SZRKF v Minister for Immigration
[2012] FMCA 859
•21 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRKF & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 859 |
| MIGRATION – Application for review of decision by Refugee Review Tribunal – mother and father applied as members of their child’s family unit – no jurisdictional error with respect to the applicant or the applicant’s father – denial of procedural fairness to the applicant’s mother – discretion not exercised – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 47, 48A, 48B, 65, 411, 414, 476 |
| Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 NABE v Minister for Immigration & Multicultural Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 SZLSM & Anor v Minister for Immigration & Anor [2008] FMCA 1172 Re Woolley and Anor; Ex parte Applicants M276/2003 (by their next friend GS) [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 Re Minister for Immigration and Multicultural and Indigenous Affairs and; Ex parte Applicants S134/2002 [2003] HCA 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 SZLGF & Anor v Minister for Immigration & Citizenship [2008] FCA 1369 Cao v Minister for Immigration & Anor [2009] FMCA 70 Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 |
| First Applicant: | SZRKF |
| Second Applicant: | SZRKG |
| Third Applicant: | SZRKH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 874 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing dates: | 21 August and 14 September 2012 |
| Date of Last Submission: | 14 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2012 |
REPRESENTATION
| The Applicants | The Second Named Applicant in Person (and as Litigation Guardian for the First Named Applicant and On Behalf of the Third Named Applicant) |
| Appearing for the Respondents: | Ms M Stone |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application made on 20 April 2012 is dismissed.
The second and third named applicants pay the first respondent’s costs set in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 874 of 2012
| SZRKF |
First Applicant
| SZRKG |
Second Applicant
| SZRKH |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application, made on 20 April 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a protection visa to the first applicant, and separately found it had no jurisdiction in relation the second and third named applicants.
Background
The applicants are all citizens of India (Court Book – “CB” – CB 1). On 1 April 2011 an application for a protection visa was made on behalf of the first named applicant, a child close to three years age (“the applicant”) (CB 1 to CB 51, with annexures), by her father.
The applicant’s father and mother, the second and third named applicants respectively, were included in that application as members of her family unit (“the applicant’s father” and “the applicant’s mother”) (CB 25 and CB 31).
The applicant’s claims to protection were set out in that application (CB 17 to CB 20) by her parents, particularly her father (CB 8). Those claims can be summarised as follows:
1)The applicant’s father had been a member of the Congress Party (“the INC”). He had refused to join the rival Bharatiya Janata Party (“BJP”). As a result of that refusal, the applicant’s parents were kidnapped.
2)Her parents were only released after certain elections. They continued to receive threats of violence from the BJP.
3)The applicant was born in Australia and neither she nor her parents have anywhere to return to India.
4)If they were to return to India, they would “face a very bleak future” and would face “hardship both psychologically and financially.”
5)Further, if returned to India, the applicant feared harm from the BJP and from opposition party members. She did not believe that the government authorities could protect her or her parents. [Or rather, given her age, that was asserted on her behalf.]
The Delegate
On 11 April 2011 the applicants were notified that the applicant’s parent’s application for protection visas was invalid as they had previously applied for, and been refused, protection visas on 16 December 2008 (CB 52 to CB 53). Given the operation of s.48A of the Act they were unable to validly make another application for a protection visa without first leaving Australia.
On 14 July 2011 the applicant was invited to attend an interview with the Minister’s delegate on 11 August 2011 (CB 54 to CB 55).
The applicant’s father attended, by telephone, on that occasion and advanced the applicant’s claims to protection (CB 65). In addition to the claims set out in her protection visa application, her father claimed that the applicant could be abducted and tortured, particularly given that state elections were scheduled for February or March 2012 (CB 65).
On 12 August 2011 the delegate sent notification to the applicant of the refusal of the grant of a protection visa to her (CB 57 to CB 59). The delegate found as “unrealistic and implausible” the claim that the BJP, or its supporters, would target the applicant (CB 72). Further, during the telephone interview, the applicant’s father had stated that it would be safe for him and his wife to return to their home state after the scheduled elections (CB 72).
The Tribunal
On 26 August 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 74 to CB 77). On 1 September 2011 a further application for review, bearing the names of the applicant, her mother and her father, was sent to the Tribunal (CB 80 to CB 83).
On 17 November 2011 the applicant was invited to attend a hearing before the Tribunal on 15 December 2011 (CB 84 to CB 85).
By facsimile transmission to the Tribunal on 12 December 2011, the applicant’s father advised that his wife, the applicant’s mother, had suddenly become unwell and, as a result, he would not be to attend the hearing on his daughter’s behalf (CB 89). He requested that the hearing be postponed for two to three weeks in order to allow him to attend on his daughters behalf. A medical certificate for the applicant’s mother, stating that she was “receiving medical treatment” and would be “unfit to continue her usual occupation” until the 26 December 2011 was provided with that postponement request (CB 90).
A Tribunal officer telephoned the applicant’s father, twice, on 13 December 2011 to advise him that his request for a postponement had been refused and that the hearing remained listed for 15 December 2011 (CB 92). After some discussion with the applicant’s father, and subsequently the Tribunal member, the officer advised that the hearing would occur at that time by telephone (CB 92).
However, on 14 December 2011 an officer of the Tribunal attempted to contact the applicant’s father to notify him that the hearing had been postponed (CB 93 and CB 96). On the same day, a letter was sent to the applicant advising that the hearing had been postponed as per his request and that the postponed hearing was to occur on 12 January 2012 (CB 94). The applicant’s father attended on that occasion (CB 97).
On 27 January 2012 the applicant was invited in writing to comment on, or respond to, information that had been given by her father before a delegate and a separately constituted Tribunal in relation to his earlier application for a protection visa (CB 116 to CB 117). That information was said to be relevant to the “current” Tribunal’s decision as the inconsistencies in that evidence, as between it and country information, could result in the Tribunal finding as not credible that the applicant’s father had been involved in political activities in India.
On 21 February 2012 the applicant’s father wrote to the Tribunal on behalf of the applicant in response to the above letter (CB 120 to CB 121). He claimed that it was “… difficult to provide exact information” and that he and his wife were “traumatised” by the events in India and were “very nervous” in the “interview”. Further, that they had limited English which made it difficult to understand the meaning of questions.
On 21 March 2012 the Tribunal decided to affirm the decision of the delegate and refuse the grant of a protection visa to the applicant (CB 123). The Tribunal’s findings and reasons were set out in its decision record ([60] at CB 136 to [81] at CB 141), a copy of which was provided to the applicant (CB 122).
The Tribunal considered that the applicant’s claims to fear harm essentially derived from her father’s claims ([62] at CB 136). Although those claims had been previously considered, and rejected, by a differently constituted Tribunal, the Tribunal proceeded to makes its own assessment of her father’s claims and as they related to her claims ([62] at CB 136).
Given the applicant’s father’s inability to “remember the exact details” of important political events, the inconsistencies in his evidence, and the Tribunal’s rejection of his explanations for those inconsistencies, the Tribunal did not accept that the applicant’s father had given a truthful account of his circumstances in India ([64] at CB 136, [72] at CB 139 and [78] at CB 140).
Given its findings adverse to the applicant’s father, the Tribunal was not satisfied that the applicant faced a real risk of harm if returned to India on the basis of her imputed political opinion, nor as a result of her father’s actual or imputed political opinion ([79] at CB 140).
In relation to the applicant’s father and mother, the Tribunal found it did not have jurisdiction in relation to their applications ([84] at CB 141) as it had already discharged its relevant function under s.414 of the Act ([12] at CB 125 – see further below).
Application to the Court
At the first Court date the applicant’s father appeared in person. He appeared also on behalf of his daughter and wife. On that occasion, I advised him that the grounds of the application as pleaded appeared, on their face, to be deficient in revealing jurisdictional error. That is, that the first ground lacked legal merit, and the second ground lacked any particularity.
Consent orders were made at the first Court date granting leave to the applicants to file and serve an amended application. Further, the applicant’s father indicated his willingness to participate in the Court’s “RRT Legal Advice Scheme”. A certificate on the Court’s file indicates that advice was provided to the applicants by the panel lawyer assigned to them under that Scheme.
Despite that advice, and opportunity to file an amended application, the applicants continued to press the two grounds of their originating application. Namely:
“1. The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
2. The Tribunal ha no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.”
Before the Court
The matter was originally set down for hearing on 22 June 2012. Due to judicial unavailability, the final hearing was relisted for 27 July 2012.
On 24 July 2012 a letter was received from the applicant’s father, sent by facsimile transmission. That letter requested an adjournment on the basis that he was unfit to come to the hearing. Attached to it was a certificate from “Dr Shahid Abbas” of “Griffith Aboriginal Medical Service” stating that the applicant was “… unfit for his normal work and travel from 24-7-2012 to 31-7-2012 inclusive, due to severe backache”. A copy of that correspondence was provided, by email, to the solicitor for the respondent, who advised that the respondent consented to the applicants’ request for an adjournment. In those circumstances, the matter was adjourned to 21 August 2012.
On 21 August 2012 the applicant’s father appeared in person. Again, he appeared for his daughter and wife. Ms M Stone appeared for the first respondent. The Court had before it the Court Book and written submissions filed by the Minister. In addition, the Minister sought to read and rely on the affidavit of Ms Michelle Elizabeth Stone, affirmed on 28 May 2012, which annexed a copy of the Tribunal’s decision record in relation to the applicant’s parents’ previous application for a protection visa (that affidavit was taken into evidence).
It became quite clear on that occasion that the interpreter in the Urdu language made available to assist the applicant’s father was not able to provide an adequate level of interpretation such that the Court could be satisfied that the applicants would receive a fair hearing. Accordingly, the matter was adjourned until 14 September 2012.
On resumption of the hearing, the applicant’s father appeared in person and was assisted by an interpreter in the Urdu language. Again, he appeared on behalf on his wife and for his daughter as her litigation guardian. Ms M Stone appeared for the first respondent.
The applicant’s father initially said he had nothing to say in support of the application to the Court. When pressed, his complaints were that he did not agree with the Tribunal’s decision and that, as a result of his problems in India, his daughter would be at risk.
The applicant’s disagreement with the Tribunal’s conclusion and his assertion of risk in India, plainly, does not rise about a request for impermissible merits review (Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259)
A subsequent complaint that the Tribunal did not give proper consideration to his daughter’s case also, in the absence of anything further, is no more than a complaint about the outcome with which he plainly disagrees. The Tribunal did give consideration to all aspects of the daughter’s claims (NABE v Minister for Immigration & Multicultural Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1). It made findings open to it on what was before it (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). Those findings are not susceptible to legal change in the current circumstances.
Consideration
“No Jurisdiction”: The Second and Third Applicants
I agree with the Minister’s submission that there is no error in the Tribunal’s decision, as such, that it lacked jurisdiction in relation to the application of the second and third named applicants. That is, the applicant’s father and mother (however, see below).
As was submitted by the respondent, the Tribunal’s finding in this regard was correct. First, pursuant to s.48A of the Act, persons who have previously been refused a protection visa, and have not subsequently left Australia, are prevented from making subsequent protection visa applications.
In the current case, the applicant’s father had applied for a protection visa on 8 September 2008. That application was refused. The applicant’s father had not left Australia since making that application.
Further, the applicant’s mother had been included as a member of the father’s family unit in that application (see [20] at page 7 of the annexure “A” to the affidavit of Ms M Stone, made on 28 May 2012). As submitted by the Minister, since an application for a protection visa includes an application where an individual is included as a member of the family unit (s.48A(2)(ab) of the Act) and the applicant’s mother had not left Australia since the making of that application, she too was precluded from making a further application (s.48A of the Act).
While it is the case that the Minister can exercise discretion under s.48B of the Act and allow an applicant to lodge a second protection visa application, there was no evidence, nor suggestion, that this had occurred in the current case.
Second, given the delegate’s decision that the applicant’s mother’s and father’s applications were invalid, the Tribunal lacked jurisdiction to review that decision. Section 47(4) of the Act provides that a decision by the Minister that an application is not valid is not a decision to refuse the grant of a visa. The Tribunal’s power to review a decision, pursuant to s.411 of the Act, does not include the power to review a finding that an application is invalid.
In those circumstances, and as submitted by the Minister, the Tribunal’s finding that it had no jurisdiction with regard to the applicant’s mother and father was correct (subject to one matter below).
Procedural Fairness
I should just note that as to the applicant, a minor, I take the view that her father acted on her behalf as her common law guardian before the delegate and the Tribunal (SZLSM & Anor v Minister for Immigration & Anor [2008] FMCA 1172 at [47] and Re Woolley and Anor; Ex parte Applicants M276/2003 (by their next friend GS) [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369). Therefore the procedural fairness obligations towards her were discharged through her father.
The Tribunal gave the applicant the opportunity, through her father, to explain her claims. It simply did not accept the truthfulness of the factual assertions. Those findings were reasonably open to the Tribunal on what was before it, and for which it gave reasons. Further, findings on credibility are a matter for the Tribunal acting within jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1)
I should also note for the sake of completeness that I also agree with the Minister that the Tribunal complied with its procedural fairness obligations in relation to the applicant’s father in regard to this issue. The Tribunal was required to provide procedural fairness at common law on this matter given that its lack of jurisdiction meant that the statutory requirements of Div.4 of Pt.7 of the Act were not engaged and did not apply. Jurisdiction is not a matter dealt with in that Division (Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204).
In this regard, the Tribunal put the applicant’s father on notice at the hearing on 12 January 2012. The applicants have not put any evidence before the Court to challenge the Tribunal’s account of what occurred at that hearing. That account shows that the applicant’s father was given the opportunity to comment and respond at the hearing in relation to his own application ([33] at CB 129). He is reported as having stated that he had nothing further to raise in relation to that.
At the hearing on 21 August 2011 I raised with the Minister’s solicitor the question of whether, in the circumstances, the Tribunal had failed to provide procedural fairness to the applicant’s mother in relation to giving her the opportunity to make any comment on the issue of jurisdiction. At the hearing the Minister conceded that a failure of procedural fairness had occurred in that regard.
The applicant’s mother had not been invited to the hearing (CB 87). She was told by the Tribunal that she was not required at the hearing (CB 92). Further, there is nothing in the Tribunal’s account of the hearing to indicate that the Tribunal asked the applicant’s father if he was also present to represent his wife’s interests or to act on her behalf such that the opportunity afforded to him could be said to have included the applicant’s mother.
However, the Minister submitted that the relief sought by the applicants was at the discretion of the Court (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33], Re Minister for Immigration and Multicultural and Indigenous Affairs and; Ex parte Applicants S134/2002 [2003] HCA 1 at [89] – [90] and Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [52] per Gaudron and Gummow JJ). In the circumstances, the Minister’s position was that it would be futile to grant the relief to the applicant’s mother in circumstances where on any remittal the Tribunal would have to find, as it already had, that it did not have jurisdiction in relation to her application for review (see above
at [34] – [38] above).
I agree, and would further add that the futility of such relief can also be seen in circumstances where the applicant’s mother, in this application for a protection visa, has made no claims at any time to be a refugee in her own right. She applied, and relied on, her membership of her daughter’s family. As such, given that no legal error is evident in relation to the applicant, the applicant’s mother cannot meet a necessary criterion for the grant of the visa applied for (s.36(2)(b) of the Act and SZLGF & Anor v Minister for Immigration & Citizenship [2008] FCA 1369 at [43] – [44] per Graham J ).
The Minister initially also proposed an alternative basis to refuse relief as found in Cao v Minister for Immigration & Anor [2009] FMCA 70 at [40] – [42]. With respect, I do not see that what was said there is applicable to the circumstances now before the Court. In any event, the Minister did not press this alternative basis to refuse relief.
Ground One
The first ground alleged that the Tribunal made a “serious jurisdictional error” by failing to consider whether the applicants would suffer serious harm if they relocated within India.
As submitted by the respondent, the Tribunal did not, nor was it required to, make any relocation finding. While relocation was discussed with the applicant’s father at the hearing ([80] at CB 140 to CB 141), it was not necessary for the Tribunal to make a finding as to the reasonableness of relocation in circumstances where it rejected the applicant’s claim to face a real risk of harm if returned to India (Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261 at [13] per Whitlam, Lehane and Gyles JJ). Its failure to do so does not reveal any error, let alone “serious” jurisdictional error.
Ground Two
Despite opportunity to file an amended application, and the provision of “free” legal advice, ground two remained unparticularised. Without further particulars, it was difficult to discern the exact nature of the applicant’s complaint. In light of that, the Minister’s written submissions did not address ground two in any detail.
In any event, I cannot see any error in the Tribunal’s consideration. The Tribunal’s relevant findings were reasonably open to it in the circumstances. The findings were probative of the material before it. It gave cogent reasons. In the circumstances, the Tribunal could not reach the requisite level of satisfaction and therefore a refusal of the applicant was mandated (s.65, s.36(2) and SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] - [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
Conclusion
Nothing in the grounds of the application to the Court reveals legal error on the part of the Tribunal. As conceded by the Minister, the Tribunal committed jurisdictional error with regard to its obligations to the applicant’s mother. However, for the reasons set out above, it would be futile in the circumstances of this case to grant the relief sought with respect to the applicant’s mother. In those circumstances, the application should be dismissed. I will make an order accordingly.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 21 September 2012
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