in favour of another person, albeit his wife, who was not. In any event, there was nothing in the material before the Court, or in the submissions themselves, to suggest that he had not told his wife of the hearing.
But even if he had not done so this would still not establish a critical fact in the sense explained in SZIAI given that, amongst other things, he said she had nothing to say.
Nor, during the course of the entire review, or for that matter the processing of the application for the visas, did the applicant’s wife make any submission or make direct communication with the Tribunal, nor even indicate herself that there was something she wanted to say.
But even further, the material before the Court reveals, as the Minister submits, that the Tribunal did make a relevant inquiry of the applicant. It noted the wife’s absence. It asked the applicant about this.

He responded. There was nothing in his response to even suggest that he had not told her about the hearing. It is further the case that his response contains an inference that she knew about the rescheduled hearing, but was unable to attend because she had to take the children to a medical check-up.
The other element of the ground as pleaded was that the applicant’s wife was denied procedural fairness. Again the difficulty is that she is not an applicant before the Court.
But even if the complaint is that a denial of procedural fairness, irrespective of the subject of the denial, leads to jurisdictional error, or in the alternative a denial of procedural fairness affected the applicant’s interests, then the complaint would not succeed.
The applicant relies on Bhardwaj per Gaudron and Gummow JJ (at [40]):
“Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.” [Footnotes omitted.]
In this sense, the argument then is that the Tribunal denied procedural fairness because the applicant’s wife was not given the opportunity to give her evidence because the Tribunal unfairly proceeded with the hearing in her absence by relying on what her husband had said to it.
Mr Newman rhetorically asked: what right did the applicant have (by what he said to the Tribunal) to exclude the evidence of another applicant? I understood the subsequent reference to “this is not the Middle East” to be a reference to the applicant not having such a right, even though the “other person” was his wife.
It may be that the applicant’s case now could more properly, or in the alternative, be expressed as a failure by the Tribunal in the circumstances to properly exercise its discretion to proceed with the hearing with the applicant only. That is, to proceed ultimately to a decision in respect of the applicant’s wife in her absence from the hearing. In effect, in relation to her proceeding pursuant to s.426A of the Act.
This “differentiation” between the applicant and his wife was emphasised in submissions where Mr Newman referred to that part of the “Application for Review” form that states, in relation to persons listed on the application form:
“… Each person is an applicant in his or her own right…”
The submission was that in these circumstances the applicant’s wife, had she been given the opportunity to attend a hearing, could have, by her evidence, corroborated the applicant’s evidence in circumstances where the credibility of his evidence was determinative of the outcome. Further, she may have been able to express her own fears in the sense of advancing her own claims to fear persecutory harm. It was therefore unfair to deprive her of this opportunity.
On whatever basis that argument is advanced, it does not reveal error on the part of the Tribunal, let alone jurisdictional error.
Taking the latter assertion of the alleged deprivation of the opportunity to the applicant’s wife of advancing her own claims, what must be immediately noted is that nowhere in the entire processing of the protection visa application, or the conduct of the review, did the applicant’s wife, nor indeed the applicant on her behalf, make any claims to fear persecution in her own right. She applied as the member of his family. Both of them acted consistently with this throughout.

Nor, importantly, despite ample opportunity, did the applicant’s wife, nor the applicant on her behalf, give any indication that she wanted the opportunity to make such claims. There is no complaint that she was otherwise prevented from submitting such claims in writing at any time, thus obliging the Tribunal to give her the opportunity to come to a hearing and give evidence in relation to any such issues that may have arisen in the review.
In relation to corroborating the applicant’s evidence, again no such indication was ever made by either applicant before the Tribuanl. Not even when the applicant stated in his letter subsequent to the hearing that she was willing to come to another hearing with him.
Mr Newman took the Court to various parts of the applicant’s evidence before the Tribunal, as recorded by the Tribunal, as examples of what the applicant’s wife could have corroborated.
For example, he submitted, at [25] of the Tribunal’s decision record the applicant’s wife could have corroborated the applicant’s last address in India. In addition, in relation to the claim that police came to his shop (see [33] at CB 105, and the reference to “Q Branch” of the police at CB 44), the applicant’s wife could also have provided corroboration.
What is immediately obvious is that the reliance on the applicant’s wife being an applicant in her own right does not assist in this aspect of the complaint. Here, the complaint is founded on the basis that she was a corroborating witness.
At no time prior to the hearing did the applicant ask the Tribunal to take corroborating evidence from his wife. Nor was the vague reference to her willingness to come to a hearing, as referred to in the applicant’s subsequent letter, sufficiently clear to be seen as a request for it to take corroborating evidence from her.
In the circumstances, this part of the applicant’s submissions remains in the realm of speculation. What could have been, or what might have been, do not constitute any evidentiary basis such as to ground the attack on the Tribunal now.
In any event, the time for the applicant to have made such a request had passed by that time (s.426(2) of the Act – within 7 days of notification by the Tribunal pursuant to s.426(1) of the Act. That is, in this case, by 26 October 2010).
Ultimately, whether the argument is put as a breach of procedural fairness in denying the applicant’s wife the opportunity to come to a hearing and be heard, or a miscarriage of the exercise of the discretion pursuant to s.426A, the argument does not succeed.
The Tribunal is obliged by s.425 of the Act to invite an applicant to a hearing to give evidence in relation to the issues arising in the review. The Tribunal issued such an invitation, including to the applicant’s wife in her own right. There is nothing in the legislation (or otherwise) that would have required the Tribunal to write separately to her.
The letter complied with all the relevant statutory and regulatory requirements (s.425, s.425A, s.441A, s.441C and reg.4.35D of the Migration Regulations 1994 (Cth)) and included a statement to the effect of s.426A.
The hearing was rescheduled at the request of the applicants. It was not done for the convenience of the Tribunal. In these circumstances the Tribunal was not required to again apply the relevant notice period (Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 154 FCR 572 at [60]. See also more recently, for example, SZHVR v Minister for Immigration and Citizenship [2008] FCA 776.).
The Tribunal accepted the medical evidence provided by the applicants to obtain the rescheduled hearing. This is in spite of the certificate making reference to unfitness “for duty”, whatever that may mean.
While the applicant’s wife initially indicated she wanted to attend the hearing, when this was rescheduled at her and her husband’s request she gave no indication that she wanted to attend. Nor did the applicant give any such indication on her behalf (see CB 80).
The Tribunal’s letter of invitation to hearing put the applicants on notice that a failure to attend the hearing could result in the Tribunal proceeding without taking any further action to enable them to attend (CB 72.7). The letter notifying the Tribunal’s agreement to reschedule the hearing repeated this caution. Neither the applicant nor his wife made any request for any further rescheduling of the hearing for the applicant’s wife.
The applicant now says that the wife had an intention to go to the hearing and that this was communicated to the Tribunal at the relevant times. However, the second and latest “Response to Hearing” form did not indicate any such intention.
The applicants before the Tribunal were plainly on notice, having submitted a medical certificate in relation to the first scheduled hearing, that any request for a further rescheduling would be enhanced by the submission of a medical certificate. No such certificate was ever proffered to the Tribunal.
A number of other relevant elements must be noted. The Tribunal rescheduled the hearing date for a time after the period stated by the medical certificate as being the period of “unfitness” for her. There was no other medical evidence before it of further incapacity or difficulty.
At no time did the applicant wife take any active role in the application for the visa, or in the conduct of the review. She did not attend the interview with the delegate. All correspondence (other than the applications) was signed by the applicant. It was drafted as if it was authored only by him.
But ultimately, whether a matter of procedural fairness or the exercise of the discretion under s.426A of the Act, the applicant’s wife herself made no request to the Tribunal for another hearing date. At the hearing the applicant did not ask for further adjournment, or any opportunity for her to attend before the Tribunal.
Further, in the absence of anything else from the applicant’s wife, the applicant’s evidence that his wife had nothing to say, in circumstances where she had not indicated she wanted to attend, remains as the probative basis on which the Tribunal proceeded to exercise its discretion in the way that it did.
To the extent that the applicant seeks to rely on Bhardwaj, those parts relied on now either do not assist, or provide the answer against him.
The applicant’s wife would have been on notice as a result of the delegate’s decision that, in relation to her application, the case “against her”, so to speak, was that she could not succeed unless her husband was successful in the grant of a protection visa. (See the reference to “Dependent Applicants” at CB 58.)
But even if this was not the case, before the Tribunal the only issue arising in relation to the review in relation to her own circumstances was whether she was a member of the applicant’s family. This never arose as an issue adverse to her given the Tribunal accepted this. In this sense, there was no case against her, and in relation to her, such as to invoke what was said at [23] of Bhardwaj.

Conclusion

The applicant’s sole ground of the amended application, as explained and expanded in submissions, is not made out. In these circumstances the applicant, with the benefit of legal representation, has failed to show jurisdictional error in the Tribunal’s decision. The application as amended is to be dismissed.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 13 May 2011