S1603 of 2003 v Minister for Immigration

[2005] FMCA 1878

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1603 of 2003 v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1878

MIGRATION – Protection Visa – whether jurisdictional error – decision made regarding documents relied on by Applicant – whether original documents not forwarded before decision.

Migration Act 1958, s.424A

Applicant: APPLICANT S1603 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 925 of 2004

Judgment of: McInnis FM

Hearing date: 7 December 2005

Delivered at: Melbourne

Delivered on: 21 December 2005

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms S.E. Moore

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application as amended be dismissed.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $7,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYG 925 of 2003

APPLICANT S1603 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this application the Applicant, who is unrepresented though assisted by an interpreter, relies upon an amended application filed 10 March 2005 seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 9 October 1997.  The Tribunal decision refused to grant a protection visa to the Applicant.

2. The background in this matter involves a somewhat lengthy history since the date of the Tribunal decision.  The Applicant is a 49-year-old male national of India who had arrived in Australia on 24 August 1995 on a passport issued by the Indian government which contained a

   
   

   one-month visitor's visa.  On 22 September 1995 the Applicant applied to the Department for a protection visa.  In support of that application the Applicant relied upon an unsigned and undated submission.  A delegate of the First Respondent refused the application on 20 May 1996 and on 28 May 1996 the Applicant applied to the Tribunal for review of that decision.

3. Significantly in the present case it is noted that on 22 September 1997 the Tribunal received copies of a number of documents which have been listed in some detail in the Tribunal decision at pages 119-120 of the Court Book.  Relevantly for the present purposes there are two documents as follows:

   ·a purported "warrant of arrest" dated 12 March 1996 for the arrest of the Applicant on a number of offences;

   ·a purported "warrant of arrest" dated 10 April 1996 for the arrest of the Applicant on a number of offences.

4. The Tribunal conducted a hearing on 24 September 1997.  The Applicant appeared and gave evidence and was assisted by an interpreter and although he was not legally represented he had been represented by a migration agent prior to the hearing.  Before this court, exhibited to an affidavit from the solicitor for the First Respondent, was a transcript of the Tribunal hearing which occurred on 24 September 1997. 

5. It is clear from a reading of the transcript and indeed it appears to be common ground that when the Applicant sought to rely upon documentation at the hearing the Tribunal expressed a desire to view the original documents.  To understand the nature of the claim it is important to set out the summary of the claims which appear in the decision of the Tribunal (see Court Book page 117-118):

   “The Applicant is a 41 year old male from India.  He arrived in Australia on 24 August 1995 on a passport issued on 31 March 1989 by the Indian government.

   In the primary application, the Applicant said that he could speak, read and write Punjabi and speak and read Hindi.  He said that he attended school from 1961 to 1975, and ‘Govt Wood Work Institute’ from 1976 to 1977.  He said that from 1977 to January 1984, he worked as a carpenter for Universal Furniture Works in Jallendar and from January 1985 to August 1995, he was self-employed at (XY).  He said that to obtain his passport and exit from India, he paid bribes to the travel agent and to airport officials.  In a separate submission, his adviser stated (the Applicant’s) claims to be as follows.  In 1977, he and two friends became members of the Indian Sikh Student Federation (SSF).  In 1982, he and his friends attended a rally and were held for 15 days without trial, beaten and ‘eventually’ found guilty of attempted murder, then after a further 15 days, (the Applicant) was released on bail.  In 1983, (the Applicant) was elected general secretary of the local branch of the SSF and his two friends were elected president and vice-president.  The SSF was banned by the government, and (the Applicant) ‘forced to go underground’.  In 1985, (the Applicant) went to XY, but continued to ‘protest for an independent Khalistan’.  In 1989 he arranged a rally in XY and called Sikh leaders from the different parts of the country to attend, including Mr P, the president of the SSF.  The police were informed of the rally, and the Applicant and Mr P were detained by police for a week and interrogated as to SSF members in hiding and organisations which were helping the SSF.  The Applicant was released after his brother paid 50,000 rupees to the police and the ‘Surpanch and Mayor’ had given an assurance of the Applicant’s good behaviour on release.  In 1991, the Applicant returned to Punjab where he met members of the Babar Khalsa International.  He was appointed Area Commander of the Babar Khalsa International in the (‘S’) Branch.  In 1992, the police came to know of the Applicant’s activities with the Babar Khalsa, and he went to (GL).  On 13 April 1994, a conference was arranged where all Sikh leaders were called from different parts of the country; the Applicant addressed the public on the urgent need for an independent Khalistan and for non-cooperation with government agencies.  The police arrived and asked for peaceful surrender; some tried to escape and the police opened fire.  Fourteen Babar Khalsa members were killed, and ‘many other innocent’ people were injured.  In June 1995, the Applicant and Mr 2 escaped and returned to Punjab.  In June 2995, the Applicant Mr 2 attended the Babar Khalsa Members Meeting at OP.  They were arrested by police, interrogated and badly beaten.  Mr 2 was killed in an interrogation cell and the Applicant was beaten unconscious and thrown into a canal; some farmers saved him and took him to hospital where he stayed for three weeks.  In early July 1995, he went to GL and arranged for a visa to Australia.  He had to bribe an immigration official to leave the country.  The adviser cited Dr Roger Ballard’s advice, dated 16 June 1994, to the Tribunal Decision No. V93/00999 dated 28 November 1994, to the effect that though simply being a Sikh would not result in risk, those who were very actively involved in militant groups may be still (in1994) at risk).”

6. In brief terms, it is clear that the Applicant claimed to fear persecution on the basis of association with two Sikh organisations, the Indian Sikh Student Federation (the SSF) and Babbar Khalsa.  The Applicant claimed to have been detained by police on a number of occasions as a result of his activities.  On one occasion it is claimed police opened fire on a meeting and killed 14 people.  On another occasion the Applicant claimed he was tortured and a colleague was killed during interrogation.

7. It is relevant to note in considering one of the key issues concerning the production of original documents that the Tribunal in its findings, after setting out the claims and evidence of the Applicant, proceeded to highlight what could only be described as inconsistencies. For example it noted at Court Book p.123 the following:

   “The Tribunal noted that the Applicant’s evidence at the hearing had been inconsistent on points including his alleged detentions, and that his evidence in the hearing was substantially different as to his detentions and his political activities from his evidence in his primary submission.  That Applicant said that he had a car accident in which his head was injured after his arrival in Australia and so sometimes was confused.  He said that what he had told at the hearing was the truth.

   The Tribunal asked the Applicant about the warrants and other documents he had sent to the Tribunal before the hearing.  He said that these documents were sent to him by his 10 year-old son, because his brothers who had the documents did not want to send them under their own names because they were frightened to do so.  The Tribunal allowed the Applicant until 8 October 1997 to submit the originals of these documents, and supporting documentation for his claim of having been in hospital in 1995, and any supporting documents he wished to provide his alleged head injuries sustained during in a car accident after his arrival in Australia.  The Tribunal noted that if it received the warrant originals it would send them to the Department’s Document Examination Unit since document fraud was reported to be rife in India.”

8. In addition the Tribunal then considered country information which, relevantly for the present purposes, referred to the incidents of document fraud in India.  It is in that context that the Tribunal considered the purported warrant sent by the Applicant to the Tribunal before the hearing.  After it referred to inconsistencies in the Applicant's evidence the Tribunal then stated the following at Court Book page 130:

   “… As well, the documents tendered by the Applicant before the hearing were prima facie at odds with his evidence at the hearing.  The warrant dated 12 March 1996 refers to the offences’124, 153, 3/4 TAD Act NSA FIR No. 6.6.95’, yet the TADA lapsed in May 1995 (The U.S. Department of State Country Reports on Human Rights Practices 1996, ‘India’ op cit), that is before the date of the alleged charge (6.6.95).  The warrant, dated 10 April 1996, also refers to the TADA but is for an information (FIR) 157 of 1990; if the Applicant had been charged in 1990 with an offence, it is implausible that he would have been able to live substantial periods of time thereafter in his parents’ home (the address for the arrest of the Applicant on offences ‘307/34 IPC, 25/54/59 ARMS Act, 3/4/5/ TADA (P) Act FIR 157 of 1990) without being approached by the authorities.  … 

   …

   After considering the Applicant’s evidence, the Tribunal does not accept that the Applicant’s evidence is credible.  The Tribunal notes the documents submitted by the Applicant as warrants issued for him in 1996.  However, in view of the lack of credibility of his evidence and the country information above as to the ease with which false documents can be obtained in India, as well as the factors noted above (including the warrant dated 12 March 1996 referring to charges under the TADA, after the lapse of the TADA), the Tribunal does not accept these warrants as genuine.”

9. Before this court the Applicant has relied upon the amended application, though it seems had specifically concentrated his attention on the issue of the original documents produced at the request of the Tribunal.  It is common ground that those documents were not received by the Tribunal until after its decision was finalised and produced.  To understand the process in relation to the documents it is noted that from the transcript of the proceedings there are a number of questions raised by the Tribunal in relation to the production of the originals of the documents and specifically the originals of the warrants.

10. It is noted in the transcript that the Tribunal gave to the Applicant an opportunity to forward originals of the documents within 14 days of the hearing date.  Specifically the transcript reveals that the following exchange occurred at page 67:

    TRIBUNAL:   If you want me to consider the originals of your warrants, if I receive them...

    INTERPRETER:   No, please - you want to see the paper?  Well, okay.

    TRIBUNAL:  Okay, if I receive them I will send them to the document examination unit for an opinion as to whether they are authentic or not, because I know that there is a lot of document fraud in India and so it's very hard to accept, as you know - genuine.

    INTERPRETER:  You want only the original warrant, is it?

    TRIBUNAL:   Well, what else?  Well, I think anything original you want to give me.

    INTERPRETER:  Within 14 days I'll send them.

11. Further in the transcript the following appears:

    TRIBUNAL:   What happens from today is, I go up to my office, I read the file again, I think about what we've spoken about and I write a decision.  I will not write the decision until I have waited till 8 October, and so sometime in about three weeks time you will get a decision.  Now, I have to tell you I'm going to take into account - I mean, I have to come to a decision as to what I believe of your claims because there is a big difference between your original application and what you've said today.

12. Earlier in the transcript it is made clear to the Applicant that the Tribunal needs to obtain the material "by 8 October".  As I have indicated, it is common ground that the material was not received by the Tribunal until after it had handed down its decision on 9 October 1997, and indeed the material which now appears in the Court Book appears to be date‑stamped "received 10 October 1997".   

13. In the Applicant's amended application, reliance is placed upon the chronology of events and, as I understand the main thrust of the Applicant's contentions, the denial of procedural fairness has occurred in circumstances where the original documents were not acted upon by the Tribunal.  Other issues are raised in the amended application, though it would appear that those issues are not as significant as the issue now raised by the Applicant concerning the documentation upon which he had otherwise relied.

14. It should also be noted that in this case the Applicant had sought to rely upon a breach of s.424A of the Migration Act 1958 (the Act).  That ground can be dealt with in brief terms on the basis that the section relied upon was not in fact operational on the day of the Tribunal decision.  Indeed it became operational on the days fixed by proclamation, which in relation to that section was 11 December 1998, which is more than a year after the Applicant's application had been finalised before the Tribunal; hence there is no merit in that ground relied upon by the Applicant.

15. It is submitted by the respondent that in this instance there has been no breach of procedural fairness or natural justice based upon the material before the court.  In my view the respondent's submissions are correct.  The Tribunal gave the Applicant an adequate opportunity free of any denial of natural justice or procedural fairness to provide the original documents. 

16. The fact that those documents were provided after the expiration of the period of 14 days and after the finalisation of the decision does not of itself amount to a denial of procedural fairness.  It may be different if a time limit was imposed which was unreasonable in the circumstances, but that would depend amongst other things upon the nature of the documentation to be provided. 

17. It is clear from the Tribunal's decision and not disputed that in any event when allowed until 8 October 1997 to submit further supporting documentation to the Tribunal the Applicant did not do so and did not contact the Tribunal within that time period to seek an extension of time. 

18. The court permitted the Applicant to make oral submissions and for the present purposes is prepared to accept his explanation that he relied upon another person to forward the original documents and that person was either too busy or did not care enough to ensure the documents were forwarded with the time allowed by the Tribunal.

19. Whether that indeed was the situation or not, in my view, does not matter for the purposes of this application as the responsibility to ensure that the documents were provided remains with the Applicant.  The mere fact that another person has failed to adequately assist the Applicant does not, in my view, provide a basis upon which it could be concluded that the Tribunal has fallen into error by denying the Applicant procedural fairness or by denying natural justice.

20. The lack of evidence in relation to that issue is a matter of some concern to the court, but, even accepting what the Applicant has said from the bar table, I am not satisfied that that explanation alone provides a basis upon which this court could conclude that there has been a denial of procedural fairness or breach of natural justice by the Tribunal in the manner in which it conducted its hearing and by proceeding to make its decision without the benefit of the original documents which were not received until after the decision was finalised.

21. A proper reading of the Tribunal decision, in my view, demonstrates that it has otherwise made adverse findings against the Applicant.  Those adverse or unfavourable findings, whilst no doubt causing concern to the Applicant, do not again, in my view, as a matter of law, provide any or any proper basis upon which the court can conclude that there has been jurisdictional error or a denial of procedural fairness and/or denial of natural justice .

22. In this case the respondent has submitted that the Tribunal has properly addressed the issues before it and has otherwise clearly raised with the Applicant the issue of document fraud which was reported to be rife in India, so much is clear from the transcript.  The Tribunal, in my view, on a proper reading of the material and having regard to the relevant principles, has discharged the duty to act in a manner that is procedurally fair.

23. It is not necessary for me to refer in detail to the various authorities set out in the respondent's contentions of fact and law, save to conclude that in this case the Tribunal appears to have properly analysed the claim as made by the Applicant and then in making adverse credibility findings reasonably open to it has drawn attention to what may be described as the inconsistent and unclear evidence of the Applicant.  It was entitled to draw conclusions concerning the documents, and in particular the purported warrants which had been sent to the Tribunal before the hearing. 

24. In my view, on the material before me, there is no error of law which would justify judicial review.  It follows that the application as amended should be dismissed with costs.

I certify that the preceding twenty‑four (24) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  21 December 2005