Appeal to this Court
29 The husband appeared unrepresented. He was assisted by an accredited interpreter in the Gujarati language. His wife was not present.
30 When asked what he had to say in support of his appeal he replied:
My claim is true. I wanted to produce some documents as proof but I did not get an opportunity.
31 He explained that the documents consisted of an identity card of the VHP, a newspaper clipping and a "First Information Report" lodged with the police when his house was set on fire. He claimed that he had sought that opportunity both from the Tribunal and from the Federal Magistrate but was rebuffed each time.
32 This issue was not raised by the notice of appeal. Ms Rayment, who appeared for the Minister, argued that leave was required. She submitted that the principles governing the grant of leave were those set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158, namely that leave should be granted only if it is expedient in the interests of justice to do so. Although that case was an appeal from a single judge to the Full Court, there is no reason why the principles would be any different here.
33 Yet the question in VUAX was whether leave should be granted to argue on appeal a point not raised before the primary judge. Here, however, Ms Rayment conceded that the point had been raised with the Federal Magistrate. She informed the Court that the husband had asked the Federal Magistrate for more time (one month or 45 days) to obtain the evidence but that his Honour did not accede to the request, informing the husband of his limited power to review the Tribunal's decision.
34 Strictly, there should have been an application for leave to amend the notice of appeal. But no such application was made. Still, I propose to treat the husband's plea as though it were included in the notice of appeal. Had an application been made for leave to amend, it is likely that I would have granted it as the appellants were unrepresented, the Minister's solicitor indicated he was not prejudiced by the raising of the new ground, and it can be disposed of quickly.
35 I accept Ms Rayment's account of what occurred below, although there is no formal record of it on the Court file and no evidence was offered. Nonetheless, his Honour did not err in failing to give the husband the time he sought. It could have made no difference to the decision he had to make.
36 The husband told the Court that he had still not yet sought, let alone obtained, the documents. His explanation was that he had never been given the time. He asked the Court to give him that time.
37 The Tribunal's hearing record contains a box for "member instructions" inviting responses to questions including "Did the applicant request time to provide any information?" Neither "yes" nor "no" is ticked. That is unfortunate. However, at [51] of her reasons, the Tribunal member said:
I asked the applicant if he wished to take some time to consider the matters discussed. I mentioned to the applicant that he could take a break or return to the Tribunal on another day to discuss these issues. I mentioned to the applicant that he may wish to listen to the hearing recording and respond in writing. The applicant said he did not wish to take a break and he had nothing further to add. He said there was nothing in his mind. The applicant wife did not wish to mention anything.
38 Although this passage is not in direct conflict with the husband's contentions, as Ms Rayment contended, it is at odds with the notion that he was denied an opportunity to present corroborative evidence to the Tribunal.
39 In fact, the appellant has had plenty of opportunity to present the evidence he now seeks to obtain. He has been in this country for over 18 months and appeared before the Tribunal nearly twelve months ago. He has been on notice since December 2008 when the Minister interviewed him that his credibility was suspect and he ought to have realised then (if not before) the value of obtaining corroborative evidence.
40 In all the circumstances, and for the above reasons, I grant the appellants leave to argue the new ground but dismiss it as being without merit.
41 The appellant is not now left without any remedy. The Minister has the power to substitute his decision for that of the Tribunal, where that decision is more favourable to the applicant, if he considers that it is in the public interest to do so: Migration Act s 417. Alternatively, the Minister has the power to allow a person to make another application for a protection visa, if he considers it to be in the public interest to do so: Migration Act s 48B. So if the appellants can acquire the material the husband now says could corroborate his claims that he was a member of the VHP and that his house was burned down, he may be able to persuade the Minister to make a different decision or to allow them to make another application. He was previously given the names of solicitors who might be able to help him and, at my request, Ms Rayment agreed to speak to him about such matters after the hearing. Unfortunately, there is nothing more this Court can do to help him.
42 For completeness I now turn to the pleaded grounds although the husband did not address either of them in writing or orally and it remains unclear whether he still wishes to rely on them.
43 There were two grounds listed in the notice of appeal:
1. The Honorable [sic] FM failed to take into consideration that the Tribunal's decision was unjust and was made without taking into account the full gravity of my circumstances and the consequences of the claim.
2. The Tribunal failed to provide the applicant with an opportunity to appear before it, and it thus failed to comply with the mandatory requirements of section 425(1).
44 Neither can succeed.
45 Ground 1 does not raise any jurisdictional error. It is apparently a complaint about the merits of the decision. The Court is powerless to intervene on that account. The Tribunal member made adverse factual findings about the credibility of the husband. That was a matter peculiarly for her. Whether or not she was right to do so is beside the point. Unless her reasons betray jurisdictional error, they are immune from judicial review. Findings of untruthfulness should not lightly be made. That is particularly so in the case of asylum seekers, who are generally unable to speak English, often illiterate, may lack the resources to obtain evidence to support their claims, and who could have experienced great suffering in their lives. The Tribunal member in this case was alive to those issues. She noted at the outset of her reasons that
When assessing credibility, it is important to be sensitive to the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
46 This ground must fail.
47 Ground 2 is equally without foundation. It seems to raise the same point that was agitated before the Federal Magistrate. His Honour's reasons do not disclose any error. Indeed, they are perfectly correct.
48 Section 425(1) of the Migration Act requires the Tribunal to give an applicant an opportunity to appear before it, to give evidence and to present arguments, but it does not require that the applicant appears in person in the same room as the decision-maker. As Reeves J observed in SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [23] to [26] where the identical argument was put and rejected,
In this day and age, it is quite common for courts and tribunals to have people appearing before them using modern technology such as video conference facilities. Most of the concerns of decades past about the use of such technology have disappeared: see McDonald v Commissioner of Taxation (2000) ATC 4271 at [21] to [22] per Finn J.
Indeed, s 429A of the Act expressly allows for appearances before the Tribunal to be conducted using such technology….It clearly gives the Tribunal a discretion to allow an applicant's appearance (for the purposes of a review hearing under s 425 of the Act) to be undertaken by telephone, closed-circuit television (which is probably not the same as a video conference facility), or any other means of communication (which clearly would include a video conference facility).
In exercising that discretion, the Tribunal would generally need to consider whether an appearance using such technology gave the applicant concerned a fair opportunity to give his or her evidence and to present arguments to it. The Tribunal may also need to consider other factors, such as whether its questioning of the applicant concerned is likely to be conducted fairly and effectively using such technology; whether it would be able to properly make any necessary assessment of the applicant's credibility; whether it may need to put a large quantity of documents to the applicant; and what delays and costs may be caused if the appearance were not to be conducted in that way. These, and other factors, have been considered in relation to the use of video conference facilities in courts and tribunals, in a number of cases in this, and other courts, over the past two decades. The most recent decision on this issue, and one that conveniently reviews many of the earlier authorities, is ACCC v World Netsafe [2002] FCA 526 at [4] to [8] per Spender J.
49 As in SZJTK, there is no evidence here that the appellants objected to appearing before the Tribunal by video link. On the contrary, the evidence is that the Tribunal invited them to attend the hearing, organised a video link and advised the husband that he should contact it if he wished to attend in person. There is no evidence that he expressed any such wish and the account of the proceeding before the Tribunal demonstrates that he and his wife were willing participants in the process. The Tribunal member satisfied herself that they had no difficulty understanding anything. The appellants live far away from the Tribunal. It was entirely reasonable to take their evidence in this way. Certainly the Tribunal committed no jurisdictional error in doing so.
50 Finally, I note the Federal Magistrate's remarks concerning the nature of the Tribunal's obligation to conduct further inquiries. His Honour did not refer to the decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 in which the High Court acknowledged at 436 [25] that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, might, in some circumstances, amount to a jurisdictional error. However, I consider that the Federal Magistrate was correct to decide that in the circumstances of this case the Tribunal was under no obligation to make further inquiries.