Applicant S1646 of 2003 v Minister for Immigration and Citizenship

[2007] FCA 334

FEDERAL COURT OF AUSTRALIA

Applicant S1646 of 2003 v Minister for Immigration & Citizenship
[2007] FCA 334

APPLICANT S1646 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 544 OF 2006

CONTI J
9 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 544 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1646 OF 2003 Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	9 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of the appeal.

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 544 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1646 OF 2003 Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE:	9 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of Federal Magistrate Raphael delivered on 27 February 2006 whereby his Honour dismissed an application for review of the decision of the Refugee Review Tribunal (‘the Tribunal’), given on 12 January 1998, and whereby the decision of the Minister’s delegate to refuse the appellant a protection visa was affirmed. 

2. The appellant is a citizen of India and is of Sikh ethnicity.  He first entered Australia in 1986.  He returned to India in November 1988 but re-entered Australia on 15 June 1995.  On 6 September 1995, he applied for a protection visa and that application was refused on 3 April 1996. The appellant sought review of that decision on 29 April 1996.

3. Following the Tribunal’s determination on 12 January 1998 adversely to the appellant, he became a party to the so-called Muin and Lie class actions (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601). When those proceedings were concluded, the appellant subsequently brought the present proceedings seeking judicial review of the Tribunal’s decision.

4. The basis of the appellant’s claim to have a well-founded fear of persecution for a Convention reason was made on the basis of his asserted political opinion and membership of a particular social group, namely, being of Sikh ethnicity and being a member of the Akali Dal. The Tribunal was dismissive of what it found to be the lack of credibility of the appellant’s case and the claims the subject thereof, albeit that it gave the appellant what it appraised to be the benefit of the doubt in relation to a number of controversial evidentiary issues, including his membership of the Akali Dal.  However the Tribunal found to be implausible the reasons for those arrests, and the associated police questioning, and concluded that the appellant ‘would not be considered a high-profile suspect and therefore would not be at risk of persecution were he to return to India now or in the reasonably [foreseeable] future’. 

5. Raphael FM observed in the context of those findings that the appellant’s application to the Tribunal, and its subsequent decision-making, occurred prior to the amendments which inserted ss 422B and 424A into the Migration Act 1958 (Cth). His Honour pointed out that any claim made by the appellant in respect of jurisdictional error in the manner in which the Tribunal conducted itself falls to be determined on the law prior to the operation of those two sections, which, in relation to procedural fairness, is the law expressed in cases such as Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Kioa v West (1985) 159 CLR 550 and Australian Broadcasting Tribunal v Bond (1991) 170 CLR 321. As his Honour indicated at [12] of his reasons for judgment below, ‘[m]y duty is to look at what the law actually was before the amendments and to apply that’. 

6. Before the Federal Magistrate, the appellant contended that the Tribunal had made a jurisdictional error by using ‘what the applicant said to the delegate against him without putting it to the applicant to comment upon before making the decision’. The appellant was referring in that submission to the statement made to the delegate that the appellant was asked particulars of the whereabouts of a friend named Lali when he was arrested in about 1985. The Tribunal subsequently found this statement to be implausible. The appellant submitted that this adverse material which he asserted had not been put to the Tribunal but only to the delegate, should have been discussed with him before the Tribunal came to the view that the statement was implausible.

7. Federal Magistrate Raphael concluded, in relation to that submission made by the appellant, that:

   ‘…I do not need to deal with the problem in that way because the claim concerning what occurred at the arrest is referred to at [CB 155] under the heading “Additional claims and clarifications at the interview with the delegate” where there appears these words at [CB 156]:

   “At the hearing, the applicant reiterated the above claims, gave additional details and clarified some information.”

   It seems to me therefore that I can assume that this allegation, which the Tribunal did not believe, was a matter raised at the hearing…’.

   His Honour went on to observe that ‘I am satisfied that as the information was confirmed by the applicant to the Tribunal it was not information limited to the delegate alone…’, and further that the Tribunal’s consideration thereof constituted in any event an obvious and natural evaluation of that material, reference in that regard being made by his Honour generally to observations in Kioa v West (1985) 159 CLR 550 made by Mason J (as he then was) at 573 and 588, and Deane J at 634 concerning fairness and natural justice.

8. Moreover Raphael FM rejected the appellant’s submission, recorded below at [19] of his reasons for judgment, that the Tribunal had failed to take into account evidence to the effect that the appellant’s sister had been accepted as a refugee in Canada. His Honour pointed out in that regard that the Tribunal had considered that evidence and that the sister’s claims to that status were not of assistance in the review proceedings.  His Honour also rejected the suggestion that the Tribunal should have made further enquiries in relation to the reasons for the sister’s refugee status in Canada.

   The Federal Court Proceedings

9. On 15 March 2006 the appellant filed a notice of appeal with the Federal Court, which raised the following grounds of appeal:

   ‘1.‘The learned Federal Magistrate failed to hold that the Tribunal made jurisdictional error as it breached s 424A(1) since it used what the applicant said to the delegate against him without giving it to the Applicant in writing putting to comment upon it before making the decision.

   …

   2.The Tribunal made jurisdictional error as it failed to take into consideration matter critical to the applicant’s case.’

10. No written submissions were however provided by the appellant by way of further explanation of those contentions.  Instead the appellant informed the Court that his grounds of appeal comprised ‘… all I would have spoken to you or stated’, and added ‘… the Kioa v West judgment under common law procedural fairness did apply’ and statements to similar effect.

11. The appellant’s grounds of appeal are misconceived and disclose no jurisdictional error. In regards to the first ground, I agree with Federal Magistrate Raphael’s observation that the Tribunal was not required to comply with s 424A (1) as it was not enacted at the time of the Tribunal’s decision. I cannot identify any factual basis for the appellant’s assertion and, even if such basis did exist, it could not amount to a failure by the Tribunal to accord the appellant procedural fairness. In relation to the second ground of appeal, I find that no error has been committed by the Tribunal for the reasons outlined by Raphael FM. The Tribunal did not err in the way it dealt with the appellant’s evidence of his sister’s refugee status.

12. The appellant failed to demonstrate the existence of a viable error in any material aspect of the Federal Magistrate’s reasoning and findings, or demonstrate that the Tribunal failed to exercise or exceeded its jurisdiction.

13. The appeal must be dismissed with costs.

I certify that the preceding eleven (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:        9 March 2007

The Appellant appeared in person
Counsel for the first Respondent:	Ms R Francois
Solicitor for the first Respondent:	Clayton Utz Lawyers
Date of Hearing:	21 November 2006
Date of Judgment:	9 March 2007