FEDERAL COURT OF AUSTRALIA

SZNPK v Minister for Immigration and Citizenship [2009] FCA 1271

MIGRATION – appeal from Federal Magistrate – no appellable error – appeal dismissed

Migration Act 1958 (Cth), s 424(2), s 425, s 429A 

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507

Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434

Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109

SZGGD v Minister for Immigration and Citizenship [2009] FCA 1250

SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712

SZNPK and SZNPL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 946 of 2009

BARKER J

6 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the first respondent’s costs to be taxed if not agreed.

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

appeal

1                     This is an appeal from a judgment of a Federal Magistrate delivered on 13 August 2009.  The Federal Magistrate dismissed the appellants’ application for review of a decision of the Refugee Review Tribunal (Tribunal) given 20 April 2009.  The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellants protection (Class XA) visas.

prior applications

2                     The appellants are husband and wife and citizens of India who arrived in Australia on 16 October 2008.  On 7 November 2008, the appellants lodged an application (as “Applicant 1” and “Applicant 2” respectively) for protection visas.  Only the first appellant, the husband, made specific claims under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (Convention).  The second appellant, the wife, made application as a member of the family unit.

3                     The first appellant claimed to fear persecution in India on the basis of his political opinion, being an activist for the Bharatiya Janata Party ­– or BJP.

4                     On 28 January 2009, a delegate of the Minister refused to grant the appellants protection visas.  On 20 February 2009, the appellants applied to the Tribunal for a review of the delegate’s decision.  On 4 March 2009, the appellants were invited to, and on 17 April 2009, the first appellant attended a hearing of the Tribunal to give evidence and present arguments.  The Tribunal handed down its decision affirming the decision of the delegate of the Minister on 20 April 2009. 

Tribunal’s findings

5                     The first appellant claimed to have been active in assisting his local BJP Mayor in Ahmedabad.  The first appellant said he had been harassed and beaten by political opponents associated with the Congress Party in 2007 ([29]).  He claimed the Congress Party members wished to harm him because he had refused their request to join them and because he was good at canvassing for the BJP ([31]).  The first appellant alleged that, although the BJP was in power in the State of Gujarat where he lived, the local police were corrupt and connected to the Congress Party and could not protect him ([32]).  The first appellant said he had been threatened once in person and two to three times on the telephone in the 12 months prior to his leaving India ([36]).

6                     The Tribunal accepted that the appellants were citizens of India ([44]).  However, the Tribunal did not accept that the first appellant was a BJP activist ([50]).  Nonetheless, the Tribunal accepted that the first appellant may have undertaken minor work for the BJP, may have been approached by the Congress Party and may have been beaten in 2007 ([51] and [56]).  The Tribunal also accepted that he may have been the subject of some verbal abuse and received a threatening phone call in the 12 month period prior to his departure from India ([62]).  Without deciding whether the first appellant had a well-founded fear of persecution based on these events, the Tribunal then held that the first appellant could reasonably be expected to relocate within India ([69] – [82]) to avoid any persecution for his political beliefs in any event.

decision of the federal magistrate

7                     On 15 May 2009 the appellants filed an application for judicial review in the Federal Magistrates Court.  That application stated four grounds of review. 

8                     The first ground of review was that the Tribunal breached s 425 of the Migration Act 1958 (Cth) (Act) by holding the hearing via video link.  Having regard to s 429A of the Act, the Federal Magistrate held that there was no breach of s 425: SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 ([8]-[13]).

9                     The second ground of review appeared to challenge the weight given by the Tribunal to independent country information.  His Honour dismissed this ground on the basis that fact finding and the weight to be given to evidence was solely a matter for the Tribunal ([14]-[15]).

10                  The third ground of review alleged that the Tribunal had failed to consider that the appellant satisfied the Convention tests for a refugee.  His Honour dismissed this as factually baseless having regard to the Tribunal’s decision and as irrelevant given the Tribunal had determined that the appellants could relocate within India ([16]-[19]).

11                  The final ground of review stated by the appellants was that the Tribunal failed to investigate the appellants’ claims that the Tribunal was biased.  His Honour held that nothing in the Tribunal’s reasons indicated that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments might be presented ([20] – [21]): Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507.

Appeal to this court

12                  On 28 August 2009, the appellants filed a Notice of Appeal which states, in [2] and [3], two grounds:

2.       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 s424 of the Migration Act 1958.

a)       The Invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:

i)        The invitation did not specify the way in which the additional information may be given.

ii)       The invitation did not specify the period within which the information was to be given. 

3.       The Tribunal failed to provide the appellant with an opportunity to appear before it, and thus failed to comply with the mandatory requirements of section 425(1).

Particulars:

(1)     Section 425 mandates an oral hearing at which both the Applicant and the Tribunal are physically present 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 not in Griffith, and thus the Applicant did not ‘appear before’ the Tribunal. 

[Errors in original]

first ground – failure to comply with s 424 migration act 1958

13                  This is a ground not raised before the Federal Magistrate. 

14                  It is a ground which has recently been found by the Full Federal Court to lack any substance, notwithstanding that it initially succeeded before a Federal Magistrate: see Minister for Immigration and Citizenship v SZNAV  [2009] FCAFC 109.

15                  The Full Federal Court held in the light of Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 – a recent decision of the High Court of Australia – that an acknowledgement letter was not an invitation to provide the Tribunal with additional information made under s 424(2) of the Act.  Further, though strictly obiter, it was also not capable of being considered an invitation under s 424(2) as it was merely “advice to the respondents about how to ensure that their application is complete”.  The Full Court at [25] was also disposed to see the acknowledgement letter as an administrative act preceding the hearing and not issued by the Tribunal for the purpose “of getting” information.

16                  I agree with respect with the findings and observations of the Full Court in this regard.  See also my reasons in SZGGD v Minister for Immigration and Citizenship [2009] FCA 1250 at [21] – [38].

17                  For these reasons this ground must fail.

second ground – failure to comply with s 425 by reason of video link hearing

18                  By this ground, which was argued as ground one before the Federal Magistrate, the appellants contend that by s 425 of the Act the Tribunal was bound to provide them with an oral hearing at which they were both physically present, and that it was not enough for the Tribunal to provide them with a hearing by video link, as in fact occurred.

19                  For the reasons given below by the Federal Magistrate at [9] – [12], this ground is without merit:

9.       It is apparent from the material in the Court Book that the Tribunal’s hearing was conducted by video-link, the applicants being in Griffith and the presiding Tribunal member being in Sydney. There can therefore be no doubt that the applicants were invited to give evidence and present arguments as s.425 required in the circumstances.  That section relevantly provides:

425    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.

(2)     Subsection (1) does not apply if:

(a)     the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)     subsection 424C(1) or (2) applies to the applicant.

10.     The Act permits the Tribunal’s hearings to be conducted remotely.  In this connection, s.429A provides:

429A      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:

(a)     telephone; or

(b)     closed-circuit television; or

(c)     any other means of communication.

11.     An applicant’s rights to procedural fairness before the Tribunal are codified, to the extent of its terms, by div.4 of pt.7 of the Act.  Section 429A is one of the provisions in that division.  Consequently, any argument that procedural fairness requires that an applicant and the presiding Tribunal member must, for the duration of a Tribunal hearing, be physically in the same room founders on s.429A.  This conclusion is supported by the reasons for judgment of Reeves J in SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 where his Honour considered an allegation relevantly identical to the one presenting for consideration in these proceedings.

12.     Clearly, the Tribunal’s decision concerning whether to hold a hearing by video-link is a discretionary one and it is possible that the exercise of that discretion could miscarry.  However, there is no evidence of that in this case.  For instance, the letter inviting the applicants to a hearing reproduced at CB 66 advised them that the hearing would be conducted by video conference and invited them to advise it should they have preferred to attend in person in Sydney.  There is no evidence of such a request having been made nor of any facts or circumstances which would suggest that the Tribunal should not have exercised its discretion in the way that it did.  Specifically, however, the evidence does not support a conclusion that the Tribunal’s discretion miscarried.

20                  For these reasons, this ground must fail.

Conclusion and orders

21                  The appellants have not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise, or exceeded, its jurisdiction.  Nor is any appellable error on the part of the Federal Magistrate disclosed.  The appeal should be dismissed with costs.

22                  The Court therefore orders that:

1.                  The appeal be dismissed.

2.                  The appellants pay the first respondent’s costs to be taxed if not agreed.

Associate:

Dated: