SZRJN v Minister for Immigration
[2012] FMCA 978
•22 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRJN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 978 |
| MIGRATION – RRT decision – Indian claiming fear of political persecution – complaints about Tribunal’s conduct of hearing by video – no jurisdictional error established – application dismissed. |
| Migration Act 1958 (Cth), ss.425, 425(1) |
| Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575, [2010] FCAFC 41 SZJTK v Minister for Immigration & Citizenship & Anor [2009] HCASL 75 SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 SZJTK v Minister for Immigration & Anor [2008] FMCA 839 SZJYD v Minister for Immigration & Citizenship [2007] FCA 798 SZJYD v Minister for Immigration & Anor [2007] FMCA 452 SZNNE & Anor v Minister for Immigration & Citizenship & Anor [2010] HCASL 136 SZNNE v Minister for Immigration & Citizenship (2010) 114 ALD 138, [2010] FCA 194 SZPZQ v Minister for Immigration & Citizenship [2011] FCA 1236 SZPZQ & Ors v Minister for Immigration & Anor [2011] FMCA 537 |
| Applicant: | SZRJN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 832 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 22 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr I Temby |
| Solicitors for the Respondents: | Minter Ellison |
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 832 of 2012
| SZRJN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in March 2009 on a visa issued to him as a dependant of his student wife. His visa was valid until March 2011, but was cancelled in December 2010 for reasons which are not clear. The applicant stayed in Australia, and on 14 July 2011 he applied for a protection visa. In his application, he gave an address in Griffith where he was living, and set out his reasons for seeking protection in Australia, so that he did not have to go back to India. He said:
I was active member of All India Sikh Student Federation and also member of Kalistan movement. I was followed by the government securities agencies every where. I was interrogated by the Punjab intelligence branch. I was tortured by them. I was restricted by the police and asked me to present at police station twice in a week. I had no freedom of expression. My day to day life was very limited while I was in India. When my parents realised that my [life] was in danger, they asked me to leave India. I left India without notifying the authority. If I have to go back India under this circumstance, I fear of being arrested by the police.
No greater details nor corroborative evidence were provided by the applicant to the Department of Immigration.
The applicant was invited to an interview in Sydney with a delegate of the Minister, but at the applicant’s request the interview was conducted by phone, because the applicant said that he could not afford to travel to Sydney. The interview was conducted on 15 September 2011, and the delegate made a decision on 11 October 2011 to refuse the visa application. As the delegate explained, he waited until that date, because he had allowed the applicant three weeks to forward documents which he said were being sent to him. However, nothing was received from the applicant.
In his reasons, the delegate examined the applicant’s account of events in India. He said that the applicant’s evidence about his involvement in the All India Sikh Student Federation (“AISSF”) was vague and lacking in detail, as well as being contradictory. The delegate did not think the applicant’s account of his reporting to police or his interrogation and torture to be credible. The delegate referred to the delay in seeking protection in Australia, and was not satisfied that he was likely to be targeted for serious harm because of his political opinion if he returned to India. The delegate found that the applicant did not have a genuine fear of harm, and that there was not a real chance of persecution occurring.
The applicant applied for review by the Tribunal and, as previously, did not appoint a representative or disclose a source of assistance. He did not lodge any supporting evidence or submissions.
On 16 February 2012 the Tribunal posted the applicant a letter inviting him to attend a hearing in Sydney on 19 March 2012 at 1 pm.
On 28 February 2012 the applicant sent by facsimile a request to the Tribunal, which stated:
My self [the applicant] just want to inform you that am facing problem with my fitness last fifteen day. I got this problem while working in factory. Slipped from stairs and damaged my back. Due to back pain left my job til the fit, and I didn’t know how much time it take to recover myself. Am on bed since fifteen days on bed at last had a appointment with Dr M Bernadette McShane. She prescribe me medication and after 3 weeks I’ll having surgery. After surgery I don’t no how much time it’ll take recover myself. That’s the reason I can’t attend hearing was to be held on 19 March 2012. So please grant me 7 to 9 weeks. If I am fine before 7 or 8 week I’ll contact you by call or fax you. Instead you have any enquire you contact my Dr M Bernadette McShane [doctor’s telephone number]. I will highly thankful to you.
The request enclosed a certificate from Dr McShane which said:
Written with consent of patient:
This letter confirms that [the applicant] presented here today complaining of bilateral lower back pain. He describes the condition as being present for 2‑3 weeks now. He describes being in pain on bending forward and sitting for prolonged periods. I certify him as being unfit to sit for longer than 20 minutes. He cannot sit for 12 hours (bus journey to Sydney) at the present time. I anticipate that this could take 1 month to improve. I have prescribed medication and asked him to attend the surgery for review in 2 weeks.
In response to the applicant’s letter, the Tribunal sent a letter to the applicant on 6 March 2012, which said:
On 16 February 2012 we sent a letter inviting you to attend a hearing at the Tribunal on 19 March 2012 to give evidence and present arguments relating to the issues arising in your case. On 28 February 2012 the Tribunal received a request that the hearing be postponed. The Presiding Member has considered the request carefully but has decided not to postpone the hearing.
The letter indicated that the hearing would proceed on the appointed date, but at 3 pm and by video connection from Griffith Hospital. 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 documents before the Court contain a Tribunal hearing record, indicating that the hearing did proceed on that date, and lasted for approximately one hour. The Tribunal described these events in its statement of reasons:
31.The applicant did not provide any claims or submissions in support of the review application. On 16 February 2012, the Tribunal invited the applicant to attend a hearing on 19 March 2012. The Tribunal received a submission from the applicant on 28 February 2012. He asked for a postponement of the hearing because he had a back injury. He provided a medical certificate, dated 27 February 2012, which indicated that the applicant could not travel to Sydney to attend the hearing because he had to avoid sitting for prolonged periods. An officer of the RRT, at the Tribunal’s request, contacted the applicant’s doctor and inquired as to whether the applicant would be able to attend a video hearing on the scheduled date. The doctor indicated that the applicant could attend the hearing if he was not required to travel to Sydney. The applicant was informed that his request for a postponement had been declined; and that the hearing would proceed as scheduled by video link.
The Tribunal set out a description of the ensuing hearing, in which it recorded no complaint being made by the applicant as to the arrangements for the hearing, nor as to his ability adequately to respond to the Tribunal’s questions and to present his case. A transcript is not in evidence tendered by either party, and I accept the Tribunal’s description. I note that the applicant did not claim before me that the Tribunal’s description of the hearing is inaccurate, nor that he made any complaint to the Tribunal about his ability to participate.
The Tribunal questioned the applicant about his participation in the AISSF, and he gave a somewhat more confined account of his activities than had been suggested in his visa statement, and one that departed somewhat from its implications. The applicant denied involvement with the Khalistan movement or any interest in that movement.
The Tribunal made a decision on 21 March 2012, which was posted to the applicant the following day. The Tribunal affirmed the delegate’s decision.
In its statement of reasons, the Tribunal recounted the applicant’s evidence, and referred to some information about the condition of Sikhs in India. In its “Findings and Reasons”, the Tribunal assessed the applicant’s claims as they had emerged at the hearing. His evidence was that he had been involved in a movement to stop land acquisition from the poor, that on two occasions he had been detained and tortured, and that he had been harassed and money had been extorted from him.
The Tribunal said that it had formed the view that “the applicant exaggerated his claims to enhance his application”. It was not satisfied that the applicant had been a member of the AISSF, nor that he had been detained or tortured, nor that he was a person of particular interest to the authorities in the Punjab and Uttar Pradesh, nor that he was required to pay bribes to the authorities in India, nor that he was a person of ongoing interest to the authorities in India. It explained these findings on an assessment of the applicant’s evidence which was, it appears to me, well open to it.
The Tribunal said that it did accept that during 2007 and 2008 the applicant had participated in a movement relating to land acquisitions, and that those activities attracted the interest of the authorities. However, it concluded as to the future risks of harm arising from these activities:
52.The Tribunal has considered the applicant’s claim that his previous political activities will continue to attract the adverse interest of the authorities in India. However, the Tribunal has already found that the applicant was not a person of particular interest to the authorities in India after he ceased to be involved in political activities. The Tribunal is satisfied that the applicant was not a person of interest to the authorities in India at the time when he departed the country and it finds that a similar situation will continue in the reasonably foreseeable future as the applicant has indicated that he has no interest in resuming his involvement in political activities.
The Tribunal said that it was satisfied that the applicant had not been implicated in any activity which might lead the authorities to suspect him of being involved in radical Sikh politics or terrorism. It found that his fear that he would be targeted for previously being a politically active Sikh was not well‑founded. It was not satisfied that he faced a real chance of persecution if he returned to India.
The applicant now asks 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 applicant is entitled to a protection visa or any other permission to stay in Australia.
The applicant’s grounds in his application follow a precedent which the Court has seen on numerous occasions:
1.The Tribunal failed to provide the Applicant with an opportunity to appear before it, and thus failed to comply with the mandatory requirements of section 425(1).
Particulars
(i)Section 425 mandates an oral hearing at which both the Applicant and Tribunal are physically present 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 Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
The contention under the first ground as to a lack of power in the Tribunal to conduct hearings by way of video connection has been put to the Court in identical language before, and has been rejected on many occasions. I have myself addressed the issue in SZJYD v Minister for Immigration & Anor [2007] FMCA 452 at [29]‑[30]. My judgment was upheld by Moore J in SZJYD v Minister for Immigration & Citizenship [2007] FCA 798. The same opinion was explained by Barnes FM in SZJTK v Minister for Immigration & Anor [2008] FMCA 839, which was upheld by Reeves J in SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712. Special leave to appeal was refused by the High Court in SZJTK v Minister for Immigration & Citizenship & Anor [2009] HCASL 75. This line of cases was recently followed by Katzmann J in SZNNE v Minister for Immigration & Citizenship (2010) 114 ALD 138, [2010] FCA 194, and special leave to appeal was refused by the High Court in SZNNE & Anor v Minister for Immigration & Citizenship & Anor [2010] HCASL 136. I again rejected the ground and relied on previous authorities in SZPZQ & Ors v Minister for Immigration & Anor [2011] FMCA 537 at [16]‑[17]. An appeal was dismissed by Foster J in SZPZQ v Minister for Immigration & Citizenship [2011] FCA 1236.
The applicant has presented no grounds for revisiting the reasoning which can be found in these judgments. In my opinion, the contention made in the particulars of Ground 1 is plainly contrary to well‑established authority.
The applicant’s oral submissions today attempted to give the ground a more personal application to his circumstances by, in effect, submitting that the circumstances of the hearing held by the Tribunal denied him a meaningful opportunity to participate in a hearing in accordance with the implied requirements of s.425(1) of the Migration Act 1958 (Cth). He said from the bar table that as a result of back pain, he was not mentally fit to participate in the hearing, and had difficulties responding to questions because of his pain. He suggested that the Tribunal repeated some questions because of his difficulties.
The applicant conceded that he had said nothing to the Tribunal about suffering problems at the time.
Moreover, there is indeed no evidence before the Court that the applicant was suffering any impediment to participating in the hearing. The applicant has not given sworn evidence to this effect, and he has certainly presented no medical evidence. The medical evidence previously submitted to the Tribunal showed an incapacity to travel, rather than an incapacity to participate in a hearing held by video from Griffith. The applicant himself invited the Tribunal to contact his doctor and the Tribunal did so. I have no reason to doubt that the Tribunal then received medical opinions which justified its proceedings.
I am not satisfied on the evidence before me that the applicant suffered any real difficulties in responding to the Tribunal’s questioning due to back pain or any other medical condition. I am certainly not satisfied that any difficulties he might have encountered reached the threshold of incapacity to participate in a hearing, which was set by the Full Court in Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575, [2010] FCAFC 41. They held that an applicant will not have been denied a ‘meaningful’ hearing under s.425, so as to result in jurisdictional error, unless there is evidence before the Tribunal or subsequently before the Court that the applicant’s condition “denied him the opportunity to give such evidence and present such arguments in support of his application as he thought appropriate” or “impaired in any substantial way his capacity for rational decision‑making in his own interests so far as the presentation of his case was concerned” (see Keane CJ at [15], also at [20], [22], and [36]‑[37], and Emmett J at [48]‑[49], and Perram J at [84] and [86]).
The applicant’s statements to me today did not reach that level, even if I accepted them unsworn from the bar table.
I therefore conclude that there was nothing unlawful in the Tribunal’s conduct of the hearing by video connection, and I can detect nothing unfair about its procedures, nor any consequence that the applicant was denied rights to which he was entitled under s.425(1).
The applicant’s oral submissions did not address Ground 2, except in so far as he complained about the hearing in the way I have addressed above. I am not otherwise myself able to give Ground 2 any meaningful content.
I am not able to identify any jurisdictional error affecting the Tribunal’s decision. I must therefore dismiss the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 29 October 2012
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