SZEKW v Minister for Immigration
[2005] FMCA 727
•31 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEKW v MINISTER FOR IMMIGRATION | [2005] FMCA 727 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 51A, 65, 91X, 424A, 430(1)(a)-(d), 474, subd AB, Div 3 of Part 2
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah (2001) 206 CLR 57
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590
Annetts v McCann (1990) 170 CLR 596
Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 340
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Kioa v West (1985) 159 CLR 550
| Applicant: | SZEKW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2868 of 2004 |
| Delivered on: | 31 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 May 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr C Jayawardena |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2868 of 2004
| SZEKW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 17 September 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 December 2002 and handed down on
16 January 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 22 February 2002 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEKW”.
The applicant, who claims to be a citizen of India, arrived in Australia on 3 September 2001. On 3 October 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.2-24) (“CB”). On 22 February 2002 the delegate refused to grant a protection visa (CB pp.48-55) and on 21 March 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.57-60).
The applicant stated he was born in June 1963 and is a married citizen of India and a Sikh by faith. He stated he completed ten years of study from 1968 to 1978 and was married on 31 March 1993. The applicant claimed he left India and went to Japan on 15 January 1994 and returned on 16 January 2001. However, in his visa application, he stated that he lived in Japan from January 1994 to October 1996. The applicant stated that his wife and daughter continued to reside in India as did his father, sister and brother. He also stated that one of his sisters lived in America (CB p.80).
Attached to his visa application, filed with the Department on
3 October 2001, the applicant provided a statement which contained details of the applicant’s background and the issues leading up to the death of his brother in June 1992 when the applicant alleged that his brother was shot by plain clothes policemen. The statement also detailed the alleged harassment suffered by the applicant after his brother’s death (CB pp.23-24). The Tribunal also reproduced the applicant’s statement in its decision (CB pp.80-82).
The Tribunal’s findings and reasons
Mr J Smith of Counsel, appearing for the respondent, prepared a convenient summary of the Tribunal’s decision as part of his written submissions which I have adopted and are reproduced as follows:
a)The Tribunal accepted that the applicant had been involved in the Sikh separatist movement as claimed up until 1989 but found that he was a Sikh who had no political involvement for the past ten years and that he had no intention of any involvement in the future (CB p.93.6). Having accepted the applicant’s claims in relation to his involvement in the Sikh separatist movement in the 1980’s, the Tribunal turned to consider the circumstances since that time. Firstly, it rejected the applicant’s claim to have been arrested and brought before the Courts in 1999 (CB p.93.10). Secondly, it found that the applicant was not of concern to the Punjab authorities at that time and that he had fabricated this account at the eleventh hour for the sole purpose of indicating that he faces prospective harm at the hands of the authorities if he returns to the Punjab (CB p.94.1).
b)The Tribunal then turned to the issue of whether or not it would be reasonable in any event to expect the applicant to relocate within India. In this respect, it noted the applicant’s claims at the hearing were that the harm he would fear on return to the Punjab related to extortion by police. It considered that, in light of the applicant’s circumstances, and in particular the fact that he had been able to live in and adjust to two foreign cultures (Japan and Australia) and the fact that he was young and able bodied, relocation would be a reasonable expectation for him (CB p.94.10).
c)
The Tribunal went on to consider the question of the effect of any false cases brought against the applicant and found on the basis of independent country information that the judicial system in India was fair and would afford him protection against such cases.
It noted that the cases brought against the applicant in 1987 had been treated fairly and that they had, in the applicant’s own evidence, been dismissed for want of evidence.
d)For these reasons, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations and so affirmed the decision of the delegate.
Application for review of the Tribunal’s decision
On 17 September 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) with a supporting affidavit filed on the same date. On 3 December 2004 the applicant filed an amended application which contained the following grounds:
“(1)The Tribunal made Jurisdictional Error by drawing the following conclusions where there is no evidence and thus questioning the credibility of the Applicant:
Particulars – Green Book
Page 94 – Para 01
‘I accept the independent material and find that the Applicant was not of concern to the Punjab authorities at that time and that he has constructed this account at the eleventh hour of the application for the sole purpose of indication that he faces prospective harm at the hands of the authorities if he returns to Punjab.’
Applicant’s Comments:
This is a serious misdirection made by the Tribunal and jurisdictionally wrong. The fact is that the Applicant was persistently telling the Tribunal and supporting with documents that he was Member of the Sikh Students Federation which collaborated with the Kalistan Movement for achieving a separate State for Sikhs of Punjab. He informed the Tribunal that he was severely beaten and tortured by the Indian Police and that he was remanded and criminally charged on false accusations. Hence the Tribunals conclusion that the Applicant had constructed this story was a serious error committed by the Tribunal.
(2)The Tribunal was Wednesbury Unreasonable in holding that the applicant was not able to provide certain information, thus holding against him:
Particulars – Green Book
Page 93 & 94 – Para 02
‘He has provided documentation to support this claim but I find that this is self serving and fraudulent. I find that the Applicant’s low profile and the current situation in Punjab is such that he does not face a ‘real chance’ of persecution in Punjab now or in a reasonable future.’
Applicant’s Comments:
The Tribunal should not heavily rely on the fact that all refugee Applicants must always necessarily have a high profile and be a leader of a militant organization or a human rights activist or a threat to police and authorities. The tribunal’s formation of such severe yardstick to measure an ordinary member’s involvement in a liberation struggle is a grave distortion of the assessment required under the 1951 United Nations Convention criteria. Hence this is a serious jurisdictional error committed by the tribunal.
(3)The Tribunal was ‘procedurally unfair’ and in so doing made a serious jurisdictional error by concluding:
Particulars – Greenbook
Page 85 – Para 09
‘Further since he had been able to obtain a passport to depart from the country and return to it in October 1996, it appeared there were no residual adverse consequences.’
Applicant’s Comments:
It was procedurally unfair for the Tribunal to conclude that the Applicant was able to obtain a passport and therefore that everything were fine for him so that he had no problem of returning to India in 1996. The tribunal ignore the fact that the applicant had to leave again due to police harassments and interference with his life by the authorities in the country.
(4)The Tribunal made further Jurisdictional Error by breaching s.424A, s.430(1)(c) & s.430(1)(d) in the Migration Act 1958 in relation to its conclusions:
Particulars – Greenbook
Page 95 – Para 02
‘I accept the independent material concerning the judicial system in India and find that the Applicant could expect the same fair treatment he received in 1987 and thus rely on the protection of the State through the Judicial System.’
Applicant’s Comments:
This is clearly a grave jurisdictional error on the part of the Tribunal because it was relying on questions of fact which are unknown to the applicant and nor the Tribunal. The Tribunal was highly optimistic about the violent political situation in India. This type of comparison made by the Tribunal without having any proof to justify that conclusion is a grave error made by the Tribunal. In short this amounts to mere fantasy by the Tribunal which has point-blankly disbelieved the Applicant and believing that the State machinery would be able to protect the Applicant adequately against any threat to his life.
(5)The Tribunal was procedurally unreasonable in making the following conclusions against the applicant:
Particulars – Greenbook
Page 94 – Para 10
‘I find it reasonable to expect that he could do so since he is young, able bodied man who has demonstrated the ability to readjust and reintegrate in two foreign cultures, Japan and Australia and thus re-locating to another State which has a Sikh Community would not be an unreasonable expectation.’
Applicant’s Comments:
This type of conclusions by the Tribunal naturally amounts to “Procedural Unreasonableness”. It was a grave jurisdictional error on the part of the Tribunal for trying to compare the Applicant’s physical abilities and his overseas experiences of short durations as a sound reason for relocating to any part of India. The Tribunal ignored the fact that India is a poverty stricken country with more than 1.0 billion of people and rampant with political strife, infighting due to case, creed religion and language issues and therefore it would be highly unreasonable for him to re-locate to any other state.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia (“Craig”) per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
Mr Jayawardena, Solicitor, appearing for the applicant, filed written submissions on 5 May 2005 which contained the following contentions:
a)In the amended application the applicant raised five grounds of ‘jurisdictional error’ committed by the Tribunal and contended that the Tribunal did not accord procedural fairness to the applicant due to the relevant conclusions in its decision. The applicant argued that the jurisdictional errors (as noted in paragraph 7 above) were such that the High Court in the case of Craig has said:
“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
b)In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah the High Court held that the ‘rules of procedural fairness’ were applicable to the Delegates of the Minister in considering these applications for visas in the exercise of powers under the Act. The High Court held that the limited provisions of sub-division AB Division 3 of Part 2 of the Act, including Sec 57, were insufficient to exclude those principles. McHugh J said at page 127-128:
“Accordingly, the relevant question in the present proceedings is whether the terms of the Act, particularly subdiv AB, display a legislative intention to exclude the common law rules of natural justice. More specifically, the question is whether the Act intended to deny an applicant “an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise.
It is highly improbable that the legislature intended to exclude all the common law requirements of natural justice from subdiv AB. There are no clear words to that effect. Where Parliament has wanted to exclude common law rules from applying to the administration of the Act, it has not hesitated to do so in clear words. Moreover, subdiv AB is headed “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. It therefore assumes that the “code” will operate fairly.”
It must therefore be accepted that an applicant for a visa has a sufficient right, interest or legitimate expectation to give rise to a duty on the part of the Minister’s Delegate to afford him or her ‘procedural fairness’.
c)In Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (“Moradian”) the Federal Court found that the general rules of natural justice still apply despite attempts by the government to restrict their application. Moradian looked at the effect of s.51A:
“This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”
d)The Subdivision refers to how the Minister treats the applicant as far as getting information is concerned. In this matter, the Department, without telling the applicant, undertook investigations as to the work experience claimed by the applicant. Those investigated supposedly revealed that the applicant was working as a volunteer rather than as an employee. The delegate made a decision refusing the visa application (subclass 136 Skilled Independent Visa) without putting the ‘volunteer’ allegation to the applicant. In the Federal Court the applicant said that had he been informed of the volunteer issue, he would have produced information to show that he was working for remuneration and therefore met the employment criteria. Gray J observed:
“The starting point for any consideration of the applicability of the principles of procedural fairness (as the principles of natural justice are now commonly called) to the exercise of a statutory decision-making power is the proposition expressed by Mason CJ, Deane and McHugh JJ in Annetts v McCann (1990) 170 CLR 596 at 598:
‘It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment ... an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from "indirect references, uncertain inferences or equivocal considerations". Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice’.
In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82, the High Court held that, despite clear provisions then contained in the Migration Act, preventing this Court from reviewing decisions of Tribunals under the Migration Act on the ground of denial of procedural fairness, such a denial remained a ground for the application for relief under s 75(v) of the Constitution in respect of such decisions.”
e)In NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs the Full Federal Court held that the manner in which the Tribunal member debated the religious beliefs of the applicant for a protection visa established that apprehended bias was established.
f)In Lu v Minister for Immigration & Multicultural & Indigenous Affairs the Full Court of the Federal Court held that the Minister took into account an irrelevant matter, and thus made jurisdictional error, when cancelling a visa relying on a Department submission which had a wrong account of the visa holder’s criminal record.
g)In summary, the Full Court in Plaintiff S157/2002 basically concluded that the so called ‘privative clause’ was ineffective to prevent the Courts in Australia from undertaking judicial review of migration law decisions because of the Constitutional Guarantees. Gleeson CJ summed up the effect of the Constitution as follows:
“Section 75(v) of the Constitution confers upon this Court, as part of its original jurisdiction, jurisdiction in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth. It secures a basic element of the rule of law. The jurisdiction of the Court to require officers of the Commonwealth to act within the law cannot be taken away by Parliament.”
h)The applicant submitted that the Tribunal member overtly classified the applicant’s claims as fraudulent and manufactured at the “eleventh hour” of the application, both of which conclusions demonstrated apprehended bias against the applicant and amounted to serious jurisdictional error.
Respondent’s submissions
Mr J Smith of Counsel, appearing for the respondent, filed written submissions prior to the hearing dated 5 May 2005 which contained the following contentions:
First Ground: No Evidence
a)Although the first ground in the amended application appeared to claim there was no evidence for some of the conclusions arrived at by the Tribunal, it was clear from the particulars that the real complaint was that the Tribunal did not accept the applicant’s claims despite his having brought evidence to support them. The Tribunal stated:
“… the applicant was persistently telling the Tribunal and supporting with documents that he was a member of the Sikh Students Federation.”
b)It was alleged that this supported the claim that there was no evidence for the Tribunal’s conclusion that the applicant had constructed the false cases against him in 1989. However, there were a number of difficulties with this ground. First, the Tribunal accepted that the applicant had been a member of the Sikh Students Federation (CB p.93.6). However, that does not mean that the Tribunal was obliged to conclude on that basis, or indeed on any basis, that the applicant was subsequently arrested and maltreated in 1999, some ten years after the applicant’s last claimed involvement in that movement. Second, there was in any event sufficient material for the Tribunal to arrive at the conclusion that the applicant had fabricated this claim.
c)The applicant had been, as noted by the Tribunal, represented by a migration agent at all times during his application for a protection visa and also throughout the process of review by the Tribunal. In spite of this, at no time during that period up until the hearing had the applicant made the claim that he had been arrested and brought before the Courts in 1999. This fact logically supports an inference that the applicant had “recently invented” the claim. The rationale being that if there were any truth to the claims it would be reasonable to expect the applicant to have firstly told the migration agent and secondly to have ensured that the claim was set out either in his protection visa application or in some written document prior to the hearing held by the Tribunal. This inference was supported by the numerous occasions on which the four documents requested the applicant give as many details of his claims as possible. It was submitted there was no merit in this ground and it ought to be rejected.
Ground Two: Wednesbury’s unreasonableness
d)The Tribunal made no finding that the applicant was not able to provide certain information and the quotation does not come from the Tribunal’s decision. Further, there was no suggestion in the Tribunal’s reasons that it considered that a person must have a high profile in order to be a refugee. It simply made a finding of fact that was clearly open on the applicant’s claims. The critical finding was different, though. The Tribunal found that the applicant had not had any political involvement for the past ten years and had no intention of any future involvement (CB p.93.6).
Ground Three: procedural unfairness
e)The applicant complained about a passage in the Tribunal’s statement of reasons where it set out some of the questions it asked at the hearing. There was no procedural unfairness involved in giving the applicant an opportunity to address concerns held by the decision-maker in respect of the applicant’s case.
Ground Four: ss.424A, 430(1)(c) and 430(1)(d)
f)There were a number of difficulties in relation to this ground. Firstly, the independent country information concerning the judiciary was not specifically about any person and so does not give rise to any obligation under s.424A(1): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW. Secondly, even if there were some obligation under s.424A(1) in respect of the material, the Tribunal did give the applicant particulars of it and so complied with that obligation (CB p.85.2). Thirdly, a breach of s.430(1) does not go to the jurisdiction of the Tribunal: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme at [46]–[48] per Gleeson CJ, Gummow and Heydon JJ and [55] per McHugh J. Finally, this matter was not one of pure fantasy. The applicant had been the subject of false cases in 1987 that were dismissed for want of evidence. That was a sufficient basis for concluding that the applicant could expect similar treatment from the courts if he were to face false charges again.
Ground Five: procedural unreasonableness
g)This ground was nothing more than an attack on the merits of a finding of fact. There was no suggestion that the Tribunal properly applied the principles set out by the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (“Randhawa”). The only complaint was that the Tribunal ought not to have found that it was reasonable to expect the applicant to relocate and that was a question of fact.
Reasons
I accepted the argument submitted by Mr Smith that the applicant had put his case on two levels; firstly, the individual grounds as pleaded in the amended application and, secondly, all of the grounds taken together with the decision be treated as a whole. If each of the five grounds could be made out, there would be three jurisdictional errors. Those alleged errors were that the Tribunal failed to properly assess the applicant’s claims as against the criteria for the grant of a visa, a reasonable apprehension of bias and procedural unfairness. Dealing firstly with the broad approach, it was submitted that the guiding principle that must be borne in mind when considering the Tribunal’s reasons was that the reasons must be read as a whole, they must be read remembering what they are and what purpose they serve. They are statements of reason of an administrative decision maker and not that of a judicial officer and so they must not be read with an eye keenly attuned to the perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 272.
The Tribunal's decision commenced with a summary of the background of the matter. The decision then went on to outline the relevant legislation, namely ss.65(1) and 36(2) of the Act, and the definition of "refugee". In order to satisfy the criteria in s.36(2), a person must be a refugee. Thus the Tribunal set out the statutory parameters within which it would undertake its assessment of whether the applicant satisfied the criterion for a protection visa. In its reasons for decision, the Tribunal examined the actual claims made and the evidence given by the applicant both before the delegate and the Tribunal itself (CB pp.79-88). The Tribunal then turned to evidence from other sources (CB pp.88-92).
The Tribunal then made findings of facts based on the material before it. Penultimately, the Tribunal concluded the applicant was not a person to whom Australia had protection obligations as it found the applicant was not a refugee and did not meet the criteria in s.36(2) (CB p.95). That conclusion was based on the finding of fact that the applicant did not face a real chance of persecution for Convention reasons and that any fear he may hold in regard to Convention reasons was not well founded. Those are the terms of Article 1A(2) of the Convention. Finally, the Tribunal made the decision to affirm the decision of the delegate not to grant a protection visa.
Viewed in that way, the Tribunal clearly assessed the applicant against the criteria and particularly the criteria critical for the grant of a protection visa. The Tribunal made findings of fact in respect of the factual claims made by the applicant. Some of those factual claims were accepted. The Tribunal accepted that:
a)the applicant had been a member of the separatist student movement;
b)the applicant had involvement in that movement at least up until 1992;
c)the applicant and his family had suffered harm as a result of political opinion; and
d)the applicant and his family had suffered harm as a result of political opinion.
The Tribunal rejected other claims made by the applicant, namely:
a)there was an ongoing interest in the applicant by the authorities;
b)the applicant had a warrant issued against him;
c)the applicant had a case brought against him in 1999; and
d)as a result of these issues the applicant faced persecution in India.
The applicant’s submissions that the Tribunal did not assess his claims against the criteria and had simply rejected all his claims were not factually correct. The Tribunal did in fact accept some of the applicant’s claims. The Tribunal’s obligation was to conduct a review of the delegate’s decision involving a necessary finding of fact in respect of a claim made. That was precisely what the Tribunal did. Once the Tribunal had made its findings of fact, and applied those facts to the criterion in s.36(2), it arrived at its conclusion and thus its decision on review.
Counsel for the respondent submitted that the remaining two grounds of bias and procedural fairness would fall away when considered in the light of the process the Tribunal adopted in performing its task of review. However, it was necessary to consider the individual five grounds of the pleadings in order to re-assess the issue of bias and procedural fairness.
The first ground of the pleadings appeared to be two separate allegations in respect of the Tribunal’s rejection of the applicant’s claim, being the charges laid in 1999 and the production of documents in support of that claim. In respect of the no evidence element of the ground, there was evidence to support the Tribunal’s rejection of the claim. The claim was not contained in the applicant’s original visa application and only appeared later. The material put forward by the applicant in support of the claim did, on its face, have some difficulties. The Tribunal does not require evidence outside of what is put forward by the applicant in order to reject a particular factual claim. It can be rejected on the basis of the way in which the claim was put, the timing in which it was put or the basis of the probative value of the evidence which it put forward in support of the claim: Randhawa per Beaumont J at [26]. There was no error of law let alone jurisdictional error in the Tribunal rejecting a particular claim even if there was no positive or probative evidence to support the rejection.
The second claim in the first ground was that the applicant was not given an opportunity to address the independent information. However, this was set out in the Tribunal’s statement of reasons. Immediately following the heading of “Findings and Reasons” in the decision, the Tribunal indicated its structure of reasoning. It stated the applicant’s claims and then noted that it would firstly deal with the applicant’s profile and then the claimed history of the treatment at the hands of the authorities. The Tribunal then considered the changes that have occurred in the Punjab in recent years and finally the Tribunal considered the issue of the applicant’s relocation. That was the exact structure the Tribunal followed. It considered the applicant’s profile and the claimed history of the treatment of the applicant at the hands of the authorities. Under the heading “The Changes in Regard to the Khalistan Movement” information was noted in relation to the separatist movement. The Tribunal also considered the situation in the Punjab at the present time because it was necessary to assess the applicant’s claims on the current situation and in the reasonably foreseeable future. The Tribunal made the following finding of fact:
“While there were significant and serious problems for those people suspected of association with the militants in the late eighties and early nineties I accept the independent material which advises that by the mid nineties the situation was being brought under control and that the current situation is stable.” (CB p.93)
The Tribunal member then referred to the independent information and noted part of the impugned passage as follows:
“… I accept the independent material and find that the Applicant was not of concern to the Punjab authorities …” (CB p.94).
This independent information was put to the applicant and he was given an opportunity to address that information. This was recorded earlier in the Tribunal’s decision and set out in the following manner:
“I put to the Applicant that the information before me stated that there had been serious problems in Punjab through to the mid nineties as a result of conflict between the authorities and militant Sikhs who wanted to establish a separate Sikh state of Khalistan.” (CB pp.87-88)
The Tribunal then stated:
“The information advised that the authorities had employed harsh measures to deal with the problem but the reported outcome was that the militants had largely been crushed and very few existed currently and the situation in Punjab in this regard was stable.” (CB p.88)
Further information was put to the applicant relating to the current situation in the Punjab being the changes that have occurred since the mid nineties. The claim that the Tribunal failed to afford natural justice by not giving the applicant an opportunity to address the country information concerning the Punjab must fail on a factual level and cannot be sustained. I also accepted the submissions of the respondent Counsel in respect of the first ground.
The second ground in the pleadings related to the finding that the document put forward by the applicant in support of his claims was self serving and fraudulent. This ground also appeared to be put forward on a natural justice basis but I noted that the oral submissions by the applicant Counsel departed from the pleadings in the amended application.
At the Tribunal hearing on 12 December 2002, the applicant stated that he had been detained in 1999 and charged again. The Tribunal responded to this information in the following way:
“I put to him that I was surprised at this claim for two reasons.
Firstly, there was no previous mention of an arrest and subsequent charges in 1999 despite the fact that he had the assistance of professional migration agents, and secondly that he had been able to obtain a passport in 2000 when he had serious charges and was before the courts and also was able to leave the country using a passport in his own name and with accurate details.” (CB p.86)
In response to the Tribunal’s comments regarding charges and arrests, the applicant indicated that he had provided the Tribunal with copies of the arrest warrants in respect of those incidents (CB pp.44-45). The Tribunal made the following observation:
“In regard to the letter from his advocate in India I put to him that I was surprised that it was written in English since it was addressed to him and intended for him. However, since he was using an interpreter at the hearing I was of the impression that he was not fluent in English and since the lawyer was Punjabi
I couldn’t understand why he wouldn’t correspond in Punjabi.
I added that the manner in which the letter was written gave the impression that it was meant for a third party, someone who was not aware of his history since it provided such details and these were details that would not normally be provided to someone who had experienced what the letter claimed, first hand.”
(CB pp.86-87)The Tribunal also noted that the document purporting to be an arrest warrant and the Court document relating to that arrest were unhelpful because they did not provide details of what offences the applicant had been charged with. The Tribunal also put to the applicant that his earlier arrests had not been such that they substantiated a claim to face persecution since he had sheltered militants and had guns illegally on his property and thus it was a matter of prosecution rather than persecution. The Tribunal decision recorded that at the hearing there was clearly an issue, firstly as to whether or not the applicant had been arrested in 1999 and charged and secondly, whether or not the documents put forward in support of those claims would be accepted as genuine by the Tribunal. During the Tribunal hearing the applicant was provided with an opportunity to address the concerns of the Tribunal, to put forward his case and to address the critical issues before the Tribunal: Kioa v West per Mason J at 587:
“ … Recent decisions illustrate the importance which the law attaches to the need to bring a person’s attention to the critical issue or the factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.”
In the amended application it was pleaded that the Tribunal heavily relied on the fact that all refugee applicants must necessarily have a high profile. This was a misunderstanding of the Tribunal’s reasons as the Tribunal was making findings of fact in respect of the factual claims made by the applicant as follows (CB pp.92-93):
a)he had ceased involvement in the student separatist organisation in the early 1990’s;
b)he had no intentions of future involvement in political activities; and
c)he had no political involvement for the last ten years
The Tribunal accepted the applicant’s statements on these issues. In addition the Tribunal found that there had been a change in the situation in Punjab in terms of its current stability compared with the situation in the early 1990’s when the applicant was active in the separatist movement. The Tribunal concluded that the applicant did not have a well founded fear of persecution (CB p.95). This decision was drawn from a combination of matters rather than a perception that having a low profile would not attract persecution and therefore not satisfy refugee status. The Tribunal’s findings were open to it and did not suggest any basis that would constitute jurisdictional error.
The third ground in the pleadings related to the applicant’s passport. It was the applicant’s claim that he first feared persecution by the authorities because he was wanted by them. However, he was able to obtain a passport in 1994 which enabled him to leave India and live in Japan for over two years and then return to India without incident using the same passport. The issue and the use of the passport would have enabled the authorities to identify the applicant and to intercept him on his arrival or departure at any of the arrival or departure points within India. The existence and use of the passport was probative of a finding that during this period the applicant was not of any interest to the authorities. There was a further significant dimension to the existence and use of the passport given the grave situation in the Punjab and the way in which the Punjabi separatists were treated as terrorists at that time. It was reasonable for the Tribunal to proceed on the basis to assume that if a person was wanted for terrorist activities then it would be highly likely they would have come to the attention of the authorities if they used their own passport to depart or enter that country. This was a finding of fact made by the Tribunal and one which was relevant to the decision to be made and open on the material before the Tribunal.
The fourth ground pleaded in the amended application related to a breach of s.424A and s.430 of the Act. I referred to the respondent’s submissions in respect of this ground and accepted the argument and supporting authority. There was no obligation under s.424A in respect of the independent information because it was not specifically about the applicant.
I am satisfied that the Tribunal did give the applicant the opportunity to address the particulars of information that were raised in the independent country reports and it was submitted that it was clear from the recitation of occurrences at the Tribunal hearing that this did occur. An example of this was the information regarding the independence of the judiciary as contained in a number of the independent country reports and this was put to the applicant by the Tribunal member during the hearing in the following manner:
“I put to him that independent material before me stated that the judiciary was independent and usually gave fair judgments.
I added that his situation appeared to be an example of that.
The applicant agreed that the courts were fair but said that the police continued to hold information on file.” (CB p.85)
Section 430 of the Act is headed “Refugee Review Tribunal to record its decisions etc.”. Section 430(1)(a)-(d) states as follows:
(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
In respect of the breach of s.430, the relevant sections are either (c) or (d). These subsections are the requirements to set out the material findings of fact and the evidence on which they are based in a statement of reasons. On a clear reading of the Tribunal’s decision, this requirement was complied with.
The fifth ground of the pleadings related to the applicant’s relocation. It was clear from an early stage in the applicant visa application that the question or issue of relocation was alive. On 8 January 2002 an officer of the Department wrote to the applicant indicating relocation was an issue (CB pp.33-34). The letter stated:
“A person may be at risk in one part of his country of nationality, but not at risk in other parts. If it is reasonable for the person to do so, the person should avoid risk by relocation within the country of nationality, rather than in another country. In the case of Harjit Singh Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265, Black CJ, Beaumont and Whitlam JJ, 11 August 1994, the appellant was a Sikh from Punjab, India. The appellant claimed refugee status on the bases that his father had had a profile in the Akali Party, that the appellant’s father and brother were killed, because of their faith, by a Hindu group and that the appellant had also been involved in political activities in support of his father. The Minister’s delegate accepted that the appellant was at risk in Punjab, but assessed that the appellant could avoid risk of persecution in Punjab by relocation elsewhere in India. The Court found that the delegate was entitled on the material before her on relocation to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India.
Beaumont J stated, at page 278,
‘if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution. [The question for the delegate was] ‘had the appellant demonstrates, on the facts, that relocation was unreasonable.” (CB p.34)
On 21 January 2002 the Department forwarded a second letter to the applicant (CB pp.39-40) which also contained the same paragraph as reproduced above. In the delegate’s decision of 22 February 2002, as part of the reasons and findings of fact, the delegate again reproduced the passage contained in the preceding two letters. In the Tribunal’s decision the member recorded that during the Tribunal hearing the issue of relocation was raised in the following form:
“I put to the applicant that if his problems were with Punjab officials and without reason there was information before me which stated that Sikhs were present in most states in India and that Indian citizens were free to relocate from one state to another.” (CB p.88)
The applicant had a further opportunity to address the issue of whether or not it would be reasonable to expect him, in his personal circumstances, to relocate within India and whether or not that issue would be determinative on his application for a protection visa. This was a question of fact and the ground was nothing more than an attack on the merits of the finding of fact and cannot be sustained.
The five separate grounds pleaded in the amended application cannot be sustained and must be rejected. I return to the secondary approach of the applicant’s pleadings and submissions that, in considering all the grounds and taking them to be treated as a whole, a view of apparent bias and procedural unfairness was considered. However, putting that aside, in the case of the hypothetical reasonable person, would that person apprehend that this Tribunal had made up its mind and would not change its decision regardless of the evidence given to it? It was clear throughout the decision making process of the Tribunal, that the delegate and the Tribunal had given the applicant the opportunity to address each individual claim. He was provided with the opportunity to attend a Tribunal hearing in December 2002. In addition, the applicant had a migration agent advising him in respect of his application, even though the adviser did not attend the hearing. The Tribunal accepted a large number of the applicant’s claims with the exception of the ongoing interest of the authorities and the 1999 arrest and charges claimed by the applicant. These had to be considered against the background of independent information regarding the current situation within the Punjab which meant it was readily open for the Tribunal to arrive at its conclusion. There was nothing inherently and obviously prejudged about the Tribunal’s decision in that respect and the ground of apparent bias must fall away.
There was no transcript or recording of the Tribunal hearing placed in evidence before the Court. This has denied the Court the opportunity to assess whether the Tribunal’s attitude towards the applicant during the course of the hearing was overtly negative or quarrelsome. In the absence of any evidence of this nature, the claim of procedural unfairness must also fall away.
Conclusion
For the reasons set out above, I have not been able to identify any ground that the Tribunal committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 31 May 2005
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