SZPZQ v Minister for Immigration
[2011] FMCA 537
•1 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZPZQ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 537 |
| MIGRATION – RRT decision – Indian applicants fearing persecution due to political activity – disbelieved by Tribunal – no procedural unfairness due to hearing via video link – no jurisdictional error established – application dismissed. |
| Migration Act 1958 (Cth), s.425 |
| SZJTK v Minister for Immigration [2008] FMCA 839 SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 SZJTK v Minister for Immigration & Citizenship [2009] HCASL 75 SZJYD v Minister for Immigration [2007] FMCA 452 SZJYD v Minister for Immigration and Citizenship [2007] FCA 798 SZNNE v Minister for Immigration and Citizenship [2010] FCA 194 |
| First Applicant: | SZPZQ |
| Second Applicant: | SZPZR |
| Third Applicant: | SZPZS |
| Fourth Applicant: | SZPZT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 406 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 1 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2011 |
REPRESENTATION
| Counsel for the Applicants: | In Person |
| Counsel for the Respondents: | Ms J Ingram |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The first and second applicants must pay the first respondent’s costs in the sum of $4,990.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 406 of 2011
| SZPZQ |
First Applicant
| SZPZR |
Second Applicant
| SZPZS |
Third Applicant
| SZPZT |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants are a husband, wife and two sons, who came to Australia in February 2010. On 30 March 2010, they lodged applications for protection visas. Only the husband made claims to be a refugee within the definition of the Refugees Convention, and I shall refer to him as ‘the applicant’. A statement attached to his application explained why he claimed to fear return to his country of nationality, India.
The applicant said that shortly before the last state assembly in 2009, he had “walked out from the Congress party in protest against the leader who were corrupted”, and had joined the Indian National Lok Dal (INLD). He then worked very hard for the INLD candidate, and was approached by Congress “goons” demanding that he stop his campaigning. He said “we won the seat”, and the Congress party candidate and members “declared war against me and other members”. On the night after the election day:
the Congress goons had gone to my house and assaulted my all family members at home. My wife was assaulted and blood was gushing from her mouth and my children were dashed to the ground and kicked. All our valuables were ransacked.
Another leader of his party was beaten while they were looking for the applicant, and he “moved to more safe places while hiding”. He was advised to leave the country and did so.
The applicant husband and wife were interviewed by a delegate of the Minister by telephone on 12 August 2010. The delegate made a decision to refuse the visas on 19 August 2010. The delegate noted that there had been some difficulties with telephone interpreters and, despite inconsistencies between what the delegate was told and the written claims, he gave him the benefit of some doubts. The delegate accepted that the applicant was involved in political campaigns on behalf of the Congress party, and changed his allegiance to another party. He did not accept, however, that the applicant’s wife and children had been beaten during the election, as they had claimed in the interview. More significantly, the delegate did not accept that the applicant and his family would be unable to relocate safely to another part of India. The delegate thought that the difficulty encountered by the applicant was “a localised matter”, and that the applicant’s personal background indicated that he would be able to find work in another part of India and relocate.
The applicants appealed to the Tribunal. They did not appoint a representative, and indicated that they were still living in Queanbeyan. The Tribunal sent a letter to them on 30 September 2010 inviting them to appear before the Tribunal to give evidence and present arguments relating to the issues in their case. The letter said that the Tribunal had arranged for a hearing which they could attend at 11am at the premises of the Administrative Appeals Tribunal in Canberra, where there would be an interpreter. The letter said:
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 applicants returned a ‘Response to Hearing Invitation’ form, indicating that they would take part in the hearing scheduled in Canberra. The Tribunal’s records indicate that the hearing was held, and that after the hearing the applicant was sent a copy of the recording of the hearing. Neither party before me has tendered a transcript of the recording and I rely on the description given by the Tribunal in its statement of the reasons.
The Tribunal records in its statement of reasons that all four applicants were present, and recounts evidence taken from the applicant husband and then from the applicant wife. According to the Tribunal, at the start of the hearing it “asked the applicants if they had any difficulty with the interpreter and they said no”. There is no indication in the subsequent lengthy description of the hearing that any person participating in the hearing encountered any difficulties by reason of the use of the AAT’s video facility in Canberra by the Member in Sydney.
The Tribunal describes how it questioned the applicant about his involvement in the political campaigns, about the threats and violence which were encountered by him and his family, and about their subsequent movements before coming to Australia. The applicant wife was similarly questioned, and gave responses which in some respects were markedly inconsistent with her husband’s evidence. The Tribunal then put to both applicants that there were differences in their evidence. It explained the significant differences to them, and told them that the differences “could lead the Tribunal to conclude that they were not credible witnesses”. The Tribunal explained to the applicants that they could comment or respond to the matters put to them during the hearing or in writing after the hearing, and they chose the latter course. According to the Tribunal it said to them:
I mentioned that this seemed sensible as they could listen to the hearing recording and then put their responses or comments in writing if they wished.
The Court Book shows that the applicants then forwarded a written submission which was not in English, and that they were then asked to provide a translation. There were apparently several telephone contacts between Tribunal officers and the applicant wife and husband before a translation of the submission was received on 21 January 2011.
The submission addressed some of the matters which the Tribunal had raised. It made no complaint as to the manner in which the Tribunal had conducted the hearing.
The Tribunal made a decision on 10 February 2011, in which it affirmed the delegate’s decision. In its statement of reasons, the Tribunal recounted the evidence given by the applicants, both in the visa application, and by the applicant husband and wife to it at the hearing. It recounted the post-hearing submission, before explaining its findings and reasons.
The Tribunal's general conclusion was:
68. The Tribunal accepts that the applicant husband was involved in political campaigning in 2009. The Tribunal accepts that he became disillusioned with the Congress Party and that he and others began to support the INLD before the election took place on 22 October 2009. The Tribunal does not accept that he was targeted by members of the Congress Party because of his change of political support. The Tribunal does not accept that his wife or children were harmed, as claimed. The Tribunal does not accept that the family went into hiding or that they came to Australia because they feared persecution in India because of the applicant husband’s political beliefs.
The Tribunal said that it did not accept that the applicant had been targeted by members of the Congress Party, that his wife or children were harmed, and that the family went into hiding or came to Australia because of a fear of persecution. The Tribunal stated that their evidence in relation to these matters was “not truthful or credible”, and pointed to substantial inconsistencies. These included differences between the applicant husband and wife’s accounts as to where they had gone after the incident of violence, how they had travelled there, how the applicant husband had heard about the incident, and what had happened during it. Notably, the applicant wife had given evidence that her children were not harmed by the intruders.
The Tribunal referred to the applicants’ written response to the concerns explained to them at the end of the hearing, and said that it was:
not persuasive in explaining why the evidence differed dramatically. The Tribunal finds that there is no credible evidence upon which it could find that the applicants stand at risk of suffering serious harm in the reasonably foreseeable future if they return to India.
The Tribunal found that it was:
not satisfied that any of the applicants was a person to whom Australia has protection obligations under the Refugees Convention.
The applicants now ask the Court to set aside the Tribunal's decision, and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants should be believed, nor whether they qualify for a protection visa or any other permission to stay in Australia.
The applicants rely on grounds set out in their application, and have not filed any amended application or written submission. The grounds are:
1.The Tribunal failed to provide the Applicant with an opportunity to appear before it, and thus failed to comply with mandatory requirements of section 425(1).
Particulars
(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, i(n) the context of “in front of”) in the one place, in order that the applicant may present their case.
(ii)The Tribunal was not physically present at the hearing, because the Tribunal was in Sydney, and thus the applicant did not “appear before” the Tribunal.
2.The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
3.The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 10 February 2011 was effected by actual bias constituting judicial error.
These grounds follow precedents frequently seen in relation to Indian claimants, and unfortunately I am unable to detect any substance or relevance to the present case.
The contention that the Tribunal is always bound to hold a face-to-face hearing by reason of the provisions of s.425, and that it is not empowered to conduct a hearing by way of a video connection, has been addressed in previous cases. I rejected the contention myself in SZJYD v Minister for Immigration [2007] FMCA 452 at [29]-[30] and my judgment was upheld by Moore J (see SZJYD v Minister for Immigration and Citizenship [2007] FCA 798). The same opinion was explained by Barnes FM in SZJTK v Minister for Immigration [2008] FMCA 839, which was upheld by Reeves J (see SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712, special leave to appeal refused by the High Court - see SZJTK v Minister for Immigration & Citizenship [2009] HCASL 75). The line of cases was recently followed by Katzmann J in SZNNE v Minister for Immigration and Citizenship [2010] FCA 194. In my opinion, I am bound by the judgments of the Federal Court, to reject the contention in ground 1.
On the evidence as to the particular circumstances of the hearing in the present case, I am not satisfied that, in fact, the applicants suffered any procedural unfairness in any respect, as a result of the Tribunal adopting the procedure of a video connection when taking their evidence.
The applicant today, from the bar table, claimed that there had been problems with the video connection because of voices “breaking up” and because he did not “understand what was being said”. However, he has not presented any evidence which persuades me that that assertion is true. The evidence before me, which I prefer, being the Tribunal’s description of the hearing, suggests otherwise. In this respect, I note that there is no evidence of any complaint by the applicant, either at the time of the hearing or subsequently before the Tribunal made its decision. In my opinion, the applicants would have complained, if there had been an aspect of the video connection which was unsatisfactory. I also consider it likely that the Tribunal itself would have noted any problem and explained how it addressed it.
In the absence of a tender of the transcript or recording to prove the assertion, I am not satisfied by it.
For all of those reasons, I do not accept that a ground of jurisdictional error referable to ground 1 has been established.
The contention in ground 2 is unexplained. In my opinion, the Tribunal did address the refugee claims made by the applicants in accordance with the Refugees Convention definition adopted by s.36(2) of the Migration Act. The Tribunal was entitled to find that it was not satisfied that the applicants came within the definition, by reason of its lack of persuasion as to the truth of the history which they claimed had given rise to their asserted fear. The Tribunal was not obliged to engage in any further analysis of their claims by reference to “the four key elements of the convention definition”. I therefore do not accept that ground 2 raises any identifiable ground of jurisdictional error.
Ground 3 of the application has not been explained to me. In my opinion, the Tribunal conducted its review in accordance with law, by considering all the evidence which the applicants presented to it in relation to their refugee claims. There was no further action it was required to take by way of investigation of their claims.
There is no substance shown in the evidence or submissions before me, for the allegation of ‘actual bias’.
In my opinion, the applicants have not established that the Tribunal’s decision is affected by any jurisdictional error. I must therefore dismiss the application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 13 July 2011
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