SZRJN v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from an order made by the Federal Magistrates Court on 22 October 2012. On that day, the Federal Magistrates Court made an order that the appellant's application for judicial review in relation to a decision of the Refugee Review Tribunal ("the Tribunal") be dismissed. On 21 March 2012 the Tribunal made a decision to affirm the decision of a delegate not to grant a Protection (Class XA) visa to the appellant. 2 The appellant is a citizen of India. He arrived in Australia on 20 March 2009. Over two years later on 14 July 2011 he applied for a Protection (Class XA) visa. A delegate decided to refuse the appellant's application on 11 October 2011. The appellant made an application for review to the Tribunal on 8 November 2011. 3 In its reasons the Tribunal described the appellant's claims. In broad terms, they were as follows. The appellant claimed to be a member of the All India Sikh Student Federation ("AISSF") and a member of the "Khalistan movement". The Tribunal noted that the appellant did not pursue the latter claim in his evidence before the Tribunal. The appellant said that he was "followed" by security agents everywhere he went and that he was interrogated by the "intelligence branch". He said that he was tortured by the authorities and that he was expected to report to the police twice a week. He said that his parents told him to leave the country for his safety. He left India without telling the authorities. He said that he expected that he would be arrested and mistreated by the authorities if he returned to India. 4 The Tribunal conducted a hearing on 19 March 2012. The hearing was conducted by video link, with the appellant in Griffith and the Tribunal in Sydney. The Tribunal described the circumstances in which this came about as follows: The applicant did not provide any claims or submissions in support of the review application. On 16 February 2012, the Tribunal invited the applicant to attend a hearing on 19 March 2012. The Tribunal received a submission from the applicant on 28 February 2012. He asked for a postponement of the hearing because he had a back injury. He provided a medical certificate, dated 27 February 2012, which indicated that the applicant could not travel to Sydney to attend the hearing because he had to avoid sitting for prolonged periods. An officer of the RRT, at the Tribunal's request, contacted the applicant's doctor and inquired as to whether the applicant would be able to attend a video hearing on the scheduled date. The doctor indicated that the applicant could attend the hearing if he was not required to travel to Sydney. The applicant was informed that his request for a postponement had been declined; and that the hearing would proceed as scheduled by video link. 5 The Tribunal accepted the appellant's claim that he was a Sikh. The Tribunal referred to his claims that he was active with the AISSF in India and targeted by political opponents and the authorities because of his involvement with that group. The Tribunal said that it had formed the view that the appellant exaggerated his claims to enhance his application. It said that the appellant had provided "broad and vague information" in support of his claims and that he had difficulty providing details regarding his circumstances in India. He did not appear to remember key information relating to his claims. The Tribunal formed the view that had the appellant had the involvement with AISSF to the extent he indicated, then he would have been able to remember and describe his involvement in politics and the difficulties he had with the authorities in India. 6 The Tribunal rejected the appellant's various claims. It considered that he had a brief association with AISSF and that he was not a member of the group or involved in all its activities. The Tribunal said that the appellant only attended protest activities related to land acquisition and on two occasions he was told to attend a police station, with other persons implicated in the violence, and told to stop the violence. The Tribunal was not satisfied that the appellant was a person of particular or ongoing interest to the authorities in Uttar Pradesh or Punjab or that he faced specific targeting by the authorities while he was involved with the AISSF or that he was a person of particular interest to the authorities in India at the time he left the country in 2009. 7 The Tribunal did accept that during 2007 and 2008 the appellant participated in a movement relating to land acquisition in India and that those activities attracted the interest of the authorities. The Tribunal accepted that the appellant did not wish to return to India. However, it did not accept that any fear that he had in this regard was "well-founded". It found that he was not a person of interest to the authorities in India after he ceased to be involved in protest activities. He was not a person of interest to the authorities in India at the time he departed from that country and "a similar situation will continue in the reasonably foreseeable future as the applicant has indicated that he has no interest in resuming his involvement in political activities". 8 Finally, the Tribunal found that being a politically active Sikh in India does not and will not attract the adverse interest of the authorities. It found that the appellant's fear that he will be targeted by the authorities in India for previously being a politically active Sheik is not well-founded. For these reasons, the Tribunal rejected the appellant's claims for a Protection visa. 9 The grounds of the application for judicial review in the Federal Magistrates Court were (without correction) as follows: 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) Particulars: (i) Section 425 mandates an oral hearing at which both the Applicant and Tribunal are physically present in the one place, in order that the applicant may present their case. (ii) The Tribunal was not physically present at the hearing, because the Tribunal was in Sydney, and thus the Applicant did not "appear before" the Tribunal. 2. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act. 10 The Federal Magistrate dealt with each of these grounds: SZRJN v Minister for Immigration and Anor [2012] FMCA 978. 11 The first ground is not the subject of a ground of appeal in the appeal to this Court. However, I will briefly summarise the Federal Magistrate's reasons. First, he noted that the claim that the Tribunal lacked the power to conduct hearings by video connection had been put to the Court before and had been rejected on many occasions (see the decision of Reeves J in SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [23] - [26] and Katzmann J in SZNNE v Minister for Immigration and Citizenship (2010) 114 ALD 138, [2010] FCA 194). He said that the appellant had presented no grounds for revisiting the reasoning in those previous authorities. He noted that the appellant's submissions attempted to give the ground "a more personal application to his circumstances" by submitting that, in the circumstances, he had been denied a meaningful opportunity to participate in the hearing in accordance with the implied requirements of s 425(1) of the Migration Act 1958 (Cth). The Federal Magistrate rejected this contention and said that he was not satisfied on the evidence before him that the appellant suffered any real difficulties in responding to the Tribunal's questioning due to back pain or any other medical condition. His conclusion was as follows: I therefore conclude that there was nothing unlawful in the Tribunal's conduct of the hearing by video connection, and I can detect nothing unfair about its procedures, nor any consequence that the applicant was denied rights to which he was entitled under s 425(1). 12 The Federal Magistrate noted that the appellant's oral submissions did not address ground two. He said that he was not otherwise able to give ground two any meaningful content. He was not able to identify any jurisdictional error affecting the Tribunal's decision. 13 The grounds of appeal to this Court are (without correction) as follows: 1. The FM failed to consider that the Tribunal had denied the applicant procedural fairness reaching adverse conclusions that applicant claims were implausible, being conclusions that were not obviously open on the known material. 2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. The Tribunal has failed to investigate Applicant claims, specially the grounds of persecution in India. 14 The appellant did not file written submissions. He appeared before me in person. He had the assistance of an interpreter. The appellant did not expand on his grounds of appeal. He said that he "did not attend much from the webcam next door". He also said that he "tried to get some documents from India but they did not arrive they got lost on the way". 15 I have considered the reasons of the Federal Magistrate and I do not think that there is any error in those reasons. I have also considered the reasons and decision made by the Tribunal. I can detect no error, let alone jurisdictional error, in those reasons or in the Tribunal's decision. 16 In the circumstances, the appeal must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.