SZNJE v Minister for Immigration and Citizenship [2010] FCA 76 (17 February 2010)

Last Updated: 17 February 2010

FEDERAL COURT OF AUSTRALIA

SZNJE v Minister for Immigration and Citizenship [2010] FCA 76

Citation:		SZNJE v Minister for Immigration and Citizenship [2010] FCA 76
Appeal from:		SZNJE & Anor v Minister for Immigration & Anor [2009] FMCA 1110
Parties:		SZNJE and SZNON v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1287 of 2009
Judge:		COWDROY J
Date of judgment:		17 February 2010
Legislation:		Migration Act 1958 (Cth) ss 36, 65, 414, 425, 426A
Cases cited:		Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 cited Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 cited SZLLY and Another v Minister for Immigration and Citizenship and Another [2009] FCA 185; (2009) 107 ALD 352 distinguished
Date of hearing:	10 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	39
The First Appellant:	In person
Counsel for the Respondents:	Mr Reilly
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1287 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNJE First Appellant SZNON Second Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	17 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Appeal be dismissed.
2. The Appellants pay the costs of the First Respondent in the sum of $2,850 in accordance with O 62 r 40C(4) of the Federal Court Rules and Item 43H of Schedule 2 to the Federal Court Rules.
   

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1287 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNJE First Appellant SZNON Second Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE:	17 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants appeal from the decision of Federal Magistrate Barnes delivered on 26 October 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 23 April 2009. The Tribunal’s decision affirmed the decisions of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant Protection (Class XA) visas to the appellants.

BACKGROUND

2. The appellants, who are husband and wife, are citizens of India who arrived in Australia on 13 September 2008. On 24 October 2008 the appellants lodged applications for protection visas with the Department of Immigration and Citizenship.
3. In his application for a protection visa, the appellant husband claimed that he and the second appellant (his wife) were followers of a guru known as Asaram Bapu in India. The appellant claimed that two children had been found dead in the Gurukul that had been established by the Guru and the subsequent police investigation revealed that the Guru and his men were involved in the killing. The appellant husband stated that an accusation of sexual exploitation within the movement had come to light and he came to know that movement members had tried to extend such behaviour towards his wife. He stated that he tried to expose the followers of the Guru and they became his enemies. He claimed that they came to his shop and assaulted him, destroyed some property and threatened to kill him. He claimed that his life was in danger. He subsequently travelled to Australia. He also made claims relating to terrorist bombings in the town in which he lived.
4. A delegate of the first respondent refused the applications on 22 January 2009. On 13 February 2009 the appellants applied to the Tribunal for a review of those decisions.

THE TRIBUNAL’S DECISION

5. On 23 February 2009 the Tribunal wrote to the appellants inviting them to a hearing to give oral evidence and present arguments. On 20 March 2009 the Tribunal again wrote to the appellants, advising them that the hearing date needed to be rescheduled. On 6 April 2009 the appellant husband sent a facsimile dated 8 April 2009 to the Tribunal requesting that his hearing be conducted by video link from Griffith, New South Wales. The appellant husband stated that he had no means of transport, would find it difficult and expensive to travel to Sydney and that it would take him a long time. The Tribunal considered this request, but advised the appellants by letter dated 9 April 2009 that such arrangements could not be made. On 13 April 2009 the appellants returned to the Tribunal a completed ‘Response to Hearing Invitation’ form indicating that the appellant husband would attend the hearing.
6. Despite indicating that the appellant husband would attend, neither appellant appeared at the hearing. The Tribunal decided to make its decision on review without taking any further action to enable the appellants to appear before it, pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’).
7. The Tribunal noted that it had not had the opportunity to obtain further information concerning the appellants’ claims as they did not attend the hearing. The Tribunal stated that there was insufficient evidence before it to find that the appellants were followers of the Guru as claimed, and while it was satisfied that two children were found dead in the Gurukal associated with the Guru, it was not satisfied that any of the other appellants’ claims were true. Due to the lack of detail in these claims, the Tribunal was not satisfied that the appellants were at risk of harm or persecution.
8. The Tribunal was therefore not satisfied on the evidence before it that the appellants were persons to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, the Refugees Convention, or the Convention). It therefore affirmed the decision of the delegate not to grant the appellants protection visas.
9. Although the wife appellant had completed the protection visa application forms as a member of the husband appellant’s family, the Tribunal found that the written statement made claims in regards to her status as a refugee on her behalf and assessed those claims.

FEDERAL MAGISTRATES COURT

10. By application filed in the Federal Magistrates Court of Australia on 28 May 2009 the appellants sought judicial review of the Tribunal’s decision.
11. Before Federal Magistrate Barnes the appellants claimed, inter alia, that the Tribunal failed to accord the appellant procedural fairness because it failed to carry out its role in an inquisitorial manner; erred in not assessing the appellants’ claims in a manner that was required as mandatory under s 414 of the Migration Act 1958; acted in a manifestly unreasonable manner as it failed to consider the appellants’ claims in accordance with the Convention; and erred in failing to request more information regarding the appellants’ persecution for the following of Asaram Bapu.
12. The Federal Magistrate noted that no written submissions were filed by the appellants to support these grounds, nor did they choose to address these grounds at the hearing. The Federal Magistrate found that it was open to the Tribunal to find that there were insufficient details provided by the appellants to support their claims, particularly in the circumstances where they had failed to attend the Tribunal hearing, and that on that basis it could not be satisfied with particular aspects of their claims.
13. The Federal Magistrate also found that it had not been established that the Tribunal failed to consider the claims made by the appellants or that it had acted in a manifestly unreasonable manner by virtue of the fact that it did not reach the positive state of satisfaction required under s 65 of the Act. Barnes FM also concluded that the Tribunal was not under an obligation to investigate the appellants’ claims or to consider utilising such permissive statutory powers as might enable it to do so. Her Honour therefore dismissed the grounds as listed in the application.
14. Barnes FM also considered the allegation made by the appellants in oral submissions at the hearing; namely, that they were denied a real opportunity to attend the Tribunal hearing on the basis that the Tribunal declined their request to have the hearing conducted by video link.
15. In response to this submission, Barnes FM considered whether the Tribunal had complied with its obligations under s 425 of the Act. Her Honour found that the present circumstances could be contrasted with those in SZLLY and Another v Minister for Immigration and Citizenship and Another [2009] FCA 185; (2009) 107 ALD 352 in which the Tribunal did not accept that the cost of travelling from Griffith to Sydney was a valid reason for rescheduling the hearing and organising a video hearing but did not refer to those considerations in its decision. Barnes FM noted that in the proceedings before her, while the appellant did seek a video link in his faxed letter dated 8 April 2009, the Tribunal advised him on 9 April 2009 that it was unable to organise a video link at the scheduled time for the hearing. Further, the Tribunal advised that if he was unable to attend, an alternative date would be selected.
16. Her Honour stated that, critically, it was after the Tribunal’s notification that a video link could not be arranged that the husband appellant completed a further ‘Response to Hearing Invitation’ form in which he indicated that he would attend the Tribunal hearing. As such, her Honour was not satisfied that in this case the appellants had established that there was any failure by the Tribunal to comply with s 425 or that it was not open to the Tribunal to make a decision on the review without taking further action to enable the appellants to appear before it. These considerations were also referred to in the decision.
17. The appellant husband also raised in his concluding submissions a claim that his wife was in hospital having a baby at the time of the hearing and that this was also a reason why he did not attend. The Tribunal had not been informed of these circumstances.
18. Having found no jurisdictional error in the Tribunal’s decision, Barnes FM dismissed the application.

APPEAL TO THIS COURT

19. On 12 November 2009 the appellants filed in this Court a Notice of Appeal from the decision of Barnes FM. The appellants raise the following grounds of appeal:

2. The single Judge of the Federal Magistrate Court in his Honours judgment delivered on the 26 October 2009 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.
3. The learned Federal Magistrate dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

SUBMISSIONS OF THE APPELLANT

20. The appellant husband appeared with the assistance of an interpreter. He explained to the Court that a friend prepared the Notice of Appeal. When asked whether he understood the ground of appeal he explained that he did not understand it. The appellant husband then provided several reasons for his failure to attend the Tribunal. He stated that he had financial trouble and requested a different date for the purpose of the hearing before the Tribunal. He then said that he was not able to travel on the date fixed for the hearing because he had a problem with his eye and had an appointment with his medical practitioner. He also stated that his wife was in hospital around the time of the hearing and that this was another reason for his non-attendance before the Tribunal. When asked why he did not communicate by telephone to tell the Tribunal of his difficulties, he said he could not speak English. When it was pointed out to him that the letter from the Tribunal acknowledging receipt of his Application for Review provided information regarding telephone translators he said that he could not read English. The appellant produced to the court a birth certificate of his son, which record disclosed that the son was born on 18 March 2009 at Griffith Base Hospital.
21. The appellant informed the Court that he was not happy with the Tribunal’s determination and that he required a hearing before the Tribunal.

FINDINGS

22. Before proceeding to deal with the merits of the Notice of Appeal, the Court makes the following observations in relation to the appellant’s oral submissions.
23. As is referred to in the decision of Barnes FM, the appellants were invited to attend a hearing before the Tribunal fixed for 1 April 2009. Such invitation was dated 23 February 2009 and forwarded by registered post to the appellants.
24. On 20 March 2009 the appellants were informed by registered post that the hearing had been rescheduled to 20 April 2009.
25. By Response to Hearing Invitation dated 8 April 2009 the appellant husband informed the Tribunal that he would be attending the Tribunal but that his wife would not be attending. Although dated 8 April 2009 the facsimile recording suggests the form was returned to the Tribunal by 6 April 2009.
26. Simultaneously the appellant husband requested, by letter, that the Tribunal conduct the hearing by video link. The appellant husband stated:

I have no means of transport and would find it very difficult and expensive to get to Sydney. It would also take me along time.

27. By letter dated 9 April 2009 the Tribunal acknowledged receipt of his request on 8 April 2009 and stated:

Unfortunately, the Tribunal is unable to organise a video link-up at the scheduled time of the hearing.

28. The letter advised the appellant that the date for the hearing would remain 20 April 2009.
29. By Response to Hearing Invitation forwarded by facsimile on 13 April 2009 to the Tribunal, the appellant husband accepted the invitation to attend and requested the services of an interpreter. However, when the hearing took place the appellant failed to appear. There is no evidence of any communication, or attempted communication, by the appellant to the Tribunal indicating that he would not be appearing at the appointed time.
30. At the Federal Magistrates Court the appellant informed Barnes FM that his wife was in hospital having a baby and that this was also a reason he could not attend the hearing. It is not clear whether any other reason was given.
31. It is difficult to reconcile this statement, made to both Barnes FM and this Court, with the fact that the appellant’s son was born on 18 March 2009, namely more than a month before the scheduled hearing. Further, the Court is unable to accept the appellant’s claim that as he did not read English and as he did not speak English he could not have advised the Tribunal that he could not have attended the hearing. On two previous occasions when invitations were forwarded to him to attend before the hearing, he was able to have someone read them to him and to respond. Yet it appears that the only reason he did not notify the Tribunal that he would not be attending the hearing was because he neither understood nor spoke English. The letter acknowledging receipt of his Application for Review as well as the invitation under s 425 of the Act provided a number which he or a friend could have used to inform the Tribunal of any fact which prevented his attendance.
32. In these circumstances, the Court finds no error in the Federal Magistrate’s conclusion that the Tribunal had complied with its statutory obligations under s 425 of the Act and that the facts of the present appeal are distinguishable from those in SZLLY. In SZLLY, no meaningful invitation was found to have existed because the appellants, who had indicated their inability to attend the hearing, were not given an opportunity to explain their reason for requesting an adjournment. In the present case, since the appellant notified the Tribunal that he would be attending the rescheduled hearing, there is no basis for applying the principle appearing in that case. The invitation was real and meaningful: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553.
33. It follows that the Tribunal, in the absence of the appellant, was authorised by s 426A of the Act to proceed with the hearing.
34. As to the merits of the appeal, no particulars are contained in the Notice of Appeal and in the absence of such particulars and submissions it is impossible to identify any error upon which the appellants rely. The grounds of appeal are meaningless and raise no case for consideration by this Court.
35. The decision of the Tribunal to uphold the decision of the Minister shows that it considered the claims of the appellants but found that there was insufficient evidence before it to find that the appellants were likely to be at risk if they returned to their home in India. For this reason the Tribunal declared that it was not satisfied that the appellants were persons to whom Australia had protection obligations under the Refugees Convention. As such, the criteria contained in s 36(2)(a) of the Act for the granting of a protection visa were not satisfied.
36. The Court is unable to find any error of law in the conduct of the Tribunal, nor in the reasons provided by Barnes FM.
37. Since the hearing has occurred and the Tribunal has handed down its decision without any reviewable error, there is no power in the Tribunal to hold a second hearing: see Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 at [30].
38. In view of the foregoing the appeal is dismissed.
39. The first respondent has made an application for costs in the amount of $2,850. Such claim is supported by the affidavit of Bernadette Marie Raymond sworn on 4 February 2010. As the amount of costs referred to appears reasonable for the work undertaken, the Court will make an order that the appellants pay the costs in this amount.
    

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 17 February 2010