S1194 of 2003 v Minister for Immigration
[2006] FMCA 469
•26 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1194 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 469 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – adverse credibility finding – applicant’s documents rejected as concocted – procedural fairness – whether the applicant was given a reasonable opportunity to address the RRT’s concerns considered – whether the RRT was under a duty to make further enquiries about the documents considered – alternative basis for RRT decision – whether RRT erred in assessing the adequacy of State protection considered – whether it was open to the RRT to make a further finding on the implausibility of the applicant’s claims considered. |
| Migration Act 1958 (Cth), ss.424A, 427 |
| Abebe v Commonwealth of Australia (1999) 162 ALR 1 Applicant M164 of 2002 v Minister for Immigration [2006] FCAFC 16 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Kioa v West (1985) 159 CLR 550 SZANI v Minister for Immigration [2004] FCA 1298 WACO v Minister for Immigration [2003] FCAFC 171 |
| Applicant: | APPLICANT S1194/2003 |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG784 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 5 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Dr J Azzi |
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG784 of 2004
| APPLICANT S1194/2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 25 February 1999 and notified to the applicant by letter dated 1 March 1999. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
I adopt as background the following material from the Minister’s submissions filed on 4 April 2006:
The applicant is a citizen of India who arrived in Australia on 9 April 1997 and lodged an application for a protection visa on 23 April 1997. He claimed to fear persecution for reason of his political opinion, namely his membership of the Baratia Janata Party (BJP).
In a statutory declaration provided to the RRT on 4 February 1999, the applicant claimed that false charges had been laid against him on account of his involvement in a peaceful demonstration on 1 February 1997. He claimed that, although the party of which he was a member was then in government, his faction of that party was nevertheless subject to persecution.
The applicant attended a hearing held by the RRT and gave evidence in support of his claim.
RRT’s decision
The RRT accepted that the applicant was a member of the BJP and that he had been involved to some extent in meetings, writing slogans on banners and speaking at meetings including to encourage others to participate in the BJP. However, it did not accept that the applicant was involved in the procession on 1 February 1997 or that the consequences of that procession as claimed by him took place. It rejected the applicant’s claim that he was liable to be charged and arrested and found that the documents produced by the applicant in support of these claims were not genuine. It went on to consider the situation if it were wrong in that respect and concluded that the applicant would experience a system of justice in India that would not amount to persecution. The RRT rejected the applicant’s claim that the then current BJP government would persecute members of its own party. It also did not accept that people associated with opposing parties would not seek out the applicant and harm him if he were to return to India because of his past association with the BJP.
For these reasons the RRT concluded that the applicant was not a person to whom Australia owed protection obligations and so affirmed the decision under review.
The judicial review application
These proceedings commenced with an application for judicial review filed on 18 March 2004. The application has been amended several times and the applicant filed a number of additional documents which appeared to augment it. It was unclear from those various documents precisely what grounds of review the applicant relied upon. The Minister’s written submissions dealt with two amended applications filed on 3 November 2004 and 25 February 2005 as well as additional matters raised in a document filed by the applicant on 15 March 2006.
At the trial of this matter on 5 April 2006 Dr Azzi appeared for the applicant on a direct access brief which he said he had obtained only the previous day. Dr Azzi sought leave to file in court a further amended application. The Minister, through Mr Smith, objected. I granted leave for the further amended application to be filed in court. However, I ordered the applicant to pay the Minister’s costs thrown away by reason of the granting of that leave, fixed in the sum of $500.
The further amended application raises the following grounds:
(1)The RRT committed a jurisdictional error of law by failing to afford the applicant procedural fairness in circumstances where he was not given an opportunity to be heard on the content of the documents that were central to his claim.
Particulars
a)The RRT advised the applicant, in general terms, that it did not believe the documents tendered in support of his claim “are genuine” and that they were “concocted” purely for the purpose of demonstrating that the applicant is of interest to the police.
b)The RRT did not discuss the content of two of the documents tendered by the applicant but nevertheless subsequently (in reasons for decision) dismissed the same as not being genuine.
c)The RRT did not give the applicant an opportunity to be heard in relation to its conclusion of why it believes the various documents tendered were concocted.
d)The documents tendered were central to the applicant’s claim to fear persecution by reason of false charges laid against him.
(2)The RRT committed a jurisdictional error of law by failing to correctly apply the test of what constitutes persecution.
Particulars
a)Having accepted independent evidence adverting to the real possibility of putative defendants languishing in prison while awaiting trial and that the procedures for obtaining a fair trial “can be drawn out and inaccessible to the poor”, the RRT failed to turn its mind to the applicant’s financial capacities and whether he would face Convention related persecution by reason of his inability to access fair trial procedures due to the length of period of incarceration and/or inability to pay for legal assistance.
b)It was not open to the RRT to find “that it is implausible that the BJP… would have at the national level sufficient concern with individuals who may support another faction and who may oppose the actions of the BJP in power to try to use the police to act against them”.
The evidence
The only evidence I have before me is the court book filed on 18 August 2004. At the trial on 5 April 2006 the applicant sought the opportunity to file and serve a transcript of the RRT hearing, which had not at that stage been prepared. I refused leave for the filing of additional evidence in the light of order 1 made by Registrar Hedge on 28 January 2005. That order required the applicant to file and serve any affidavit evidence containing additional evidence relied upon, including transcript of the RRT hearing, by 25 February 2005. The applicant had filed no evidence by that date, or indeed in the 14 months which followed. The applicant had had access to the RRT hearing tapes during that period and could have filed a transcript before the trial if he had wished to.
Submissions
Dr Azzi submits that four documents were central to the applicant’s claims[1]. The RRT decision records some discussion between the presiding member and the applicant about the second, third and fourth documents[2]. There is no evidence of any discussion about the first document. I should infer that it was not discussed. The RRT found that all four documents were concocted[3].
[1] court book, pages 92 and 93
[2] court book, page 93
[3] court book, pages 97 and 98
The applicant relies upon the decisions of the Federal Court in WACO v Minister for Immigration [2003] FCAFC 171 at [42] and SZANI v Minister for Immigration [2004] FCA 1298 at [26].
The applicant also relied upon an asserted failure to make enquiries about the authenticity of the documents in circumstances where enquiries were reasonably called for: Applicant M164 of 2002 v Minister for Immigration [2006] FCAFC 16, in particular at [65], [68] and [72]-[73].
In relation to the second ground of review, Dr Azzi submits that the RRT found the applicant’s claims to be “implausible”[4]. The applicant relies upon M164 at [111]. Dr Azzi submits that the RRT erred in failing to make a positive finding that there was not a real risk that the applicant would suffer serious harm if he returned to India for a Convention reason. Dr Azzi submits that, on the basis that the documents relied upon by the applicant were genuine, he was a fugitive from justice who would expect to be arrested on return to India and detained pending trial. There was a real risk that he would suffer serious harm during that period. The harm was asserted by the applicant[5]. The country information at page 108 of the court book supported the applicant’s claimed fear of harm due to arbitrary arrest and detention.
[4] court book, page 99
[5] court book, page 94
Mr Smith objected, on behalf of the Minister, to the applicant’s reliance upon M164 in relation to a duty to enquire as the issue had not been raised in the further amended application. Nevertheless, I stated that I would deal with that issue as Mr Smith took the opportunity to make submissions on it. Mr Smith relevantly submits in relation to the first ground of review that:
a)there is no proof that the applicant was denied the opportunity to comment upon the RRT’s concerns about his documents;
b)in any event, procedural fairness did not require that the applicant have that opportunity: WACO at [54];
c)here it was plain that the documents, particularly the second document appearing on page 59 of the court book was dubious on its face. The same was true of the third document at pages 70 to 79 of the court book;
d)the critical issue was raised with the applicant at the RRT hearing;
e)M164 can be distinguished by reference to what is said at [76] in it. There was no obvious need on the facts of this case for any further enquiry;
f)the Minister distinguishes the facts of this case from those in M164 at [58] and [59];
g)in addition, Mr Smith submits that the RRT needed to be cautious about making enquiries in India lest the applicant be inadvertently exposed to greater risk.
In relation to the second ground, Mr Smith submits that:
a)the alternative finding by the RRT was not a “what if I am wrong?” finding as the RRT was in no doubt that the applicant’s documents were concocted and that his key claims were false;
b)the RRT decision really stands or falls on the credibility finding, not the second finding;
c)in any event, the discussion on page 98 of the court book shows that the RRT did not overlook any country information;
d)in addition, the presiding member was making the point that even if the applicant’s documents were genuine, the applicant was charged with serious criminal offences based on laws of general application;
e)the remaining observations by the presiding member in relation to the implausibility of politically motivated action against the applicant was intended to further support the adverse credibility findings and was not a separate line of reasoning.
In reply, Dr Azzi submits that the applicant had provided a plausible response to the key concerns put to him by the presiding member about his documents[6] and in the circumstances a duty to enquire was enlivened. In addition, the documents relied upon by the applicant provided appropriate lines of enquiry. A policeman was named[7] and a legal proceeding was identified[8]. Dr Azzi further submits that the alternative finding by the RRT was an impermissible attempt to bolster its adverse credibility finding.
[6] court book, page 98
[7] court book, page 59
[8] court book, page 57
Reasoning
The RRT, in its reasons[9] identified and discussed the four documents relied upon by the applicant. The first was described as a “pamphlet” from a police station and purportedly contained words to the effect that the applicant was wanted by the police and that he was accused of various breaches of the Indian penal code. The second document was described as a copy of a first information report from a sub inspector of police in India and ran for 11 pages. It purportedly identifies the offences committed by the applicant and the sections of the penal code allegedly breached. The third documents purports to be a charge sheet relating to charges against 73 accused persons including the applicant, who is described as “an absconder”. The fourth document was headed “Petition” and purports to be a bail application by persons other than the applicant but referring to the same sections as the Indian penal code as are set out in the first document.
[9] court book, pages 92 and 93
The presiding member then states in her reasons:
At the hearing I explained to the applicant that the incident described in the second, third and fourth documents is stated as having occurred in December 1992 and that there were riots in many Indian cities at this time because of the demolition by Hindus of a mosque which they considered was built on the site where a Hindu temple once stood. He said that he joined the BJP in 1995 and was not involved in any political activities in 1992, that perhaps the police had fabricated a charge against him in relation to the Babri Mosque incident and that the 1992 date could have been a mistake. He stated that he thought that the second, third and fourth documents had been sent to his home. He said first that he had received them before he left the country but had not brought them with him to Australia and then said that he had not seen them before his departure but had been told about them by his family. His family had sent them to him later in 1997.
Later in her findings and reasons, the presiding member dealt with various credibility concerns about the applicant’s evidence[10]. On pages 97 and 98 of the court book the presiding member said:
I have considered the documents the applicant provided in support of his claims and discussed them with him at the hearing. Both the content of the documents and his account of when and how he came to have them had led me to conclude that they are not genuine. The central document is that described as the second document on page 7 of this decision. It appears to have led to the third and fourth documents and it is the authorities’ inability to arrest the applicant which appears to have led to the document described as the first document on page 6 of this decision. As set out on page 7, the second document concerns an incident which occurred on 6 December 1992. It involved a riot during which, among other things, mosques were damaged and a Muslim man died. The applicant’s name is first in a list of sixty-five accused persons. The incident described in the report may well have occurred as it is written: independent information is that in December 1992 large scale rioting broke out across India following the demolition of the mosque at Ayodhya. But the applicant’s own evidence was that he was not involved in any political activities until 1995 and certainly not in 1992 when he was just seventeen. The applicant suggested that the date may have been a mistake but that it is repeated in two of the other documents - the charge sheet and the petition – has led me to find that this is a highly improbably explanation. It appeared to me that the applicant was not aware that three of the documents he had provided specifically related to an incident in December 1992 until I explained this to him. He demonstrated some capacity to speak English and, given his evidence that it was these which were proof that the authorities were seeking to arrest him, that he did not know about such a crucial element of them – the date of the alleged incident – together with his own evidence that he was not there has led me to conclude that the documents are not genuine. Given what happened in many places in India in December 1992 after the demolition of the mosque in Ayodhya, parts of what is [in] the documents may have appeared in documents which are genuine but I consider that these particular documents have been concocted. The applicant’s evidence about how he came to have the documents was also confused and improbable if they were in fact as important as he has claimed – I consider that he would remember exactly how and when he came to have them if they would in fact lead to his arrest and detention. As well, the content of the documents is not convincing – they are riddled with spelling errors and very curious phrases; one of the charges listed (302) concerns an offence involving possession of an instrument for counterfeiting a government stamp and another (353) involves applying criminal force to stop a public servant from doing their job and the applicant has made no claims which could feasibly have led to such charges (and I do not accept that charges have been fabricated against him – see discussion below; and the charge sheet (described in this decision as document three) is an unlikely mix of typed English and handwritten text in both English and, it is assumed, Bengali.
[10] court book, pages 96 and 97
There is no doubt that the presiding member’s adverse credibility view on the applicant’s documents was part of the reason for affirming the delegate’s decision. No obligation of disclosure arises under s.424A of the Migration Act as this case pre-dates that provision. The issue concerns the general law of procedural fairness. In WACO at [42] and [43] the Full Federal Court said:
The question raised here is whether the Tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness. An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant's comment (Abebe v Commonwealth of Australia (1999) 162 ALR 1 per Callinan J at 76). However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant's relationship with Ayatollah Shirazi. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested.
In the broadest sense procedural fairness requires that an administrative tribunal is bound to hear a person affected by its decision before exercising its powers: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360 per Mason J. Underlying it is the entitlement of the person to know the case sought to be made against him or her and to be given the opportunity of replying to it: Kioa v West (1985) 159 CLR 550 at 582. As Mason J pointed out in that case at 583, `natural justice and fairness are to be equated'. Whether procedural fairness must be afforded and the content of it will, where the decision made arises in a statutory framework depend upon the legislation pursuant to which the decision is to be made and all the circumstances of the case.
Further, in SZANI at [26] Tamberlin J said this in relation to the decision in WACO:
In WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171, a claim was made on the basis of a well-founded fear of persecution to the effect that, if returned to Iran, the appellant would be persecuted because of involvement with a reformist cleric. Subsequent to the RRT hearing the appellant provided a translated copy of two letters which, if genuine, corroborated the appellant’s claim of involvement with the cleric. One purported to be a letter from the cleric to the appellant’s father, testifying to his relationship with the appellant. The RRT found that the appellant was not a credible witness, and was not prepared to accept either of the letters as genuine. It considered they were contrived to assist the appellant’s claim. The RRT did not indicate to the appellant at any stage that it doubted at any stage the letters were genuine. Nor did it invite him to comment on that issue. The Full Court held that the letters were central to the appellant’s claim, in that they were tendered as evidence of his relationship with the cleric. It noted that it may have been may have been possible to find that they were forgeries, but then it would have been necessary to hear the appellant in relation to this conclusion, as a matter of procedural fairness. The Full Court concluded that the appellant had shown that the purported decision of the RRT was affected by jurisdictional error, for not providing procedural fairness to the appellant by denying him an opportunity to answer the suggestion that the letters were not genuine.
The decisions in WACO and SZANI need to be seen in their proper context. In WACO at [54] the Full Court said:
Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.
In the present case there were problems with several of the documents on their face. There was a serious issue concerning the purported date of an incident referred to in the second document. The temporal issue arising on the second document also affected the first, third and fourth documents. This issue was specifically raised with the applicant at the hearing. This was not a case of documents being rejected simply on the basis of country information or on the basis of a generalised view about an applicant’s credibility. It is a case of documents being rejected because of credibility concerns apparent on the face of the documents themselves. Further, a key concern was discussed with the applicant at the hearing conducted by the RRT.
In addition, the RRT decision does not purport to be exhaustive in its discussion of what occurred at the hearing. It is possible that other issues concerning the documents were discussed and it is also possible that other general credibility issues were discussed. I find that the applicant has failed to discharge his onus of proving that the manner in which the RRT dealt with his documents was procedurally unfair.
Neither was there an obligation on the RRT in the circumstances of this case to make further enquiries about the documents. I accept that the decision of the Full Court in Applicant M164 of 2002 establishes that in particular circumstances there may be a duty to enquire. There is, however, no general duty to enquire. It depends on the circumstances. At [76] in Applicant M164 of 2002 the Full Court said:
If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(1)(d).
In my view, where, as here, the RRT is satisfied, on basis of its own examination of documents produced by an applicant and questioning of him at a hearing that the documents are not genuine then no obligation to make further enquiries pursuant to s.427(1)(d) or otherwise arises.
In relation to the second ground I accept the Minister’s contention that the RRT decision is based upon credibility concerns. This is not a case, in my view, of the decision being supported by an alternative finding. There was, on a reading of the decision as a whole, only one basis for the decision which was the presiding member’s credibility concerns. It is true that at page 12 of her reasons[11], the presiding member said:
Even if the documents were genuine, I do not consider that facing charges for involvement in what is described as a violent riot is in the applicant’s case persecution – rather, it seems to me to be a result of the application of laws which apply generally. At the hearing the applicant appeared not to be unaware of concepts such as charges being laid, going to court to answer them and having a judge or a jury decide if a person was guilty. If he was in fact charged as he had claimed and if he was arrested, then the charges would go before a court. This may take a long time and his access to defence counsel may be limited by his ability to ay but I am not satisfied that this experience of the system of justice would fall short of what was reasonable because of his association with the BJP or for any of the other Convention reasons.
[11] court book, page 98
This cannot be viewed properly as an alternative basis for the RRT decision. It only deals with the documents, not the range of other credibility concerns the presiding member had about the applicant’s evidence, which went to the heart of his claims. Properly viewed, this was no more than a statement that if the applicant was genuinely the subject of criminal charges, they had nothing to do with his asserted political activities and were not false charges. I do not accept that the applicant was making any claim of persecution other than a claim based upon his political beliefs and activities. That claim having been rejected, even if he was subject to criminal charges, there was no residual claim of persecution that needed to be dealt with. In any event, the presiding member was satisfied that the applicant would receive a fair trial on whatever charges he might be the subject of.
I reject the applicant’s contention that the RRT erred in describing the applicant’s claims to be “implausible” on page 99 of the court book. Dr Azzi sought to link the discussion at that point in the reasons to the passage quoted above from page 98 of the court book. In my view they are not related. The discussion on page 99 of the court book is a return to the question of the credibility of the applicant’s claims about his political activities, not a continuing discussion about the fairness of the Indian judicial system. The presiding member was simply reinforcing the findings she had already made that the applicant did not have the political profile that he claimed and that he had not suffered harm as he had claimed.
I find that the decision of the RRT is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
Costs should follow the event. The Minister has had to deal with five different applications but I have already made an order that the applicant pay the Minister’s costs thrown away by reason of the leave granted for the filing in court of the final form of the application. Otherwise, the amount of preparation required of the Minister was no more than average, and possibly somewhat less. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 April 2006
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