SZHTL v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2006-08-14|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellants appeal the decision of Scarlett FM delivered on 1 March 2006, which found there was no reviewable error by the Refugee Review Tribunal.

BACKGROUND 2 The first and second appellants are wife and husband respectively and the third appellant is their infant child. The husband and wife are citizens of India who formerly resided in the Punjab. The husband resided in the Philippines from 1992 and had permanent resident status in the Philippines. He returned to India for 5 months in 2002, during which time he and the first appellant were married, and the wife was consequently granted temporary resident status in the Philippines. The husband and wife lived together in the Philippines from 2002 until 2004, when they came to Australia. 3 The appellants arrived in Australia on 26 March 2004 and on 6 May 2004 applied to the Department of Immigration and Multicultural and Indigenous Affairs for protection visas. The applications of the husband and of the child were based upon their membership of the family of the wife, who made the primary application. 4 On 14 April 2005 a delegate of the first respondent refused the applications. On 16 May 2005 the applicants applied for a review of that decision.

Tribunal HEARING 5 On 9 November 2005 the Tribunal handed down its decision, which affirmed the decision of the delegate to refuse protection visas to the appellants. 6 At the hearing before the Tribunal, only the wife gave evidence. The husband attended the hearing but did not give oral evidence to the Tribunal. 7 The wife's application was made on the basis of alleged incidents which occurred in the Philippines. However, at the Tribunal hearing it was explained to her that, since she was a national of India, Australia had protection obligations towards her only if she were unable to return to India for a Convention reason. The wife said that her husband had a fear of persecution in India, because he had been falsely implicated in the murders of school friends during a period of turmoil in Punjab, which had resulted in his emigration to the Philippines in 1992. The wife provided limited further details of the harassment allegedly suffered by her husband in India. The husband did not give any evidence in support of these contentions. 8 The Tribunal did not accept the truth of the wife's statements in respect of her husband's harassment in India. It noted country information which indicated that the Punjab had returned to a state of normalcy, and considered that it was unlikely that, if the police had ever been interested in the husband, they would remain interested in him after a period of more than ten years. Further, it considered that the wife's claim was inconsistent with the fact that the husband had returned to India for 5 months in 2002, apparently without suffering any harassment from the police.

APPEAL TO THE FEDERAL MAGISTRATE 9 The wife appealed to the Federal Magistrates Court. The grounds of appeal claimed the Tribunal made 'jurisdictional error as it failed to make a finding as to whether the applicant had taken "all possible steps" to avail herself the right to enter India after leaving Philippines (s 36(3) Migration Act 1958 (Cth))', and secondly 'failed to take into consideration issues that are mandatory by their scope in making the finding that the applicants are not refugees'. The appellants were legally represented in the Federal Magistrates Court. 10 Scarlett FM heard the appeal and delivered judgment on 1 March 2006. His Honour noted that the Tribunal member made it clear that being a victim of crime in the Philippines was not a basis for granting a protection visa. In view of the fact that the person with the well-founded fear of persecution in India was the husband, his Honour observed that: '… it seems extraordinary that it was the wife who gave evidence and the husband who did not. It can really only be traced back to the original claim relating to an alleged fear of persecution in the Philippines arising out of crime.'

11 His Honour found that the Tribunal had applied s 36(3) and (4) of the Migration Act 1958 (Cth) correctly, by asking the question of whether the appellants would be subjected to persecution if they were to return to India. 12 The second ground of appeal was that the Tribunal failed to take into consideration the operation of Indian criminal law, and in this respect the appellants challenged the finding of the Tribunal that the husband would not have been of interest to the police in India in 2002. 13 Scarlett FM determined that the challenged finding was a factual matter which was open to the Tribunal. For this reason he determined that there was no jurisdictional error.

APPEAL TO THE FEDERAL COURT 14 The appellants filed a notice of appeal to this Court which substantially repeated the allegations before the Federal Magistrate, with additional particulars. The notice of appeal also added an additional ground, namely that Scarlett FM erred in not finding a jurisdictional error because the Tribunal failed to consider whether the appellant was part of a particular social group. 15 On 8 August 2006 the appellants foreshadowed that they would seek leave to file an amended notice of appeal, and provided a copy of the draft amended version. At the hearing today, counsel for the appellants sought leave to rely upon a further amended notice of appeal, which was similar to that provided on 8 August 2006, although the first ground relied upon had been significantly amended. The first respondent resists the grant of leave to rely upon either amended notice of appeal, on the basis that the amended notices raise fresh matters which should have been raised before the Federal Magistrates Court. However since counsel for the first respondent indicated that he was prepared to continue on the basis of the amended notices, I reserved the question of leave to be determined after hearing the appeal. 16 The further amended notice of appeal raises three grounds: '1. His Honour should have found that the Tribunal failed to exercise its jurisdiction pursuant to section 415 of the Migration Act by not failing to enquire the Appellant Husband to give evidence on the 2002 and other incidents instead simply relying on account of the wife who gave evidence and then making adverse credibility finding against the Appellant husband and/or adopting the findings of the delegate.

There is a further denial of natural justice/procedural unfairness by the Tribunal due to the fact despite there being the presence of the Appellant Husband the Tribunal chose to ask questions only of the wife. The Appellants have been misled into believing that the Appellant husband did not need to give evidence. The Appellant submit that this in itself constitutes jurisdictional error.

His Honour should have found that the Tribunal erred in not providing the Appellant Husband to comment on the information pursuant to s 424A of the Act.'

These matters were clearly not raised before Scarlett FM. 17 The first ground of appeal purports to raise a breach of s 415 of the Migration Act. Section 415 sets out the powers of the Tribunal and does not appear to relate to the allegations made by the appellants in respect of that ground. I suspect that the appellants in fact intend to rely upon s 425, which requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence. 18 The appeal book contains a hearing invitation form relating to all three appellants, which was sent to the appellants' migration advisor in accordance with s 425A of the Migration Act. This is sufficient for the Tribunal to have complied with its obligations to invite the husband to attend a hearing under s 425: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439. Further, the transcript of proceedings before the Tribunal is in evidence. The husband was in attendance at the hearing. The transcript confirms that the Tribunal explained to the husband that he was entitled to give evidence if he wished. The husband declined to do so. In these circumstances, this ground of appeal has no merit. 19 The second ground of appeal suggests that the failure of the Tribunal to ask questions of the husband was a breach of procedural fairness. In view of the invitation extended to the husband by the Tribunal referred to above, I cannot accept that the Tribunal failed to afford procedural fairness to the appellants. The inquisitorial functions of the Tribunal do not extend to compelling an applicant to give evidence when that applicant has informed the Tribunal that he or she does not wish to do so. 20 The third ground of appeal alleges that the Tribunal breached s 424A of the Migration Act by failing to provide to the husband details of information given to the Tribunal by the wife. The appellants suggest this is required by s 424A(1). The respondent has referred to Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176, in which Young J held that in a joint application, evidence provided by an applicant whose application is based upon membership of the family of the primary applicant falls within s 424A(3)(b) of the Migration Act 1958 (Cth) in respect of the joint application. Accordingly, information provided by one joint applicant was not required to be provided to other joint applicants in accordance with s 424A(1). 21 The present situation is the converse of that considered by Young J in Applicant M47/2004. In the present case, evidence was given by the wife (the primary applicant), and the appellants submit that such information was required to be provided to the husband (the dependent applicant) in accordance with s 424A(1). I am satisfied that the principle in Applicant M47/2006 is applicable in these circumstances. Accordingly, I reject the appellants' submission that the Tribunal has breached s 424A(1) by failing to provide the wife's evidence to the husband, because the exemption in s 424A(3)(b) applies.

CONCLUSION 22 In view of these findings, I consider that, even if leave were granted to rely upon the further amended notice of appeal, the appeal would fail. I also take into consideration the fact that the appellants were represented before the Federal Magistrates Court. If these grounds were to be raised, they should properly have been raised before the Federal Magistrate and not in this Court. No exceptional circumstances have been raised which would justify the grant of leave in these circumstances: see Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543. For these reasons, I consider that leave should not be granted and the appeal should be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Solicitor for the First Respondent: Sparke Helmore

Date of Hearing: 14 August 2006

Date of Judgment: 14 August 2006

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