S1910/03 v Minister for Immigration and Multicultural Affairs

[2006] FCA 1713

FEDERAL COURT OF AUSTRALIA

S1910/03 v Minister for Immigration & Multicultural Affairs [2006] FCA 1713

S1910/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1322 OF 2006

BENNETT J
1 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1322 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

S1910/03
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	1 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1322 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

S1910/03
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	1 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India whose application for a protection visa was refused by a Delegate of the first respondent.  He sought review of that decision by the Refugee Review Tribunal where he claimed to have a well-founded fear of persecution because of his membership of the group “Jamat-i-Islami” (‘JI’).  That group was said to be involved in transporting lawyers and JI members from Delhi to Ayodhya to participate in litigation concerning the Babri Mosque.  He claimed to have joined JI in October 1992 and subsequently to have been persecuted by a rival party, the Bajrang Dal who, he says, attacked him on more than one occasion. 

2. The appellant made a number of claims as to what occurred to him in those attacks, including that he was set upon in his car in January 1993, as a result of which he received head injuries and was forced to abandon his vehicle.  He asserted that he made complaints to the police that were not properly investigated and that others made complaints but the police refused to record those complaints saying that they would tell the attackers not to do it again.  He claimed that he was again attacked and spent a month in hospital in May 1993, and that during this hospitalisation, the police came to arrest him and take him to a different hospital. 

3. The appellant claimed he was kept in custody and charged under the terrorist and disruptive activities (‘TADA’) laws in force in India, but that he does not know what the charges were because he was recovering in hospital and the police did not tell him.  The Tribunal set out the appellant’s claims in some detail in its decision. 

4. The Tribunal’s findings and reasons were based solely on the credibility of the appellant's evidence.  It found many of his claims to be implausible.  It referred to a letter that was before the Tribunal (‘the letter’) which the appellant said was from the “Jamaat-e-Islami Hind UP” (‘JIH’), which purported to confirm that he was an active member of that group, for approximately two years prior to his departure from India.

5. For reasons which it gave, which were open to it on the evidence before it, the Tribunal was not satisfied that the letter was genuine.  The Tribunal referred to what it described as important inconsistencies which were not compatible with the appellant having been a member of either JI or JIH.  The Tribunal was not satisfied that the appellant had ever been a member of either of those organisations.  The Tribunal then set out in some detail what it described as ‘[o]ther difficulties’ which it had with the appellant’s evidence, numbered 1 to 10.

6. Each of those matters cited inconsistencies that the Tribunal found in the appellant’s evidence.  The Tribunal stated that these inconsistencies were not minor inconsistencies; they were substantial inconsistencies that went to ‘the root of the [appellant’s] claims’.  The Tribunal then reiterated that it found that the appellant was never a member of JI and that he concocted his claims in order to support his application for refugee status in Australia. 

   The Federal Magistrates Court

7. The appellant applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court (Applicant S1910/03 v Minister for Immigration & Multicultural Affairs [2006] FMCA 902). Federal Magistrate Driver dismissed that application on four bases.

8. First, his Honour found no jurisdictional error in the Tribunal’s treatment of the letter, noting that s 424A of the Migration Act 1958 (Cth) (‘the Act’) was not enacted until after the decision of the Tribunal (at [8]). Accordingly, that section had no application. Secondly, his Honour found that no procedural unfairness had arisen in the Tribunal’s use of country information (at [11]). Thirdly, his Honour referred specifically to the 10 ‘detailed concerns’ that the Tribunal member had about the appellant's claims.  Accepting that two of them had not been put to the appellant for comment during the course of the Tribunal hearing, his Honour concluded that it was most improbable that the decision would have been any different if they had been put to the appellant (at [13]).  His Honour also noted that he had no evidence before him from the appellant, or from the Minister, of any practical unfairness that might flow from a failure to put those matters to the appellant (at [14]).  Finally, his Honour rejected a contention by the appellant that the Tribunal had failed to have regard to the part B documents referred to in the Delegate’s decision (at [16]).

   Grounds of Appeal

9. The appellant appears in person assisted by an interpreter to appeal his Honour’s decision.  His command of English was demonstrably good and he put submissions to the Court with only a little assistance from the interpreter when he felt it was required or necessary.

10. The notice of appeal alleges, in essence, that his Honour erred in failing to find that the Tribunal committed jurisdictional error because:

    (1)the Tribunal’s decision was not based on prohibitive evidence;

    (2)the Tribunal did not afford procedural fairness to the appellant;

    (3)the Tribunal did not accept the appellant’s story in circumstances where it had no evidence to support its own reasoning.

11. The notice of appeal further asserts a failure by the Minister to provide the appellant with adequate notice of written submissions handed up to Federal Magistrate Driver.  That ground is not relevant to this appeal.  The appellant relies upon the amended application that was before the Federal Magistrates Court.  He handed to me today a written transcript of what he proposed to say to the Court.  I have read both those documents.

    Evidentiary complaints

12. To the extent that the appellant seeks to re-agitate questions of fact, or the merits of his application for refugee status, that is not a matter within the jurisdiction of this Court.  By way of example, the appellant handed to me, without objection from the Minister, a current newspaper report from India.  Even if I had jurisdiction to receive further factual material going to merits review, there are a number of reasons why that does not assist the appellant in his appeal.  First, the newspaper article is dated 9 September 2006 and could not have been relevant to the Tribunal decision as it was not before the Tribunal when its decision was made in January 1998.  Secondly, in any event, on a reading of that article, I do not see that it impacts upon the reasons given by the Tribunal.  The Tribunal’s decision was not based upon an analysis of whether the events described by the appellant occurred or not, but rather, its disbelief of the appellant’s own story due to the inconsistencies inherent therein.  Once the Tribunal rejected the appellant’s claim that he was a member of JI, the matters raised in that article are simply of no relevance. 

13. The appellant’s written submissions refer to the letter that was referred to by the Tribunal and by the Federal Magistrate in his Honour’s decision.  I agree with the Federal Magistrate that no jurisdictional error is shown in the way the Tribunal treated that letter. 

14. The appellant also, although not in evidence but in a submission, alleges that his migration agent ‘betrayed and cheated’ him by not giving the letter to the Tribunal as instructed.  That is not a matter that goes to jurisdictional error on behalf of the Tribunal. 

15. To the extent that the appellant claims that there was no evidence for the findings of the Tribunal, he has not made good that ground.  I am satisfied that the findings and the inferences made by the Tribunal were open to it on the evidence before it.  I am also satisfied that the Tribunal considered each aspect of the claims made by the appellant. 

    Procedural fairness

16. This leaves the matter of the alleged denial of natural justice on the basis that certain matters were not put to the appellant during the course of the hearing before the Tribunal to enable him to deal with them. The appellant’s application for review by the Tribunal was filed prior to the commencement of s 422B of the Act. Accordingly, although s 424A(1) of the Act had not been enacted and has no application, the appellant was entitled to be accorded procedural fairness at common law (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [139]).

17. The appellant did not identify any specific adverse information that was ‘credible, relevant and significant to the decision to be made’ and should have been put to him by way of procedural fairness (Kioa v West (1985) 159 CLR 550 at 629). The Minister has identified 15 inconsistencies in the appellant’s evidence that were noted by the Tribunal. The transcript of the hearing before the Tribunal was in evidence before the Federal Magistrate and the Minister submits that 13 of those inconsistencies were put to the appellant for his comment. With respect to the remainder, the Minister concedes that one matter was strictly not put and that another may not have been put clearly.

18. The matter that was not put to the appellant was the fact that his claim to have been involved in the transport of lawyers to Ayodyha was not previously raised before the Delegate.  The Minister submits that the Tribunal was not obliged to put that inconsistency to the appellant. 

19. The second matter, said to have been put to the appellant, but not clearly, concerned the Tribunal’s finding of ‘inconsistencies as to when the applicant “discovered” he had been charged under the TADA legislation’.  From my reading of the transcript of the hearing before the Tribunal, I am satisfied that this was in substance put to the appellant. 

20. By the time the Tribunal turned to consider these inconsistencies, it had already expressed itself as satisfied that the appellant had never been a member of JI.  It described the inconsistencies identified in items 1 to 10 as ‘other difficulties’ and characterised each of them as ‘substantial and [going to] the root of the [appellant’s] claims’.

21. In that context, I am of the view that even if there had been a relevant failure to put either or both of those inconsistencies to the appellant, it could have produced no practical injustice.  As Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]–[38]:

    ‘Fairness is not an abstract concept. It is essentially practical.  Whether one talks in terms of procedure fairness or natural justice, the concern of the law is to avoid practical injustice.’

22. In this case, as in Lam, I am not satisfied that any practical injustice has been shown.  I am not satisfied that if either of those steps had been taken it could have resulted in any different result.  A failure to accord procedural fairness in relation to an immaterial part of relevant proceedings does not amount in my view to a breach of procedural fairness unless there has been some demonstration of practical unfairness.  Despite the reference in the Federal Magistrate’s decision to the fact that there was no evidence before his Honour as to practical unfairness (at [14]), the appellant has not sought to put anything further in that regard in this appeal.

23. I am satisfied that there was no jurisdictional error on the part of the Tribunal and no error has been demonstrated on the part of the Federal Magistrate.  It follows that the appeal should be dismissed with costs. 

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: 

Dated:        13 December 2006

The Appellant appeared in person.

Counsel for the First Respondent:	C Mantziaris
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	1 November 2006
Date of Judgment:	1 November 2006