SZSHV as Litigation Guardian for SZSHW v Minister for Immigration
[2013] FCCA 1784
•25 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSHV AS LITIGATION GUARDIAN FOR SZSHW v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1784 |
| Catchwords: MIGRATION – Where applicant is an infant under 3 years – where claims are essentially a rehearsal of parents’ claims that had previously been dismissed – whether Tribunal complied with s.424AA and hence s.424A when giving information – whether Tribunal was required to give the information to the infant or to her guardian – some comments upon claims of infants born in Australia to parents whose claims have been rejected. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 424A, 424AA |
| Re; Woolley, Ex parte applicants M276/2003 by their next friend GS (2004) 225 CLR 1 SZLSM v Minister for Immigration & Anor [2009] FCA 537 SZRGG v Ministerfor Immigration & Anor [2013] FCA 169 Zubair v Minister for Immigration & Anor [2004] FCAFC 248 |
| Applicant: | SZSHV AS LIGITRATION GUARDIAN FOR SZSHW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2813 of 2012 |
| Judgment of: | Judge Raphael |
| Hearing date: | 25 October 2013 |
| Date of Last Submission: | 25 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the First Respondent: | Minter Ellison |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $8,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2813 of 2012
| SZSHV AS LITIGATION GUARDIAN FOR SZSHW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this matter is the infant child of two persons who are citizens of India who, themselves, made application for protection visas on 19 November 2009. Those applications were declined and the parents went through the usual processes of the Refugee Review Tribunal, the then Federal Magistrates Court, the Federal Court, and the High Court, at all of which stages the delegate’s decision was affirmed and it was found that there was no jurisdictional error in the conduct of the Tribunal.
This applicant was born in Sydney on 4 August 2010. An application for a protection visa was made on her behalf, by her father, on 23 December 2011. A delegate of the minister refused to grant her a protection visa on 4 June 2012 and so she made an application to the Refugee Review Tribunal for a review of that decision. At that time her parents were included as second and third applicants but it is now recognised that neither the delegate nor the Tribunal nor this court have any jurisdiction in respect of their applications.
On 18 April 2013 the parents of the applicant were removed from this case, at their own request, and to the extent that the Amended Application, with which the court will now deal, makes reference to them as applicants the reference to the second applicant should be to “the applicant’s mother” and the reference to the third applicant should be to “the applicant’s father, her litigation guardian.”
The applicant’s ground to be a person to whom Australia owed protection obligations was that as the child of her parents she was in danger from Hindus, particularly those belonging to the RSS and BJP, in her home state of Kerala, because those persons had threatened to kill her parents because of their adherence to the Christian religion and the Roman Catholic faith. In order to make out her claim her father rehearsed his own and his wife’s claims that have been the subject of earlier Tribunal hearings. The father suggested that those persons who wish to kill him and his wife would not hesitate to kill his daughter as well.
During the course of the hearing the Tribunal sought to determine the veracity of the father’s claims, insofar as they would affect the applicant, and put to him and discussed with him certain information, being both general independent country information and information arising out of the previous hearings. It is the manner in which the Tribunal put to the applicant certain information that had come from his wife during her Tribunal hearing that is the subject matter of the application for review that is before me today.
It is not necessary, for the purposes of these reasons, to rehearse in any greater detail the claims being made by this applicant, suffice to say the Tribunal came to the conclusion that it could not be satisfied that she would suffer serious harm if she was returned to India because it did not believe that she was at any real risk of persecution. The Tribunal’s views as to her suffering of significant harm, for the purposes of consideration of complementary protection, were similar and are not the subject of any application to this court.
The original application made to this court was filed on 3 December 2012. On 18 April 2013 I held a directions hearing which the applicant’s father attended. At that directions hearing orders were made including orders that the applicant should file and serve any amended application by 30 May and should file any evidence upon which she intended to rely including any transcript of the hearing by 30 May. The matter was set down for hearing before me on 16 October.
On 16 October the applicant appeared and sought to file in court an amended application which had been drawn by Mr Gormley of Counsel. The amended application made certain claims as to jurisdictional error arising out of noncompliance with s.424A of the Migration Act 1958[1]. Mr Pinder, who appears on behalf of the Minister, informed the court that he was not in a position that day to respond to the Amended Application and in those circumstances I adjourned the matter until 25 October. I explained to the applicant’s father that the effect of an Amended Application was to wipe out any grounds of application other than those contained in that document and that this was the matter that the court would hear on the 25 October. He told me that he understood that.
[1] “Act”
During the interim hearing the respondent did two things. First, it obtained the recording of the Tribunal hearing and prepared a transcript, which is attached to an affidavit of Gabrielle Natoli, sworn on 22 October 2013. Second, the respondent prepared some further written submissions to which they spoke today. Those written submissions were translated to the applicant by the interpreter and he has also had an opportunity to consider the relevant pages of the transcript.
Ms Natoli was in court and was available for cross-examination. The applicant told me, after I offered him the opportunity of cross-examining her, that he believed that the transcript was probably accurate and he did not wish to cross‑examine her. Whilst clearly it would have been more helpful had the person who drafted the Amended Application spoken to the document, the court is of the view that the applicant was not seriously disadvantaged because, in fact, the allegations of jurisdictional error made in the Amended Application are not sustainable for the reasons it will now give.
The Amended Application appears to have six grounds, of which five consist of background and only the sixth articulates the point that is in issue. The full form of those grounds is set out below:
“1. In relation to the following information:
·That the second applicant had said at another Tribunal hearing on 8 October 2010 that she knew of only one incident of harm to her family. This was the occasion on which a group allegedly came to their house and demanded that she tell her husband to return to India then confronted her husband’s uncle and killed him: IMR [62]
2.The information was used by the Tribunal as part of the reason for affirming the decision under review.
Particulars
·The information was used by the Tribunal to show inconsistency between it and the claim of the third applicant that his house had been bombed or burnt down.
3.The information was used by the Tribunal as part of the reason for affirming the decision under review.
Particulars
·The Tribunal found that the inconsistency cast doubt over the credibility of the claim that the third applicant’s house had been burned down or bombed.
4.The information was not given by the applicant for the purposes of her application for review and therefore s 424A(3)(b) does not apply.
5.The Tribunal did not give written notice prior to the hearing of its intention to use the said information as part of its reasons for its findings against the applicant.
6.Section 424A(2A) did not apply to abrogate the obligations of the Tribunal under s 424A(1)&(2) as the Tribunal did not give particulars of the information to the first applicant pursuant to s 424AA, but only to the third applicant, in respect of whose application for review the Tribunal found it had no jurisdiction; and the third applicant was not the litigation guardian or similar of the first applicant in the review application.”
The respondent advises the court that it accepts the facts adumbrated in paragraphs 1 to 5 but, of course, disagrees with the contention in paragraph 6.
Division 4 of the Act, commencing at s.422B, is described as “an exhaustive statement of the natural justice hearing rule.” It is well settled that these rules apply to Tribunal hearings and supplant any general law on procedural fairness. Section 424A deals with information and invitations given in writing by the Tribunal. It is in the following form:
“Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.”
It will be seen that the regime under this subsection is quite strict and complex and during the early part of this century numerous cases came before these courts claiming jurisdictional error arising out of failure to comply. The Parliament decided that some amendments should be made to ease the burden upon the Tribunal and for this reason s.424AA was inserted into the act. That section is in the following form:
“Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
The effect of s.424AA is not to provide some alternative to s.424A but to provide for an alternative way of giving the information and dealing with it. If s.424AA is complied with it then there is no breach of s.424A. The procedure is much used by Tribunals which have had several years in which to become familiar with the proper manner of proceeding.
The respondent in this case has read Ground 6 of the Amended Application as suggesting both that information was not given in accordance with the provision of s.424AA and that even if it was given appropriately it was not given to the applicant, being the infant. It was given to her father. It is well to deal with both allegations. In order to do this the court must have reference to the transcript.
At [T19] the following appears:
“Tribunal: Now at the previous tribunal hearing your wife was asked about the harm that she had experience din India and she said there was only once incident, and the incident that she talked about was this incident where you say that people came to the house to question her and then she mentioned that they should talk to your uncle and so they went away and spoke to your uncle and later killed him. And so she was asked if she was sure that there was only just that once incident and she said yes she was. She made no mention whatsoever of another incident in which you say that your house was burned down. That can cast doubts obviously on the truth of your claim that your house was burned down while you and your wife were inside it. You had to escape together. Could you comment on that.”
At [T21] some further information was given:
“Tribunal: One more piece of information that I wanted to put to you is the following. The information is that in Kerala there have been incidents of violence towards Christians but those incidents are really isolated and spasmodic or sporadic. And the information indicates that in Kerala a very significant proportion of the population are Christians. And Christians make up a prominent part of the community. Their prominent economically. And Christians in Kerala are able to worship in safety and freely without any problems. This can indicate that you wouldn’t have any problems and your daughter wouldn’t have any problems as Christians in Kerala.”
At [T22] the following exchange takes place:
“Tribunal:Right. Now I want to talk to you about this information. In particular, the information that was given at the previous hearing about the death of your uncle, whether your house was burned down, what your religious activities were in India and what your religious activities were in Australia. Now I’ve explained that information to you. Do you understand that information?
Interpreter: Yes
Tribunal:Yes. I want to explain to you why that information is important. I haven’t reached any conclusions about this but the information is important because it can cast doubt on the truth of your claims first of all to have been involved in missionary work in India or secondly that you or any other members of your family were ever threatened or harmed for that reason, including being threatened or attacked because you witnessed a murder. Now, if I doubted the truth of your claims about those things, that could lead me to conclude that you would not suffer harm for these reasons if you returned to India. And if I believe that you wouldn’t suffer any harm for these reasons if you returned to India, that would lead me to conclude that your daughter wouldn’t suffer harm because of these reasons. And that you would lead me to believe that she didn’t have a well founded fear of persecution or serious harm in India and so the decision to refuse to grant her a protection visa should be affirmed. Let me ask you, do you understand why that information is important.
You do?
Interpreter: Yes.
Tribunal:I wanted to give you an opportunity to comment on the information or respond to it. And you could do that in any way you liked. If you wanted to respond or comment could do it straight away, or you could do it at a resumed session and adjourned session of this hearing, or you could do it later in writing. And if you needed more time to do those things then we could talk about how much more time you might need.
Interpreter: Is it for writing or for the next _______.
Tribunal:Well, it’s your choice. I mean as I say you’ve got basically three ways that you could comment or respond. Of course you could say nothing if you don’t want to say anything that’s your choice. Yes, but if you do want to comment or respond you can do so straight away if you want, or if you wanted to speak at an adjourned session of the hearing at some later time then you could do that, or if you wanted to respond in writing then you could do that too. So it’s over to you.
Interpreter: I get a chance for another interview that can be good for me.
Tribunal:All right, well we’ll adjourn this hearing today and we’ll return and allow you to say anything else you want to say about that information that I’ve put to you.
Interpreter: I would prefer otherwise in writing.
Tribunal:Well it’s your choice.
Interpreter: I will give it in writing.
Tribunal:All right, fine, okay.
Interpreter: In my interview so far as it has in my documents related about the uncle’s death about the house burning and accident matter and my religious duties. For this we have presented the documents. I have my own problems and the pain that I am suffering and whether you three people can understand. My problem is it pains me throughout. So I would prefer that give it in writing._________
Tribunal:What sort of timing are you thinking about.
Interpreter: I need a minimum two weeks please.
Tribunal:Right. Well, I’ll give you two weeks. All right, thanks for that. I am going to ask your wife to come in in a moment but before I do that I am just going to task you if there is anything else that you would like to say, that you haven’t said already that’s relevant and we haven’t covered.”
It will be seen from this extract that the Tribunal firstly asks the applicant if he understands the information thus complying with sub.s.424AA(b)(i). The Tribunal goes on to explain why the information is important and relevant to the review which is also required under s.424AA(b)(i). The Tribunal offers the applicant an opportunity to comment upon that information complying with s.424AA(b)(ii). The Tribunal advises the applicant that he may seek additional time to comment and that he would be prepared to adjourn the review thus complying with s.424AA(b)(iii) and (iv).
What occurred in this case was that after providing the applicant with the opportunity and the applicant asking for an adjournment to comment at a later time the applicant changed his mind and decided to comment in writing. The Tribunal then granted the applicant a period of 14 days in which to provide further information, a period that the applicant asked for. I am unable to see any way in which it can be alleged that the Tribunal did not comply with the provisions of s.424AA. That being the case the Tribunal is held to have complied with s.424A and there is no jurisdictional error to be found.
The second string to the application is that the information should have been given to a child who, at the time of the Tribunal hearing, was 2 years 2 months and 20 days of age and should not have been given to her father who was not, at the time, her litigation guardian. He was clearly not her litigation guardian because at the time there was no litigation, there was only a Tribunal hearing. But what the father was, was her common law guardian, a species defined by McHugh J in Re; Woolley, Ex parte applicants M276/2003 by their next friend GS (2004) 225 CLR 1 at [103]:
“Parents in their capacity as guardians of an infant child have the power under the common law to make decisions on behalf of the child, provided that the child does not have the competence to make the decision.”
It can hardly be said that an infant of the age of this one was competent to make any decision. Even Mozart could not read at the age of two years two months, and 20 days.
This principle was applied by Cowdroy J in SZLSM v Minister for Immigration & Anor [2009] FCA 537 at [17] to [26], and in particular at [24] to [25]:
“[17]In the decision of the High Court of Australia in Re Woolley and Another; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1 at [103], McHugh J said:
“Parents in their capacity as guardians of an infant child have the power under the common law to make decisions on behalf of the child, provided that the child does not have the competence to make the decision.”
[18]Nicholls FM applied such principle to the circumstances of the appellants’ family, whilst observing that Re Woolley was decided in the context of s 189 of the Act. His Honour concluded that the appellants’ father undertook the role of guardian for the appellants when he signed the Application for Review form and lodged it with the Tribunal. His Honour also noted that the appellants’ response to the Tribunal’s s 424A letter was signed by the appellants’ father and that the Response to Hearing Invitation Form was also signed by the appellants’ father. Further, when the Tribunal hearing commenced the appellants’ father confirmed that ‘he was giving evidence on behalf of’ the appellants.
[19]His Honour found that at all times the appellants’ father acted in the capacity of the appellants’ common law guardian and was their ‘representative’.
[20]The appellants submit that Nicholls FM erred in characterising the appellants’ father as their common law guardian by relying upon the decision of the High Court in Re Woolley. The appellants submit that such authority does not apply as the common law principle of guardianship is overridden by the inconsistent provisions of ss 36(2)(b) and 424A of the Act. Section 36(2)(b) of the Act specifies the criteria for a protection visa and allows, inter alia, for dependants to apply for a protection visa in their own right and name, and s 424A refers to ‘an applicant’ without any qualification that such applicant must not be legally incapacitated. The appellants accordingly submit that ‘express evidence’ was required before Nicholls FM could characterise the appellants’ father as their common law guardian.
[21]The Court finds that the appellants’ submission represents a misconception of the provisions of the Act. The Court acknowledges that s 36(2)(b) of the Act provides that an applicant may apply for a protection visa in his or her own right, regardless of any legal incapacity. In this regard, the Act is ‘clear and valid’ (see Re Woolley at [194] per Kirby J) and overrides any common law principle requiring an infant to act through a guardian: see, for example, Wettig v Langdon [1885] VicLawRp 103; (1885) 11 VLR 530. However, the Act does not purport to prevent an infant from acting through their guardian, nor do the provisions of s 424A restrict the operation of the common law principle of guardianship.
[22]The appellants rely upon the finding of McHugh J in Woolley at [101] in which his Honour said:
The parens patriae jurisdiction of the courts cannot be invoked to read down the legislative direction that children who are unlawful non-citizens must be detained in immigration custody.
[23]It is not apparent why this passage is cited, other than as an example of where the Act was shown to displace the common law. Regardless, the extract of McHugh J is not relevant to the issue of the guardianship of the appellants’ father, his capacity to make an application for a protection visa for the appellants, and to conduct the application for review on their behalf.
[24]The Court observes that there is no provision in the Act which overrides the common law principle that a guardian may be characterised as acting for his or her children where his or her conduct warrants such a characterisation. The first and second appellants were eight and two years old respectively at the time. The Court considers that the appellants’ father had clearly adopted the role of a guardian by signing the necessary application form, by corresponding with the Tribunal and by giving oral evidence on their behalf.
[25]Accordingly, the Federal Magistrate was entitled to consider whether the appellants’ father was acting as a common law guardian. The Court adopts the approach of Smith FM in SZKDB & Anor v Minister for Immigration & Anor [2007] FMCA 1036 at [28]- [30], in which his Honour found that an application brought by a mother for herself and her infant daughter should be treated as if the mother was the guardian of her child.
[26]In the absence of any evidence that the appellants were capable of conducting their appeal, the Court is unable to find any error in Nicholls FM’s finding that the appellants’ father was acting as their guardian and representative. His Honour’s application of Re Woolley was without error.”
The decision of Justice Cowdroy was approved by Justice Jacobson in SZRGG v Ministerfor Immigration & Anor [2013] FCA 169, his Honour noting at [22] and [23]:
“[22]In my opinion, it is plain that the principles summarised by the Cowdroy J in the authority referred to above are applicable in the present case. Accordingly, the Tribunal was not bound to disclose the information to the applicant personally. It seems to me to be plain that this principle, as stated by Cowdroy J, is correct.
“[23]If the Tribunal were required to disclose the information to the applicant personally in the circumstances of a case such as this it would lead to a situation which is totally unworkable. I do not see that this could be consistent with the provisions of the Migration Act to which I have referred.”
In the instant case it is clear from the transcript at [T7], that the applicant’s father was shown the application form, was asked if he recognised it, was shown a signature, and was asked and confirmed that it was his. At [T8] the following is recorded:
“Tribunal:Nothing. Thanks very much for that. As I said I would like to give you the opportunity to tell me about what’s happened. First of all let me just ask though, are you, and this may seem an obvious question, but I need to ask. Are you the father of the applicant?
Interpreter: Yes.
Tribunal: Yes, and are you her legal guardian?
Interpreter: Yes.
Tribunal: And are you able to express all of her claims for a protection visa?
Interpreter: Yes.”
The questioning by the Tribunal on these matters seems to comply with the requirements of the cited cases and so I am satisfied that by putting the information in the way in which it did to the applicant’s father the Tribunal did not fall into any jurisdictional error.
When the applicant appeared before me today he made some comments concerning the conduct of the delegate and his not having an opportunity to appear before the delegate. Apart from the fact that any fault in the delegate decision is negated by the Tribunal hearing Zubair v Minister for Immigration & Anor [2004] FCAFC 248 it does appear from [CB 47] that the applicant was invited to a hearing before the delegate. The reason for his non‑attendance is both unknown and irrelevant.
The applicant also told me that he believed that the Tribunal had taken decision based upon independent country information about state protection that he did not believe was relevant to him in his own personal case. It is correct that the Tribunal did consider such information but the real basis for its finding was its view that the parents’ allegation of fear lacked credibility.
Whilst it is not usual for the court to make pronouncements on matters of policy it is well to make some comment upon what is now quite commonly seen, namely, applications made on behalf of infant children born in Australia to persons whose own claims for protection visas have been rejected. What occurs is generally no more than a rehearsal of the parents’ claims with little or no new evidence to support them. As in this case there is no evidence of harm that might be inflicted upon the infant, absent the general claims of the parents. The court has noticed that applicants are coming forward who are second and third children of failed asylum seekers who have no claims greater than those of their parents. It may be thought that legislative amendment restricting the claims of these infants to those particular to themselves, that are not a rehearsal of their parents’ claims, might speed up the process and relieve the Tribunal and the courts of the weight of unmeritorious applications.
This application is dismissed. The applicant is to pay the first respondent’s costs which include the costs thrown away by the adjournment made necessary by the late production of the Amended Application. Those costs are assessed in the sum of $8,000.00.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 31 October 2013
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