NABR v MIMA

[2003] HCATrans 761

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S238 of 2002

B e t w e e n -

NABR

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2003, AT 4.14 PM

Copyright in the High Court of Australia

NABR appeared in person.

MS S. KAUR‑BAINS:   May it please your Honours, I appear for the respondent.  (instructed by Blake Dawson Waldron (Lawyers))

GLEESON CJ:   Yes, go ahead, please.

NABR:   Yes, your Honour.  Your Honour, this is an important case and I would like to raise several issues, but in my application I have requested this Court to increase the time limit so that I could ‑ ‑ ‑

GLEESON CJ:   Is that opposed?

MS KAUR‑BAINS:   It is, your Honour.

GLEESON CJ:   To increase the time limit.  What time limit ‑ ‑ ‑

NABR:   In the Court, your Honour.

GLEESON CJ:   For speaking?

NABR:   The 20 minutes time limit.

GLEESON CJ:   No, the 20 minute time limit applies to everybody and it applies to you.  Go ahead.

NABR:   Okay, your Honour.  Your Honour, the important issue in my case – I assume that this Court would have perused my application book and thus I want to raise a few important points before this Court.  The first issue is, your Honour, that I must summarise my case first.  My case, with respect to the decision made by the Tribunal, may be generally categorised as sets of claims and I will label them for present purpose as primary claims and secondary claims.

The primary claims was which I made at Department of Immigration and the second claims which I later added before the hearing, explained on the hearing and supplemented after the hearing within the extended time granted by the Tribunal.  Not all, but some of my secondary claims were not accepted by the Tribunal.  The Tribunal claimed that it doubted my secondary claims because I did not make those claims at earlier stage.  However, it is noteworthy that some of my secondary claims were accepted. 

The internal inconsistency in the Tribunal’s approach in selectively accepting and rejecting my secondary claims was then brought into notice of the Full Federal Court and the court recognised this but it did not take it seriously.  At AB57, paragraph 47, line 9, the Full Federal Court recognised this as follows:

He pointed out that the Tribunal accepted some later elaboration on his original statement for the purpose of showing that the Tribunal has proceeded in a way which was internally inconsistent.

When my case was rejected by the Tribunal, I proceeded in the Federal Court, and my case was dealt by his Honour Justice Dowsett, and thus said I was ill‑prepared and could not present my case adequately as per my satisfaction.  A short extempore judgment was delivered and once again my case was rejected.

His Honour Justice Dowsett apparently inadequately understood my complaints and, in particular, made no determination to one of my principal complaints.  That principal complaint was that the Tribunal failed to exercise its jurisdiction with respect to the so‑called independent country information by failing to assess the credibility and the relevance of the country information provided by the DFAT and UK Home Office, especially when the extent of credibility and, most importantly, the relevance of the country information was in dispute and it was clearly urged by me that, in essence, the Tribunal should not rely upon country information without assessing the extent of credibility and the relevance of the country information in the light of the explanation provided by me.

Inter alia, one of the critically important aspects was the factual finding which his Honour correctly made, and that factual finding, in essence, was that the Tribunal was significantly influenced by the country information and that it rejected some of my secondary claims on the basis of DFAT and UK Home Office country information.  At AB38, paragraph 3, at about line 17, his Honour said that:

It is fair to say that the Tribunal’s determination of his claim hinged to a substantial degree upon this aspect of the case, taken in the context of all of the evidence, particularly the country information – 

and after a few lines in that paragraph, his Honour said that:

These matters led the Tribunal to accept the applicant’s evidence as to persecution up to and including 1993 but to reject his evidence of subsequent persecution in 1997 and 1998.

Now, once again, it is noteworthy that his Honour found that the Tribunal was influenced by the country information in rejecting some of my secondary claims.  In the next paragraph at AB39, line 25, the court said as follows:

The function which the Tribunal was called upon to perform was to assess the matters raised by the applicant in the light of the information available as to conditions in India.  This, it seems to me, it did in an entirely conscientious way.

Now, what I want to say that the factual finding – that Justice Dowsett made the factual finding that the Tribunal was influenced by the country information in rejecting certain secondary claims of mine, but the Full Federal Court changed this factual finding when I appealed to the Full Federal Court.  In the Full Federal Court this factual finding was not brought as a disputed issue.  The Full Federal Court said, in essence, at page 59, paragraph 59, about line 43:

The appellant submitted also that no country information is truly “independent”.  Another submission was that, even if a general description from an “independent and reliable source of information” . . . the regard paid to, and protection of, human rights in India is correct, this is not determinative of whether a particular individual has been persecuted for a Convention reason.  Accordingly, the appellant submitted that if, in general, the human rights of Sikhs are recognised and protected in India, and they receive protection under the law equal to that afforded to other Indians, this does not mean that a particular individual Sikh has not been, or will not be, persecuted by reason of being a Sikh.

The court, in fact, did not declare that the country information with respect to my case was irrelevant.  However, the court almost declared that in a different way.  The court said that regardless of the fact that what is happening – if the Sikhs are not being persecuted, there is a possibility that a particular person could be persecuted.  Since my claim was based upon my own individual circumstances and it was not based upon what is happening with other Sikhs in India, therefore, the country information which tells about the situation of Sikhs in India was entirely irrelevant in my case.  Now, the Full Federal Court said:

We accept that there is some force to these submissions.  But the Tribunal disbelieved the appellant, not because his claims ran counter to country information, but because of internal difficulties associated with his claims.

Now, after that, in paragraph 61, in order to explain the importance of the country information, the court has said that:

The Tribunal’s reference to the country information was by way of checking whether, as a Sikh, the appellant might have a well‑founded fear of persecution even though his account of his personal experiences was not accepted by the Tribunal. 

Your Honour, this thing is because his Honour Justice Dowsett made the factual finding that the Tribunal relied upon the country information in rejecting certain claims of mine, and that factual finding has been overturned by the Full Federal Court and this factual issue has not been brought as a dispute by me and nor was it opposed by the respondent.  Therefore, in my opinion, the Federal Court lacked the jurisdictional competence to make a factual finding which was not brought before the Federal Court.  Secondly, your Honour, if this factual finding is correct, then it also leads to legal disaster.  That legal disaster is that in paragraph 61 the court said that:

The Tribunal’s reference to the country information was by way of checking whether, as a Sikh, the appellant might have a well‑founded fear of persecution even though his account of his personal experiences was not accepted by the Tribunal.

So, in other words, the court was saying that a person can be declared a refugee in spite of the fact that his personal accounts has not been accepted by the Tribunal.  This means that if this kind of a report has resulted a negative decision in my case, that some other kind of a report would have resulted a positive decision, and that is against the law.  It is, in my opinion, against the law.

Secondly, I want to rephrase it again.  If the Full Federal Court finding that the Tribunal reference to the country information was by way of checking whether, as a Sikh, I might have a well-founded fear of persecution even though my account of personal experiences was not accepted by the Tribunal is correct, then it would be fair to say that the country reports have not played any part at all in the determination of certain claims by the Tribunal in my case.  If the reports were not considered important, then there was no need to check them and the Tribunal could have rejected my application straightaway, without checking or relying on the country reports, but the fact is different, and it demonstrates that the Tribunal was not prepared to reject my application for refugee status without checking the reports.

So, for example, if X kind of a country report has resulted in an unfavourable decision in respect to my application, then maybe the Y kind of a report might perhaps have resulted in a favourable decision in respect to my application.  It consequently means that I might perhaps have received a favourable decision with Y kind of a report.  If this is what the Federal Court means, then this is again not permissible or authorised under the Migration Act.  This is because the way in which the Full Federal Court has, in essence, accepted that if, in general, human rights of Sikhs are recognised and protected in India, and they receive protection under the law equal to that afforded to other Indians, this does not mean that a particular individual Sikh has not been, or will not be, persecuted by the reason of being a Sikh.

Similarly, if in general and by example the human rights of Sikhs are not recognised and protected in India, and they do not receive protection under the law equal to that afforded to other Indians, this does not mean that a particular individual Sikh has been, or will be, persecuted by the reason of being a Sikh.  If this analysis is correct, then the Tribunal is not authorised to recognise a person as a refugee if he is not a refugee.  In other words, it would be legally wrong to recognise a person as a refugee simply on the basis of the general country reports in the circumstances in which the account of his individual circumstances has not been accepted, unless the applicant claims to be a refugee significantly or only on the basis of certain or all aspects of the country reports.

Therefore, it is incorrect to reduce the importance of that fact by observing the Tribunal disbelieved me, not because my claims ran counter to the country information, but because of the internal difficulties associated with my claims.  Although it cannot be denied the Tribunal partly disbelieved me because of the internal difficulties associated with my claims, but this does not mean that the country reports have played no significant part in the amplification of that disbelief or any other kind of a country report, if properly considered, would not have reduced the Tribunal disbelief.  Therefore, it is fair to say that the internal difficulties themselves were influenced and affected by the bias generated by the certain aspects of the country reports.

Secondly, the court has also said the Tribunal was entitled to have a general confidence on the country reports.  I strongly oppose that because, in my opinion, it is illogical because let us suppose, for example, if today the report‑makers are honest, credible and they have made a correct report, but if tomorrow they start taking bribes from refugees to make the favourable reports for them, will the Tribunal, in those circumstances, continue to have general confidence on the report-makers?  If not, then how will the Tribunal lose that general confidence if the Tribunal does not assess the challenge by an applicant made to those general country reports?

So that thing, in fact, is again unlawful because that amounts to…..and because general confidence connotes, your Honour, to bias and if the Tribunal does not deal with the challenge faced by an applicant, to which the Tribunal had the general confidence, then it should be recognised as actual bias.

Thirdly, your Honour, I have also raised the issue with respect to the letters, the supporting letters to me.  These supporting letters that the Tribunal has made the finding, saying that my mother has procured these letters, I accept that, and it was perfectly reasonable to do so.  The respondent has challenged it and at a particular place the respondent says that it is not true.  For that I say that this issue was brought before the Full Federal Court, therefore the respondent should not be allowed to further this point that involves the law with respect to estoppel.

As I already said that the – I raised the issue with respect to the jurisdiction of the Federal Court to remake the findings of fact which the Full Federal Court made and which the Full Federal Court was not correct in making that finding of fact.  The respondent has not responded to that issue.  The respondent has said that – it is on page 93 – and changed the finding of fact:

The applicant contends that:

a)  His Honour Justice Dowsett found as a matter of fact the following:

“The function which the Tribunal was called upon to perform was to assess the matters raised by the applicant.

After that, in the last, the respondent says:

No issue of fact is involved.

As I have already explained that the issue of fact was also involved, because the factual finding made by the Federal Court was incorrect.  Simultaneously, the issue of law was also involved because the Federal Court did not have the jurisdiction to make that factual finding, at least in the circumstances when that factual finding was not brought by me as a dispute before the court and it was not challenged by the respondent. 

As for errors, I complained about the jurisdictional error at page 60 paragraph 62:

The appellant submitted that the Tribunal asked itself the wrong question.  He referred to the following passage in its reasons for judgment –

Here, in that passage, the Tribunal has said:

there is nothing in the evidence available to me to suggest that the Indian Government encourages the persecution of Sikhs by

criminals, whether the criminals are Rajputs or Jats or are drawn from other groups in Indian society.

Now, when the Tribunal was ‑ ‑ ‑

GLEESON CJ:   Thank you, your time is up. 

This is an application for special leave to appeal against a unanimous decision of the Full Court of the Federal Court of Australia.  The Full Court of the Federal Court upheld a decision of Justice Dowsett of the Federal Court of Australia.  Justice Dowsett upheld a decision of the Refugee Review Tribunal, which upheld a decision of the Delegate of the Minister.  No reason has been shown to doubt the correctness of the decision of the Full Court of the Federal Court of Australia and the application for special leave is refused with costs. 

AT 4.36 PM THE MATTER WAS CONCLUDED