SZKPB v Minister for Immigration & Citizenship & Another

REASONS FOR JUDGMENT 1 The Appellants are husband and wife. They are each citizens of India. They came to Australia on 1 September 2006. The following month, on 11 October 2006, they lodged an application under the Migration Act 1958 (Cth) (the Act) for what is known as a protection visa. The female Appellant's claim for such a visa is a derivative claim. By that I mean that she advances no separate case for the grant to her of a protection visa from that which formed the basis of her husband's claim. 2 On 23 November 2006 a delegate of the Minister for Immigration and Citizenship (the Minister) refused the Appellants' protection visa application. The Minister is the active party Respondent to the present appeal. The following month, as was their right under the Act, the Appellants sought the external merits review of the Minister's delegate's refusal decision by the Refugee Review Tribunal (the Tribunal). On 20 March 2007, the Tribunal decided to affirm the Minister's delegate's decision. 3 A judicial review application to the Federal Magistrates Court followed. This was unsuccessful. An appeal to this Court against that Federal Magistrates Court's decision did prove successful: see the judgment of Rares J, SZKPB v Minister for Immigration and Citizenship [2007] FCA 1773. The upshot of the successful appeal to this Court came to be a rehearing of the application for review of the visa refusal decision by a differently-constituted Tribunal. 4 On 24 June 2008, for reasons which it published to the Appellants under cover of a letter dated 15 July 2008, the Tribunal again decided to affirm the visa refusal decision. The Appellants again sought the judicial review of that decision by the Federal Magistrates Court. 5 On 14 November 2008, for reasons delivered that day, the Federal Magistrates Court dismissed the judicial review application. It is from that court's decision that the Appellants now appeal to this Court. 6 The grounds of appeal to this Court are as follows: 1 The Tribunal, exceeding its jurisdiction had constructively failed to exercise its jurisdiction by failing to accept the fact that the first Appellant is suffering from intellectual and physical impairment with his memory, which prevents him from understanding the questions put to him at the hearing. 2 The Federal Magistrates Court failed to accept the incapacity and ordered the tribunal to grant the opportunity for the first appellant to obtain medical reports to prove his incapacity. 3 The Federal Magistrates Court and the tribunal failed to accept that the failure to produce medical evidence at the hearing does not necessarily mean that the first appellant is not suffering from physical and intellectual impairment [sic]. 7 Some reference to the basis of the claim for a protection visa is necessary. The male Appellant claimed to fear persecution in India from persons associated with the Bharatiya Janata Party (BJP) and Rashtriya Swayamsevac Sangh (RSS). 8 The male Appellant's claim was that he was a Christian who owned a supermarket, and that he had come in contact with a criminal known as "Babu" who was an associate of the BJP and RSS. The male Appellant alleged that Babu had threatened him and ordered him to close his shop. He further alleged that the police were unwilling to assist him because of political connections that Babu had. 9 The male Appellant alleged that Babu was later murdered, that he was accused of this murder and that he had been attacked by associates of Babu on several occasions, with the police not doing anything to respond to these further attacks. 10 The Tribunal's reasons disclose that it did not accept, because of the assessment that it made of the male Appellant's credibility, the basis upon which the protection visa was claimed. The Tribunal's reasons recite at some length, and in some detail, why this was so. 11 The Tribunal's reasons have regard to the Appellant's account, a lack of detail as perceived by the Tribunal, an ignorance on his part of the contents of an earlier written submission he had made to the Tribunal, an absence of references in searches made over the internet to some of the locations and persons mentioned in the male Appellant's visa claims, as well as an implausibility of his claim that despite moving to Mumbai to escape from Babu's gang, he had attended a family function which several gang members also attended. 12 All of these features engendered a lack of satisfaction on the part of the Tribunal that the male Appellant, and hence, his wife, were persons to whom Australia owed protection obligations. 13 There was also a lack of satisfaction on the Tribunal's part having regard to the credibility findings that it made; namely, that the male Appellant would be persecuted on account of his Christianity were he to return to India. There is nothing illogical about the Tribunal's findings as to credibility, as disclosed in its reasons. Without more, the case would appear to be nothing other than an unremarkable value judgment, not amenable to successful judicial review for jurisdictional error. 14 The grounds of appeal, though, raised a question as to whether or not the Tribunal had, in terms of s 425 of the Act, given a meaningful opportunity to the Appellants to give evidence and present arguments relating to the issues in respect of their review application. 15 In particular, the Appellants advanced the argument that the Federal Magistrates Court should have quashed the Tribunal's decision, on the basis of a separate hearing of the male and female Appellants' evidence, in circumstances where, so it was alleged, the male Appellant suffered from a physical and mental impairment. 16 Under the heading "Hearing Issues" the Tribunal remarked, at paras 63, 64, 65 and 66, appeal book pages 223 and 224, as follows: At the beginning of the hearing the second named applicant asked to be present while her husband was giving evidence, in order to help him. As she said, his memory was not sharp after their experiences in India. I explained that a problem with this proposal was that it would put in doubt the weight I could place on the evidence she could give. She said she could assist him in recollecting answers, because the subject and the things which had been written were not clear in his mind. I asked the applicant if he had ever had treatment by a doctor for any problem associated with his memory. The second named applicant, appearing on his own behalf, said, so far this he had not sought treatment, as he was not interested in doing so while she was with him. [sic] I repeated that it was difficult for me to place weight on their evidence if she was present and talking to him. In further discussion about his memory problems the applicant said it started when he was attacked in his supermarket, when he was struck in the chest and hip. I put to him that he had not received any brain injury in this incident. At the prompting of the second named applicant he said he had also been attacked on his head. I noted that there was no reference to such an injury, or to any injury in the description of this incident in the statutory declaration attached to the protection visa application. The second named applicant said that Babu and his associates had attacked the applicant in his shop. I noted that there was no reference in the statutory declaration to the applicant having been injured, to have received medical treatment, or to have had to go to hospital. The applicant maintained that he had explained everything about the attack in the protection visa application. I noted that he only claimed to have been hit, but there were references to their having been wounded in a latter attack in their house. The second named applicant said this happened in the shop, as well as in the house. I noted that there was no medical evidence to suggest that the applicant's memory had been damaged to the point where it was not possible for him to give evidence by himself, and that he had never claimed to have suffered any serious injury to his head. I put to him that I was not satisfied that there was any reason why the second named applicant should be present while the applicant gave his evidence, and that I wished to take their evidence separately. The second named applicant said she agreed with this approach. Having had the opportunity to hear the applicants' evidence at length, over a hearing which lasted some three and a half hours, I am not satisfied that there was anything to indicate that he was suffering from any intellectual or physical impairment, or problems with his memory, which would have prevented him from understanding the questions put to him or responding to them. Nor is there any medical or other evidence to substantiate his claim that suffers from any such problems.[sic] And the information at the hearing revealed that he had not sought professional help in this regard. He remained emotionally composed throughout the hearing. As noted below, I found him to be an unsatisfactory witness, but I am not satisfied that this reflected anything more than a natural difficulty in explaining inconsistent or implausible aspects of his claims. 17 Having quoted from this passage of the Tribunal's reasons, and having noted the development of a challenge by the Appellants to the Tribunal's decision, on the basis that, in the circumstances, the Tribunal ought to have allowed the female Appellant to have remained with her husband to assist him, the learned Federal Magistrate, at para 7, noted: The issue here is one of compliance with s 425 of the Migration Act. 18 His Honour further observed at para 7: If an applicant is unable to give evidence and answer questions because of a physical or mental disability which is not accommodated in some way by the tribunal, the tribunal may thereby fall into error in failing to comply with its obligations pursuant to section 425. However, in the present case there was nothing, apart from the assertion of the applicants that the applicant husband had memory problems, to support their request that they be interviewed together. The tribunal formed a view that if that procedure were adopted it would inhibit the tribunal in placing weight on their evidence. 19 The learned Federal Magistrate concluded that the Tribunal had met its obligations to afford a real hearing opportunity pursuant to s 425. Mr Reilly, for the Minister, very properly in the course of his submissions drew my attention to NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 (hereafter NAMJ). In that case, at paras 42, 43 and 44, Branson J summarises the effect of earlier decisions of the Full Court in relation to the affording of a meaningful opportunity to be heard, as required by s 425, in circumstances where an applicant before the Tribunal is not in a fit state to take part in the hearing. 20 The case before her Honour concerned a circumstance where it was alleged that the Tribunal did know of an asserted unfitness on the part of the applicant, but nonetheless reached a conclusion that the applicant was fit to take part in the hearing. 21 Her Honour observed, at para 68 and para 69, page 71: I accept the submission of the respondent that in making a judgment as to the fitness of the applicant to take part in the hearing before the tribunal, I should accord weight to the view taken by the tribunal. The tribunal was satisfied that the applicant knew the purpose of the hearing, and had been able to give a comprehensive and lucid account of his claims. I do not consider that this assessment is rendered improbable by the conclusions that I've reached above based on the expert evidence placed before me. It seems to me that by analogy with a claim of procedural unfairness the applicant must bear the onus of establishing that he was unfit to take part in the tribunal hearing. Her Honour then refers to authority. Having regard, particularly to the assessment of the applicant made by the tribunal member, I'm not satisfied that at the time of the tribunal hearing the applicant lacked the capacity to understand the concerns relating to his claim to be entitled to a protection visa that the tribunal raised with him, including the tribunal's concern as to his credibility. Nor am I satisfied that he lacked the capacity to understand and respond to the questions put to him by the tribunal. Further, I am not satisfied that the applicant lacked the capacity to give an account of his experiences in Bangladesh, or the capacity to present arguments in support of his claim to be entitled to a protection visa. 22 In this case the Appellants introduced no evidence, lay or professional, before the Tribunal in relation to the supposed, or the asserted, incapacity of the male Appellant. There was an assertion apparently on the part of the female Appellant, but this does not seem to have been developed in any detailed way in evidence before the Tribunal. The same applies in respect of the proceedings before the Federal Magistrates Court, and, for that matter, before this Court. 23 Upon the appeal being called on, the male Appellant indicated that he wished the submissions in respect of the appeal to be made by the female Appellant. In NAMJ there was evidence received from a clinical social worker and a general practitioner. There is no such evidence at any stage of this case. 24 In many cases, where a claim of an absence of compliance with s 425 on the part of the Tribunal is advanced, the introduction of medical evidence concerning capacity at the time of the hearing would be necessary. It is certainly possible, though, to conceive of cases where lay evidence may provide a satisfactory foundation for a conclusion as to an absence of capacity on the part of a visa applicant. 25 The difficulty here is that there was just no evidence at all. The Tribunal made its own observation, which is recorded in the passage from which I have quoted. Against this background, and having regard to the court's decision in NAMJ, there is no error in the Federal Magistrate's conclusion that there was no violation of s 425. That, in one way or another, is the nature of the challenge which the Appellants advance.