FEDERAL COURT OF AUSTRALIA

SZPZQ v Minister for Immigration and Citizenship [2011] FCA 1236

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs of and incidental to the appeal.

3.    Costs be assessed in the amount of $1,890.00.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        In this matter, the appellants appeal against a judgment of a Federal Magistrate delivered on 1 July 2011 (SZPZQ v Minister for Immigration and Citizenship [2011] FMCA 537). The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 10 February 2011, which had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) dated 19 August 2010 to refuse to grant protection (Class XA) visas (protection visa) to the appellants.

2        The first appellant and the second appellant are husband and wife. The third and fourth appellants are two minor sons of the first and second appellant. The appellants are citizens of India who arrived in Australia on 3 February 2010. On 30 March 2010, the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. As mentioned at [1] above, a delegate of the Minister refused the application for a protection visa on 19 August 2010.

3        On 9 September 2010, the appellants applied to the Tribunal for a review of that decision. On 30 September 2010, the Tribunal invited the appellants to a hearing. The hearing took place by video link between Canberra and Sydney on 23 November 2010.

4        The appellants’ claims in support of the protection visa were made through the first appellant and the second appellants. The claims made were similar both before the delegate and in the Tribunal.

5        The first appellant claimed to be a member of the Indian National Congress Party (INC). Before the October 2009 Indian election, the first appellant had left the Congress Party in order to join and campaign for another political party, the Indian National Lok Dal (INLD). The appellants claimed to have been threatened as a result of this change of allegiance and, in some cases, assaulted by Congress Party members. The first appellant claimed that Indian authorities were not interested in protecting him and his family. The appellants claimed that they went into hiding and came to Australia in February 2010. The first appellant claims that, because of his political opinions, he and his family will suffer physical harm and harassment if they are returned to India.

6        On 12 August 2010, the first and second appellants attended an interview with the delegate and gave information to the delegate. On 19 August 2010, the delegate refused the appellants’ application for protection visas. The delegate noted inconsistencies in the materials supplied by the appellants but gave the first and second appellants the benefit of the doubt in view of some interpreter problems which were perceived during the interview. However, the delegate did not accept the appellants’ claim that the first appellant’s wife and children had been beaten during the election. The delegate concluded that the first appellant would have immediately relocated if his family had been harmed in this way. The delegate also did not accept that the appellants were unable to relocate within India, considering the alleged incidents were of a local nature, in any event. Accordingly, the delegate was not satisfied that the appellants held a genuine fear of persecution or that they were owed protection obligations.

THE TRIBUNAL’S REVIEW

7        On 9 September 2010, the appellants lodged an Application for Review with the Tribunal.

8        By letter dated 30 September 2010, the Tribunal invited the appellants to attend a hearing on 23 November 2010. The invitation letter indicated that a Punjabi interpreter would be made available and that the hearing would be conducted via video conference with a link between Sydney and Canberra. The appellants completed and returned the Response to Hearing Invitation Form supplied to them. They indicated that they would attend the video link hearing and confirmed that a Punjabi interpreter would be necessary. As I have already mentioned, the first and second appellants appeared via video link at the Tribunal hearing and gave evidence.

9        The Tribunal delivered its decision on 10 February 2011 and affirmed the delegate’s decision to refuse the appellants’ application for protection visas. The Tribunal said that there were differences between the evidence given by the first appellant and that which was given by the second appellant. Their evidence differed regarding the violent incident which they alleged had occurred, in terms of whether neighbours had entered the house, who telephoned whom for help, what luggage they took when they left the house, whether they went to the police and whether they attended a doctor after the alleged incident. The Tribunal accepted that the first appellant had become involved in politics and was associated with the INLD. However, the Tribunal was not satisfied that the first appellant and his family had been targeted by INC members as a result of his campaigning for INLD.

10        The Tribunal did not accept that the appellants had fled India because they feared persecution. The Tribunal rejected many of the first appellant’s claims on the ground that he and his wife were not truthful or credible. The Tribunal made adverse credibility findings against both of them because of numerous inconsistencies in their evidence. The Tribunal was not satisfied by the appellants’ explanations and concluded that they were persons to whom Australia did not owe protection obligations.

THE PROCEEDING IN THE FEDERAL MAGISTRATES COURT

11        On 9 March 2011, the appellants applied to the Federal Magistrates Court for judicial review of the Tribunal decision. The appellants relied upon the following grounds in that Application:

1.    The Tribunal failed to provide the Applicant with an opportunity to appear before it, and thus failed to comply with 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, I 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 applicant 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 claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 10 February 2011 was effected by actual bias constituting judicial error.

12        The first appellant submitted at the hearing before the Federal Magistrate that he and the other appellants had encountered difficulties with the video conferencing system during the course of the Tribunal hearing. He said that voices broke up and that he was unable to understand what was being said. The Federal Magistrate recorded that, in his view, the appellants’ grounds of judicial review followed precedents that his Honour had frequently seen in recent times in relation to Indian claimants. The Federal Magistrate did not find any substance in any of the grounds raised by the appellants.

13        The Federal Magistrate concluded that the Tribunal did not have to hold face to face hearings. At [16] and [17] of his Reasons, the Federal Magistrate said

16.    The contention that the Tribunal is always bound to hold a face-to-face hearing by reason of the provisions of s.425, and that it is not empowered to conduct a hearing by way of a video connection, has been addressed in previous cases. I rejected the contention myself in SZJYD v Minister for Immigration [2007] FMCA 452 at [29]-[30] and my judgment was upheld by Moore J (see SZJYD v Minister for Immigration and Citizenship [2007] FCA 798). The same opinion was explained by Barnes FM in SZJTK v Minister for Immigration [2008] FMCA 839, which was upheld by Reeves J (see SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712, special leave to appeal refused by the High Court – see SZJTK v Minister for Immigration & Citizenship [2009] HCASL 75). The line of cases was recently followed by Katzmann J in SZNNE v Minister for Immigration and Citizenship [2010] FCA 194. In my opinion, I am bound by the judgments of the Federal Court, to reject the contention in ground 1.

17.    On the evidence as to the particular circumstances of the hearing in the present case, I am not satisfied that, in fact, the applicants suffered any procedural unfairness in any respect, as a result of the Tribunal adopting the procedure of a video connection when taking their evidence.

14        The Federal Magistrate was also not satisfied that the appellants had suffered any procedural unfairness on account of difficulties with the video conferencing technology used during the course of the Tribunal hearing.

15        As far as the second ground of review relied upon the appellants was concerned, the Federal Magistrate concluded that the Tribunal had addressed the appellants’ claims in accordance with the Convention and the requirements of the Migration Act 1958 (Cth) (the Act). The Federal Magistrate indicated that he did not understand ground 3 at all, and that he had received no submissions which elucidated that claim during the course of the hearing before him. Accordingly, the Federal Magistrate concluded that there was no substance in ground 3. There was no evidence of actual bias before the Federal Magistrate.

THE APPEAL IN THIS COURT

16        On 22 July 2011, the appellants filed a Notice of Appeal in this Court, which contained the following grounds.

1.    The Hon.FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.

2.    The Hon.FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

17        Ground 1 appears to raise a complaint that the Tribunal’s decision was irrational. However, the Tribunal’s decision is quite plainly based upon adverse findings of credibility against the first and second appellants. The Tribunal’s finding on that basis is quintessentially a matter for it. The Tribunal’s state of satisfaction as to whether Australia has protection obligations for the purposes of the visa applications will only be reviewable if it can be described as illogical or irrational in the sense discussed by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 620–621; 625; 632; and at 647–48. No such criticism can be sustained where it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings which it did make on the material before it (SZMDS at 648).

18        In the present case, the appellant has failed to satisfy me that the decision reached suffers from reviewable irrationality.

19        The appellant also argues that the Tribunal failed to have regarded to s 91R of the Act. However, when the decision record of the Tribunal is properly considered, it is quite clear that that section was considered. In particular, the Tribunal devoted several paragraphs to its consideration of that section (at [12]–[19] of its Reasons).

20        However, the Tribunal ultimately concluded that the claims made by the appellants which, if they had been found to be true might have engaged refugee law including s 91R of the Act, were not true. In those circumstances, no further consideration of s 91R was required and no breach of that section arose.

21        Ground 2 raises merits review. This is impermissible. What must be demonstrated in this Court is error on the part of the Federal Magistrate in conducting the judicial review with which he was seized. No such error has been demonstrated.

22        For these reasons, I propose to dismiss the appeal with costs.

23        The orders of the Court are:

(1)    The appeal be dismissed.

(2)    The first and second appellants pay the first respondent’s costs of and incidental to the appeal.

(3)    Those costs be assessed in the amount of $1,890.00.

Associate:

Dated:    7 November 2011