FEDERAL COURT OF AUSTRALIA

SZNBT v Minister for Immigration and Citizenship [2009] FCA 670

MIGRATION – applications for protection visas – whether Tribunal failed to take into account illness of the second appellant – whether Tribunal required to give appellants time to produce documents – whether Tribunal misapplied the concept of “well-founded fear of persecution”  

Held: appeal dismissed

Migration Act 1958 (Cth)  

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225

SZNBT v Minister for Immigration & Anor [2009] FMCA 207

SZNBT and SZNBU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 235 of 2009

JAGOT J

19 JUNE 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellants pay the first respondent’s costs of the appeal as agreed or taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          This is an appeal against an order of the Federal Magistrates Court of 3 March 2009 (SZNBT v Minister for Immigration & Anor [2009] FMCA 207).  The Federal Magistrates Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal affirming a decision by a delegate of the first respondent (the Minister) refusing to grant the appellants Protection Class (XA) visas under s 65 of the Migration Act 1958 (Cth).

2                          The appellants are husband and wife and are citizens of India.  They entered Australia on 18 June 2008 and applied for protection visas on 30 June 2008.  The first appellant claimed that he had a well-founded fear of persecution arising from his membership of and activities with the BJP political party and that he had left India because of a fear of harm from a local Muslim gang leader, Abdul Kadar.  The second appellant made no independent claims but was included by reason of her marriage to the first appellant.

3                          The appeal was originally set down for hearing on 18 May 2009.  On 14 May 2009 the first appellant sent a facsimile to the Court requesting an adjournment of the hearing as he was suffering a “severe ear problem”, was “admitted in Griffith Hospital” and had been advised “that it would take more than one month to become normal”.  The facsimile attached a medical certificate stating that the first appellant was unfit to attend the hearing due to mastoiditis in his right ear. 

4                          The Court arranged for the appellants to appear by telephone on 18 May 2009.  On that day, the second appellant maintained that the first appellant was too ill to come to the telephone and that due to his ear infection he was unable to hear.  I expressed concern that the medical evidence did not suggest that there was any problem associated with the first appellant’s left ear, that the first appellant was unable to hear, or that the first appellant was unable to participate in a hearing via the telephone.  Nevertheless, I adjourned the hearing and listed the proceeding for a directions hearing on 21 May 2009 with the appellants to appear by telephone.  I directed the appellants to file and serve on the Minister all additional medical evidence on which they wished to rely to support any further adjournment of the hearing by 20 May 2009.

5                          On 20 May 2009 the appellants provided further medical evidence as directed.  The medical certificate stated that the first appellant had been under treatment “for chronic diarrhoea since 15^th April and a chronic discharging right ear and decreased hearing right ear since 22^nd April 09 and was on Antibiotics”.  At the directions hearing on 21 May 2009 the Minister submitted, and I accepted, that the medical evidence was insufficient to establish that the first appellant was unable to hear or participate in a hearing (at least by telephone).  Accordingly, I ordered that the matter be set down for hearing on 27 May 2009 with the appellants to appear by telephone if they so wished.

6                          On 26 May 2009 the appellants sent a further facsimile to the Court from the first appellant’s treating medical practitioner stating that the first appellant had attended the medical centre on that day and still had a discharge from his right ear which was being treated.  The first appellant had also just started treatment for “GERD” (which I understand to be a gastric reflux problem).  Again, this document did not say that the first appellant could not hear or was unfit to attend a hearing.

7                          On 27 May 2009 the appellants appeared by telephone.  The first appellant said that he was unwell, his “mind was not working”, he was unable to hear and claimed it was unfair for him to be required to present his case in these circumstances.  I put the first appellant on notice that, on the available evidence, I did not accept he was incapable of hearing or presenting his case.  I refused to adjourn the appeal and gave the appellants an opportunity to make submissions in support of the appeal.  The first appellant made all relevant submissions on the appellants’ behalf but maintained his claim that it was unfair for him to have to do so (a claim which, self-evidently, I did not accept).

8                          First, the appellants submitted that during the hearings before the Tribunal and Federal Magistrates Court the second appellant was unwell and did not attend.  The illness of his wife made the first appellant feel extremely stressed.  Although the first appellant informed the Tribunal and Federal Magistrates Court about his wife’s illness and his extreme stress, neither the Tribunal nor the Federal Magistrate took into account these difficult circumstances. 

9                          The Minister made the following submissions in reply to these claims: - (i) the Tribunal recorded (in [28] of its reasons) that the second appellant was not present at the hearing due to illness, (ii) the first appellant had stated at the hearing before the Tribunal that although the second appellant was absent due to illness, she did not have any separate claims and was relying on the first appellant’s claims, (iii) the Tribunal’s reasons at [28] disclose that the first appellant was merely excusing the second appellant’s absence and do not suggest that the first appellant claimed that the second appellant’s absence made it impossible for him to present his case to the Tribunal, (iv) similarly, the Federal Magistrate recorded (at [24]) that the first appellant told the Court “that he was speaking on behalf of his wife who could not come today”, and (v) in circumstances where the second appellant’s claims were subsumed within the first appellant’s claims, there was no error in the hearings before the Tribunal and Federal Magistrates Court  proceeding in the second appellant’s absence. 

10                        I accept the Minister’s submissions.  The second appellant is the wife of the first appellant.  She did not make any claims separate from those of the first appellant.  There is no basis to draw an inference that the first appellant was unable to present his case to the Tribunal or the Federal Magistrates Court by reason of his wife’s illness during, and resulting absence from, each of those hearings.  As the Minister pointed out, the first appellant consistently stated that he was appearing and speaking on his wife’s behalf.  The fact that the first appellant was stressed by reason of his wife’s illness and absence from the hearings also does not support any conclusion of error by either the Tribunal or the Federal Magistrates Court.  Nothing in the circumstances supports an inference that the first appellant was unable to present his case by reason of his stressed condition. 

11                        The same conclusion applies to the first appellant’s general claims of being extremely stressed before the Tribunal, the Federal Magistrates Court and, indeed, before this Court.  Litigation usually involves stress.  Further, litigation of the present character may often involve extreme stress on the part of an applicant seeking a protection visa.  This seems likely to be a factor common to many cases given that for the statutory criteria to be satisfied the applicant must be a non-citizen holding a well-founded fear of persecution who is unable or unwilling to avail themselves of the protection of their country.  Stress (even extreme stress) on the part of an applicant for a protection visa, of itself, is insufficient to found any arguable claim of jurisdictional error.

12                        Moreover, as the Minister noted, the Tribunal’s reasons record that the first appellant “constantly referred to his feeling mentally stressed” (at [59]).  It was the Tribunal’s view that the first appellant was feeling stressed “because he was unable to explain to the Tribunal why his evidence in his Protection Visa Application, his Visitor Visa Application and oral evidence before the Tribunal differed”.  The available material does not indicate that any inference to the contrary (namely, that the first appellant was unable to present his case by reason of his emotional or mental condition) was required in the circumstances.  Similarly, the first appellant’s stress did not prevent him from raising numerous grounds of alleged error by the Tribunal when appearing before the Federal Magistrates Court.  To the same effect, the first appellant appeared to have no particular difficulty in making known his allegations of error by the Tribunal and Federal Magistrates Court in this appeal despite his feelings of extreme stress.  Apart from the first appellant’s own assertions, nothing in the circumstances of this matter supports an inference that the first appellant’s mental, emotional or physical condition in any way disabled him from presenting his case as best as he was able to do to the Tribunal, the Federal Magistrates Court or this Court.  Accordingly, the appeal cannot succeed on the basis of these claims.

13                        Second, the appellants submitted that the Tribunal did not provide the first appellant with adequate time to produce certain documents which the first appellant said he had to retrieve from India.  It was submitted that even if the documents were faxed it was impossible to obtain them before 21 November 2008 (the time which the Tribunal allowed from the hearing on 11 November 2008).  The appellants said the Federal Magistrates Court erred in not giving the appellants an opportunity to attend before the Tribunal again and produce these documents to support their applications for review of the Minister’s decision.

14                        The Minister made the following submissions in reply to this claim: - (i) in [50]-[51] of its reasons the Tribunal recorded that the first appellant stated that “he would like some time to think about” and “respond and/or comment in writing” to certain inconsistencies raised by the Tribunal during the hearing, (ii) the Tribunal gave the first appellant an opportunity to respond in writing by 21 November 2008 yet no response was provided by the time the Tribunal handed down its decision on 1 December 2008, (iii) there is no evidence the first appellant ever asked the Tribunal for more time to produce certain documents, (iv) the Federal Magistrates Court considered this issue (at [24]-[25]) but was unable to discern any error, (v)  it is not clear how the documents would answer the inconsistencies which the Tribunal had identified, and (vi) there is no statutory provision requiring the Tribunal to allow the first appellant more time to produce documents.

15                        I accept the Minister’s submissions.  The Tribunal informed the first appellant that his evidence gave rise to certain inconsistencies (at [48]-[50]).  The Tribunal recorded the first appellant’s wish to respond in writing.  The Tribunal gave the first appellant until 21 November 2008 to do so.  The first appellant made no response by that date or at any time before publication of the Tribunal’s decision on 1 December 2008.  The evidence does not disclose any request by the first appellant to the Tribunal for an extension of time either during the hearing before the Tribunal or thereafter.  These circumstances do not indicate any error by the Tribunal, let alone jurisdictional error. 

16                        Although the appellants made no further submissions in support of the appeal, the notice of appeal filed by the appellants on 20 March 2009 identified three other (overlapping) grounds of appeal as follows: - (i) the Federal Magistrates Court misapplied the meaning of the expression “well-founded fear of persecution for a Convention reason”, (ii) the Federal Magistrates Court should have found that the Tribunal wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution, and (iii) the Federal Magistrates Court failed to find that the Tribunal was in error in applying a “balance of probabilities test” rather than a “real chance test” in determining whether the appellants had a well founded fear of persecution.

17                        In essence, the appellants complain that the Federal Magistrates Court should have found that the Tribunal misapplied the concept of a “well-founded fear of persecution”.  However, and as the Minister submitted, the Tribunal identified the statutory test in conventional terms (at [6]-[19]).  Under s 36(2) of the Migration Act the criterion for a protection visa (insofar as material) is that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The Convention defines a refugee by reference to a well-founded fear of persecution on nominated grounds.  The Tribunal observed that the requirement that the fear be well-founded involved a genuine fear founded on a “real chance” of persecution for a reason stiplutated in the Convention (at [17]). 

18                        There is no basis in the available material to support an inference that the Tribunal failed to apply the correct statutory test either generally or in one of the ways identified in the notice of appeal.  The Tribunal (at [58]-[62]) concluded that the first appellant was not a credible witness and that certain “inconsistencies, contradictions and implausibility” in his claims (at [58]) meant that the Tribunal was not satisfied “that the [first appellant] was targeted by [Abdul Kadar and others in India] or that he suffered physical, mental or financial harm because of his involvement with BJP” (at [60]).  As the Minister submitted, this reasoning process does not disclose any jurisdictional error.  The Tribunal cannot grant a protection visa unless it is satisfied that the criteria for the grant of the visa are met.  As explained by the Full Court of the Federal Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15], s 65(1) of the Migration Act “does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established.  Rather it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied”. 

19                        The Federal Magistrates Court not only addressed each of the appellants’ arguments of alleged error by the Tribunal but also considered the course of the appellants’ review application more generally and whether that course disclosed any breach of the Migration Act (at [38]-[48]).  I agree with the conclusions reached by the Federal Magistrates Court that the available material does not disclose any arguable case of jurisdictional error.

20                        Accordingly, I am unable to see any basis for concluding that the Federal Magistrates Court erred. 

21                        For these reasons the appeal must be dismissed.  The Minister is also entitled to an order for costs.

Associate:

Dated:         19 June 2009