Applicant A47 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1720

FEDERAL COURT OF AUSTRALIA

Applicant A47 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1720

MIGRATION – reason for Tribunal decision was the appellant’s membership of terrorist group – not persecution for a Convention reason

Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162

APPLICANT A47 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD1012 of 2005

BENNETT J
29 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1012 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT A47 OF 2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

29 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs.

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	NSD1012 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT A47 OF 2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BENNETT J
DATE:	29 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India who arrived in Australia in July 2001 and applied for a protection visa in August 2001.  As a Tamil of Muslim religion, the appellant’s claims in relation to fear of persecution in India were based on religion, membership of a particular social group and political opinion stemming from having been a member of Al Umma, a pro Muslim fundamentalist party in India.  Al Umma (or Ul Amma) was banned in India on 14 February 1998 following various violent events in late 1997 to February 1998.

2. The appellant appeared before the Tribunal.  The Tribunal made the following findings:

   (a)It accepted that the appellant was a reliable witness because his responses in his oral evidence were generally consistent with his original claims.

   (b)It accepted the various matters in the appellant’s application, including his membership of the Al Umma party and his position in it.

   (c)It found that the Al Umma party is a known Muslim extremist party with a record of violent and terrorist acts over a substantial number of years (relying on independent country information).

   (d)It accepted that it was not then (February 1998), and would not in the future be, unreasonable for the police to check on all members or former members of the organisation suspected of terrorism, under India’s National Security Legislation (relying on and accepting independent country information).

   (e)It accepted the appellant’s claims that he was likely to be arrested and detained for questioning but found that that would not be for any Convention reasoning rather ‘simply because as a district leader of an organisation which had been tied to terrorist acts he may be able to provide information which might assist police’.

   (f)It did not accept that the police had been targeting party members because of their religion or political views or because they are a member of any particular social group Rather, the police were (and are) targeting the violence which cost many lives and are anxious to interview anyone who may be able to throw light upon the offenders and therefore fulfilling their legitimate role as police officers.

   (g)It accepted that the central government’s reason for implementing legislation to deal with terrorism was not motivated by the desire to harass or mistreat Al Umma party members but rather by the need to maintain law in India and contain sectarian violence and terrorism.

3. The Tribunal concluded that as a district leader of Al Umma, the appellant would be one of those persons who might reasonably be suspected of having some involvement in the rioting and bombing in Coimbarture in February 1998 or of being a person who might be able to supply information to the police or assist them with their inquiries into the bombings.  Those bombings left 60 people dead, 250 persons injured and excessive property damage.  As the Tribunal noted, a special tribunal had found that Al Umma cadres caused the blasts.   The Tribunal was satisfied that the appellant would be likely to be arrested and detained for questioning upon his return by police exercising a legitimate role in the investigation of serious crime.  Such action by the police would not be for a Convention reason.

4. In addition, the Tribunal made the following findings:

   (a)that any fear of mistreatment after arrest would not be because of the appellant’s religion, his political opinion or because he was a member of a particular social group but rather because such are the methods employed by police in India in questioning suspects believed to have been implicated of serious crime; and

   (b)it accepted, based on the independent country information, that India is a parliamentary democracy with an independent judiciary and a sophisticated court system which would therefore protect the appellant.

5. The Tribunal summarised its conclusions as follows:

   (a)the police interest in the appellant is because he is seen as a person who may be able to assist with legitimate inquiries into a series of criminal, terrorist bombings and not for a Convention related reason; and

   (b)the appellant’s subjective fears are of mistreatment by police should he be detained for interview in connection with the possible breach of laws of common application in India; those fears were not therefore Convention related.

6. The respondent objected to the competency of the application before the Federal Magistrate.  In making that determination, Nicholls FM considered whether the decision was a privative clause decision and examined the decision accordingly.  His Honour held that the Tribunal did focus on the causal connection between the harm feared by the appellant and motivation of the alleged persecutors.  His Honour held that it was clearly open to the Tribunal to find that the police were motivated by reasons of investigation of serious crime and not by the appellant’s religion, political opinion or membership of a social group.  His Honour found no error in the way the Tribunal approached its task and that it gave due weight to the appellant’s claims.

7. Nicholls FM considered each of the grounds raised by the appellant, including reliance on country information (held to fall within the exclusion in s 424A(3)) and unparticularised or unsupported allegations, such as an allegation of bad faith and denial of procedural fairness.

8. The amended notice of appeal filed by the appellant either raises factual matters or refers to decisions of the High Court or asserts error by reason of an unfavourable decision on the part of the Tribunal and the Federal Magistrate.  In addition, the amended notice of appeal repeats the ground of failure to disclose adverse country information to the appellant.

9. In written submissions, the appellant alleges ‘demonstrated actual bias’ without particularisation and asserts that the Tribunal decision was made in bad faith.  No specific matters are raised; rather, the appellant makes broad assertions that the Tribunal ignored or failed to consider his claims, did not take relevant matters into account, took into account irrelevant matters and made mistakes of fact and law.  These submissions provide no assistance to the court in determination of the appeal.

10. The appellant appeared before me, assisted by a Tamil interpreter.  Although the appellant did complain at one stage about the fact that the interpreter was from Sri Lanka rather than India, he did not suggest that he was prejudiced or that he wanted the hearing adjourned.

11. The respondent had, at once stage, objected to the competency of the appeal but has withdrawn that objection.

12. The appellant emphasised that he had been accepted by the Tribunal as a reliable witness and that his claims were found to be true.  He spoke of his fear of the police and of gaol.  When asked about the allegation of bad faith on the part of the Tribunal, the appellant said the Tribunal referred to country information which, he said, was provided by those involved with Hindu and government interests in India.  He also stated that Al Umma was suspected of involvement in the bombings and that a number of Al Umma members had been arrested.  He characterised his fear as fear that the police will arrest him because of a suspicion of involvement in the bombings as a member of Al Umma.

13. None of the matters raised by the appellant demonstrate jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate.  Indeed, they emphasise and reinforce the fact that the appellant’s fear does not have the requisite Convention nexus. 

14. One matter that the Court raised with Ms Morgan, who appeared for the respondent, was whether the Tribunal’s decision as to the reason for the appellant’s fear was based not only on his membership of Al Umma but also on the fact that he had been a district leader of that organisation.  While the membership of Al Umma, the fact that is has been banned, its alleged involvement in violence and in a particular incident and the police interest in arresting the appellant personally were raised in the application to the Tribunal, his position as district leader was not.  It was in the visa application.  It is not clear from the Tribunal’s reasons whether that information was also obtained during the hearing at which the appellant appeared.  Accordingly, the question arose whether s 424A of the Act had been complied with (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27).

15. This matter was not raised by the appellant in the amended notice of appeal but by the Court at the hearing.  I gave Ms Morgan the opportunity to provide written submissions and the appellant the opportunity to respond to them.  Both parties filed submissions.

16. Ms Morgan concedes that the information was not contained in the statement to the Tribunal but submits that the information was not “the reason, or part of the reason for affirming the decision under review”.  She submits that, although the information that the appellant was a district leader was “a step along the process of identifying the harm” (emphasis in original) it was the finding that there was no Convention nexus with the appellant’s claimed fear of persecution that was the reason for the decision.

17. It is the case that the Tribunal made specific reference to the fact that the appellant was a district leader of the organisation.  It came to its conclusion that, irrespective of whether or not the appellant played a part in previous rioting and bombings, “as a known member of UA and that as a District leader of the organisation he would be one of the persons” he was a person who might be able to supply police with information. 

18. However, the basis for the Tribunal’s decision was the evidence that Al Umma is “a known Muslim extremist party with a record of violent and terrorist acts over a substantial number of years is almost overwhelming” and that “it was not then and would not in the future be unreasonable for the police to check on all members or former members of any organisation suspected of terrorism, under India’s National Security legislation”.  The Tribunal accepted that the government “was not motivated by a desire to harass or mistreat UA members for any Convention reason but rather by the need to maintain law and order in India and contain sectarian violence and terrorism”.

19. The decision that the feared persecution was not for a Convention reason was based on the membership Al Umma, which the Tribunal concluded was a terrorist organisation.  That information had been given to the Tribunal in the application to the Tribunal and came within s424A(3).  Accordingly, there was no failure to comply with s424A.

20. In his written submissions after the hearing and in response to those of Ms Morgan, the appellant submits that ‘the Tribunal had before it all the information including the [appellant’s] oral evidence to prove that the [appellant] was the District Leadere of Al Umma in the Tanjavur District and that alone being the predominant reason for the [appellant] being pursued by the Police for his arrest.’ If that were the oral evidence from the appellant at the Tribunal hearing, that information is within s424A(3)(b) of the Act and there is no requirement for the Tribunal to give the appellant that information in writing even if that information is within s424A(1).  To the extent that this submission constitutes an admission by the appellant, it may be taken into account, although for the reasons given I do not consider it determinative in the appeal.

21. The remaining matters raised by the appellant in his written submissions go beyond the matter for which I gave leave.  However, I will take them into account to the extent that they are relevant.  The appellant makes generalised assertions of illogicality on the part of the Tribunal, asserts that the Tribunal did not consider his evidence ‘at the highest’ as submitted by the respondent but ‘at the lowest’ and cites a number of decisions of the High Court and Full Court.  None of these establishes jurisdictional error.  Further, the appellant submits that, in accordance with SAAP, any oral evidence or information given by the appellant at the hearing should have been provided to him in writing before the decision was made.  That shows a lack of understanding of s424A, and, in particular, s424A(3)(b) and the decision in SAAP.

22. The appellant has failed to establish jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate. 

23. The appeal is dismissed with costs.

I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             29 November 2005

The Appellant appeared in person assisted by an interpreter.

Counsel for the Respondent:	K. Morgan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	17 October 2005
Date of last written submissions:	18 October 2005
Date of Judgment:	29  November 2005