Applicant S1603-2003 v MIMA & Anor

[2006] HCATrans 552

[2006] HCATrans 552

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M73 of 2006

B e t w e e n -

APPLICANT S1603/2003

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 OCTOBER 2006, AT 9.18 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant is a citizen of India and a Sikh, who claims to fear religious and political persecution by reason of his involvement as general secretary of the Sikh Student Federation (“SSF”) in the Punjab.  He claimed that following the proscription of SSF by the government, he had gone into hiding but was arrested in 1989 following an SSF rally.  He claimed that, although released after payment of money to the police, he later became involved in the activities of the separatist militant group, Babbar Khalsa International and, in 1995, was again arrested and severely beaten.  He claimed to have bribed an immigration official to leave India shortly afterwards.  The applicant sought to support his case before the Refugee Review Tribunal (“the Tribunal”) with documentary evidence of his political membership and political activities, and of two warrants for his arrest.

The decision of a delegate of the first respondent to refuse his application for a protection visa was affirmed by the Tribunal on 9 October 1997.  The Tribunal made adverse findings as to the applicant’s credibility, holding that his oral evidence was inconsistent and contradictory, both internally and with the documents he had tendered.  It relied upon that lack of credibility, inconsistency and independent country information that document fraud was common in India in order to find that the warrants tendered were not genuine.  The Tribunal also found that the applicant would not be in danger if he returned to India merely by being a member of SSF, since it is no longer banned, and that it would be open to the applicant to relocate within India. 

The applicant’s application for judicial review, which was not commenced until 2005, was dismissed by the Federal Magistrates Court. An appeal to the Federal Court was dismissed by Sundberg J. The applicant’s primary claim before the Federal Magistrates Court was that he had been denied procedural fairness because the Tribunal had handed down its decision before originals of his documents were received by it, the Tribunal having given him 14 days to provide such documentation. McInnis FM noted that the applicant had not provided the documentation within the 14 day period allowed to him, and rejected claims that there had been a breach of procedural fairness or natural justice, or of s 424A of the Migration Act 1958 (Cth) (“the Act”), which in any case did not commence until more than a year after the application was determined. The s 424A claim was based upon the failure of the Tribunal to notify the applicant of, or invite comment on, the independent country information on documentary fraud.

The applicant’s draft notice of appeal is based solely upon s 424A of the Act. It is therefore misconceived, as that section was not in force at the time of the proceedings before the Tribunal. It is not clear from the applicant’s summary of argument whether he submits that there was a denial of procedural fairness in the failure of the Tribunal to put the independent country information to him independently of s 424A. Such a contention would be different from that which was put in the Federal Magistrates Court and the Federal Court, and this Court is not in a position to consider it. The application for special leave raises no question of general importance; nor do the interests of justice warrant the intervention of this Court. It may be noted that Sundberg J found that McInnis FM was justified in saying that the Tribunal was entitled to draw the conclusions it did about the authenticity of the warrants, those conclusions being based partly upon internal and other inconsistencies in those documents and partly upon the applicant’s general credibility. Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Heydon J and myself.

AT 9.22 AM THE MATTER WAS CONCLUDED