A121 of 2002 v Minister for Immigration
[2004] FMCA 513
•19 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A121 of 2002 v MINISTER FOR IMMIGRATION | [2004] FMCA 513 |
| MIGRATION – Review of decision of the Refugee Review Tribunal affirming a decision of the delegate of the Minister refusing to grant a protection visa – no reviewable error disclosed – application dismissed. |
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Minister for Immigration and Multicultural Affairs; exparte Lam (2003) 195 ALR 502 at [37]
NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 AT [16]
Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 74 ALJR 405
| Applicant: | A121 of 2002 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | AZ149 of 2003 |
| Delivered on: | 19 August 2004 |
| Delivered at: | Adelaide |
| Hearing date: | 29 July 2003 |
| Judgment of: | Mead FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M Clisby |
| Solicitors for the Applicant: | Mark Clisby |
| Counsel for the Respondent: | Mr Leerdam |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application do stand dismissed.
That the applicant pay the respondent’s costs in the sum of FOUR THOUSAND DOLLARS ($4,000) pursuant to Part 21 Rule 21.02 (2) (a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ149 of 2003
| A121 of 2002 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an amended application for an order of review of a decision by the Refugee Review Tribunal (The Tribunal) which affirms the primary decision of a delegate of the respondent, refusing under Section 65 of the Migration Act 1958 (Cth) (the Act) to grant the application of the applicant for a protection visa on the basis that the criteria for the grant of that visa was not met.
The application came before the Court having initially been remitted from the High Court to the Federal Court and thereafter from the Federal Court to the Federal Magistrates Court.
A Notice of Motion for summary dismissal was filed in the Federal Court on 3rd July 2003.
On 4th July 2003 Justice Selway transferred the amended application for review and the notice of motion to the Federal Magistrates Court and both were listed for hearing on 29th July 2003. His Honour granted liberty to the applicant to file further affidavit material to lay a factual foundation for the allegations made in the amended application within 2 weeks of 4th July 2003.
On 25th July 2003 a facsimile copy of an affidavit purportedly from the applicant in support of the amended application was filed in the Federal Court Registry. The amended application for review was accompanied by an outline of the applicant’s submissions which did little more than restate the terms of the amended application. The application appeared to be founded on the principles established in Muin v Refugee Review Tribunal (2002) 190 ALR601. The grounds of the review, put simply, were that the applicant had been denied procedural fairness in that:-
a)The applicant was misled to believing that documents before the Minister’s Delegate who made the RRT reviewable decision (i.e. the part “B” documents) were sent to and considered by the Tribunal, and the applicant’s conduct in relation to the Tribunal was affected as a result of that belief; and
b)The Tribunal took account of material adverse to his claims which was not before the delegate and of which he was given neither notice nor an opportunity to respond.
In re Minister for Immigration and Multicultural Affairs; exparte Lam (2003) 195 ALR 502 at [37] Gleeson CJ commented:- “fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”.
The decision of the High Court in Muin (supra) was based on statement of agreed facts which is not present in this case. It is necessary if relying on the principles established in that case for an applicant to establish the factual basis on which the claim is based.
In NAOC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1424 at [16] Justice Hill said in relation to a Muin Part B documents allegation:- “What is important and it appears in the judgments in Muin itself is that in that case there was a factual sub-stratum firstly that the Tribunal had not read the documents whether or not they had been sent to it and, secondly, that the applicant had relied upon an assurance by the Tribunal that it had read the documents and, accordingly, had not put further material before the Tribunal.”
On 25th July 2003 a facsimile copy of an affidavit purportedly sworn by the applicant was filed in the Adelaide Registry of the Federal Court. In that affidavit the applicant deposed to having given oral evidence before the Tribunal on 21st February 2002 and that certain material was considered by the Tribunal in his case and he was not given any notice of that material, namely, a document headed India Assessment, October 2001, Country Information and Policy Unit – Section 5.8 “Religious Minorities”. The applicant deposed to the relevant and adverse nature of the material as regards to suggestions of effective state protection for Muslims in India from persecution from Hindu majority, lack of discrimination towards Muslims by authorities in India, guarantees under the Indian Constitution of freedom for all citizens of religion and belief, prohibitions under the Indian Penal Code and accompanying punishments for any violation of tolerance and non-discrimination based on religion or belief and claims that the situation in India relating to tolerance and non-discrimination based on religion is “generally satisfactory”. His claim of course was centred on his claims of fear of persecution from the Hindu majority.
The applicant referred to the reference by the presiding member of the Tribunal to that material and acceptance of its authority as reliable evidence that Indian authorities do not condone active violence by Hindus against Muslims.
The applicant posed two steps that he would have taken had he been aware that the adverse material would be taken into account by the Tribunal. He deposed in paragraph 10 of his affidavit as follows:-
“10.1 I would have given additional oral and/or written submissions to the effect that regardless of the official position on the discrimination against Muslims in India and the provision of effective State protection, on a day to day basis the discrimination and lack of State protection is ongoing. I would also have orally and by writing submitted that despite the penal code’s provisions relating to the prohibition and punishment of any violation of tolerance and non-discrimination, such offences continue to occur and are perpetrated by Hindus and the authorities – many of whom are Hindu themselves and are prejudice towards Muslims.
10.2I would have given additional oral and/or written submissions to the effect that in contrast to the material considered by the Tribunal, it is still extremely difficult for Muslims to secure employment.
10.3I would have given addition oral and/or written submissions to the effect that the material considered by the Tribunal indicates that there is an under-representation of Muslims in employment and in the Civil Service and that this supports my claim to refugee status.
10.4I would have given additional oral and/or written submissions to the effect that the material considered by the Tribunal recognises the tensions between the Hindu and Muslim community, and also recognises a number of violent occurrences between the two communities which is significant to my claim of fear of persecution as a member of the Muslim community from members of the Hindu community”.
Counsel for the applicant pointed out that the country information was dated October 2001 and that the delegates decision had pre-dated that information by some 12 months.
Counsel for the applicant argued that the material referred to was significant and adverse to the applicant in the sense that from the Tribunal’s point of view it demonstrated that there was no discrimination against Muslims in India. He argued that in the delegates decision the issue of discrimination was not dealt with by the delegate, therefore the applicant was not on notice in relation to that issue and therefore he was not afforded procedural fairness before the Tribunal. He argued that the lack of notice of that issue meant that the applicant was not given an opportunity to respond.
It was argued however by counsel for the respondent that it was not open to the Court to find that there had been a lack of procedural fairness because, rather than making findings adverse to the applicant the Tribunal had made significant findings in favour of the applicant, but ultimately had made a finding and reached a conclusion that notwithstanding those positive findings, the discrimination he had suffered was not serious enough to prevent him from obtaining suitable employment in India and that there was insufficient evidence to find that there was a real chance that the applicant would be persecuted by Indian authorities for a convention reason if he returned to India.
He referred to what he said was a “key finding” of the Tribunal at page 8 of their decision where the Tribunal said “I find that he has not suffered a sufficiently serious degree of discrimination on religious, ethnic or political grounds to prevent him from obtaining suitable employment in India”. He referred to the matters set out on pages 3 and 4 of the original delegates decision based on matters raised by the applicant himself in his statement in support of a protection visa application and although he concedes that there is mention in the delegations decision of issues of discrimination and persecution in the areas from whence the applicant originated in India and findings of the delegate that those matters did not seem to have caused significant problems to the applicant, he says there is in essence a fundamental difference between the issues the delegate found to be of significance and the issue the Tribunal found to be of significance, particularly in relation to the issue of discrimination and as such the applicant did not turn his mind to putting specific material before the Tribunal as regards discrimination issues, particularly as they arose in respect of the country information relied on by the Tribunal. The applicant essentially is saying he had no notice of the fact that his case before the Tribunal was being decided on issues of discrimination.
It was submitted by counsel for the respondent that this was not a case where the applicant was unaware of the details of his own case, namely a case that he brought both to the delegate and to the Tribunal, of discrimination of Muslims by Hindus.
He referred to the applicant’s statement accompanying his application for protection visa [CB17] where the applicant stated “….. for example, Muslims are affected by nightly curfews in Bangalore and Hyderabad that forbid us being able to be out and about the cities at night whereas there is no restriction on the Hindus. This affected me. I was very rarely able to go out at night. If I did, I could only go out with several other Muslims so that I was not alone. The Police enforced these curfews and do arrest Muslims they find. It is easy to tell the difference between Hindus and Muslims. Hindus usually have a red dot on their forehead and are clean shaven. Muslims do not have a red dot and most often have a beard. So it is not difficult for the Police to tell them apart. The fact that these laws exist shows that Muslims are discriminated against and persecuted under the laws of India where Hindus are not……”.
In the decision of the delegate [CB40] he states “….. nor has the applicant provided any details as to his claims of “many problems of discrimination and persecution” in Hyderabad. Relevant country information is not supportive of his assertion, and I observed that despite the applicant’s claims about Muslims not being able to find work, he has been able to obtain employment as have the majority of other Muslims in the area……”.
It was submitted by counsel for the respondent that it must have been obvious to the applicant that at that time at least there was no support for his claims in the country information before the delegate, but when his claim went to the Tribunal he was able to provide further details to support his claim, such details being contained in a letter to the Officer in Charge, Refugee Review Tribunal and dated 25th November 2000 [CB43-46]. The matters raised in that letter go to the issue of the applicant’s submissions as to how Hindus treat Muslims and how the authorities implicitly allow them so to do. It was submitted on behalf of the respondent that the applicant could not possibly say he was unaware of the issues at the time of the Tribunal hearing.
The Tribunal set out the facts on which the applicant relied at the hearing before the delegate, together with the additional matters raised in his written submission to the Tribunal, on pages 62 and 63 of the Court Book. The applicant also had an opportunity to be heard before the Tribunal.
The Tribunal made the following findings:-
a)Accepted that there is violence between Muslims and Hindus in various parts of India and that the destruction of the Babri Mosque on 6th December 1992 was a catalyst for such violence on or near 6th December in subsequent years;
b)Accepted DEFAT’s report to the effect that violence between Muslims and Hindus frequently occurred in Hyderabad;
c)Accepted as plausible that for four successive years before the applicant moved to Hyderabad Hindu’s attacked his home in Bangledor on or about the anniversary of the destruction of the Babri Mosque;
d)Found that the applicant exaggerated the violence to which he and members of his family were subjected to Hyderabad;
e)Considered it reasonable to expect that the applicant would have referred to the murder of his family’s security guard and assaults against his brother and father in Hyderabad in his protection visa application had those incidents actually occurred;
f)Found the applicant’s explanation at hearing as to why he had not referred to those incidents in his protection visa application to be unconvincing and did not accept that the incidents would be “forgotten” in the context of a protection visa application.
g)Did not accept that the applicant’s family had a security guard who was killed while trying to protect them against Hindus in Hyderabad;
h)Did not accept that the applicant’s father or brother were assaulted by Hindus in Hyderabad;
i)Was not prepared to find that the applicant was “persecuted” when he was assaulted in December 1994, referring to his vague and general evidence about that occasion;
j)Accepted in reference to the DEFAT and UK Home Office Reports that Indian authorities do not condone acts of violence by Hindus against Muslims, noting that the applicant did not suggest that he or members of his family had sought state protection against violence by Hindus when living in Hyderabad;
k)Did not accept, in those circumstances, that the applicant or members of his family were seriously harmed or mis-treated by Hindus in Hyderabad for a convention reason;
l)Did not accept that the applicant genuinely feared that he would be persecuted by Hindus for reasons of political opinion or religion in Hyderabad and in that regard referred to his evidence at hearing that members of his family did not experience the same problems that Hindus in Hyderabad that they have experienced in Bankelor, to further evidence given by the applicant at the hearing concerning a man called Iqbal, which evidence the Tribunal found to be vague and unconvincing and with further reference to the report by DEFAT that suggests that effective and adequate State protection is available to Muslims in respect of “communal violence” that occurs between Hindus and Muslims;
m)Referred to the applicant’s evidence at hearing to the effect that the Indian Government and Hindus discriminate against Muslims in relation to employment and referred to observations by the UK Home Office that Muslims “do not benefit from special reservations in education and employment” and that they are “under-represented in the civil service, the military and institutions of higher education”.
n)Also referred to the applicant’s evidence that he was employed by a Muslim cousin before he departed India;
o)Found that he has not suffered a sufficiently serious degree of discrimination on a religious, ethnic or political grounds to prevent him from obtaining suitable employment in India;
p)Found that there was only a remote chance that the applicant would be persecuted by the Indian authorities due to his stay in Australia or due to any further deterioration in relations between India and Pakistan;
q)Found no prohibitive before the Tribunal to suggest that such circumstances would result in a real chance that he would be persecuted by the Indian authorities for a convention reason;
r)Did not accept that the applicant had been persecuted in India in the past for a convention reason;
s)Did not accept that he had a well-founded fear of persecution for a convention reason in relation to returning to India.
It is clear from the beginning that the applicant’s case was based on discrimination on which the applicant relied as constituting the persecution that it is necessary for the applicant to establish to be defined as a refugee.
The applicant was at all times aware of the subject matter of his application both before the Delegate and before the Tribunal.
In the Tribunal’s decision [Court Book 67], the Tribunal refers to the UK Home Office Report complained of by the applicant, but the significance of the reference to that information at [CB67.2] was to note that on the applicant’s own case there was no suggestion that he or members of his family had sought State protection against violence by Hindus when they were living in Hyderabad. The Tribunal went on to say that in those circumstances, namely the failure of the applicant or his family to seek State protection in relation to violence by Hindus, the Tribunal member did not accept that the applicant or members of his family were seriously harmed or mistreated by Hindus in Hyderabad for a convention reason.
The applicant did not make out the ground that the State had failed to protect him or his family and it was therefore not a situation where there was a finding made on the country evidence but rather, a finding in relation to what the applicant had said in respect of his own case. There was a deficiency as to the applicant’s lack of complaint as opposed to reliance on country information, and therefore no practical injustice. Therefore, even if the country information was used by the Tribunal without the knowledge of the applicant, it could not be said that it had led the Tribunal to a finding adverse to the interest of the applicant.
The Tribunal had reservations as to the credibility of the applicant. The credibility of the applicant is a matter for the Tribunal par excellence (re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 74 ALJR 405). It was issues as to credit and the lack of the seeking of assistance by the applicant and his family from the authorities in relation to alleged violence by Hindus that led to the Tribunal failing to accept the applicant or members of his family were seriously harmed or mistreated by Hindus in Hyderabad for a convention reason. It was the vague and unconvincing nature of the applicant’s evidence that led to the Tribunal failing to accept that the applicant genuinely feared he would be persecuted by Hindus for reasons of political opinion or religion in Hyderabad [CB67].
It was submitted by counsel for the respondent that the applicant does not establish a breach of natural justice on the basis of lack of procedural fairness simply because he can point to the use of a document in respect of which he was not invited to respond.
He submitted that the information in relation to which the alleged breach of natural justice is alleged to have occurred must be relevant, credible and significant.
He further submitted that it is not so much a question of the applicant being unaware of the specific information used but more a question of the applicant being unaware of the issue before the Tribunal.
He further submitted in accordance with the principles laid down in Lam (supra) that the applicant must have either been so misled by the material or put in such a position such that his failure to act thereon resulted in the situation of the Tribunal arriving at a result of practical injustice.
I accept the submissions of counsel for the respondent that that was not the situation in this case for the reasons set out herein. I find that there was no lack of procedural fairness and that no reviewable error occurred.
I will make no order on the Notice of Motion and I dismiss the application and order that the applicant pay the respondent’s costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Mead FM
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