NAQR v Minister for Immigration (No.2)
[2003] FMCA 89
•20 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAQR & ORS v MINISTER FOR IMMIGRATION (No.2) | [2003] FMCA 89 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – no jurisdictional error – application dismissed. |
Judiciary Act 1903
WAAK v Minister for Immigration [2002] FMCA 86
WADK v Minister for Immigration [2002] FMCA 175
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1
Chan v MIEA (1989) 169 CLR 379
MIMA v Eshetu (1999) 197 CLR 611
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Pulhofer v Hillingdon London Borough Council [1986] 1 AC 484
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
WAAV v MIMIA [2002] FCAFC 228
MIMA v Epeabaka (1999) 160 ALR 543
| Applicant: | NAQR & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ634 of 2002 |
| Delivered on: | 20 March 2003 |
| Delivered at: | Sydney |
| Hearing Date: | 28 November 2002 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Michael Jones Solicitor |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
That the applicants pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ634 of 2002
| NAQR & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for orders under section 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the Tribunal) dated 18 June 2002 affirming a decision of a delegate of the respondent to refuse to grant protection visas to the applicants.
The applicants applied to this Court on 6 August 2002.
The applicants, who are citizens of India, are husband, wife and their three year old daughter. Both the applicant husband and the applicant wife made specific claims under the Refugees Convention. No specific convention claims were made by or on behalf of the applicant child.
The applicants arrived in Australia on 10 November 2000. They lodged applications for protection visas on 21 December 2000.
In his protection visa application the applicant husband, who is a Sikh from the Punjab, claimed that his father was a member of Babbar Khalsa (BK), a group considered by the authorities to be a terrorist organisation. He described a history of persecution of his family by the police in the Punjab State dating from his childhood including the alleged murder of his father in 1990 and alleged harassment of the family following the swearing of an affidavit by his mother about her husband’s death. He also claimed that he had been arrested and accused of membership of the Babbar Khalsa but released on payment of a bribe, that stringent reporting requirements and abuse by the police led to him going into hiding. However he returned to the Punjab and married in 1997 following reports that the situation had normalised in the area. He also claimed that the day after his marriage he was arrested and beaten by the police and released on the same reporting conditions as before. He claimed that the police would take him to the police station whenever any problem arose in the Punjab and that having breached bail conditions he would not be safe from arrest and torture if he returned to India.
The applicant wife claimed to be a member of Akhand Kartani Jatha which she claims is associated with Babbar Khalsa. The applicant wife said that she had supported the Khalistan movement by reciting poetry in public places and that her name had been in the “police book” since her time at college. She claims that on 14 April 1999 the police raided her house and took her to the police station, stopping on the way at a farmhouse where she was gang raped by the policemen.
Tribunal decision
The Tribunal accepted that the applicant husband and his family were subject to police harassment and mistreatment amounting to persecution between 1985 and 1990 on the basis of their connection to his father but not in the applicant husband’s own right. The Tribunal also accepted that the applicant husband’s father was killed by the police in 1990 as claimed. However the Tribunal found the applicant husband to be an unsatisfactory witness and noted that he had failed to provide supporting documentation in relation to some claims and made other claims and provided documents on the day of the hearing (which the Tribunal described as ‘at the eleventh hour’). It rejected as a recent fabrication his unsupported claim that between July 1991 and March 1995 he was arrested roughly six to seven times and tortured by the police. It found it implausible that if the police had linked the applicant to Babbar Khalsa (which was regarded as a terrorist organisation) it would have taken him into custody as claimed but then released him without charge. Nor was the Tribunal satisfied that the applicant was arrested, mistreated and released without charge but subject to reporting requirements in April 1995 after his mother allegedly signed an affidavit about her husband’s murder. It gave detailed reasons for finding implausible and rejecting these claims based in particular on the broad nature and timing of the claims, the absence of supporting evidence or (in relation to the alleged affidavit by his mother) a satisfactory explanation for such absence.
As the Tribunal did not accept that the applicant husband was arrested in April 1995, it did not accept that reporting conditions were imposed the breach of which forced the applicant into hiding in three States of India. It concluded that the applicant was not forced into a situation where he could not practice his religion. The Tribunal referred to the implausibility and lateness of the applicant’s unsupported claims in this respect. Similarly, the Tribunal did not accept the claim that the applicant husband was taken into custody in February 1997 so that his family would not pursue the case of his father’s death against the police or that he was harassed by the police during 1999 to 2000. The Tribunal did not accept that following his father’s death the applicant husband or his wife were suspected members of a terrorist organisation or otherwise had adverse profiles with the security authorities. As it found that the applicant husband was not of adverse interest to the police in his own right it did not accept that his fear of returning to India was well founded.
In relation to the applicant wife the Tribunal accepted that she was a student member of the Akand Kartani Jatha and that she engaged in the activities she claimed during her college years. She did not claim and the Tribunal found no evidence to indicate that her encounters with the police at this time amounted to persecution. Notwithstanding a lack of supporting evidence the Tribunal accepted that she might have been assaulted as she claimed in April 1999. No other harm from the police was alleged. As the Tribunal did not accept that the husband was harmed by or required to report to the police for his activities or imputed association with Babbar Khalsa. It did not accept the wife’s claim that the police had taken her away on the date in question to ensure that her husband would report to them. The Tribunal was not satisfied that the claimed rape was motivated essentially or significantly by any Convention reason. Her claims were seen as resting very substantially on the claims of her husband’s claims of harm. As it found that he had not suffered the harm he claimed and did not face a real chance of persecution if he returned to India in the foreseeable future, the Tribunal concluded that it could not be satisfied that the applicant wife faced a real chance of Convention persecution if she returned to India now or in the foreseeable future.
The Tribunal also considered the possibility that the applicants could relocate to another part of India if they had a subjective fear of returning to the Punjab. It accepted that such relocation elsewhere in India was a viable and safe option for Sikhs such as the applicants and for this family based on their past movements.
The fate of the child’s application depended on the outcome of her parents’ application. As the parents were found not to satisfy the criteria for protection visas the applicant child was also found not to satisfy the criteria for such a visa.
The application
In an amended application filed in court the applicant raised three grounds:
(1)That the Tribunal failed to deal with the applicants’ claims on their merits in light of the country information available to it concerning continuing police persecution of known supporters of Khalistan independence. It was submitted that the Tribunal failed to comply with s.420 which was said to be an essential requirement for the exercise of its jurisdiction under the Migration Act 1958 (the Act)
(2)That the Tribunal’s reasoning in respect of the rape of the second applicant wife by the police was illogical and demonstrated a failure on the part of the Tribunal to properly exercise the jurisdiction given to it under the Act by sections 411(1)(c) and 414.
(3)That the Tribunal’s findings as to the applicant’s credibility in relation to documents provided and statements made on the date of hearing were said to be so unreasonable that no reasonable person could have made those findings and constituted unreasonableness of the type identified in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.
Written and oral submissions were provided on behalf of both parties. In light of the High Court decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 the parties were given the opportunity to make further written submissions. The respondent did so. No further submissions have been received from the applicants.
The relevant law
Pursuant to s.483A of the Act this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Migration Act. Under s.475A it has jurisdiction in relation to a ‘privative clause decision’ that is a decision made on a review by the Tribunal. ‘Privative clause decision’ is defined in subsections 474(2) and (3) of the Act. Subsection 474(1) of the Act limits review by the Court of privative clause decisions as follows:
A privative clause decision:
a)is final and conclusive;
b)must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and
c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.
In NAAV v MIMIA [2002] FCAFC 228 the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are: first the decision is a bona fide attempt by the decision-maker to exercise its power, second that the decision relates to the subject matter of the legislation, and third that the decision is reasonably capable of reference to the power conferred on the decision-maker. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravened an inviolable limitation on the operation of the Act.
In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 the High Court held that as a matter of construction the expression ‘decision[s]… made under this Act’ in subsection 474(2) “must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act.” (at [76] and also see [19] per Gleeson CJ and [163] per Callinan J). If there has been a jurisdictional error the decision cannot properly be described as a decision made under this Act and is thus not a privative clause decision as defined in subsections 474(2) and (3) of the Act. Further a decision flawed for reason of failure to comply with the principles of natural justice is also said not to be a privative clause decision within s.474(2). If there is no jurisdictional error affecting the Tribunal’s decision then the decision would be a privative clause decision and protected by s.474(1) unless it was shown that one of the Hickman provisos had not been met. In Plaintiff S157/2002 the High Court confined itself to a general statement of principle in relation to jurisdictional error and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the Plaintiff. The precise scope of the notion of jurisdictional error in this context and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints raises some complex issues (see for example Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 in relation to s.65 of the Migration Act).
The first ground relied upon by the applicants raises the question of whether section 420 of the Act is an inviolable limitation. The applicant claimed that the decision was affected by error of law in that the Tribunal failed to deal with the claims on their merits. It was submitted that in so doing the Tribunal failed to comply with section 420 (2)(b) of the Act which provides:
2. The Tribunal in reviewing a decision :
(b) must act according to substantial justice and the merits of the case.
It was argued that the Tribunal did not consider the application on its merits as required by section 420(2)(b). Its reasons were said to show that it relied almost exclusively on one source of independent information, being an “India Assessment” prepared by the UK Home Office in October 2001 which is quoted from extensively. It was said that it failed to take into account material in this document relevant to the claims of the applicants. In particular it was claimed that despite a reference in paragraph 5.2.32 in that assessment to the effect that Indian citizens who had sought asylum in another country and had connections with a separatist movement would certainly be prosecuted on return to India, the Tribunal had failed to relate this statement to the fact that it had found the applicants to have connections with the separatist movement in the Punjab. It was also claimed that in finding that relocation was a reasonable option the Tribunal had failed to consider the merits of the case in ignoring the fact that the applicants fitted the profile of militants or perceived militants and their families and close supporters or people with a record of previous arrests and detentions who were said by the UK Home Office report to be likely to be pursued by the Punjabi police outside the State. It was submitted that if the Tribunal left out of its consideration some issues going to the merits then it could not be said to have given consideration to the merits of the case. Reliance was placed on the decisions of Federal Magistrate Driver in WAAK v Minister for Immigration [2002] FMCA 86 and WADK v Minister for Immigration [2002] FMCA 175. It was claimed that section 420 establishes procedures that the Tribunal must follow and that it is fundamental to the way the Tribunal exercises its jurisdiction.
There are two aspects to this claim. First the applicants claim that despite the Tribunal’s finding that they had connections with the separatist movement in the Punjab the merits of their claims had not been assessed in light of the independent information regarding the treatment of returned asylum seekers and internal flight for Punjabi Sikhs.
The Tribunal reasons for decision reveal that it relied on a number of sources of independent information referred to in relation to human rights issues. Further, the UK Home Office India Assessment of October 2001 presents a number of difference views in relation to treatment of Punjabi Sikhs. Paragraph 5.2.33 of the Home Office Assessment is not to the effect submitted by the applicant. Rather, the paragraph in question states:
“It would not be seen as an offence to have sought asylum in another country unless the person in question had connections with a terrorist group or a separatist movement and could be connected with activities which might damage India’s sovereignty, integrity or security, or activities which might have a harmful effect on India’s relations with other countries. For Indian asylum seekers who were already wanted by the Indian authorities for earlier offences such as alleged involvement in a terrorist group arrival in India would certainly lead to prosecution whenever the Indian citizens landed or went afterwards”
The Tribunal did not accept that the applicants were suspected members of a terrorist organisation. It found that they did not have any adverse profile with the security authorities. Hence they did not fit the description of people at risk of prosecution referred to in para 5.2.3 of the India assessment.
Similarly the complaint that the Tribunal ignored the fact that the applicants fitted the profile of people the police would pursue outside Punjab is not established. The applicants were found not to fit the profile described in the relevant part of the independent information. This aspect of the Tribunal’s decision related to its findings on whether it would be reasonable for the applicants to relocate within India. The Tribunal did not accept that the applicant husband or wife were suspected members of a terrorist organisation or otherwise had an adverse profile with the security authorities. Hence information about what would happen to such persons was not determinative.
The Tribunal did have regard to relevant independent information in relation to whether Punjabi Sikhs could relocate. The Home Office India Assessment contains a number of different views about whether the Punjabi police would pursue an individual they wanted to another part of India. It was open to the Tribunal to rely on any one of these views and to make findings on that basis.
In this respect the Tribunal approached its task correctly. Confronted by claims of past persecution it made findings about those claims. It has not been established that the Tribunal made an error of law in this respect, failed to take into account relevant considerations or that there was some other jurisdictional error. The Tribunal reasons reveal that the Tribunal did consider the merits of the application. It made findings in respect of each claim that were reasonably open to it on the material before it based on credibility findings, assessment of individual claims and independent country information. The first ground has not been established. No breach of s.420 has been established. Nor is jurisdictional error (as may be argued post Plaintiff S157/2002) apparent on the material before the Court.
The third ground relied upon (Wednesbury unreasonableness) may also be seen as an allegation of breach of s.420 or jurisdictional error. The applicant submitted that the Tribunal’s findings as to the applicant husband’s credibility in relation to the documents provided and statements made on the date of hearing were so unreasonable that no reasonable person could have made those findings. It was submitted that this was unreasonableness of the type identified in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. It was claimed that the documentation and statements filed by the applicants on the day of the hearing were on their face plausible and consistent with the case as a whole and that they were not new or different claims but merely further detail in respect of what had been said from the time of the first application. It was also pointed out that the applicants did not have professional assistance at the time of the first application but did have it at the review stage. It was submitted that for the Tribunal to refuse to consider the material merely because it was given “at the eleventh hour” was so unreasonable that no reasonable person in the Tribunal’s position could have so acted. It was suggested that given the length of time normally taken between the lodging of an application for review by the Tribunal and the allocation of a hearing it would be unreasonable to suggest that the applicants should have rushed in with supporting material as soon as they lodged their review application. The Tribunal is required to consider a case at the date of consideration and there is therefore an incentive for applicants to provide up-to-date material. As to the Tribunal concern that there was no copy of an affidavit said to have been sworn by the mother of the applicant husband in relation to the murder of his father (which was said to have been sworn in front of a person of standing who was a member of Parliament and of the Human Rights Commission), it was suggested that presumably the affidavit would have been given to the authorities so there would not necessarily be a copy available.
It was also submitted that a claim based on the Wednesbury unreasonableness principle was open despite the existence of the privative clause because the claim went to the question of whether the jurisdiction was actually exercised at all. In light of the decision in Plaintiff S157/2002 it may be argued that these circumstances could constitute jurisdictional error (see Chan v MIEA (1989) 169 CLR 379, MIMA v Eshetu (1999) 197 CLR 611 and Abebe v Commonwealth of Australia (1999) 162 ALR 1). This issue was not raised by the applicant as the hearing was before the decision in Plaintiff S157/2002. Despite an opportunity to do so, the applicant made no further submissions after the High Court decision.
In any event I am not satisfied that this ground or any jurisdictional error is established. It is clear from the Tribunal reasons that it did not refuse to consider the claims and material submitted at the so called ‘eleventh hour’. This material consisted of statutory declarations by each of the applicants concerning the claims made in their protection visa applications. The applicant husband’s statutory declaration contained considerably more information. It also made fresh claims that he was arrested and tortured “roughly 6-7 times” between July 1991 and March 1995 and subjected to further police harassment between 1997 and 1999.
This material and the submissions and information provided by the applicants’ adviser was considered by the Tribunal. The Tribunal did use the expression the ‘eleventh hour’ in its findings and reasons but this does not establish that it refused to consider the material or rejected it simply because of the lateness of the claims. Indeed it gave four reasons for rejecting the claims by the applicant husband that he was arrested between July 1991 and March 1995 roughly six to seven times and tortured by the police. First, the breadth of the claims; second that they were made at the ‘eleventh hour’; third that there was no supporting evidence; and fourth, because, despite the claim that he was arrested because he was linked to the militant group Babbar Khalsa, it was seen as implausible that he would then have been taken into custody repeatedly but released without charge during the period of counterinsurgency [CB 192]. The second instance of the use of the expression ‘eleventh hour’ was in respect of the claim that the police were interested in the applicant husband because he had sheltered a witness to his father’s murder. [CB 193]. The Tribunal had asked the applicant why this claim was raised late and the applicant was unable to give a satisfactory answer [CB 193]. The claim was also weakened in the eyes of the Tribunal because it was introduced without any supporting evidence and by the fact that the adviser had submitted at the hearing that the police had shot the witness. The Tribunal drew from this the inference that the applicant’s association was no longer of sufficient import to the police as to cause them to pursue the applicant across three states [CB 193].
The third use of the term “eleventh hour” was in respect of the claim that the applicant had been continuously harassed by the police between April 1999 and his departure from India in later 2000. Three reasons were given by the Tribunal for disbelieving this claim; first, that there was no explanation for it; second, there was no supporting evidence for this period of police mistreatment; and third that it was made at the eleventh hour [CB 194].
From this analysis it can be seen that the Tribunal did not refuse to consider the material at all, but rather, did consider it and rejected it. It gave reasons for the rejection which were open to it on the material before it. No unreasonableness in its treatment of this material or in any other aspect of the decision has been established. It cannot be said that the Tribunal consciously or unconsciously has acted perversely. (See Pulhofer v Hillingdon London Borough Council [1986] 1 AC 484 at 518, per Lord Brightman. No reviewable error has been established.
These conclusions mean that it is unnecessary to determine whether section 420 is an inviolable limitation on the authority of the Tribunal. (compare in this respect the approach of Von Doussa J in WAAV v MIMIA [2002] FCAFC 228 at 624 and Driver FM in WAAK v MIMIA [2002] FMCA 86.)
The other ground for review relied on by the applicants was that the Tribunal’s reasoning in respect of the rape of the applicant wife by the police was illogical and demonstrated a failure on the part of the Tribunal to properly exercise its jurisdiction under the Act. In written submissions it was claimed that the Tribunal failed to consider at all the independent claims made by the applicant wife, thus failing completely to exercise the jurisdiction given to it by section 411(1)(c) and section 414 of the Migration Act. It was said that while the applicant wife had made claims in her own right to be a person to whom Australia had protection obligations, the Tribunal did not make any attempt to assess those claims finding instead that her claim depended on the outcome of her husband’s application. It was said that in failing to consider the application filed by the wife the Tribunal did not make a bona fide attempt to exercise its jurisdiction for the reason that it made no attempt to exercise the jurisdiction.
Insofar as this alleges mere illogicality, I note that as Mason CJ said in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 “want of logic is not synonymous with error of law.” (Also see MIMA v Epeabaka (1999) 160 ALR 543).However it was also suggested that the Tribunal failed to consider at all the independent claims made by the wife. Again this is factually incorrect. The Tribunal dealt with each of the applicant wife’s independent claims at CB 194 to CB 195 as well as considering her claim based on the outcome of her husband’s application. It accepted that she was student member of Akard Kirtani Jatha and engaged in claimed activities but found that she had not suffered persecution because of her membership or associated activities. It gave reasons which were open to it on the material before it. The Tribunal accepted that she might have been assaulted as claimed. Having found that the applicant wife was not of interest to the police in her own right such that it could be said that the claimed rape was motivated, essentially or significantly, by a Convention reason the Tribunal also considered the interconnection between her claims and those of her husband. The fact that the Tribunal had not accepted that the applicant husband was harmed by the police because of any activities in his own right or because of an imputed association with the Babbar Khalsa was a further reason for its lack of satisfaction that the claimed rape was motivated by any Convention reason. The Tribunal does indicate that the applicant wife’s claims rest ‘very substantially’ on the husband’s claims of harm (CB 195) but this statement was made after assessment of the wife’s claims in her own right. The Tribunal discussed relocation in relation to both applicants. It has not been established that the Tribunal failed entirely to consider the applicant wife’s application or that there was an absence of a bona fide attempt to exercise jurisdiction or indeed any jurisdictional error in the manner in which it dealt with her claims.
As indicated the applicant and respondent were given the opportunity to make further submissions in light of Plaintiff S157/2002. No further submissions were received from the applicants. However some of the original submissions from the applicant raised possible jurisdictional errors as canvassed above. The respondent submitted that on any view of what constitutes a jurisdictional error there was none in this case.
I agree that no jurisdictional error is apparent. Nor has it been established that there was any breach of the Hickman conditions. Accordingly the application should be dismissed. As the applicants have been wholly unsuccessful it is appropriate that they met the respondent’s costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: Thursday 20 March 2003
0
11
0