SZNPB v Minister for Immigration and Citizenship

Federal Court of Australia|2010-02-12|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellants appeal from the decision of Federal Magistrate Nicholls delivered on 25 September 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 20 April 2009. The Tribunal's decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant Protection (Class XA) visas to the appellants.

BACKGROUND 2 The appellants, who are husband and wife, are citizens of India who arrived in Australia on 4 September 2008. On 30 September 2008 the appellants lodged applications for protection visas with the Department of Immigration and Citizenship. A delegate of the first respondent refused the applications on 21 December 2008. On 16 January 2009 the appellants applied to the Tribunal for a review of such decisions. 3 The appellant husband ('the appellant') claimed to fear persecutory harm from Hindus of a higher caste, with links to the Bharatiya Janata Party ('BJP'), who had sold land to his family, and who subsequently wanted to recover the land because it had increased in value. The appellant also claimed that he was 'targeted' because he had founded a 'Farmers Association'. He claimed he had been accused of being associated with Muslims, and that his persecutors attempted to seize his land, attacked him, threatened his farm workers, harassed him and his family, and prevented his farming. He claimed that police 'interrogated' and 'tortured' him, and that they asked him to 'leave' his 'birthplace'. The appellant claimed he was fearful of the BJP, who had won a recent election and had started to create more 'problems' for him and his family. He claimed that he could not access the legal system to obtain redress. 4 The appellant wife relied on the claims of her husband as part of the family unit.

THE TRIBUNAL'S DECISION 5 The Tribunal hearing took place on 20 March 2009 by video link. The Tribunal accepted that the appellant was the owner of a farm in India. However, the Tribunal found that because of 'contradictions, implausibility and inconsistencies' in his evidence, it did not believe that the appellant was 'truthful or credible'. The Tribunal was thus 'not satisfied that the incidents described by the appellant, ever occurred'. It therefore found that Australia did not have protection obligations to the appellant, or his wife. The Tribunal affirmed the decisions not to grant the appellants Protection (Class XA) visas.

FEDERAL MAGISTRATES COURT 6 By application filed in the Federal Magistrates Court of Australia on 13 May 2009 the appellants sought judicial review of the Tribunal's decision. 7 Before Nicholls FM the appellants claimed: 1. The Tribunal failed to provide the applicant with an opportunity to appear before it, and thus failed to comply with the mandatory requirements of section 425(1).

(i) Section 425 mandates an oral hearing at which both the Applicant and the Tribunal are physically present (giving the word 'before' its natural English meaning, in the context of 'in front of') in the one place, in order that the Applicant may present their case.

(ii) The Tribunal was not present at the hearing, because the Tribunal was in Sydney, and thus the Applicant did not 'appear before' the Tribunal.

The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that applicant claims were implausible, being conclusion that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

The applicants satisfy the four key elements of the Convention definition ... The Tribunal has not considered this aspect and therefore committed factual and legal error.

The RRT has failed to investigate applicant claims, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 20 April 2009 was effected by actual bias constituting judicial error.

8 In respect of ground 1, the Federal Magistrate found that this ground was disingenuous. His Honour noted that s 425 of the Migration Act 1958 (Cth) ('the Act'), when read with s 429A, does not require a hearing where the Tribunal and the applicant are physically present in the same location (see SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712). Further, the Federal Magistrate found that there was no evidence that the appellants expressed any opposition to the Tribunal proceeding to conduct the hearing by video link. To the contrary, they responded that they would attend the hearing by video link as had been arranged. The Federal Magistrate noted that the Tribunal's letter specifically invited a response if there was a preference to physically attend in Sydney, to which there was no reply. 9 In respect of ground 2, the Federal Magistrate found that the appellants were given the opportunity to be heard on relevant 'matters' at the hearing, and that the Tribunal's credibility findings were open to it on the evidence before it. 10 In respect of ground 3, the Federal Magistrate found that this contention did not rise above a request for the Court to engage in impermissible merits review. 11 In respect of ground 4, the Federal Magistrate found that there was no duty on the Tribunal in the circumstances of this case to conduct any additional 'inquiries'. Nor was there any evidence of bias. 12 Having found no jurisdictional error in the Tribunal decision, Nicholls FM dismissed the application.

APPEAL TO THIS COURT 13 On 15 October 2009 the appellants filed in this Court a notice of appeal from the decision of Nicholls FM. The appellants raise the following ground of appeal: 1. The Federal Magistrates Court failed to consider the ground of my appeal such as error of law made by the Tribunal failed to comply with mandatory requirements of section 425(1).

(ii) The Tribunal was not present at the hearing, because the Tribunal was in Sydney, and thus the Applicant did not 'appear before' the Tribunal.

SUBMISSIONS OF THE APPELLANT 14 The appellant appeared assisted by an interpreter. The appellant was not aware of the basis for his appeal, and informed the Court that the Notice of Appeal had been prepared by a 'friend of a friend'. The appellant was invited to make submissions, but declined to do so.

FINDINGS 15 There is only one ground of appeal, namely whether Nicholls FM erred in his finding that there was no breach by the Tribunal of s 425 of the Act resulting from the use of the video facilities to conduct the Tribunal hearing. The appellants submitted before Nicholls FM that the Tribunal failed to provide them with the opportunity to appear before it. Such contention was raised upon the premise that s 425 of the Act requires a hearing at which both the Tribunal and the applicant are physically present. 16 His Honour found that whilst s 425(1) requires the Tribunal to invite an applicant 'to appear before the Tribunal' such requirement when read with s 429A of the Act empowered the Tribunal to proceed by way of video. Section 429A provides: Oral evidence by telephone etc.

For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:

17 His Honour's finding was based upon the decision in SZJYD v Minister for Immigration and Citizenship [2007] FCA 798 and also upon the decision in SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 in which Reeves J held that the appearance before the Tribunal did not require the physical presence of the applicant before it. 18 Nicholls FM observed that the Tribunal proceeded to receive evidence from the appellants by video because the appellants lived at Tooleybuc, New South Wales, a town near Deniliquin which is situated a substantial distance from Sydney. His Honour concluded that it was appropriate for the Tribunal to have made that arrangement. 19 Nicholls FM observed that there was nothing to indicate that the appellants encountered any difficulty or were 'otherwise disadvantaged' because the hearing was conducted by video link, nor was any such complaint made before him. His Honour concluded that the appellants were provided with a proper and meaningful opportunity to make their claims and give their evidence as provided by s 425 of the Act. Accordingly, his Honour found that there was no jurisdictional error committed by the Tribunal. 20 Significantly, s 429A of the Act empowers the Tribunal to use any of the methods referred to in ss 492A(a)-(c) inclusive, to 'allow the appearance by the applicant before the Tribunal', or 'the giving of evidence by that person. In this instance the Tribunal used video facilities permitted by either or both ss 429A(b) and (c) to receive evidence. 21 The Court is satisfied that no jurisdictional error exists, as alleged. The appellants did not object to the hearing by video, and signed the 'Response to Hearing Invitation' acknowledging that they would appear in Griffith in accordance with the arrangements made by the Tribunal. It was unnecessary in the view of s 429A for the appellant to be physically present before the Tribunal. The ground of appeal has no merit, as was pointed out by the learned Federal Magistrate in his decision. Since the claims of the second appellant are dependant upon the result of the first appellant's claims, her claim must also fail. Accordingly, the appeal is dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Migration Act 1958(Cth)ss 425, 429A

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