SZQCV v Minister for Immigration
[2011] FMCA 984
•9 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQCV v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 984 |
| MIGRATION – RRT decision – obligation of Tribunal to conduct hearing ‘in private’ – applicant in immigration detention brought to Tribunal premises – presence of Serco guard in hearing room – whether reasonably required – jurisdictional error not established – application dismissed. |
| Migration Act 1958 (Cth), ss.365, 420A, 429, 430, 439, 440 |
| SZAYW v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 230 CLR 486 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration & Multicultural & Indigenous Affairs v SZAYW (2005) 145 FCR 523, [2005] FCAFC 154 SZAYW v Minister for Immigration (2004) 187 FLR 104, [2004] FMCA 796 |
| Applicant: | SZQCV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1965 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 9 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Burwood |
| Counsel for the First Respondent: | Ms M Stone |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1965 of 2011
| SZQCV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia with her then husband on a four year 457 visa in August 2007. On 13 November 2010 she was taken into immigration detention, and her visa was cancelled for reasons which do not appear in the documents before me. There are, however, notes of an interview with the applicant and an assessment made on that date by an officer of the Department of Immigration. The applicant has remained in detention at Villawood since that date.
On 15 December 2010 an application for a protection visa was lodged by a registered migration agent on her behalf. It attached a short statement asserting that the applicant feared persecution if she returned to her country of nationality, The Peoples Republic of China, by reason of her having started to practice Falun Gong in Australia. The applicant later disclaimed such a claim.
A second application was lodged by a new agent on 17 December 2010, attaching a longer statement. In this, the applicant claimed she feared harm by reason of having assisted her father to appeal a decision of the local government to compulsorily acquire a property for inadequate compensation. The applicant claimed that this was property which had been given to her by her parents, in which they had lived in while she was in Australia. She claimed that the father had been taken into detention in 2010 as a result of his “illegal appeal and disturbing government business order”. She said: “I was very scared of this, because my father was experiencing suppress and persecution by government, I could be possibly treated worse as I helped him”.
The applicant was interviewed by a delegate of the Minister for Immigration at Villawood on 12 January 2011, and the delegate made a decision refusing the protection visa application on 17 January 2011. The delegate found that the applicant “does not have a genuine fear of harm nor is there a real chance of persecution occurring”.
The applicant, assisted by her migration agent, appealed to the Tribunal. She attended a hearing held by a Member of the Tribunal at its Sydney premises on 16 February 2011. Her agent was present on that occasion. It is unclear whether security guards who had brought her from Villawood were or were not present in the hearing room on that occasion.
The Tribunal Member made a decision affirming the delegate’s decision on 28 February 2011. However, her decision was subsequently set aside by consent orders made in this Court on 26 May 2011.
Following the remitter, an invitation was sent to the applicant and her agent to attend a further hearing of the Tribunal at its Sydney premises on 13 July 2011. The letter said: “Arrangements are being made with the Department of Immigration and Citizenship and the detention centre for you to attend the hearing”.
The Tribunal’s records before the Court show that the applicant was brought to a Tribunal hearing room, and that a hearing commenced at 12.35 pm and continued, with some breaks, until 3.55 pm. A transcript of the recording of what happened in the hearing room is in evidence. It suggests that the Tribunal Member had the assistance of a ‘hearing attendant’, only periodically, at the commencement and conclusion of the hearing, and at the time of at least one of the adjournments. The transcript shows that an interpreter was present, and interpreted the applicant’s evidence until the interpreter was required to leave before 3.30 pm. After that, a telephone interpreter service was used.
The transcript makes no reference to the presence in the hearing room of any other persons, in particular, an employee of the detention centre service provider, known as ‘Serco’. However, it is now an agreed fact that a Serco guard was present in the RRT hearing room for the duration of the applicant’s RRT hearing conducted on 13 July 2011.
The transcript shows that the Tribunal Member questioned the applicant about her refugee claims, and put to her various concerns arising from how she had presented them orally and in writing.
It discussed concerns arising from purported official documents submitted by the applicant concerning a land title and compulsory acquisition. It is unnecessary for me to detail these concerns, nor how they were responded to by the applicant. In short, as the Tribunal ultimately explained in its findings and reasons for its decision, there were some significant inconsistencies in her evidence about the property which she claimed had been resumed, and in how the applicant had presented her claims over time.
In the Tribunal’s decision which it made on 1 August 2011, it affirmed the delegate’s decision. The Tribunal explained its reasons for concluding that it did not: “believe any of the claims made by the applicant over time or that she genuinely holds fear of any harm should she return to China”. It said that in its view, she had “concocted over time various claims as to harms which she fears if she were to return and none of them are true”.
The applicant applied to the Court for judicial review of the Tribunal’s decision in an application filed on 5 September 2011. The application discloses no assistance from a lawyer, and contains grounds of application which are uninformative as to any alleged jurisdictional error, and have not been given meaningful content beyond the single ground now relied upon by the applicant’s counsel. They were expressed only as:
1.Jurisdictional error.
2.Denial of natural justice. I am not agree the decision which from the RRT.
3.RRT member rejects my true story as fabrication.
At the first court date, the applicant was referred for free legal advice. The counsel who provided that advice has also provided an amended application, and he has appeared today to make submissions in its support. The ground in the amended application is:
1.The Tribunal breached section 429 Migration Act 1958. The applicant attended a hearing of the Tribunal on 13 July 2011. In addition to the Tribunal Member, the applicant and an interpreter, the hearing was attended by one of two guards who had escorted the applicant from Villawood Immigration Detention Centre. The applicant contends the presence in the hearing room of the guard breaches the requirement of section 429 which provides that the hearing of an application of review must be held ‘in private’.
When opening the applicant’s case, her counsel said that he would not read an affidavit of the applicant which had been filed, in view of the Minister’s admission that one of the two Serco guards was present in the hearing room. The Court was therefore left with only fragmentary evidence as to the circumstances in which this occurred.
Section 429 appears in Division 4 of Part 7 of the Migration Act 1958 (Cth), the Part being entitled “Review of protection visa decisions”, and the Division being entitled “Conduct of review”. It provides:
429Review to be in private
The hearing of an application for review by the Tribunal must be in private.
This provision is in contrast with s.365 concerning the Migration Review Tribunal, which requires that “any oral evidence that the Tribunal takes while a person is appearing before it must be taken in public”, subject to directions to the contrary.
The effect of s.429 was addressed in judgments in this court, the Full Court of the Federal Court, and the High Court concerning applicant SZAYW (see SZAYW v Minister for Immigration (2004) 187 FLR 104, [2004] FMCA 796, Minister for Immigration & Multicultural & Indigenous Affairs v SZAYW (2005) 145 FCR 523, [2005] FCAFC 154, and SZAYW v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 230 CLR 486).
In that case, the applicant’s refugee claims raised issues of fact concerning shared experiences with three other refugee claimants, whose matters were also listed before the same Tribunal Member on the same day. During the applicant’s hearing, the Tribunal Member took evidence from the other applicants in the presence of all the applicants, and the other applicants were present during part of the applicant’s evidence. The Tribunal Member also allowed the girlfriend of one of the other applicants to be present. Driver FM at first instance considered that this procedure involved a breach of s.429. However, a majority in the Full Court thought otherwise, and their opinion was upheld in the High Court.
The High Court said:
23The concept of privacy is imprecise, and is not to be equated either with secrecy or isolation. Where, as in s 365, the Act requires that evidence be given “in public”, then the requirement is satisfied if, subject to any relevant provisions of the Act, and to the exercise of a Tribunal’s express or implied powers, the proceedings are open to the public in the sense that members of the public who wish to be present may attend and observe what is going on. Obviously, in order for a hearing to be in private it is necessary that it not be in public. However, it is not sufficient. A hearing would not be in private if, for example, a Tribunal member decided to invite a group of his or her acquaintances to be present. In such a case the hearing would not be open to the general public, but the applicant’s entitlement to privacy would be disregarded. “Public” and “private” are words that are used in contrast, but they do not cover the entire range of possibilities. Furthermore, the question whether proceedings are taking place in public is not the same as the question whether there are present at the proceeding persons who, vis-à-vis an applicant, are to be regarded as members of the public. The group of onlookers, in the example just given, would, vis‑à‑vis an applicant, properly be regarded as members of the public, but the hearing would not be open to the public because ordinary members of the public, other than members of the group of onlookers specially invited to be present, would be excluded.
24It was noted earlier that Driver FM described the other three applicants as “unrelated” to the appellant. What exactly he meant by that is not clear. If all he meant was that they were not blood relatives, that is correct, but beside the point. The claims of the four men were certainly related, in the manner earlier explained. They were close associates. Their claims were based on shared experiences. Each was a witness in support of the others. They had the same migration agents. They had applied to have their cases heard by the same member. Each was entitled, as a matter of fairness, to know what evidence the others had given. There was no suggestion that any one of them wanted to say something that the others should not hear. If the learned magistrate was intending to convey that, vis‑à‑vis the appellant, the other three applicants were no more than members of the public, then such suggestion would be unwarranted. The hearing of the appellant’s claim was not “in public” although, for the reasons already given, that does not of itself mean that it was “in private”.
25It was accepted on both sides that s 429 was enacted to benefit or protect applicants in at least two respects. It is in the nature of proceedings of the kind in question that an applicant may make allegations that could expose the applicant to a risk of reprisals, either in Australia or abroad, if they were made public. A related consideration is that applicants should feel uninhibited in presenting their cases to the Tribunal. Since the requirement of privacy is for the benefit of an applicant, it is not open to the Tribunal member to allow anyone to be present at the hearing so long as it is not open to the general public. On the other hand, persons whose presence is reasonably required for purposes of or in connection with the performance of the Tribunal’s functions are clearly within the contemplation of the statute as persons who may be present at the hearing. Obvious examples may include interpreters, security officers, necessary administrative staff and witnesses, although privacy may require the exclusion of witnesses when they are not giving evidence.
26Subject to the powers of the Tribunal earlier mentioned, it is consistent with the statutory purpose, and with common use of language, to treat the concept of privacy as embracing, not only agents of an applicant, but also persons whom an applicant desires to be present and thus to be made privy to what occurs at a hearing. The girlfriend referred to earlier in these reasons provides an example. If one of the applicants wanted her to be with him for moral support, and the Tribunal member had no reasonable grounds for objecting to her presence during that applicant’s evidence, then her presence would not destroy the privacy of the occasion. It is unnecessary for present purposes to examine the extent of a Tribunal member’s powers to exclude such a person. No such issue arises in the present case. A meeting between A and B does not cease to be private if, by mutual consent, one is accompanied by a friend or supporter. There may be cases where a Tribunal member would feel a need to impose some requirement of confidentiality upon an applicant’s friend or supporter but, again, that issue does not arise in this case.
Their Honours concluded that the presence of the other applicants and the girlfriend did not infringe the privacy to which the appellant was entitled under the Act, but was consistent with the purpose of s.429.
As is apparent, the circumstances of the alleged failure to provide a hearing ‘in private’ in SZAYW are clearly distinguishable from the present circumstance. However, argument before me today proceeded, in my opinion correctly, on the basis that it was appropriate to apply the test suggested by the High Court at [25], of whether the Serco guard was or was not a person “whose presence is reasonably required for purposes of or in connection with the performance of the Tribunal’s functions”, such a person being in the opinion of the High Court “clearly within the contemplation of the statute as persons who may be present at the hearing”.
The Minister’s representative submitted that the illustration then given by the High Court clearly encompassed the presence of the Serco officers in the known circumstances of the hearing conducted by the Tribunal in relation to the applicant’s application for review. As she pointed out, their Honours said:
Obvious examples may include interpreters, security officers, necessary administrative staff and witnesses, although privacy may require the exclusion of witnesses when they are not giving evidence. (emphasis added)
Counsel for the applicant tendered two Tribunal documents in support of submissions that a security officer would not necessarily be “reasonably required” in the hearing room, within the considerations bearing on s.429 which were discussed by the High Court.
He acknowledged that they were not legislative instruments and were not mandatory on Tribunal Members, and referred me to s.420A which authorises the Principal Member to give directions. It provides:
…
(3)The Tribunal should, as far as practicable, comply with the directions. However, non‑compliance by the Tribunal with any direction does not mean that the Tribunal’s decision on a review is an invalid decision.
(4)If the Tribunal deals with a review of a decision in a way that complies with the directions, the Tribunal is not required to take any other action in dealing with the review.
A document entitled “Tribunal Guideline – 3/2011” issued on 6 June 2011, includes one reference to s.429:
3.The RRT must conduct proceedings in private (section 429 of the Migration Act). The requirement of privacy will be met as long as those at the hearing are ‘persons reasonably required for purposes of or in connection with the performance of the tribunal’s functions’. (citation omitted)
But this does no more than draw attention to SZAYW.
A document entitled “Principal Member Direction – 2/2010” issued on 23 December 2010 explains arrangements for the “management of detention cases” and includes references to the Tribunal’s security arrangements. It also deals with persons in immigration detention:
Specific security arrangements for persons in immigration detention
14.Every effort should be made to schedule a hearing for a person in immigration detention in an appropriate hearing room at a non‑peak time.
15.A security assessment report must be requested and obtained from the Immigration Detention Centre in advance of any hearing involving a detainee.
16.Any concerns or special requirements arising from the security assessment report may be discussed with the Member, the relevant Senior Member, senior staff and the ASA. This includes arrangements for all applicants who have a detention centre risk assessment of “high” or “extreme”. The type of arrangements will depend upon the nature of the risk and whether or not the hearing is in person or via video conference. Special arrangements may include:-
·hiring a private security guard to be present for the duration of the hearing;
·notifying the applicant that they may bring a support person to sit in the hearing with him or her;
·giving careful consideration to the selection of hearing attendant and interpreter;
·holding a pre‑hearing briefing with staff selected to provide support during the hearing;
·placing a first aid officer on standby; and
·requesting that the hearing attendant remain in the hearing room for the duration of the hearing.
17.The Tribunals aim to conduct face‑to‑face hearings on the Tribunals’ premises wherever possible in cases where the person is in detention in Sydney or Melbourne. However, it may be appropriate in some circumstances, such as in instances where the Detention Service Provider and the Department indicate that security considerations warrant it, to consider whether a hearing should be held by video or by telephone, or in the detention centre or at some other location.
18.The direct responsibility for the care and security for persons in immigration detention who are on the Tribunals’ premises, rests at all times with the Department and the Detention Service Provider.
19.The Detention Service Provider has procedures for maintaining security and custody of all persons in immigration detention appearing at the Tribunals. Detention Service officers will wait with applicants in designated waiting areas and ensure that applicants are kept in close proximity at all times and that any contact with other persons is adequately supervised. Applicants may have representatives or friends and family present, and there may be a need to request the assistance of the interpreter booked for the hearing to assist with communication.
20.Staff of the Detention Service Provider accompany all persons in immigration detention who appear before the Tribunals. Subject to the Member’s wishes, the Detention Service officer/s will be in the hearing room during the opening of a hearing, but will wait immediately outside the hearing room during the hearing, and return at the closing of the hearing, and on any occasion where the Member calls an adjournment. The Detention Service officers have an access card, issued on arrival, to open hearing room doors where a room is locked for a private hearing.
21.In some cases the Member may decide that it is appropriate for a Detention Service officer to remain in the hearing room while an applicant is giving evidence. In some cases the Member may decide it is not appropriate for a Detention Service officer to be present in the hearing room while an applicant is giving evidence. The Member should weigh up the need for persons to be in an environment where they are able to give evidence about sensitive personal matters and or about events which if disclosed could result in harm to the applicant or other persons against any risk to the Member, staff or the general public.
22.Where a person is in detention outside Sydney or Melbourne, the hearing will generally be conducted by video‑conference. The arrangements for such hearings should ensure that there is capacity to respond to an emergency. Local staff and Detention Service officers should be advised of the availability of duress alarms or other local emergency arrangements. Preferably, at least one Detention Service Officer should be present during the hearing, or keeping the room under observation if a viewing panel is available. If the Member considers that it is not appropriate for a Detention Service officer to be present, the Member should discuss arrangements with his or her Senior Member, the District Registrar and the ASA. Options include establishing contact arrangements so that mobile phone contact can be made with Detention Service officers, or the Tribunals engaging a security guard who is not connected with the detention centre.
In my opinion, the existence of these directions does not raise an inference of unreasonableness of a decision by the present Tribunal Member to allow or require a Serco guard to remain in the hearing room. They are plainly capable of being given effect by a decision on the part of the present Member that it was necessary or desirable for a Serco guard to remain in the hearing room, and they open up a number of hypotheses as to why the Member might have thought it appropriate to direct this pursuant to paragraph 21 of the Principal Member’s directions.
There is no direct evidence as to how the Member weighed up the considerations relevant to his decision as to the presence of the guard in the hearing room. However, I would not draw any inference from the limited extent of the evidence, and conclude that the Member failed to consider relevant discretionary considerations pointed to by the High Court or by the Principal Member’s directions. Nor that he assessed the relevant considerations incorrectly.
The Member was not required at law to record his reasons, and certainly was not required to do this as part of his statement of reasons given under s.430 for his operative decision on the review. Accordingly, no inferences from the absence of discussion in the statement of reasons should be drawn (cf. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]‑[35], [68]‑[69], [75]).
There is no evidence that the Tribunal Member was ever requested by the applicant or her agent to explain the decision to allow or require the guard to be present, and there is no evidence that any objection or concern about the presence of the guard was ever expressed or shown. Indeed, there is no evidence tendered before me that the applicant ever adverted to the presence of the guard or had any concern about this, whether at the hearing or later.
As I have noted, there is no mention of the presence of the guard in the transcript of the recorded parts of the hearing. However, this in itself does not allow an inference that the Tribunal Member failed to consider whether the guard’s presence was reasonably required, nor that he made an incorrect assessment of the particular circumstances bearing on this.
There appears to have been no effort by either of the parties in preparation of the case today to obtain further discovery in relation to documents or witnesses that could further elucidate the thinking of the Member and the actions of the Tribunal and the Serco guard in relation to the presence of the officer at the present hearing. The Court Book was prepared by the Minister’s solicitors at a time before the present issue was raised, and I can draw no inferences as to the completeness of its discovery of relevant documents. Moreover, I was not invited to draw inferences, one way or the other, based on the absence of evidence tendered by either party or witnesses called by them.
At most, I am prepared to infer from such evidence as is before me, that the Tribunal Member probably decided – for specific reasons which are not in evidence – that it was desirable or reasonable to allow the guard to be present in the hearing room to keep the applicant under continuous visual observation for the purposes of discharging his or her responsibility, as agent for Serco, for securing the applicant’s status as a person lawfully held in immigration detention under the Migration Act.
Possible substance for a special concern about the applicant being a ‘flight risk’ when escorted outside the perimeter of an immigration detention facility is given by an annotation on the assessment of the department officer upon interviewing the applicant at the time that her immigration detention commenced. This was recorded in a document which was before the Tribunal Member and, indeed, was expressly adverted to by the Member in the course of the hearing. On the page recording the officer’s assessment of the applicant, including an assessment for bridging visa purposes, the officer has noted several times “attempted to abscond” and made other somewhat indecipherable notes which suggest the likelihood of an on‑going concern (see Court Book p.141).
These notations are unexplained in the evidence before me, and it is unknown whether they were better explained to the Tribunal Member by documents on the Department file which would have been seen by the Member. However, they lend some support to the real possibility that the Member reasonably concluded that the applicant was a person who should be kept under continuous observation in the course of the hearing by a person who, as the Principal Member had directed, was to be regarded as having “at all times” the “direct responsibility for the care and security for persons in immigration detention who are on the Tribunals’ premises”.
Counsel for the applicant gave emphasis in his oral submissions to the importance given to privacy and confidentiality of the Tribunal’s activities in other provisions of Part 7, as well as in s.429.
In particular, he submitted that the statutory obligations of confidentiality under ss.439 and 440, would not have applied to the Serco officer, as he noted that there is no evidence that the Tribunal Member obtained any special undertakings as to confidentiality from the Serco officer.
I have some difficulty assuming that the Serco officer was not under obligations of confidentiality arising under other provisions of the Act or contract with his employer and the Commonwealth, and this was not explored in evidence and submissions. However, even if no obligation arose, its absence would not necessarily mean that the hearing could not be regarded as held ‘in private’. Such a proposition would be inconsistent with SZAYW, since it appears that no obligations of confidentiality were imposed on the persons who the High Court thought were properly allowed or required to be present at the hearing in that case.
Considering the circumstances shown in the evidence before me and the submissions of the applicant’s counsel, I am left in a situation where, in my opinion, the applicant has not discharged her onus of proof to show that the hearing was not held ‘in private’ within the meaning of s.429 as elucidated by the High Court. Applying the test suggested by the High Court, I am not satisfied that the presence of the guard in the hearing room was not ‘reasonably required’ in connection with the performance of the Tribunal’s functions under the Migration Act in relation to the conduct of a hearing concerning a person who was required under the Act to be held in immigration detention.
I accept, as is apparent from the Principal Member directives, that it is the task of the Member conducting a hearing to assess in every case in relation to a person held in immigration detention, whether it is necessary for a Serco officer to be present in the hearing room during the hearing. However, on the present evidence, I am not satisfied that an inappropriate or erroneous assessment occurred. I am not persuaded on my own objective assessment of the circumstances shown in the evidence before me, that the hearing has been established to have been not held ‘in private’ for the purposes of s.429.
I am therefore not persuaded that the ground relied upon by the applicant before me should be upheld.
I have not found it necessary to decide the Minister’s contention that, even if a breach of s.429 occurred, it would not result in such a defect of statutory procedure as would vitiate the validity of the Tribunal’s substantive decision, on current principles of procedural ultra vires.
I was reminded that this was an issue which the High Court expressly avoided (see 230 CLR 486 at [30]). However, I note that I would have had difficulty upholding this contention, since it appears to me that I would have been bound to follow the contrary opinions of Kiefel and Weinberg JJ in the Full Court in SZAYW (see 145 FCR 523 at [47] and [85] respectively). Although their opinions were not part of the ratio decidendi of the Full Court, a federal magistrate would be bound to give them great respect.
I have not been able to identify any other jurisdictional error upon which the Tribunal’s decision could be set aside.
I must, therefore, dismiss the application.
I certify that the preceding forty‑one (41) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 20 December 2011
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