S1646 of 2003 v Minister for Immigration
[2006] FMCA 400
•27 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1646 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 400 |
| MIGRATION – Review of decision of RRT – where decision made before legislative amendments – whether Tribunal failed to provide procedural fairness by not discussing information before delegate – whether Tribunal should have made enquiries about evidence of the applicants sister’s successful application for refugee status in Canada – whether complaints of applicant went to the integer of Tribunal’s decision. |
| Migration Act 1958, ss.424A , 422B Federal Magistrates Court Rules 2001 |
| Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) FCR 576 Kioa v West (1985) 159 CLR 550 Australian Broadcasting Tribunal v Bond (1991) 70 CLR 321 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 SAAP v Minister for Immigration [2005] HCA 24 SZEEU v Minister for Immigration [2006] FCAFC 2 Minister for Immigration v Yusuf (2001) 206 CLR 323 Zekiroski v Minister for Immigration [2004] FCA 1288 Azzi v Minister for Immigration [2002] FCA 24 Abebe v Commonwealth (1999) 197 CLR 510 SZATG v Minister for Immigration [2004] FCA 1595 Minister for Immigration; Ex parte Applicant S20/2002 A [2003] HCA 30 |
| Applicant: | APPLICANT S1646 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG788 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 27 February 2006 |
| Date of Last Submission: | 27 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG788 of 2004
| APPLICANT S1646 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India and a person of Sikh ethnicity. He first entered Australia in January 1986. He returned to India in November 1988 and re-entered Australia on 15 June 1995. On 6 September 1995 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 3 April 1996 a delegate of the Minister refused to grant a protection visa and on 29 April 1996 the applicant sought review of that decision.
The applicant attended a hearing before the Tribunal which, on
12 January 1998, determined to affirm the decision not to grant a protection visa. The applicant then became part of the Muin and Lie class actions (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601) and when they were dismissed brought these proceedings seeking judicial review of the Tribunal’s decision.
The applicant's claim to have a well-founded fear of persecution for the Convention reason of political opinion/membership of a particular social group arose out of his Sikh ethnicity and the fact that he was a member of the Akali Dal.
The applicant made claims that before he came to Australia for the first time he had been arrested on a number of occasions and continuously harassed. In answer to a questionnaire, copies of which are found at [CB 53-69] he stated at [CB 54] that a friend of his named Lali, a member of Akali Dal, was arrested and because of their friendship the applicant was suspected of involvement in militant activities and was arrested himself. He was asked the whereabouts of Lali before being released.
The applicant then gave a history of a series of arrests after he had returned from Australia in 1988. Although shortly thereafter he had gone to the police and tried to straighten out their reasons for having him under suspicion this did not appear to have succeeded. He claimed that he was brought before the police on regular occasions, almost monthly, between then and the time he left the country.
The Tribunal in its decision gave the applicant the benefit of the doubt in relation to a number of matters including his membership of Akali Dal and the fact of occasional arrests but it made a general statement at [CB 160]:
“However, I am not satisfied that his account of his experience is truthful, owing to the exaggerated and implausible nature of his account, and his having failed to impress the Tribunal as a trustworthy witness.
I find the following implausible: that he was questioned about Lali's whereabouts; that he was taken for questioning once or twice every month for the entire year of 1985; that, if he really was suspected as a Sikh militant, he was not arrested on his return in November 1988; that the police questioned him at home or took him to the station for questioning once every two or three months in November 1988 to April 1995.”
The Tribunal also had some concerns about what it described as the "ambiguity/duality of the nature of the claimed police interest in the applicant". The applicant had told the Tribunal that at the same time that he was being brought to the attention of the police for alleged militant activity he was also being asked to be an informer.
The Tribunal came to the view that in all probability the applicant had been asked to be an informer but that otherwise he was a pretty low level member of the Akali Dal and a person in whom the authorities would no longer have any particular interest once the situation with regard to the Sikhs had begun to improve in India after 1993. It was for this reason the Tribunal said:
“In the opinion of experts in the DIRB report cited above those who are not high profile militants would not now be at risk in the Punjab. In particular, I note the expert’s assessment that Sikhs with some slight perceived connection to the militancy - through a family member for example - would not now be targets of the police.
“On the findings made, the applicant's connection with Sikh militants rests on his friendship with Lali who, on his evidence, appears to be no more than someone suspected of militant activities himself. In view of these, I am satisfied that the applicant would not be considered a high profile suspect and therefore would not be at risk of persecution were he to return to India now or in the reasonably [foreseeable] future. [CB 163].”
The application to the Tribunal and the decision of the Tribunal were given before the legislature passed into law amendments which brought in s.424A of the Migration Act 1958 and s.422B thereof. Any claim in respect of jurisdictional error in the manner in which the Tribunal conducted itself falls to be determined on the law prior thereto which, in relation to procedural fairness, is the law expressed in such cases as Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) FCR 576 and the cases that preceded it, in particular Kioa v West (1985) 159 CLR 550; Australian Broadcasting Tribunal v Bond (1991) 70 CLR 321 and FAI Insurances Ltd v Winneke (1982) 151 CLR 342.
Two attacks are made upon the decision of the Tribunal by the applicant. The first is that the Tribunal made a jurisdictional error in breaching the rules of natural justice as it "used what the applicant said to the delegate against him without putting it to the applicant to comment upon before making the decision". The reference here is to the statement made to the delegate that the applicant was asked particulars of the whereabouts of Lali when he had been arrested in about 1985. The Tribunal had found this statement to be implausible because it took the view that if the authorities had arrested Lali, as the applicant said they had shortly before he himself was arrested, there would be no need to ask the applicant for Lali's whereabouts. The applicant argues that this was adverse material which he had not put to the Tribunal but had put only to the delegate and should have been discussed with him before the Tribunal came to the view that it did that it was implausible.
The applicant argues that if this decision was one to which s.424A applied the recent decisions of the High Court in SAAP v Minister for Immigration [2005] HCA 24 and the Full Bench of the Federal Court in SZEEU v Minister for Immigration [2006] FCAFC 2 would mean that the Tribunal would be bound to provide the applicant in writing with particulars of the statement and the reasons why the Tribunal thought that it would be the reason or part of the reason for affirming the decision under review. The applicant says that if this is the situation now when the rules of procedural fairness have been tightened by legislative amendment then the requirement to bring this piece of information to the notice of the applicant was just as great in 1998.
The first thing I would say about this submission is that whilst it is true that attempts have been made to narrow the scope of procedural fairness in legislation, this does not mean that all the legislation is detrimental to the interests of applicants in these matters. The very decisions that I have just quoted of the High Court and the Full Bench of the Federal Court provide evidence that all is not always as the legislators may think they had intended. My duty is to look at what the law actually was before the amendments and to apply that.
Much has been made in the hearing before me of whether or not the matters that were before the delegate were put before the Tribunal by the applicant. Mr Silva who appears on behalf of the applicant provided a short affidavit indicating that no transcript was available. I do not believe the affidavit goes any further than that despite its attempts to provide a reason therefore.
Mr Kennett, for the Minister, argues that in the absence of any reasons as to why there is no transcript and in the absence of the transcript itself I should take it that there is no evidence that these matters were not before the Tribunal. But I do not need to deal with the problem in that way because the claim concerning what occurred at the arrest is referred to at [CB 155] under the heading “Additional claims of clarifications at the interview with the delegate” where there appears these words at [CB 156]:
“At the hearing, the applicant reiterated the above claims, gave additional details and clarified some information.”
It seems to me therefore that I can assume that this allegation, which the Tribunal did not believe, was a matter raised at the hearing. That being the case I cannot see how Mr Silva's arguments can have any weight. In Alphaone, (supra) the court said at [591]:
“A person likely to be effected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand if information on some factor personal to that person is obtained from other source and is likely to have effect upon the outcome he or she should be given the opportunity of dealing with it.”
Further down the page their Honours also said that the general proposition recited above, was subject to two qualifications one of which was:
“The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported) FCAFC, 31 May 1990: Kioa v West supra at [573], [588] and [634].”
I am of the view that the information was information provided by the applicant and so it was information about which she could not complain that it was not accepted. I do not accept Mr Silva's argument that it was information on some factor personal to the applicant provided by another source namely the delegate. I am satisfied that as the information was confirmed by the applicant to the Tribunal it was not information limited to the delegate alone and in any event I think that the type of information referred to that sentence from the decision in Alphaone is information entirely extrinsic to the applicant such as a "dob in letter".
I would also take the view that the adverse conclusion drawn by the Tribunal in relation to that information could not be said to be not an obvious or natural evaluation of the material. The applicant made a statement, the Tribunal considered it and found it implausible. Whilst some Tribunals differently constituted may have found it less implausible, others may have found it more so. There was nothing unnatural or unobvious about the evaluation process.
The second argument made by the applicant relates to some information that the applicant gave to the Tribunal that his sister had obtained refugee status in Canada. In this regard the Tribunal said:
“The week after the hearing the Tribunal received a photocopy of the "notice of decision" issued by Immigration and Refugee Board of Canada in relation to the claims of the applicant's brother-in-law and his sister; however, the full text of the decision was not provided. Anyhow, the Tribunal does not consider it necessary to examine the full text of that decision because at the hearing, it already explored the applicant's sister case in order to establish whether or not it would support the applicant's claims in any way. When asked what happened to his sister, he said that on those occasions that the police came looking for him, they took his father, or if he were also not home, they took his sister. He said that his sister was taken by the police on one or two occasions. However, as discussed above, I am not satisfied that his claim that his sister was taken for questioning and maltreatment is truthful.”
Mr Silva seeks to convince me that the Tribunal has failed to take into account a piece of relevant material and thus fallen into the type of jurisdictional error described by the High Court in Minister for Immigration v Yusuf (2001) 206 CLR 323 but I do not think that this is the case. He would also suggest that the Tribunal failed to make inquiries and as such deprived the applicant of natural justice. This is an allegation of a failure to provide procedural fairness; Zekiroski v Minister for Immigration [2004] FCA 1288 but as Allsop J stated in Azzi v Minister for Immigration [2002] FCA 24 at [112]:
“It may be, notwithstanding prevailing authority, that a duty to enquire may exist or be seen to arise in certain circumstances, but these are understood as being exceptional or rare: Prasad, Supra; Minister for Immigration and Multicultural Affairs v Amani (1999) FCA 1040 and other authorities there cited.”
In regard to the allegation that the Tribunal failed to take into account some relevant material, namely the Canadian decision, I think that the applicant has a difficulty. The advice concerning the decision was provided to the Tribunal by the applicant. The applicant only provided to the Tribunal the cover sheet of the decision which is extracted at [CB 118]. There was no evidence given to the Tribunal as to why the applicant's sister was a person considered to be a refugee. There may be any number of reasons for that occurrence. Some may have corroborated the statements of the applicant here and some may not. It is the duty of the applicant to advance his own case and not the duty of the Tribunal to think of one on his behalf; Abebe v Commonwealth (1999) 197 CLR 510 per Gummow and Hayne JJ at [187]; SZATG v Minister for Immigration [2004] FCA 1595 at [36].
Mr Kennett suggests that the Tribunal here took a view similar to that expressed by the High Court in Minister for Immigration; Ex parte Applicant S20/2002 A [2003] HCA 30, that the evidence of the applicant was so incapable of belief that any allegedly corroborative evidence would be of no use to it. I do not think that one has to go that far. Here the Tribunal said that there was no evidence and then made a remark that really had little bearing on its decision.
It does seem to me that neither of the two matters raised by the applicant really attack what I think is the integer of the Tribunal's decision, namely the paragraph from [CB 163] that I have cited above at [8]. The Tribunal concluded that the applicant was not a high profile Sikh militant and that only high profile Sikh militants were persons who were likely to be persecuted if they were to be returned to India.
In all the circumstances I am unable to find any grounds upon which the Tribunal erred in law in the manner in which it came to its decision. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM
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