Applicants A104 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 876
•7 JULY 2004
FEDERAL COURT OF AUSTRALIA
Applicants A104 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 876
MIGRATION – procedural fairness – content of procedural fairness – obligation to put adverse findings to applicant – relocation within India – application for judicial review of decision affirming refusal to grant applicants protection visa – where Refugee Review Tribunal (RRT) made finding that applicants’ witnesses corroborated applicants’ evidence because applicants had supplied them with false information – where RRT failed to give applicants or witnesses an opportunity to comment – whether any practical injustice suffered by applicants in light of finding by RRT that relocation possible.
Abebe v The Commonwealth of Australia [1999] HCA 14 cited
Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 appliedAPPLICANTS A104 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; MEMBER, REFUGEE REVIEW TRIBUNAL; PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
S 679 of 2003
LANDER J
7 JULY 2004
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 679 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
APPLICANTS A104 OF 2003
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTMEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTPRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENTJUDGE:
LANDER J
DATE OF ORDER:
7 JULY 2004
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The application for judicial review is dismissed.
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 679 OF 2003
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
APPLICANTS A104 OF 2003
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTMEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTPRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT
JUDGE:
LANDER J
DATE:
7 JULY 2004
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 24 February 2003 the applicants, being husband and wife and their daughter, brought proceedings in the High Court of Australia seeking the issue of the constitutional writs in relation to a decision of the Refugee Review Tribunal (RRT) given on 27 August 2002.
On 11 June 2003 the proceedings were remitted to this Court by Hayne J who ordered that:
‘1.The further proceedings in this application for an Order Nisi, for a Writ of Mandamus, a Writ of Prohibition and a Writ of Certiorari be remitted to the Federal Court of Australia, South Australia District Registry.
2.The application for an Order Nisi proceed in that Court as if the steps already taken in the matter in this Court had been taken in that Court.
3.…
4.…’
On 24 March 2004 the applicants filed an amended application for an order of review in which they particularised the grounds which they claimed entitled them to the issue of the constitutional writs:
‘1.The Tribunal did not accord the Applicant procedural fairness during the course of the Tribunal hearing.
2.The applicant attended via videolink at a hearing of this matter on 21 August 2002.
3.During the course of the video hearing the voices at the Tribunal end on the television ceased to operate and the Tribunal did not adjourn the hearing. Instead the Tribunal organised for the applicant and the witnesses to give oral evidence by telephone and the applicant found that he had to wait for a few seconds to give answers to the Tribunal Member. The applicant felt that misunderstandings arose during the course of the hearing because of these technical problems. Because of this the applicant was not accorded procedural fairness.
4.The Tribunal made the following finding its [sic] findings and reasons section (CB96);
“It is satisfied that his witnesses have sought to corroborate his claims only because he has provided them with false information”.
At no time during the Tribunal hearing did the Tribunal Member put to the witnesses or to the applicant that the applicant had provided these witnesses with false information. Neither the applicant nor the witnesses were given any opportunity to respond to this very serious allegation. If it had been put to the applicant and the witnesses by the Tribunal member that the applicant had provided the witnesses with false information, then the applicant as well as the witnesses would have wished to have provided further evidence by means of oral evidence as well as documentary evidence, to establish that the applicant had not provided these witnesses with false information. Because the Tribunal Member did not give the applicant as well as the witnesses any opportunity to respond to this very serious finding, the Tribunal Member did not accord the applicant procedural fairness and therefore made a jurisdictional error.’
The amended application was supported by an affidavit of the husband applicant who deposed:
‘3.During the course of the video hearing the voices at the Tribunal end on the television ceased to operate but the Tribunal did not adjourn the hearing. Instead the Tribunal organised for me and the witnesses to give oral evidence by telephone and I had to wait for a few seconds to give answers to the Tribunal Member. I believe that misunderstandings arose during the course of the hearing because of these technical problems.
4.At no time during the Tribunal hearing did the Tribunal Member put to either myself or the witnesses that I had provided these witnesses with false information. If the Tribunal Member had put to me or to the witnesses the allegation that I had provided the witnesses with false information, then I would have wished to have provided further evidence by means of oral evidence as well as documentary evidence, to establish that I had not done this, and I would have tried for an opportunity to do this.’
The husband applicant is a citizen of India who arrived in Australia on 18 February 2000. On 17 March 2000, he applied for a protection visa but, on 29 March 2000, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa. On 26 April 2000, the husband applicant applied for a review of that decision to the RRT. On 27 August 2002, the RRT affirmed the decision not to grant a protection visa.
The husband applicant is from the State of Punjab. He is a Hindu. His case before the RRT was that, whilst he was at university in Nakodar in 1979/1980, he met a person named Deepa. About seven years after he left University, he met Deepa again and learned for the first time that Deepa was a militant Sikh. The husband and wife applicants married in 1992 and the husband applicant told Deepa he was not to return to his house because he was now married and had responsibilities.
On the husband applicant’s case, Deepa was killed in an encounter with police in 1993. However, the police were aware of the husband applicant’s previous association with Deepa and demanded money from him. They demanded that he disclose details of Deepa’s friends. His claim was that the police continued to harass him until 1999 by coming to his house demanding to know the names of Deepa’s colleagues and demanding money. He said that if he refused either to name persons or to pay money the police would beat him. He said he was beaten in 1997 and 1999.
The husband applicant’s wife gave evidence and corroborated some aspects of his case. She said that Deepa came to their house once after they were married. The police came and demanded money and beat her husband.
A witness, Mr Chauhan, a pharmacist from the husband applicant’s residential area in the Punjab, said that he treated the applicant for wounds in 1997 and arranged his admission to hospital. He said the husband applicant told him that he had been beaten by police because of a terrorist.
The husband applicant’s brother also gave evidence. He said he had left India in 1989 and migrated to New Zealand and then came to Australia in 1995. He said that he had heard that the husband applicant had ‘problems with a person named Deepa before 1997’.
The RRT reminded itself that applicants before it could yield to the temptation to embroider an account of his or her history and reminded itself of what was said by the High Court in Abebe v The Commonwealth of Australia [1999] HCA 14 and by the Full Court of the Federal Court in Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212.
However, it disbelieved the husband applicant’s account. It said:
‘It is possible that the Applicant was subjected to demands for money by local police because he is a businessman who is perceived to be able to pay. Indeed, he told the Tribunal that was the real reason the police harassed him. The Tribunal does not accept that the applicant was harassed because he is alleged to be associated with a terrorist who was supposedly killed in 1992 or 1993. It is satisfied that his witnesses have sought to corroborate his claims only because he has provided them with false information. Their evidence is not of sufficient weight to lead the Tribunal to accept that the Applicant has a history of harassment for reason of his political opinion.’
For those reasons, the RRT dismissed his application for a review.
It also considered the husband applicant’s prospects of relocation. It said:
‘While there may be cases where the Punjabi police would have an interest in tracking a person wanted in regard to political opinion …, the Tribunal is not satisfied that the Applicant is wanted for such a reason. He is from the majority Hindu religion, he speaks Hindi, Punjabi and English, he has had experience in living in Australia, in a culture that is more alien that [sic] what he could anticipate in places such as Delhi, Bombay or other centres, and he has experience as a self-employed businessman and as a laborer [sic]. The Tribunal is satisfied that he could reasonably and practically relocate to another part of India, in the sense meant by Black CJ (with whom Whitlam J agreed) in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-443. It is satisfied that he would not be at real risk of any harm at the hands of Punjabi officials, either in the Punjab or in another part of India.’
Two grounds have been put forward to support the application for review. First, it was said that the husband applicant was denied procedural fairness because the hearing was conducted by telephone link.
In my opinion, a telephone hearing is not, of itself, a ground for a claim of procedural unfairness. A hearing by telephone may be no disadvantage whatsoever to a party and may be an appropriate way of conducting the hearing. The husband applicant asserts that, during the telephone hearing, misunderstandings arose. He does not particularise those misunderstandings and I am not prepared to find that there were any such misunderstandings.
Of more significant concern is the fact that the RRT, however, decided this matter in one sense on issues of credibility. It is very difficult to judge questions of credibility when listening to someone over a telephone.
The husband applicant’s second complaint is the finding that the witnesses have sought to corroborate his claims only because he has provided them with false information. Clearly, he could not have provided some of their evidence to them. His wife’s evidence included her own observations about Deepa coming to their house and the police continuing to come and demand money, and beating her husband if he did not pay. She said she heard the police ask about Deepa’s colleagues. Those are first hand observations.
Mr Chauhan said he treated the husband applicant for wounds in 1997. That also corroborates the husband applicant’s evidence. He said he was beaten in 1997. That was not something told to Mr Chauhan. That is his own first hand observation.
The husband applicant’s brother’s evidence was of little assistance. He left India in 1989 and had no contact with his brother until his brother asked him to help him flee India in around 1995 or 1996.
The husband applicant sought and obtained the release from the RRT of the tapes of the hearing before the RRT. His solicitor deposed that he had listened to the tapes which he said were of a very poor quality. He said:
‘Having listened to the two tapes, to the best of my recollection, I cannot recall that the Tribunal Member put to either the Applicant or any of the three witnesses [the applicant’s wife Neelam Raini, the applicant’s brother Dinesh Kumar and Vikramjit Chauhan] the allegation that the witnesses sought to corroborate the Applicant’s claims because the Applicant had provided them with false information …’
Subsequently, an affidavit was sworn by an employed solicitor in the employ of the respondent’s solicitors exhibiting a transcript of the tapes of the hearing before the RRT. She said that initially the transcriber said that the sound quality of the first tape was too poor to transcribe. After listening to the tape again, she sent the tape back to the transcribers who were able to provide a transcript of a part of that first tape.
She deposed:
‘I have listened to the RRT hearing tapes and the sound quality for the majority of the first tape is of such poor quality that a full transcript could not be prepared.’
The transcript, which has been tendered, is an incomplete record of the hearing before the RRT. I have read the transcript which has been tendered. It does not contain either the applicant’s or his wife’s evidence. It does contain the evidence of Mr Chauhan and part of the evidence of the husband applicant’s brother.
There is nothing in the transcript of the evidence of Mr Chauhan to suggest that the RRT ever put to him that he sought to corroborate the husband applicant’s claims, only because the husband applicant has provided him with false information. Nor was that allegation ever put in the incomplete evidence of the husband applicant’s brother.
The respondent did not seek to cross-examine the husband applicant.
In those circumstances, there is no reason not to accept the husband applicant’s evidence contained in paragraph 4 of his affidavit to which I have already referred.
The RRT did not put either to the husband applicant or to the witnesses that the witnesses were giving evidence only because the husband applicant had provided them with false information.
In my opinion, that is a finding which is not supported by the evidence. As I have pointed out, there is clear evidence that at least two of the witnesses had made first hand observations which were consistent with and corroborated the husband applicant’s account.
That finding, in my opinion, amounts to jurisdictional error.
However, the respondent argued that the decision of the RRT should not be quashed because the RRT also concluded that it would not be unreasonable for the husband applicant to relocate in India and outside the Punjab.
In making that finding, the RRT addressed five matters. It found that:
(1)there are no restrictions on Indians moving from one part of the country to another;
(2)the husband applicant is from a majority Hindu religion;
(3)the husband applicant speaks Hindi, Punjabi and English;
(4)the husband applicant has experienced living in Australia in a culture that is more alien than he would anticipate in places such as Delhi, Bombay or other centres; and
(5)the husband applicant has experience as a self-employed businessman and as a labourer.
There was, therefore, evidence to support the RRT’s finding that it would be reasonable to expect the husband applicant to relocate in India outside the Punjab. There was no evidence to the contrary. No evidence was advanced by the husband applicant to support a finding that it would be unreasonable for him and his family to relocate to other parts of India.
There was no complaint on this appeal about the RRT’s conclusion that it would be reasonable for the husband applicant to relocate.
Whilst the husband applicant has demonstrated jurisdictional error in respect to the first finding made by the RRT, that error leads to no practical result because, even without that jurisdictional error, inevitably the application had to fail: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6.
The application for judicial review is dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 7 July 2004
Counsel for the Applicants: M Clisby Solicitor for the Applicants: M W Clisby Counsel for the Respondent: K Tredrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 24 June 2004 Date of Judgment: 7 July 2004
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