FEDERAL COURT OF AUSTRALIA

SZJXP v Minister for Immigration & Citizenship [2008] FCA 755

MIGRATION – alleged contradictory findings by Refugee Review Tribunal – failure to accept claims – impermissible merits review – no failure to provide “adverse information” – leave to raise new ground refused – no denial of opportunity to give evidence and make submissions – inquisitorial function of Tribunal  

Migration Act 1958 (Cth), ss 424A, 425

Abebe v Commonwealth [1999] HCA 14, 197 CLR 510 followed

Amankwah v Minister for Immigration & Multicultural Affairs (1999) 91 FCR 248 followed

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 followed

Liu v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 541 followed

Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 followed

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 considered

Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597 followed

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, 215 ALR 162 followed

SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592, 164 FCR 14 followed

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26, 235 ALR 609 followed

SZHVM v Minister for Immigration & Citizenship [2008] FCA 600 followed

SZJXP v Minister for Immigration & Citizenship [2007] FMCA 1603 cited

Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273 followed

Kneebone S, The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role? (1998) 5 AJ Admin L 78

Taylor S, Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions (1994) 13 U Tas LR 43

SZJXP AND SZJXT v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

Nsd 1913 of 2007

FLICK J

23 MAY 2008

SYDNEY

THE ORDERS OF THE COURT ARE:

1.       The appeal be dismissed.

2.       The Appellants to pay the costs of the First Respondent fixed in the sum of $3,403.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                          The Appellants, who are married, are citizens of India and arrived in Australia on 12 June 2006.

2                          They applied to the Department of Immigration and Multicultural Affairs on 11 July 2006 for Protection (Class XA) Visas. The husband claimed to be a refugee and the wife was included within that application as a member of the same family unit. A delegate refused to grant the visas on 26 July 2006 and on 17 August 2006 an application for review was filed with the Refugee Review Tribunal.

3                          The Tribunal conducted a hearing on 16 November 2006 and affirmed the decision not to grant the visas. The husband alone attended that hearing. The Tribunal handed down its decision on 12 December 2006.

4                          The Federal Magistrates Court on 12 September 2007 dismissed an application to review the decision of the Tribunal: SZJXP v Minister for Immigration & Citizenship [2007] FMCA 1603. The Appellants now appeal to this Court.

5                          A Notice of Appeal was filed on 24 September 2007 and an Amended Notice of Appeal was filed on 1 May 2008. It is understood that the Grounds of Appeal upon which the Appellants wish to proceed may be summarised as being:

(i)       jurisdictional error;

(ii)      bias on the part of the Tribunal; and

(iii)      a failure to comply with s 424A(1) of the Migration Act 1958 (Cth).

None of these grounds has been made out and the appeal is dismissed.

6                          The Appellants appeared before this Court unrepresented, although they had the assistance of an interpreter.

JURISDICTIONAL ERROR & BIAS

7                          The Notice of Appeal is but a bare assertion that there has been jurisdictional error; the Amended Notice of Appeal attempts to give greater substance to the contentions sought to be advanced and annexes what are said to be “particulars”. That annexure, however, as filed is obviously incomplete as it appears to be (at least) the second page of a document — it commences with what is assumed to be part of paragraph [5] and thereafter sets forth paragraphs numbered [6] and [7]. The complete version of the annexure, however, is to be found on the Federal Magistrates Court file of the proceedings before that Court and it is upon the basis of that complete version that the present appeal proceeded.

8                          The contentions of the Appellants seem to be that the Tribunal committed jurisdictional error because (in summary form):

(a)  it made contradictory findings and refused to accept that there were “inter-religious problems in all parts of India including in Delhi”;

(b)  it “ignore[ed]” the fact that there were groups that “will locate the Applicant’s whereabouts and will subject him to severe harm leading to murder”;

(c)  it “constructively failed to perceive the Applicant’s personal circumstances and relied on the concept that the vast majority of Indians live in harmony with people of all faiths and hence he could relocate away from Kerala”; and

(d)  it failed to offer another date for hearing by reason of the Tribunal member being unwell.

9                          The first two contentions fail at the outset. The alleged contradictory findings were not further identified — it is, accordingly, difficult to further consider this submission. Moreover, it is not considered that the Tribunal “ignore[ed]” any of the claims that were advanced for consideration by the now Appellants.

10                        The findings ultimately made by the Tribunal were as follows:

The Tribunal accepts that inter-faith violence, including Hindu attacks on Christians, occurs sporadically in India and that the husband applicant may well have suffered in Kerala as he claims. However, the Tribunal finds it would be reasonable in the applicants’ particular circumstances to relocate to another city such as New Delhi where they might live safely and where the Catholic Church is well established and where they might pursue their faith. The Tribunal finds the independent evidence cited above (“The vast majority of Indians of every religious faith lived in peaceful coexistence”) supports a finding that the applicant’s claim that inter-religious violence exists throughout India not to be credible. Further, the Tribunal does not find as credible the husband applicant’s claim that he would be pursued across India, even to New Delhi, by those in Kerala who have harmed him in the past. The Tribunal finds that there is considerable evidence that New Delhi, the national capital, is a well-ordered city (http://delhigovt.nic.in/) and the Tribunal has before it no evidence that speaks of inter-religious violence there.

In the light of the evidence before it, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution within the meaning of the Convention. Therefore the Tribunal finds their fear is not well-founded.

11                        A variant of the first two submissions is a further contention advanced by the Appellants that the “RRT did not address in their findings of fact that how my wife and I could relocate elsewhere in India without continuing to face a risk of persecution based on my Convention claims”.

12                        The findings of fact made by the Tribunal were findings open to it given the account of the evidence and claims previously set forth in its reasons. Parliament has determined that ordinarily the Tribunal is to be the final arbiter of the merits of an application, and not the Federal Magistrates Court or this Court: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558. No jurisdictional error is exposed in the reasons for decision of the Tribunal. Even a wrong finding of fact alone does not constitute an error of law: Abebe v Commonwealth [1999] HCA 14 at [137], 197 CLR 510 at 560 per Gummow and Hayne JJ.

13                        The Appellants’ complaint is properly characterised as dissatisfaction with the findings made by the Tribunal. Nowhere is this more apparent than in the “particulars” provided, which asserted in part:

(4) [The Tribunal failed] to accept the fact that the Applicant tried to relocate to another part of India but failed to lead a life without the fear of persecution.

(5) … the Tribunal failed to accept the fact that the Applicant would face serious harm if he returns back to India even after he was ordered to leave the country by the above criminal elements.

The task of accepting or rejecting evidence, and weighing such evidence that is available, is a task entrusted by the legislature to the Tribunal alone — it is not a task that can be undertaken by either the Federal Magistrates Court or this Court on appeal: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J.

14                        Nor is there any substance in the contention that the Tribunal erred by not offering another date for hearing. Before the Federal Magistrates Court, and before this Court, there was a copy of the transcript of the Tribunal hearing. At the outset of that hearing the Tribunal member said:

“Thank you. I have lost my voice. We will begin by having the interpreter promise not to divulge any information he hears during the hearing. Thank you.”

Two questions thereafter, the Member again stated:

“I have lost my voice unclear interpret

You wife hasn’t attended today”

The hearing started at 1:46pm and concluded at 2:11pm. Nothing in the transcript reveals anything further being said in respect of the Tribunal member being unwell. Furthermore, nothing in the transcript gives any support to a submission found in the “particulars” that the Tribunal proceeded “in haste”, had any “pre-conceived notion”, or had not given “the Applicant the opportunity to reply to the Tribunal”. Rather than proceeding “in haste” and not extending such an “opportunity to reply”, the transcript records the following exchange at the conclusion of the hearing:

Rather than being dismissed “in haste” and not giving the First Appellant an “opportunity to reply”, the Tribunal member quite properly invited him to add to the matters which had been covered if he so wished.

15                        The present contention that the Tribunal member should have adjourned due to his being unwell is both curious and factually unsupportable. It is curious to the extent that a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 at [40], 209 CLR 597 at 611 per Gaudron and Gummow JJ. Further, proceedings of the Refugee Review Tribunal have been held to have denied procedural fairness where an adjournment should have been granted: Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273.

16                        Normally it is the party appearing who makes the application. No application was made by the now First Appellant for the proceedings to be adjourned to another date. Nor did the Tribunal member suggest that it was necessary for the proceedings to be adjourned or stood over to another day for hearing. There was no suggestion on the part of the Tribunal member and there is certainly no other evidence to suggest that the Tribunal member was so unwell that he was not able to entertain the evidence and arguments being presented. Circumstances may possibly be envisaged in which a Tribunal member proceeds to hearing where he is so unwell that he thereby effectively denies a party an opportunity to be heard, or where it may reasonably be perceived that he has done so. But such a conclusion in the present case is factually unsupportable. All that the Tribunal member said was “I have lost my voice”. To proceed from that statement to a conclusion that an effective opportunity to be heard was not extended to the now First Appellant is without merit.

17                        One submission made by the Appellants during the course of the hearing of the appeal, by means of the interpreter, was that further time should have been taken by the Tribunal in conducting the hearing. It was contended that 25 minutes was an inadequate opportunity to allow the now First Appellant to present his evidence. An order was sought remitting the proceedings to the Tribunal. Whether such an order could or even should be made by this Court — even if there be appellable error in the reasons of the Federal Magistrate — may be left to one side. The utility in remitting the proceedings to the Tribunal, it was understood, was to permit the Appellants to place before the Tribunal further documents. Included within that material was what was described as a “summons” (dated 6 March 2006) and a “warrant” (dated 25 May 2006). Those documents, it was said, were not available at the date of the Tribunal hearing in November 2006.

18                        The situation of claimants appearing before the Tribunal, it is considered, must be approached with some considerable understanding as to the circumstances in which they find themselves: Taylor S, Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions (1994) 13 U Tas LR 43; Kneebone S, The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role? (1998) 5 AJ Admin L 78. They are unrepresented and facing an administrative hearing of fundamental importance to their future. But, in the present proceedings, the now First Appellant husband made a detailed submission to the Tribunal by letter received on 12 October 2006. There is no reference in that written submission to the prospect of placing further documents before the Tribunal, other than those expressly referred to at the conclusion of that submission. Nor was there any reference to any further documents not then available to the now Appellants but relevant to the proceedings before the Tribunal when that hearing took place in November 2006. Nor was there any application made to the Tribunal to either adjourn or postpone the hearing or to produce to the Tribunal further documents subsequent to the conclusion of that hearing.

19                        In those circumstances, it is not possible to conclude that the now Appellant husband, when he attended the Tribunal hearing, was deprived of the opportunity to make submissions as set forth in s 425(1) of the Migration Act 1958 (Cth). That section provides as follows:

Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

…

This right to a hearing is “clearly an important and central right” in the review system established by Part 7 of the Migration Act: Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362 at [44], 113 FCR 541 at 552; Amankwah v Minister for Immigration & Multicultural Affairs [1999] FCA 1162 at [13], 91 FCR 248 at 251. The invitation to attend an oral hearing “must not be a hollow shell or an empty gesture”: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31], 183 ALR 188 at 194–5. The obligation imposed upon the Tribunal is an obligation to give a “real and meaningful invitation to comment”: SZJBA v Minister for Immigration & Citizenship [2007] FCA 1592 at [53], 164 FCR 14 at 27–8 per Allsop J.

20                        Albeit not raised by any of the Grounds of Appeal, Counsel for the Respondent Minister quite properly did not oppose exploring the question as to whether there had been a breach of s 425 by reason of the Appellant not having the opportunity to place further  documents or further information before the Tribunal. However, it was contended by the Minister that, in the absence of any basis upon which it could be concluded that the Tribunal was on notice that potentially there may have been further information or documents relevant to its consideration (but not then available to the now First Appellant at that hearing), it is difficult to conclude that the obligation in s 425 to afford an opportunity has been breached. The Tribunal in discharging its function is engaged in an “inquisitorial process” — but there must nevertheless remains a reason or a basis upon which it can be said that it should inquire beyond that factual material placed before it. In SZJBA Allsop J thus observed:

[53] … the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act. This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. …

…

[57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process …

[58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said:

If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter.

Where there is material which on its face suggests that the Tribunal is not in receipt of all materials, the Tribunal should normally “take simple administrative steps to address the issue”: SZHVM v Minister for Immigration & Citizenship [2008] FCA 600 at [63] per Middleton J.

21                        The opportunity “to appear before the Tribunal to give evidence and present arguments” is ultimately an opportunity which places a primary responsibility upon those appearing. It is not the task of the Tribunal to ensure that that opportunity is utilised by those appearing to their best advantage. This is not to say that circumstances may not arise during the course of a Tribunal hearing which imposes an obligation upon the Tribunal to pursue particular issues further. But, in the absence of such circumstances, it must normally remain a matter for those appearing before the Tribunal to inform the Tribunal of the evidence they wish to rely upon and to present their own arguments. Circumstances may also emerge that make it apparent that a hearing before the Tribunal is not a meaningful opportunity to be heard. Section 425(1) thus may not be satisfied merely because a time and place has been set aside for a hearing and a hearing member is present.

22                        But such circumstances are not the present case. Notwithstanding the fact that the hearing before the Tribunal took a comparatively short period of time, there is nothing to indicate that the Appellants were denied an opportunity to place before the Tribunal all such materials as they then considered relevant and nothing arose during the hearing to impose upon the Tribunal any duty to make further inquiries.

23                        No breach of s 425 has been discerned, nor is there any basis for concluding that the Appellants should be given a further hearing to present such further information or documents as they may now wish to rely upon. They have already been given the hearing which the legislation envisages. The fact that a party appearing before the Tribunal may subsequently consider that his case may have been better advanced had further or additional documents been placed before the Tribunal is not to deny the effectiveness of the hearing already extended. Indeed, to conclude otherwise may well only encourage an administrative process whereby a party could sequentially produce further or more documents over the course of a series of hearings until he ultimately prevails. And such a sequential process of producing further documents would be but one means of a party being impermissibly informed as to whether he had already persuaded a Tribunal as to the merits of his case. Such a course is not that envisaged by s 425.

24                        There is no basis upon which it can be concluded that the Tribunal was biased in the manner in which it proceeded.

25                        No appellable error has been exposed by the reasons provided by the Federal Magistrates Court.

SECTION 424A

26                        Section 424A(1)(a) of the Migration Act 1958 (Cth) provides as follows:

Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review…

…

Compliance with s 424A is mandatory: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, 228 CLR 294; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [13], 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

27                        This Ground of Appeal (without alteration) relevantly contends that the “RRT breached of section 424A as the adverse information found in the hearing and in the RRT decision was not put to me in writing before the RRT is made a decision”.

28                        The difficulty confronting the Appellants is the fact that the “adverse information” alleged is not further identified. Nor has any breach of s 424A otherwise been identified. Attempts during the course of the hearing of the appeal to shed light upon what was intended by the present contention proved unsuccessful. The Appellants were unable to explain what was intended to be conveyed by their reliance upon s 424A. The ground was apparently inserted upon the suggestion of a migration agent who had attended a Church service one Sunday and who proffered his “assistance”. Such “advice”, it is considered, is neither of “assistance” to the Appellants or this Court.

29                        Moreover, there was no reliance placed upon any asserted breach of s 424A before the Federal Magistrates Court. Leave is thus required to raise it as a ground on appeal to this Court. There is no explanation as to why the ground was not raised before the Federal Magistrates Court and it is considered that the ground is also without merit.

30                        Leave to now place reliance upon an asserted breach of s 424A is thus refused.

COSTS

31                        At the conclusion of the hearing, Counsel for the Respondent Minister filed an Affidavit in support of an application that a fixed sum costs order be made in favour of the Minister in the event that the appeal was dismissed. Fixed costs were sought in the sum of $3,403. There is no reason not to make such an order and no reason to question the quantification of costs.

ORDERS

32                        The orders of the Court are:

1.    The appeal be dismissed.

2.    The Appellants to pay the costs of the First Respondent fixed in the sum of $3,403.

Associate:

Dated:         23 May 2008