M170 of 2002 v Minister for Immigration - [2005] FMCA 1330

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M170 of 2002 v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1330

MIGRATION – Review of decision of Refugee Review Tribunal – applicant's application for an Order Nisi – first respondent’s Notice of Objection to Competency – application dismissed.

Federal Court Act 1976
Migration Act 1958 (Cth)

Muin v Refugee Review Tribunal (2002)
Subramanian v MIMIA (unreported Federal Court 10 March 1998)
Abebe v Commonwealth of Australia (1999)
NADR v MIMIA (2002) FCAFC

Applicant:

APPLICANT M170 OF 2002

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 165 of 2004

Judgment of:

Hartnett FM

Hearing date:

5 September 2005

Delivered at:

Melbourne

Delivered on:

5 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr Fernandez

Solicitors for the Applicant:

Mano & Associates

Counsel for the Respondent:

Mr Horan

Solicitors for the Respondent:

Australian Government Solicitor

ORDER

That the Refugee Review Tribunal be joined as a second respondent
That the objection to competency is upheld.
The application is dismissed.
The applicant is to pay the respondent's costs and disbursements of and incidental to the application fixed in the sum of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 165 of 2004

APPLICANT M170 OF 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On the 7th day of February 2003 Justice Hayne remitted from the High Court the applicant's application for an Order Nisi, (being an application for writs of Prohibition, Mandamus and Certiorari) to the Federal Court. On 23 May 2003 the first respondent filed a Notice of Objection to Competency. Thereafter Weinberg J. on 4 February 2004 transferred the proceedings to the Federal Magistrates Court pursuant to section 32AB of the Federal Court Act 1976. On 11 August 2003 the applicant filed an amended application.

History

On 27 November 1998 the applicant arrived in Australia. He was born on 27 May 1978 in India and entered Australia on a student visa. On 25 July 2000, being approximately one and a half years following his arrival in Australia, the applicant applied for a protection visa. I note that in the reasons of the Refugee Review Tribunal (the tribunal) made 28 March 2002 the following is said:
The Tribunal notes that it took the applicant one and a half years after he arrived in Australia to submit his application for a protection visa. In Subramanian v MIMIA (unreported Federal Court 10 March 1998) Carr J stated that, as a matter of principle, the period of time which elapses between an applicant's arrival in Australia and the time when they claim refugee status is a legitimate matter which the Tribunal is entitled to take into account in assessing the genuineness or at least the depth of the applicant's fear of persecution.
The Tribunal notes that the applicant had a student visa with two and a half months validity remaining at the time of his protection visa application, but considers that as the applicant claims to have come to Australia for the purpose of escaping persecution, his delay in making his protection visa application gives the Tribunal cause to doubt the genuineness of his fear of persecution.
On 19 March 2001 a delegate of the first respondent (the respondent) decided not to grant the applicant a protection visa and on 19 April 2001 the applicant applied to the Refugee Review Tribunal for review of the delegate's decision. On 26 April 2002 the tribunal handed down its decision, affirming the decision of the delegate. On 30 May 2002 the applicant requested the respondent to exercise his discretion to substitute a more favourable decision under section 417 of the Migration Act 1958 (Cth) (the Act).
On 26 June 2002 the two-month period within which the applicant was required to make his application for a writ of mandamus pursuant to Order 55 Rule 31 of the High Court Rules expired. On 4 July 2002 the 35-day period within which the applicant was able to apply to the High Court for judicial review of a privative clause decision expired, pursuant to section 486A(1) of the Act.
On 17 July 2002 the respondent advised the applicant that he had decided not to consider the exercise of his discretion under section 417 of the Act and on 29 September 2002 the applicant filed his application for an Order Nisi in the High Court.
Section 486A(2) of the Act provides that the High Court, and hence this court upon remittal, must not make an order authorising an application for judicial review by the High Court of a privative clause decision made outside the 35-day time limit imposed by section 486A(1). The respondent argues that the decision of the tribunal is a privative clause decision because it does not involve any jurisdictional error. I find the decision to involve no jurisdictional error and accordingly that to be the case.
The applicant alleges that the tribunal’s decision involved jurisdictional error on the grounds that the tribunal (a) denied the applicant procedural fairness; (b) failed to comply with section 418(3) of the Act; and (c) failed to comply with section 424(1) of the Act.
The applicant relied on the High Court's decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601. The applicant complained that the tribunal did not receive and/or consider documents relied on by the delegate. Those documents were not specifically identified, other than to say that they included particularly "the file CLF 2000/34918", a reference to the Department's file, and "some or most of the other documents mentioned in part B of the primary decision‑maker" (a reference to part B of the delegate's decision record).

Tribunal's Reasons

The tribunal conducted a hearing on the 1st day of March 2002. The applicant gave oral evidence, his adviser was present throughout, and he was assisted by an interpreter in the Punjabi language. The Tribunal had before it the Department’s file and written submissions in support of the application and application for review.
The applicant told the tribunal that his father had been a member of the Babbar Khalsa. The applicant stated that he had known his father was a member of the Babbar Khalsa until the police informed the family that they had found papers which incriminated his father at the home of the leader of Babbar Khalsa.
The tribunal asked the applicant how it was that he had not realised his father was involved with the Babbar Khalsa, given the activities the applicant described to the tribunal which involved his father. The applicant responded that he was only 14 years of age at the time and that his father had never spoken to him about political matters.
The tribunal informed the applicant that it was having difficulty accepting his claim that his father had been a member of the Babbar Khalsa. The tribunal asked the applicant if he had any other information which supported his claim. The tribunal also asked the applicant about the applicant’s claim to have been a member of the All India Sikh Students Federation (AISSF). The tribunal asked the applicant to list the occasions on which he had been arrested and how long he had been detained each time.
Where the tribunal had difficulty in accepting the matters put to it by the applicant, the tribunal asked the applicant to explain matters which it found to be inconsistent, including country information that was before the tribunal.
The tribunal informed the applicant that it had concerns about the documents that he submitted, in particular those from the lawyer, the Shiromani Akali Dal Party and the Serpanch. Although the documents were said to have been written by different people who would have known the applicant under different circumstances, they contained information which was surprisingly similar and the language used by these different people was also surprisingly similar and in some places identical to that used in the other documents.
It appeared to the tribunal that the same person had written several of the documents or else the documents had been prepared by different people from a common set of information which had been supplied to them for the purpose of preparing the documents. The tribunal informed the applicant about reports concerning the prevalence of false documents in India. The applicant claimed the documents were genuine.
The tribunal also informed the applicant of country information relevant to his claims. The tribunal noted that most of the experts whose opinions were quoted in some of that country information were of the view that the relatives of people once suspected of being terrorists were no longer in danger of being persecuted by the Indian authorities, unless they had helped their relatives, although they may be harassed at some level. The applicant had not been in contact with his father since 1992.
The tribunal noted in its findings and reasons that it was not required to accept uncritically all the claims made by applicants, although it was mindful of the High Court observation in Abebe v Commonwealth of Australia (1999) 162 ALR 1:
The fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not for life (per Gummow and Hayne JJ at [191]).
Nevertheless the tribunal concluded that the applicant was not a credible witness. The tribunal did not accept the applicant's claims that he was arrested and detained on numerous occasions from December 1992 until April-May of 1998. The tribunal noted the situation in the Punjab had begun to return to normality by 1993, and referred to country information in that regard. That included country information that was before the delegate and referred to in part B of the delegate's decision.
In view of that information and the information discussed with the applicant about the improvements in the situation in the Punjab from 1993 to 1994 onwards, the tribunal did not accept that the applicant would have been persecuted because of his membership of the AISSF at the time.
The tribunal found that the applicant was not arrested, detained and tortured during the period from 1992 to 1998 as he had claimed. The tribunal did not accept that the applicant was arrested, detained and tortured at any time prior to his departure from India. The tribunal did not accept that the applicant's mother had to bribe the police to secure his release, or that they subjected her to extortion demands to secure his release from custody.
The tribunal found that the applicant's father was not a suspected member of the Babbar Khalsa organisation, nor that his father was suspected by the authorities to be a member of the organisation. It did not accept that the applicant's uncle was persecuted and killed by the police because of his relationship with the applicant's father or for reason of a political opinion imputed to him because of this relationship. The tribunal said of a document submitted by the applicant relating to his uncle’s death which purported to be from the Babbar Khalsa Organisation:
…in view of the Tribunal's complete disbelief of the applicant's claims to have been arrested and tortured because of his father's political opinion, the Tribunal is not persuaded by this document that his father's political opinion was the reason for his uncle's death. As discussed above, the Tribunal notes the country information about the ease with which such documents can be manufactured.
The tribunal did not accept the applicant's claims that a relative attempted to take action against the police because of the human rights abuses they had perpetrated against members of the applicant's family. The tribunal found the applicant and other members of his family had not been imputed with a political opinion supportive of Sikh separatism and that they had not been persecuted in the past for this reason or because of their family membership.
The tribunal found the applicant had not been designated a terrorist by the Indian authorities and did not accept that the police had been looking for the applicant since he left India or that they were still looking for his father and harassing his mother. The tribunal found that the Indian authorities did not have a continuing interest in the applicant for any Convention reason. The tribunal found that there was not a real chance the applicant would be persecuted for reasons of political opinion because of family membership now or in the foreseeable future.
The tribunal concluded that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol; that he had not been persecuted in the past for reason of his political opinion or a political opinion imputed to him or for his family membership or for any other Convention reason and that there was not a real chance that he would be persecuted for those reasons or any other Convention reason if he were to return to India now or in the reasonably foreseeable future. The tribunal affirmed the decision not to grant a protection visa.

Consideration

The decision in Muin v Refugee Review Tribunal (2002) is of no assistance to the applicant in this case. There is no statement of agreed facts and, as was said by Kiefel J in NADR v the Minister (2002) FCAFC 293 at 25 and as is applicable here:
At a factual level the present case differs substantially from Muin v Refugee Review Tribunal (2002). It is not agreed that the documents were not physically provided to the Tribunal. It is not agreed that the appellant was misled by the letter, or that he would have taken any particular steps had he been told, if it was the case, that the Tribunal had not been provided with them. It was submitted that the Part B documents can be seen to relate to the appellant's case. So much can be expected. Beyond that the appellant sought to utilise the findings of fact in Muin v Refugee Review Tribunal (2002) to make out his case. Needless to say, that is not a course which is open. Each case must be considered on its own facts.
The agreed facts in Muin v Refugee Review Tribunal (2002) established to a large extent the conclusion on the part of the majority of members of the Court that Mr Muin had been misled into thinking he did not need to put information before the tribunal because the tribunal already had reference to it.
As said further by Kiefel J at (24)
“there is a want of procedural fairness where an applicant before a tribunal is misled into thinking that the Tribunal has considered particular relevant information and, as a result, did not ensure that such information was placed before it.”
In the present case there is no evidence that the applicant was in any way misled by the communications from the Tribunal. Hence there are no facts established in this case which could conceivably give rise a finding of a want of procedural fairness. I accept the respondent’s submission that there is evidence contrary to the proposition that the applicant was misled into believing that it was unnecessary for him to draw the favourable information in the Part B documents to the attention of the tribunal By his written submission dated 20 February 2002 the applicant’s advisor referred the Tribunal to aspects of the Part B material what was before the delegate as well as additional “country information” said to be supportive of his client’s case. This written submission was referred to in the reasons.
The tribunal put before the applicant adverse material to him for comment in the course of the hearing and otherwise relied upon country information and other material before it in considering all relevant matters. Its findings of fact were supported by that material and its processes in accordance with the Act.
The application must be dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Tracey Jones

Date: 5 September 2005