FEDERAL COURT OF AUSTRALIA

SZNNE v Minister for Immigration & Citizenship [2010] FCA 194

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellants pay the first respondent’s costs, fixed in the sum of $2,175.

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

REASONS FOR JUDGMENT

Introduction

1                     The two appellants are a married couple from Gujarat in India.  Without meaning any disrespect, where it is necessary for me to distinguish between them in these reasons I shall refer to them as the husband and the wife.  They are aggrieved by a decision denying them protection (class XA) visas.  The decision was first made by a delegate of the first respondent (Minister), then affirmed on review by the Refugee Review Tribunal (Tribunal).  On 18 December 2009 a Federal Magistrate dismissed their applications for judicial review.  This is an appeal from that decision.

Background

2                     The appellants arrived in Australia on 21 August 2008.  On 30 September 2008 they lodged their applications with the Department of Immigration and Citizenship.  On 20 December 2008 a delegate of the Minister refused the applications.  On 15 January 2009 the appellants applied to the Tribunal for a review of that decision.

3                     In his application for a protection visa, which the document records him completing (in English) without assistance, the husband claimed that he became a member of the Vishwa Hindu Parishad (VHP) in 1992, and that in December 1992 he had to protect his area from “Muslim mobs” when the Babri Masjid (mosque) at Ayodhy (sic) was demolished.  He alleged that since then Islamic fundamentalists – inspired by Pakistan’s Inter Service Intelligence directorate (sic) - increased communal violence in Gujarat.  He further claimed that, as a member of the VHP, he was involved in its community activities, and that work brought him to the attention of Muslim extremists. 

4                     He also reported that in February 2002 “Muslim mobs” torched two rail cars carrying VHP activists in Godhra in Gujarat and asserted that they burned down his house and place of business.  He advised that he was arrested and interrogated upon suspicion that he was a Hindu radical and arrested again on 1 February 2008 after a demonstration.

5                     He expressed the fear that, as a member of the VHP, he was at risk of detention and torture and would not be able to cope with aggressive interrogation techniques, let alone torture, because of his fragile state of mind.  He claimed that the continuing violence and attacks on him and the police aggression prompted him to seek asylum in Australia.

6                     The wife relied on her husband’s claims to support her application.

7                     Sections 36(2), 91R(1) and 91R(2) of the Migration Act 1958 (Cth)(Migration Act) set out the qualifications for a protection visa.  In short, the husband was required to prove that:

(a)                he had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;

(b)               he was unable or, owing to such fear, unwilling to avail himself of the protection of his own country;

(c)                the reason(s) is(are) the essential and significant reason(s) for the persecution;

(d)               the persecution involves serious harm to him; and

(e)                the persecution involves systematic and discriminatory conduct.

8                     “Serious harm” is defined in s 91R(2) to include (amongst other things) a threat to the person’s life or liberty.  A fear is “well-founded” when there is a real substantial basis for it:  Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.   There is, however, no balance of probabilities test.  What an applicant must show is that the chance of persecution is neither remote nor far-fetched: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

9                     Provided the husband succeeded in his claim, the wife was also eligible for a protection visa.  She did not have to establish a separate entitlement:  s 36(2)(b).

The decision of the Minister

10                  The Minister’s delegate interviewed the husband by telephone with the assistance of an interpreter in the Gujarati language.  He did not consider him truthful and was not satisfied that he had been a member of the VHP since 1992 or that he feared being harmed in India because of his association with the group.  He referred to a number of differences between the account that appeared in his visa application and the account given at the interview, the husband’s failure to answer “very basic questions” about the formation and leadership of the group of which he claimed to be a member for 16 years, his “very limited and simplistic” explanation of the objectives of the organisation and his inability to supply “any level of details” about the activities in which he purported to have been engaged.  He queried, too, his claim that he feared harm in India because of his involvement with the VHP, having regard to the fact that he said that he had lived at the same address in Gujarat all his life and continued to operate his agricultural business right up until the time he left India.  He also felt that, if he genuinely feared harm, he would have tried to leave India much sooner than he did, noting that he had held a valid passport since 2006.  Finally, and in any event, he saw no reason why he could not have moved to another part of India.

The Tribunal’s decision

11                  The Tribunal arrived at the same conclusion for similar reasons. 

12                  It found that the husband (who, with his wife, gave evidence by video link through a Gujarati interpreter) was not a credible witness on some key aspects of his claims.  It could not be satisfied that he left India because of a fear of persecution as he asserted in his application and his evidence before the Tribunal, concluded that the appellants did not meet the statutory criteria for the grant of a protection visa and, accordingly, affirmed the decision under review.

13                  The Tribunal accepted that there had been clashes and riots between Muslims and Hindus in India.  However, it was not satisfied of the truth of any of the husband’s personal claims.  It noted that there were numerous inconsistencies between the accounts he had given in his application for a protection visa, what he had told the Departmental delegate in the interview and his oral evidence before the Tribunal.  Those inconsistencies included:

(a)                Stating in his application that his house had burned down in 2002 and he was forced to leave his home, yet telling the delegate that he had lived at the same address all his life and had continued his farming business until he left India in 2008;

(b)               Listing the birth dates of his two sons in his application but telling the Tribunal that he did not know how old his children were as he was not educated;

(c)                Advising the delegate that he had had no contact with his children after his home was burned down in 2002 when the birth date of the youngest son was listed in his application as 7 July 2004 and then, after the delegate reminded him of this, claiming that the birth date recorded in the application was incorrect;

(d)               Informing the delegate that he had had no contact with his children after his house burned down in 2002 and did not know where they were, but testifying before the Tribunal that they were living with a maternal uncle and that he last saw them in their uncle’s home on 15 August 2008;

(e)                Giving in his application as his reason for seeking protection his fear of continued violence and aggressive interrogation by the police, yet telling the delegate that he had suffered no harm since 2002 and had no difficulties with the authorities in India.

(f)                 Giving inconsistent evidence about his imprisonment.

(g)                Telling the Tribunal that he went to the police immediately after the 2002 attack but changing his evidence after the Tribunal queried how he could do so with a fractured leg, and then ultimately claiming not to remember whether he had been arrested and imprisoned at all at that time.

(h)                Asserting in his application that he had been arrested on 1 February 2008 but professing no memory about the arrest in his evidence before the Tribunal.

14                  When his attention was drawn to the inconsistencies in his accounts about his children, the husband denied there were any.  He also contended that he and his wife  had “a lot of stress” and that he and his wife were not clear about matters.  The Tribunal found his explanations unconvincing.  When given the opportunity to respond to the Tribunal’s concerns about the inconsistencies in his evidence, the husband and his wife declined to say anything further and he said “there was nothing in his mind”.

15                  In the result, the Tribunal rejected each of the husband’s claims.

Limited jurisdiction of the Federal Magistrates’ Court

16                  A decision to refuse a visa is a “privative clause” decision.  It is final and conclusive; and

(a)                must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(b)               is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

See Migration Act s 474.

17                  However, in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 500 [57]the High Court held that

a privative clause cannot protect against a failure to make a decision required by the legislation in which that clause is found or against a decision which, on its face, exceeds jurisdiction.

18                  The jurisdiction of the Federal Magistrate to review such a decision is the same original jurisdiction that s 75(v) confers on the High Court:  Migration Act s 476(1).  Thus, in a case such as this, the Federal Magistrates Court may grant prohibition and mandamus against an officer of the Commonwealth, but only if the decision of the Tribunal is affected by jurisdictional error.

The proceedings before the Federal Magistrate

19                  The appellants pleaded three grounds in support of their applications for review in the Federal Magistrates Court:

1.         The Tribunal failed to provide the applicant with an opportunity to appear before it, and it 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 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 physically present at the hearing, because the Tribunal was in Sydney, and thus the applicants did not ‘appear before’ the Tribunal.

2.         The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

3.         The RRT has failed to investigate applicants [sic] claim, specially [sic] the grounds of persecution, in India. Therefore, the Tribunal decision dated 3 April 2009 was effected [sic] by actual bias constituting judicial error.

The Federal Magistrate’s decision

20                  The Federal Magistrate found that the letter from the Tribunal dated 9 February 2009 validly invited the appellants to attend the hearing on 24 March 2009 via video link from Victoria. This letter complied with the relevant provisions of the Migration Act and specifically contained the following statement:

Arrangements have been made to conduct the hearing by video conference. The member and interpreter will be in Sydney. If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible.

21                  No such contact was apparently made.

22                  The Federal Magistrate stated that s 429A of the Act provides that the Tribunal is entitled to arrange for an applicant to appear by telephone, closed circuit television link or any other means of communication.  He stated that this is an ‘empowering’ provision allowing the Tribunal on its own motion to arrange a hearing where the Tribunal and an applicant are physically separate and cited SZJYD v Minister for Immigration & Citizenship [2007] FMCA 452, on appeal [2007] FCA 798, and SZJTK v Minister of Citizenship & Citizenship [2008] FCA 1712.

23                  His Honour accepted the submission of the Minister that there was nothing in the Tribunal’s decision to indicate the appellants were not offered a real and meaningful invitation, that they had been confused during the hearing as a result of the video link or were confused in some other way that prejudiced them in presenting their case. In particular, his Honour noted that the appellants had informed the Tribunal that they understood everything that had occurred and that they had no problems with the interpreter.

24                  With respect to ground 2, the Federal Magistrate found that the Tribunal did consider the claims the husband raised in his application, at the interview with the delegate and at the Tribunal hearing, but ultimately rejected these claims on the basis that he was not a credible witness, given the inconsistencies in his evidence. His Honour noted that the Tribunal is the sole arbiter of the facts and that such findings were open to the Tribunal to make on the material before it and were within its jurisdiction.  He referred to the decisions in Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) FCR 547 at 558-9; W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and RD Nicholson JJ; Minister for Immigration and Ethnic Affairs  v Wu Shan Liang (1996) 185 CLR 259 at 272

25                  As for ground 3, the Federal Magistrate stated that, although it has the power under ss 424 and 427 of the Migration Act to obtain information, the Tribunal does not have a general duty to make its own enquiries in order to make the applicant’s case or investigate an applicant’s claims (citing Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ), NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18]-[21] per  Jacobson J and Abebe v The Commonwealth of Australia [1999] HCA 14 at [187] per Gummow and Hayne J).  His Honour concluded that in the circumstances this ground could not be made out.

26                  Having found no jurisdictional error in the Tribunal’s decision, his Honour dismissed the application.

Nature and scope of the appeal

27                  The jurisdiction of this Court stems from s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), which confers jurisdiction to hear and determine appeals from most judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth, and from s 25(1AA), which provides that the appellate jurisdiction of the Court in relation to judgments of the Federal Magistrates Court is to be exercised by a single judge or, if a judge considers it appropriate, by a Full Court.  It is now settled that an appeal from a single judge to the Full Court is in the nature of a rehearing:  Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 533 [75].  As the jurisdiction to hear those appeals is also conferred by s 24(1) and, as the Court in either case has power on an appeal to draw inferences of fact and to receive further evidence (see s 27 of the Federal Court Act), this appeal is not an appeal in the strict sense, but an appeal by way of rehearing: (See Allesch v Maunz (2000) 203 CLR 172 at 180 [22] on the significance of a provision like s 27.) 

28                  But a rehearing is not a new hearing; error must be shown (whether legal, factual or discretionary): Allesch (above) at [23]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001)117 FCR 424 at 436 [25] per Allsop J. 

Appeal to this Court

29                  The husband appeared unrepresented.  He was assisted by an accredited interpreter in the Gujarati language.  His wife was not present.  

30                  When asked what he had to say in support of his appeal he replied:

My claim is true.  I wanted to produce some documents as proof but I did not get an opportunity. 

31                  He explained that the documents consisted of an identity card of the VHP, a newspaper clipping and a “First Information Report” lodged with the police when his house was set on fire.  He claimed that he had sought that opportunity both from the Tribunal and from the Federal Magistrate but was rebuffed each time.

32                  This issue was not raised by the notice of appeal.  Ms Rayment, who appeared for the Minister, argued that leave was required.  She submitted that the principles governing the grant of leave were those set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158, namely that leave should be granted only if it is expedient in the interests of justice to do so.  Although that case was an appeal from a single judge to the Full Court, there is no reason why the principles would be any different here.    

33                  Yet the question in VUAX was whether leave should be granted to argue on appeal a point not raised before the primary judge.  Here, however, Ms Rayment conceded that the point had been raised with the Federal Magistrate.  She informed the Court that the husband had asked the Federal Magistrate for more time (one month or 45 days) to obtain the evidence but that his Honour did not accede to the request, informing the husband of his limited power to review the Tribunal’s decision. 

34                  Strictly, there should have been an application for leave to amend the notice of appeal.  But no such application was made.  Still, I propose to treat the husband’s plea as though it were included in the notice of appeal.  Had an application been made for leave to amend, it is likely that I would have granted it as the appellants were unrepresented, the Minister’s solicitor indicated he was not prejudiced by the raising of the new ground, and it can be disposed of quickly.

35                  I accept Ms Rayment’s account of what occurred below, although there is no formal record of it on the Court file and no evidence was offered.  Nonetheless, his Honour did not err in failing to give the husband the time he sought.  It could have made no difference to the decision he had to make. 

36                  The husband told the Court that he had still not yet sought, let alone obtained, the documents.  His explanation was that he had never been given the time.  He asked the Court to give him that time. 

37                  The Tribunal’s hearing record contains a box for “member instructions” inviting responses to questions including “Did the applicant request time to provide any information?”  Neither “yes” nor “no” is ticked.  That is unfortunate.  However, at [51] of her reasons, the Tribunal member said:

I asked the applicant if he wished to take some time to consider the matters discussed.  I mentioned to the applicant that he could take a break or return to the Tribunal on another day to discuss these issues.  I mentioned to the applicant that he may wish to listen to the hearing recording and respond in writing.  The applicant said he did not wish to take a break and he had nothing further to add.  He said there was nothing in his mind.  The applicant wife did not wish to mention anything.

38                  Although this passage is not in direct conflict with the husband’s contentions, as Ms Rayment contended, it is at odds with the notion that he was denied an opportunity to present corroborative evidence to the Tribunal. 

39                  In fact, the appellant has had plenty of opportunity to present the evidence he now seeks to obtain.  He has been in this country for over 18 months and appeared before the Tribunal nearly twelve months ago.  He has been on notice since December 2008 when the Minister interviewed him that his credibility was suspect and he ought to have realised then (if not before) the value of obtaining corroborative evidence. 

40                  In all the circumstances, and for the above reasons, I grant the appellants leave to argue the new ground but dismiss it as being without merit. 

41                  The appellant is not now left without any remedy.  The Minister has the power to substitute his decision for that of the Tribunal, where that decision is more favourable to the applicant, if he considers that it is in the public interest to do so: Migration Act s 417.  Alternatively, the Minister has the power to allow a person to make another application for a protection visa, if he considers it to be in the public interest to do so: Migration Act s 48B.  So if the appellants can acquire the material the husband now says could corroborate his claims that he was a member of the VHP and that his house was burned down, he may be able to persuade the Minister to make a different decision or to allow them to make another application.  He was previously given the names of solicitors who might be able to help him and, at my request, Ms Rayment agreed to speak to him about such matters after the hearing.  Unfortunately, there is nothing more this Court can do to help him.

42                  For completeness I now turn to the pleaded grounds although the husband did not address either of them in writing or orally and it remains unclear whether he still wishes to rely on them.

43                  There were two grounds listed in the notice of appeal:

1.         The Honorable [sic] FM failed to take into consideration that the Tribunal’s decision was unjust and was made without taking into account the full gravity of my circumstances and the consequences of the claim.

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

44                  Neither can succeed.

45                  Ground 1 does not raise any jurisdictional error.  It is apparently a complaint about the merits of the decision.  The Court is powerless to intervene on that account.  The Tribunal member made adverse factual findings about the credibility of the husband.  That was a matter peculiarly for her.  Whether or not she was right to do so is beside the point.  Unless her reasons betray jurisdictional error, they are immune from judicial review.  Findings of untruthfulness should not lightly be made.  That is particularly so in the case of asylum seekers, who are generally unable to speak English, often illiterate, may lack the resources to obtain evidence to support their claims, and who could have experienced great suffering in their lives.  The Tribunal member in this case was alive to those issues.  She noted at the outset of her reasons that

When assessing credibility, it is important to be sensitive to the difficulties often faced by asylum seekers.  The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

46                  This ground must fail.

47                  Ground 2 is equally without foundation.  It seems to raise the same point that was agitated before the Federal Magistrate.  His Honour’s reasons do not disclose any error.  Indeed, they are perfectly correct. 

48                  Section 425(1) of the Migration Act requires the Tribunal to give an applicant an opportunity to appear before it, to give evidence and to present arguments, but it does not require that the applicant appears in person in the same room as the decision-maker.  As Reeves J observed in SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [23] to [26] where the identical argument was put and rejected, 

In this day and age, it is quite common for courts and tribunals to have people appearing before them using modern technology such as video conference facilities.  Most of the concerns of decades past about the use of such technology have disappeared: see McDonald v Commissioner of Taxation (2000) ATC 4271 at [21] to [22] per Finn J. 

Indeed, s 429A of the Act expressly allows for appearances before the Tribunal to be conducted using such technology….It clearly gives the Tribunal a discretion to allow an applicant’s appearance (for the purposes of a review hearing under s 425 of the Act) to be undertaken by telephone, closed-circuit television (which is probably not the same as a video conference facility), or any other means of communication (which clearly would include a video conference facility). 

In exercising that discretion, the Tribunal would generally need to consider whether an appearance using such technology gave the applicant concerned a fair opportunity to give his or her evidence and to present arguments to it.  The Tribunal may also need to consider other factors, such as whether its questioning of the applicant concerned is likely to be conducted fairly and effectively using such technology; whether it would be able to properly make any necessary assessment of the applicant’s credibility; whether it may need to put a large quantity of documents to the applicant; and what delays and costs may be caused if the appearance were not to be conducted in that way.  These, and other factors, have been considered in relation to the use of video conference facilities in courts and tribunals, in a number of cases in this, and other courts, over the past two decades.  The most recent decision on this issue, and one that conveniently reviews many of the earlier authorities, is ACCC v World Netsafe [2002] FCA 526 at [4] to [8] per Spender J.

49                  As in SZJTK, there is no evidence here that the appellants objected to appearing before the Tribunal by video link.  On the contrary, the evidence is that the Tribunal invited them to attend the hearing, organised a video link and advised the husband that he should contact it if he wished to attend in person.  There is no evidence that he expressed any such wish and the account of the proceeding before the Tribunal demonstrates that he and his wife were willing participants in the process.  The Tribunal member satisfied herself that they had no difficulty understanding anything.  The appellants live far away from the Tribunal.  It was entirely reasonable to take their evidence in this way.  Certainly the Tribunal committed no jurisdictional error in doing so. 

50                  Finally, I note the Federal Magistrate’s remarks concerning the nature of the Tribunal’s obligation to conduct further inquiries.  His Honour did not refer to the decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 in which the High Court acknowledged at 436 [25] that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, might, in some circumstances, amount to a jurisdictional error.  However, I consider that the Federal Magistrate was correct to decide that in the circumstances of this case the Tribunal was under no obligation to make further inquiries.

Conclusion

51                  There is no error in the decision of the Federal Magistrate.  Accordingly, the appeal must be dismissed.

Costs

52                  Costs should follow the event. 

53                  Ms Rayment applied for an order pursuant to s 43(3)(d) of the Federal Court Act for an award in the specified sum of $2,175.  This figure is less than the amount to which the Minister would be entitled under O 62 r 40C(4) and item 43H in Schedule 2 to the Federal Court Rules. 

54                  I therefore order the appellants to pay the Minister’s costs, fixed in the amount of $2,175.

Associate:

Dated:         9 March 2010