Applicant A150 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 406

FEDERAL COURT OF AUSTRALIA

Applicant A150 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 406

APPLICANT A150 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER, REFUGEE REVIEW TRIBUNAL & THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 719 of 2003

MANSFIELD J
26 MARCH 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 719 OF 2003

BETWEEN:

APPLICANT A150 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

26 MARCH 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay to the first respondent the costs of the application.

3.        No order for costs of the second and third respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 719 OF 2003

BETWEEN:

APPLICANT A150 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	MANSFIELD J
DATE:	26 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This application was instituted in the High Court on 18 March 2003.  It sought prerogative orders in effect to set aside a decision of the Refugee Review Tribunal (the Tribunal) of 24 June 2002.  The Tribunal affirmed a decision of a delegate of the respondent that the applicant was not entitled to a protection visa under the Migration Act 1958 (Cth) (the Act). He had applied for a protection visa under the Act from 3 November 2000. That was some years after he had arrived in Australia. The application was remitted to this Court for further hearing and determination by the High Court by order of 11 June 2003.

2. To succeed in the application, the applicant must demonstrate jurisdictional error on the part of the Tribunal - see Plaintiff S157/2000 v Commonwealth of Australia (2003) 211 CLR 476. It is not enough for the applicant to contend that the Tribunal simply got the facts wrong or that there is other evidence which might have been given to the Tribunal to support his claim. To be eligible for the grant of the visa, the Tribunal had to be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention).

3. In practical terms, the Tribunal needed to be satisfied that the applicant is a refugee as defined in Art 1A(2) of the Convention.  That is, he must have a well-founded fear of persecution for a Convention reason if he were to return to India.  The Tribunal recorded in some detail the basis upon which the applicant claimed to have such a well-founded fear of persecution.  It drew that information from the documents it had before it.

4. The Tribunal had invited the applicant to attend a hearing to make submissions and to give evidence pursuant to s 425 of the Act.  The applicant informed the Tribunal that he intended to attend the hearing fixed for 17 June 2002.  However, the applicant did not attend the hearing on that occasion and he made no contact with the Tribunal about that time to explain why he did not do so.  Consequently, pursuant to s 426A of the Act, the Tribunal proceeded to make its decision.

5. The Tribunal identified the applicant's claims as follows:

6. The applicant’s father was a member of the All India Sikh Students Federation active from about the middle of the 1980s.  His father had been arrested and mistreated a number of times by Punjabi police.  His father then left India to America in 1990.  The applicant, following his father's departure, was detained, beaten and interrogated by Punjabi police on three occasions.  He therefore left India and went to Malaysia for a time in 1991. 

7. The applicant claimed that he returned to India to stay with friends in Uttar Pradesh but was again arrested and tortured by the police in 1992.  He claimed that he then went to Germany in 1992 but returned to India in 1993 because he thought it was again safe.  He then claimed that between 1993 and 1996 he was arrested five times by Punjabi police and assaulted and threatened with death.  For his own safety he decided to leave the area and he went to Bombay to hide.  He claimed further that police then sought him out in Bombay and so he decided to leave India.  He then left India and arrived in Australia in about 1997. 

8. The applicant claimed to have a well-founded fear of persecution from the Indian authorities by reason of political views attributed to him through his father's activities. 

9. The Tribunal was not satisfied on the material it had that the applicant has a well-founded fear of persecution for a convention reason if he were to return to India.  It said that the claims as expressed in the documents lacked particular information which would have enabled it to decide whether the applicant has a real chance of being persecuted if he returns to India.  It said:

   ‘The Tribunal would have like to have explored with the Applicant the time interval between his father’s departure and the interest in him by the Authorities, this particular piece of information does not appear in the claims.  The Tribunal would also have liked to explore with the Applicant the reasons why the Police would still pursue him years after his father left and in different States when the only reason it seems that he was pursued, was because they wished to know the whereabouts of his father.  It appears from the evidence that his father is still in the U.S.A. and the Tribunal has not been made aware of the reasons why the Applicant’s father is still being sought.

   The claims as they are presented also lack in detail in terms of the Applicant’s stay in Germany.  He states that he applied for Refugee Status there however he does not indicate what the outcome of that Application was.  Furthermore, the Tribunal is not in a position to make findings about the Applicant’s identity.  He claims to have travelled to Australia on a false Passport and that the name that he has used is not his real name.  However it appears that he has had this Passport since 1984 which was the time that apparently he returned from Germany.  The Tribunal would need information about these circumstances.  The Tribunal would also have liked to explore the reason why the Applicant, who arrived in Australia on the 16^th November 1997, waited until the 3^rd November 2000 to make an Application for a Protection Visa.  The documentation indicates that the Applicant made an application for a Carer’s Visa however there is no further information about this event to assist the Tribunal in determining the circumstances and the implications of this application.  The Tribunal provided an opportunity to the Applicant to provide evidence both in writing and orally at a hearing however the Applicant has not taken advantage of this opportunity.’

   It is in that context that the applicant must now establish jurisdictional error on the part of the Tribunal. 

10. The applicant seeks to do so in terms now of his amended application dated 4 March 2004 and an affidavit also dated 4 March 2004.  In his submissions today he has focused particularly on two things.  The first is that he did not attend a hearing and he would like the opportunity to do so.  The second is that he says he has a friend who he says can give evidence to support his claims.  I will deal with those two matters first. 

11. The Tribunal is obliged to accord procedural fairness to the applicant.  Relevantly that involves giving him the opportunity to attend a hearing to make submissions and to give evidence.  The Tribunal gave him that opportunity.  The fact that he did not take it up and now wishes to take it up does not demonstrate jurisdictional error on the part of the Tribunal.  The Tribunal, when notifying the applicant of the hearing, also invited the applicant to indicate whether there were any persons who he wished to attend also to give evidence.  In his response he said that he did wish to have a witness give evidence and identified the name of that person. 

12. By letter of 24 June 2002, the Tribunal invited him to bring that person to the hearing.  The applicant simply did not attend the hearing.  The Tribunal did not deprive him of the opportunity to produce that evidence.  The Tribunal has not, therefore, committed jurisdictional error in the way the applicant alleged in his submissions today. 

13. The amended application contains five grounds for review.  The first is that the Tribunal denied procedural fairness and natural justice.  No particular of that claim is given.  Reference is made in the document to the High Court decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30. However, there is no material before the court to indicate that the Tribunal led the applicant to believe that it would act in a certain way or would act upon certain information and that it did not do so or that it would not act in a certain way and that it did do so.

14. There is no information to indicate that the applicant was not on notice as to the sort of information the Tribunal would address in its consideration.  As I have indicated, the Tribunal gave the applicant the opportunity to attend the hearing and he did not take it up.  As the Tribunal's reasons indicate, there was information which the Tribunal wished to discuss with the applicant relevant to his claim but because the applicant did not attend the hearing he deprived himself of that opportunity. 

15. Secondly, the amended application asserts that the Tribunal failed to consider relevant matters and considered irrelevant matters in reaching its decision.  Nothing has been put to support that claim.  My consideration of the Tribunal's reasons does not indicate any basis upon which this assertion could be sustained.

16. The third ground of jurisdictional error in the amended application is based upon the Tribunal's letter of 24 April 2002 sent pursuant to s 425 of the act inviting the applicant to attend a hearing:

    ‘In a letter from the RRT the RRT invited me for a hearing. The RRT stated in that letter that it “has looked at all the material relating to your application”. In fact, the RRT had not looked at all the material relating to my application, giving rise to a denial of natural justice. Denial of natural justice is jurisdictional error of a type for which relief can be granted under the Migration Act.’

17. In fact the Tribunal's letter of 24 April 2002 did assert that the Tribunal had looked at all the material relating to the application but was not prepared to make a favourable decision on that information.  It was because of that view that the Tribunal was obliged to comply with section 425 of the Act - see section 425(2)(a).  However, there is nothing to support the assertion that the Tribunal had not looked at all the material relating to the application.  The fact upon which the ground of review is based is not made out. 

18. The fourth and fifth grounds of review assert error of law and that the Tribunal misinterpreted relevant country information and the meaning of ‘well-founded fear and persecution’.  Nothing has been put in support of either of those grounds.  The Tribunal in its reasons has, in my view, expressed an understanding of the applicable law in correct terms.  It has not erred in law or misunderstood the meaning of ‘well-founded fear of persecution’.  The Tribunal has not expressly referred to any particular independent country information about India in its reasons for decision.  The substantive reasons are in the passage referred to above. 

19. There is no basis upon which it has been shown that the Tribunal misinterpreted all relevant country information.  For those reasons I have reached the view that jurisdictional error on the part of the Tribunal is not made out.  The application is dismissed.  I order the

    applicant to pay to the first respondent costs of the application.  There is no order for costs of the second and third respondents. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             6 April 2004

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	J van Lingen
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	26 March 2004
Date of Judgment:	26 March 2004