SZLHV v Minister for Immigration and Citizenship [2008] FCA 968

FEDERAL COURT OF AUSTRALIA

SZLHV v Minister for Immigration and Citizenship [2008] FCA 968

SZLHV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 401 of 2008

GRAHAM J

21 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 401 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLHV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 21 MAY 2008

WHERE MADE: SYDNEY

THE COURT:

1. Orders that the appeal be dismissed. 2. Orders that the appellant pay the respondent Minister's costs fixed in the sum of $2,200. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 401 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLHV

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 21 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who is identified for the purposes of these proceedings as 'SZLHV', was born in Nidur, India on 2 August 1966. He obtained an Indian passport on 20 March 2004. After visiting Australia in May and July 2006, he returned to Australia on 18 December 2006, travelling on his Indian passport and an Australian visitor's visa that was issued to him on 12 April 2006. 2 After the appellant obtained his passport on 20 March 2004, he travelled extensively throughout Asia prior to his departure for Singapore in early December 2006 and his subsequent travel from Singapore in mid December which saw him arrive in Australia on 18 December 2006. 3 The countries visited by the appellant in his two and a half years of travel through Asia included visits to Singapore, Thailand, Malaysia, Australia and the United States. His travels around the world were broken on three occasions when he returned to India: on or about 15 December 2004, he returned to India and stayed for about three months; on or about 6 September 2005, he returned to India and stayed for about three months and on or about 8 August 2006, he returned to India and stayed for about three months. 4 Following his arrival in Australia for the second time on 18 December 2006, the appellant applied for a Protection (Class XA) visa on 29 January 2007, and on 17 April 2007 that application was refused by a delegate of the Minister. 5 On 4 May 2007, the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's delegate's decision. An invitation was extended to the appellant to attend a hearing on 4 July 2007 which the appellant duly attended. Following the hearing, the Tribunal decided the application for review on 31 July of 2007 and decided to affirm the decision of the delegate of the Minister not to grant the appellant a Protection (Class XA) visa. That decision was handed down on 21 August 2007. 6 The appellant filed an Application in the Federal Magistrates Court of Australia ('Federal Magistrates Court') on 13 September 2007 seeking constitutional writ relief in respect of the decision of the Tribunal. On 11 December 2007, an Amended Application was filed in the Federal Magistrates Court which came before that court constituted by Scarlett FM on 26 February 2008. On 10 March 2008, the learned Federal Magistrate ordered that the application be dismissed and that the appellant pay the respondent Minister's costs, fixed in the sum of $3,900. He allowed four months for payment of those costs. 7 On 25 March 2008, the appellant filed a Notice of Appeal in this Court, appealing from the whole of the judgment of Scarlett FM. 8 There are a number of unusual features about the progression of the matter in the Tribunal which require noting. A document called 'RRT Hearing Record' indicates that the Tribunal hearing took place on 4 July 2007 over a period of three hours and 10 minutes. It would appear that the appellant arrived at the Tribunal on 4 July 2007 at about 10.05 am. It is recorded that the hearing commenced at 10.10 am and that it was adjourned at 11.08 am, that is to say, after 58 minutes. It resumed seven minutes later at 11.15 am and continued to 11.25 am, that is to say, for a further 10 minutes before it was adjourned yet again. Some 35 minutes later at midday, the hearing resumed and proceeded for one hour and 20 minutes, concluding at 1.20 pm. The disjointed hearing was the subject of observation in the reasons for the decision of the Tribunal which noted: 'At one stage during the hearing, the Applicant hyperventilated and became hysterical. These characteristics appeared during the recounting of an instance of abuse at the hands of Hindu fundamentalists. The applicant was not crying but presented as though in a panic. Concerned that these manifestations might be symptoms of a genuine anxiety attack, the Tribunal adjourned the hearing. When the hearing resumed, the applicant continued to speak with a high pitched voice, but was generally more composed. He indicated that he was prepared to continue with the hearing.' The appellant accepts that he did indicate, as recorded, that he was prepared to continue with the hearing. 9 It would appear that at the Tribunal hearing the appellant provided copies of three medical certificates. firstly, a medical certificate from India of a Dr N Mani which was dated 22 February 2007, that is to say, some two months after the appellant arrived in Australia on the second occasion. The certificate recorded that the appellant was suffering from 'Affective ill ness (sic) (Bipolar)' and was under the treatment of Dr Mani during the period 2003 to 2005. 10 The second medical certificate was that of Dr Elizabeth Dent, a Psychiatry Registrar at St Vincent's Hospital in Sydney. The medical certificate of Dr Dent recorded that the appellant had a history of bipolar disorder and that he presented as mildly depressed and anxious. She observed that no acute suicidal risk had been identified. She recorded the fact that she had prescribed Cipramil for him and noted that he needed 'to be monitored closely as he has a history of Bipolar, for the risk of a manic state with the antidepressant'. She recorded that there was no sign of that occurring at the date of her report, namely, 1 June 2007. 11 The third medical certificate was another certificate of Dr Dent of 18 June 2007 which recorded that the appellant had been troubled by disturbing dreams and was having difficulty sleeping. He apparently presented to Dr Dent complaining that things had worsened in the previous week due to symptoms of nausea, vomiting and diarrhoea which he believed was caused by the Cipramil, which he had stopped taking. Dr Dent changed the prescribed medication for the appellant from Cipramil to Sertraline. She reported that the gastrointestinal symptoms may have been a side effect of the Cipramil. Dr Dent said that the appellant had significant symptoms of PTSD and depression with predominant anxiety symptoms. She considered that he was unable to work in the condition in which he presented. 12 The appellant's Application for constitutional writ relief in the Federal Magistrates Court came before that Court, constituted by a Turner FM, on 16 October 2007 when the appellant appeared in person and the respondent Minister was represented by Ms Buchanan of the Australian Government Solicitor's Office. The hearing is recorded as having taken some seven minutes. Orders were made on 16 October 2007 and consented to by the appellant who recorded his signature on them which included the following: '4. The applicant file and serve any affidavit containing additional evidence to be relied upon, including any transcript of the tribunal hearing, by 11 December 2007. 5. Evidence of a Tribunal hearing shall be presented as a transcript verified by affidavit, and a tape recording shall not be received without the leave of the Court obtained prior to the hearing.' 13 The appellant acknowledges that he did not file and serve any evidence in the Federal Magistrates Court within the time prescribed by Order 4, nor did he seek the leave of the Court prior to the hearing before Scarlett FM on 10 March 2008 to have a tape recording of the Tribunal hearing received in evidence. In the course of his oral submissions before the Court as presently constituted, the appellant stated that he did not tender a transcript at the hearing before Scarlett FM and told the Court that he was unable to produce a transcript as he could not afford the cost of obtaining one. 14 It seems clear that an audio tape of the hearing before the Tribunal was provided to the appellant. He has produced from his briefcase a buff coloured envelope which he says contains the audio tapes that were provided to him of that hearing. He also says, and I gather it is not disputed, that he had the audio tapes which he now has with him in Court when the matter was before Scarlett FM. 15 In the Amended Application filed 11 December 2007 in the Federal Magistrates Court, there was some mention of the manner in which the hearing before the Tribunal proceeded. Ground 5 was recorded as follows: '5. That the decision of the Refugee Review Tribunal was effected (sic) by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or 'integers' central to the applicant claims; because I spent long time being questioned without a break and felt stressed and intimidated.' 16 It will be appreciated that the failure by the appellant to put a transcript in evidence and the failure by the appellant to tender the audio tapes of the Tribunal hearing made the consideration of ground 5 by the Federal Magistrates Court somewhat difficult, especially the last part thereof referring to being questioned without a break and feeling stressed and intimidated. 17 In his reasons for judgment of 10 March 2008, the learned Federal Magistrate said at [32]-[34]: '32. The applicant in oral submission took the view the Tribunal's actions and statements of the hearing reflected some sort of bias against him. He claimed that the Tribunal member said that he was reacting. [It is accepted by the solicitor for the respondent minister that the word "reacting" was probably not used by the appellant but rather "acting", when addressing the Federal Magistrates Court of Australia] and said, "You are acting a part". He said he felt that the Tribunal member could not truly have done justice to him. He asked the Court to listen to a tape of the hearing. He had not provided a transcript. I note that this claim has not been mentioned in the amended application and it was raised for the first time at the hearing. 33. An allegation of bias is a serious allegation. Sadly, allegations of bias are raised all too often in applications for judicial review of Tribunal proceedings. The Full Court of the Federal Court has made it clear in such decisions as SBBS v Minister for Immigration & Multicultural & Indigenous Affairs, and SBBF v Minister for Immigration & Multicultural & Indigenous Affairs. The allegations of bias are serious because they contain an implication of personal fault on the part of the decision-maker. Allegations of bias must be strictly alleged and strictly proved. It is a rare and extreme case where bias will be found from the Tribunal's reasons for decision. The applicant has claimed that a remark made by the Tribunal member appearing indicates some form of bias. 34. It seems extraordinary that this claim was not made on any prior occasion than in oral submissions at the hearing. The applicant filed an application on 13 September 2007 and an amended application on 11 December 2007. The documents are virtually identical. I am not satisfied that the applicant has made out his allegation of bias and it seems extraordinary that the claim was not made in either the original application or the amended application.' (Footnotes omitted) 18 The grounds of appeal recorded in the Notice of Appeal filed 25 March 2008 are unhelpful. There were three grounds recorded in paragraphs 2, 3 and 4 of the Notice of Appeal as follows: '2. The single Judge of the Federal Magistrate Court in his Honours judgement delivered on 10 March 2008 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 has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 4. The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Afairs (1994) 52 FCR 437.' 19 I make the observation that the grounds of appeal are unhelpful in the form in which they have been expressed, partly because of the fact that earlier this week I have had occasion to consider a number of appeals from decisions of the Federal Magistrates Court in relation to decisions of the Tribunal where applications for protection visas had been sought and the grounds were expressed in what I might describe as a boilerplate form with identical wording and identical typographical errors on each occasion, the only difference between the various expressions of the grounds being the date included in paragraph 2, where the date of the relevant Magistrate's decision was inserted. 20 It is plain that the grounds were not formulated with regard to the facts of the appellant's own case. Nevertheless, in ground 2, mention is made of 'procedural fairness' and the appellant has, in his argument in support of the grounds, latched upon those words to develop a case about the unfairness to him of the hearing before the Tribunal. It may be noted that the word 'bias' has not been used and it may be observed that what has been put today about the hearing before the Tribunal was not apparently raised when the Amended Application was before the learned Federal Magistrate on 26 February 2008. 21 What was put by the appellant orally on that occasion was that the Tribunal demonstrated some sort of bias by charging the appellant with 'acting' when presenting his evidence and arguments to the Tribunal. In argument on the appeal, the appellant repeated his assertion that the Tribunal had said that he was 'acting a part'. He submitted that he couldn't have a reasonable decision made in respect of himself in those circumstances. It was suggested that the Tribunal member had bias against him having asserted that he was 'acting'. He submitted that he was not given a proper or just decision by the Tribunal in the circumstances. The last mentioned matter was raised at the heel of the hunt. Earlier in the appellant's submissions, he asserted that he had been denied procedural fairness in the manner in which the hearing progressed. 22 Proceedings before the Tribunal are not adversarial but inquisitorial. The Tribunal is not in a position of a contradictor of the case being advanced by an applicant. A Tribunal member conducting the inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance and for the Tribunal to decide whether his claim has been made out. It is not part of the function of the Tribunal to seek to damage the credibility of an applicant's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. 23 The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs; Ex parte applicant S154/2002 (2003) 201 ALR 437 at [57] – [58]). 24 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said at [47]: '47. … It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.' 25 The appellant contends that he requested Scarlett FM to listen to the audio cassette to show how much duress he had been under during the course of the Tribunal hearing. He indicated that in spite of the duress that he says he was suffering from, he gave all the facts that he could. The case which he advances is that at some stage during the course of the hearing, the Tribunal member said words to the effect that he would not ask for any more detail about cruel things that may have happened to the appellant in India to avoid him being caused any further stress. 26 The appellant acknowledges that he did not tender or seek to tender the audio cassettes of the hearing before the Tribunal so that the learned Federal Magistrate could ascertain whether any words had passed from the Tribunal member such as those for which the appellant contended and, I would add, to allow him to assess whether or not there was any suggestion of bias or use of the words, such as you are 'acting a part'. The appellant took the view that if the Magistrate was required to listen to the audio tape, he could have obtained a copy from the Refugee Review Tribunal. 27 Were it not for the appellant's execution of the consent orders made by Turner FM on 16 October 2007, including orders 4 and 5 as quoted above, I may have inclined to the view that there had been some error on the part of the learned Federal Magistrate in dealing with the Amended Application which would warrant the matter returning to the Federal Magistrates Court so as to allow the appellant to tender or seek leave to tender the audio tapes of the Tribunal hearing. 28 Given the statement from the bar table by the appellant that he gave the Tribunal all that facts that he could, there must be a serious doubt as to whether, if all the things that he said about the Tribunal hearing were true, a different factual situation would emerge were the matter to go back to the Tribunal for reconsideration. 29 In a statement provided by the appellant with his application for a Protection (Class XA) visa, the appellant stated that he had been involved in the provision of social service through the national service scheme. He started a body known as the 'Punganur Consumer Protection Council' and through the Council, engaged in, so it would seem, charitable works. He repeated his involvement in charitable works in the course of his oral submissions before the Court as presently constituted when he mentioned that he had been a businessman who provided free food for some 50 people a day. 30 Obviously, it is inappropriate for the Court hearing an appeal from a decision of the Federal Magistrates Court on the appellant's application for constitutional writ relief to address factual issues such as that, but I note in passing that what he has said from the bar table today is consistent with what he said in his application for a Protection (Class XA) visa. 31 The appellant is a Muslim and a number of the people whom he helped were Hindus. He has indicated that as a result of his persuasion, a number of Hindus became Muslims. The appellant's case was that Hindu extremists took action against him and put him on their 'hit list'. He asserted that he was '…put to all sorts of oppressions and attack of the above parties [referring to the Hindu extremists] and escaped fortunately'. 32 The appellant apparently started a vegetarian hotel in 2001. On 18 June 2003, a fire erupted in an adjacent building. A Hindu revolutionary group charged the appellant with having lit the fire and instigated a search for him with a view to killing him. I would interpose that in the Findings and Reasons of the Tribunal, the Tribunal found that the appellant had reported the fire to the police who recorded it as an accident. I note that the Tribunal accepted that the police treated it as an accident. The manner of expression was difficult but that is the effect of what the Tribunal said. The actual words were 'on the evidence before it, the Tribunal does not accept that the police treated it as anything other than an accident, as the applicant referred to it'. My impression is that the appellant may have formed a different view as to what the Tribunal had actually said in that regard. 33 The case of the appellant is that his business was particularly successful and his success resulted in competing hotels suffering losses. He said in his application for a Protection (Class XA) visa that action was taken against him on the initiative of the proprietors of the other hotels. 34 Even if there was persecution, one would doubt whether persecution of one hotel proprietor instigated by other hotel proprietors could bring the appellant within the definition of 'refugee' in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (collectively referred to hereafter as 'the Refugees Convention'). The case advanced by the appellant was that in effect he had to close his 'restaurant' and flee the country, which was the reason for his extensive travels throughout Asia in the ensuing two years. 35 The Tribunal recorded the appellant's claims and evidence as follows: 'The Applicant, an ethnic Tamil Muslim from Tamil Nadu who claims to have offered social assistance to Hindu Dalits ("Untouchables") and who claims to have converted some Dalits to Islam, claims fear of persecution in India, at the hands of Hindu groups including radical Hindu nationalists, for Convention-related reasons of "religion" and imputed anti-Hindu nationalist "political opinion.' 36 The applicant had claimed to have worked in agriculture with his father, to have operated a hardware business and then to have commenced the vegetarian hotel or restaurant in 2001. The Tribunal expressed some concern about the plausibility of the appellant's claims and sought more evidence about the closure of the restaurant. It raised concerns as to the need for the appellant to flee India in circumstances where he continually made return visits, staying for about three months on each of three occasions. 37 The Tribunal did not accept the appellant's contention that he had been forced to resign from the Council, which I understand to be a reference to the 'Punganur Consumer Protection Council'. 38 The Tribunal was concerned at the lack of corroboration in respect of the appellant's claims for a protection visa. 39 In relation to the claims of persecution for reason of religion, the Tribunal found that the appellant's history of aid to the Dalits and its consequences lacked a reasonable degree of plausibility and internal consistency to the point where the Tribunal found that it lacked credibility. The Tribunal did not accept the appellant's claims about having found himself offside with Hindu fundamentalists or with the authorities over matters of social service, affirmative political action, religious conversion, or any other arguably Convention-related matter. The Tribunal did not accept that the appellant had left India in 2003 (sic) with genuine fear of persecution or genuinely seeking formal or informal protection from persecution in India. 40 The appellant claimed to have been struck, whilst riding a motorcycle, by a truck on one of his return visits to India. He contended that the truck had been deliberately driven into the motorcycle by the Hindu fundamentalists who were opposed to him. The Tribunal gave no weight to any notion that the accident was connected with or indicative of the appellant's claimed problems with the Hindu fundamentalists. 41 In relation to the appellant having his name put onto a 'hit list' maintained by Hindu fundamentalists, the Tribunal could not accept same given the voluntary return to India by the appellant on three separate occasions when he stayed for a period of time after each return. The Tribunal did not consider that the appellant's actions and movements outside India were consistent with genuine fear of Convention-related persecution. 42 Having said all that, the Tribunal accepted as a fact that Hindu fundamentalists have in certain individual instances attacked Muslims in Tamil Nadu and other parts of India and that they had been able to do so with some impunity. However, on the information before it the Tribunal was not satisfied that those independently reported facts supported by the articles that the appellant submitted and described at the hearing added any weight to the appellant's claims about himself and his family. 43 In the circumstances, the Tribunal did not accept that the appellant's substantive claims were reliable. It was not satisfied that the appellant faced a real chance of Convention-related persecution in India. Accordingly, the Tribunal affirmed the decision of the Minister's delegate not to grant the applicant a Protection (Class XA) visa. 44 In his oral submissions, the appellant observed that the Tribunal simply did not accept what he said. 45 There is nothing before the Court which would warrant a finding that the Tribunal committed jurisdictional error. It is not open to the Court to deal with the appellant's application for a protection visa on the merits. In the absence of a finding of jurisdictional error on the part of the Tribunal, the only conclusion which the Court can reach is one adverse to the appellant. In my opinion the appeal should be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.