SZHVT v Minister for Immigration
[2006] FMCA 490
•5 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHVT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 490 |
| MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – application dismissed pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth). |
| Federal Magistrates Court Rules 2001 (Cth), rr. 44.06, 44.12, 44.15 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A , 476, 477 Migration Litigation Amendment Act No. 1 1998 (Cth) |
| Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Kioa v West (1985) 159 CLR 550 Minister for Immigration; Ex parte Miah [2001] HCA 22 Minister v Immigration v VSAF of 2003 [2005] FCAFC 73 NABE v Minister for Immigration (No.2) (2004) 144 CLR 1 NAHI v Minister for Immigration [2004] FCAFC 10 NAOO v Minister for Immigration [2004] FCAFC 26 SZANK v Minister for Immigration [2004] FCA 1478 VAF v Minister for Immigration [2004] FCAFC 123 |
| First Applicant: | SZHVT |
| Second Applicant: | SZHVU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3698 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 31 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2006 |
REPRESENTATION
| Applicants: | Applicants appeared in person with the aid of an Urdu interpreter |
| Advocate for the Respondents: | Ms D Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth).
I order that the applicants pay the first respondent’s costs in these proceedings, fixed in accordance with r.44.15 and schedule 1, part 2 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3698 of 2005
| SZHVT & SZHVU |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second 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 on 15 December 2005 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision made on 14 October 1999, affirming the decision of the delegate of the first respondent made on 12 February 1999 refusing to grant the applicants a Protection (Class XA) visa. The applicants seek orders that:
a)The respondent show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the Tribunal decision; and
b)The time for making an application be extended under s.477 of the Act.
An extension of time is required if the application is not made within 28 days of the actual (as opposed to deemed) notification of the decision.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZHVT” (applicant husband) and “SZHVU” (applicant wife).
In support of their application, the applicants have filed the following affidavits:
a)Affidavit of the first applicant “SZHVT” affirmed on 15 December 2005 (“SZHVT’s first affidavit”); and
b)Affidavit of the first applicant “SZHVT” affirmed on 6 March 2006 (“SZHVT’s second affidavit”).
Leave was granted for these affidavits to be accepted into evidence.
The first respondent tendered and applied for the affidavit of Andrew John Crockett sworn on 27 March 2006 (“affidavit of Mr Crockett”) to be admitted into evidence. Leave was granted.
On 11 January 2006, the respondents filed a response to the application seeking the following interlocutory orders:
a)The application be dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (“the Rules”).
b)The applicant pay the first respondent’s costs of this proceeding fixed in accordance with r.44.15 and schedule 1, part 2 of the Rules.
On the grounds that:
i)There has been delay in seeking the remedy: r.44.06(2)(b) of the Rules.
ii)No proper particulars were provided in support of the grounds of review and, in the absence of such particulars, the application does not raise an arguable case for the relief claimed: r.44.12(1)(a) of the Rules.
On 7 March 2006, the applicants filed an amended application which contained 14 grounds of review, 13 of which were particularised.
Litigation history
The affidavit of Mr Crockett provides a convenient summary of the litigation history of the applicants which I have adopted and reproduce below:
3.The applicants were members of the Lie class action from about 9 March 2000. Pursuant to orders of Gaudron J of the High Court of Australia (“the High Court”) of 25 November 2002, on 19 June 2003 the applicants, through their then solicitors, Adrian Joel & Co, filed in the Sydney Office of the High Court a draft order nisi and an affidavit of the applicants’ solicitor sworn 18 June 2003: High Court proceeding no. S1880/2003. The draft order nisi sought writs of mandamus, certiorari and prohibition in respect of the decision of the Refugee Review Tribunal made on 14 October 1999.
4.Pursuant to orders of Gaudron J, the proceeding referred to in (a) above was remitted instanter to the New South Wales District Registry of the Federal Court of Australia (“the Federal Court”): Federal Court proceeding no. N2117/2003. The applicants were given the pseudonym “Applicants S1880/2003”.
5.On 20 February 2004, Emmett J of the Federal Court made orders that Order 51A r.15(1) of the Federal Court Rules not apply and refused the application for an order nisi: Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289.
Background
The Tribunal decision of Margaret Holmes delivered on 14 October 1999, contains the following background details of the applicants. The applicants are husband and wife, three daughters (aged 23, 21 and 15) and two sons (aged 19 and 17). They are citizens of India. They arrived in Australia on 31 October 1998 and on 29 January 1999 lodged a combined application for a protection visa with the Department of Immigration. On 12 February 1999, a delegate of the Minister refused to grant a protection visa and on 16 March 1999, the applicants sought review of the delegate’s decision at the Tribunal (affidavit of Mr Crockett, p.15).
In the Tribunal decision under the heading ‘Applicant’s Claims’, contains numerous claims made by the applicant husband regarding the conflict between Hindus and Muslims. The applicant husband claims that there is long standing bitterness between Hindus and Muslims and this has escalated since the Bharatiya Janada Party (“BJP”) came to power in India. Also that the local party in power in Hyderabad is the Telugu Desham Party (“TDP”). Members of minority religions had been killed and abused by Hindu fundamentalists of the BJP, the TDP, the Rashtriya Swayamsewak Sangh (“RSS”) and the Shiv Sena who want Muslims to leave Hyderabad and indeed India. He further claims that from 1978, the atmosphere in the city of Hyderabad changed for the worst. There were stabbing murders in daylight and it was unsafe to walk in the street. Due to this unrest, he immigrated to Saudi Arabia in 1981 and returned to Hyderabad in 1985. He claims that hostilities against Muslims broke out during a Hindu festival not long after his return. Shops were burned, mosques were attacked, old men, women and children were stabbed and killed and women and girls raped. (affidavit of Mr Crockett, pp.18 and 19)
Application for review of the tribunal’s decision
On 15 December 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:
1.The Tribunal was in breach of s.424A of the Act as it failed to give information.
2.Applicant was not given opportunity to address information that was relevant and adverse.
3.The Tribunal in its decision record expressed reservations, but these were never discussed.
On 7 March 2006, without leave of the Court the applicant filed an amended application which contained the following 14 grounds:
1.The Tribunal’s decision involved jurisdictional error of law in that the Tribunal denied the applicant an opportunity to fully present their case for review.
Particulars
i. The applicant was informed that the Tribunal had considered the material before it in the applicant’s application but was unable to make a decision in the applicant’s favour.
ii. The Tribunal’s decision record shows that the Tribunal invited the applicant to attend a hearing of the Tribunal. During the course of the Tribunal hearing, the Tribunal denied the applicant natural justice in that the Tribunal did not give the applicant a fair chance at detailing his claims for a protection visa.
iii. At best as is evidenced by the transcript of the Tribunal’s hearing, the Tribunal misled the applicant with her line of questioning and set the agenda for the hearing.
iv. The approach taken by the Tribunal in manoeuvring the entire hearing process to suit its own ends denied the applicant a fair hearing. The Tribunal acted outside its jurisdictional powers in not addressing the issues at hand during the hearing.
2. The Tribunal listened to the applicants’ claims and concluded the hearing without expressing any doubts or adverse concerns regarding their testimony. This suggests that the Tribunal did not have any areas of concern or doubts with regards to the testimony given by the applicants. However, the Tribunal was evasive and procedurally incorrect in that it raised a number of adverse findings against the applicants in the decision record.
Particulars
i. In the decision record the Tribunal points out a number of adverse findings. In reaching such conclusions without giving the applicant an opportunity to substantiate his claims or the ability to refute the Tribunal’s conclusions, the Tribunal denied the applicant natural justice.
ii. The Tribunal was in breach of the principles of procedural fairness by way that it did not follow s.424A of the Act.
iii. The Tribunal was obliged, pursuant to s.424A(1) of the Act to give to the applicant particulars of any information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and to ensure that as far as reasonably practicable that the applicant understands why it is relevant and invite the applicant to comment on it.
iv. It is well established that it is the applicant’s right to know the case against them. An applicant must be given an opportunity to address information that is relevant, credible and adverse (Kioa v West (1985) 159 CLR 550).
3. The Tribunal ought to have addressed this serious issue of not informing the applicant that it was going to make a ruling based on information it had. This could have been done by stating in writing the Tribunal’s concerns regarding the applicant’s claims.
Particulars
i. By not asking the applicant relevant direct questions either at the hearing or in written form the Tribunal was guilty of engaging in conduct that was procedurally wrong.
ii. This suggests that the Tribunal was not interested in pursuing the truth in the matter. The Tribunal forwarded the applicant an ambiguous invitation to attend a hearing.
iii. For his part the applicant attended the hearing only to be asked the circumstances of his claims.
iv. The hearing transcript clearly shows that leading questions asked by the Tribunal to steer the hearing in an area that did not address the real issues raised by the applicant in his claims for a refugee visa.
4. The Tribunal did not inform the applicant that it would make decisions against him based on the doubts it had created in its mind and the reliance it would place on the other information it held.
Particulars
i. The Tribunal stated that ‘there are aspects of the applicants’ evidence about which I have some reservations’. The Tribunal stated that it had some reservations about the evidence concerning the reason for his departure; and stated that had the situation been as dangerous for Muslims as the applicant husband had claimed, then it is curious that he left his wife and family in Hyderabad.
ii. The Tribunal ought to have addressed this concern with the applicants directly. Instead the Tribunal did not raise these concerns at all during the hearing.
iii. In reaching a conclusion based on the Tribunal’s curiosity, the Tribunal erred in law because it brought in personal bias against the principal applicant.
iv. The applicant spouse had stated in her evidence to the Tribunal that she and the rest of the family could not move to Saudi Arabia to join the principal applicant because they did not have sufficient money. This was a reason that the Tribunal ought to have considered as a plausible explanation.
v. Instead, the Tribunal relied on mere assumptions in conclusion a number of things. Amongst these were that the principal applicant ‘seemed to have sufficient money for the applicant husband to spend considerable periods in India, presumably drawing some income from his business; to send money to the DJS for the welfare of poor Muslims; and to fund boarding school for the sons’.
5.Not at any stage did the Tribunal subject the principal applicant to substantiate the claims that because of the lack of funds he could not move his family to Saudi Arabia. In not following procedurally correct principles the Tribunal denied the applicant due process of the law to fully present his case. This was a denial of natural justice to the applicant.
Particulars
The Tribunal was wrong to assume such conclusions because it could not expect the applicant not to pay for his children’s education. It is every parent’s right to educate their children and the fact that the applicant provided the means for his children’s education should not have any bearing on his inability to provide the funds for the family’s relocation to Saudi Arabia.
The Tribunal went beyond its jurisdiction in reaching such a biased conclusion.
6. The Tribunal stated that the length of time that the principal applicant stayed in Saudi Arabia while his family remained in India cast doubt over the depth of the applicant parents’ subjective fear of persecution in India. At no time during the hearing did the Tribunal raise such doubts with the applicant. This then suggests that the Tribunal was biased and denied the applicant natural justice in not addressing issues of concerns with him and instead using the doubts it created in its mind to make an adverse finding against the applicant.
Particulars
i. While the Tribunal made such a sweeping statement, as show in above, the Tribunal failed to substantiate its conclusions. It only based its conclusions against the backdrop of its assumptions, and reached such a conclusion that no reasonable Tribunal would have made such a similar conclusion.
ii. This was erroneously wrong and procedurally incorrect on the part of the Tribunal for it displayed bias against the applicants.
7.With regards to the principal applicant’s involvement with the DJS, the Tribunal stated that it found the applicant’s evidence somewhat contradictory. Without substantiating its reasons for drawing such conclusions, the Tribunal denied the applicant an opportunity to substantiate his claims and in the process to rebut the Tribunal’s assertions.
Particulars
i. While it made this statement, the Tribunal did not elaborate on why it reached such a conclusion. Where was the contradiction? The applicant for his part was under oath and would not have made claims of police interest had it not been the case.
ii. The Tribunal’s demeanour lacked procedural fairness and because of its bias towards the applicant, it denied the applicant a fair and balanced hearing.
8. The Tribunal stated that ‘on the basis of the evidence before me, I am not satisfied that the incident in 1991 and the infrequent pattern of past harassment supports a conclusion that the applicant’s involvement with the DJS had led to his life being in danger’. This was again jurisdictionally incorrect.
Particulars
i. The Tribunal did not specify what the ‘evidence’ before it was, and on what basis it was reaching such a conclusion.
ii. If the Tribunal had relevant information that was going to be crucial in determining the applicant’s claims of persecution, the Tribunal was jurisdictionally bound under s.424A(1) of the Act to give the applicant particulars of any information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.
iii. In presenting this information to the applicant the Tribunal was also obliged as reasonably practicable that the applicant understood why the information was relevant and invite the applicant to comment on it.
iv. The Tribunal was wrong in reaching such a conclusion because it ought not to have considered the incident of harassment as an isolated incident and in the infrequent time frame of the harassment.
v. The essential fact to establish was whether the harassment the applicant suffered fit the Convention reason for refugees. In not establishing this fact the Tribunal failed to follow proper procedures and thus denied the applicant the chance to have his matter determined within the proper ambit of the provisions of the Act.
9.The Tribunal stated that it was ‘of the view that the incidents, even if taken cumulatively, are not of a type or severity so as to amount to persecution within the meaning of the Refugees Convention…As well, the incidents described by the applicant husband were in my view infrequent; over a long period…’ Here again the Tribunal only raised this concern in its decision record which was already a fait accompli. The Tribunal again denied the applicant procedural fairness in reaching this decision in the manner in which it did.
Particulars
i. The Tribunal failed to substantiate what it meant by ‘serious harm’.
ii. In not disclosing its parameters of its own definition, the Tribunal set too high a bench mark for the applicant.
iii. The Tribunal in doing so denied the applicant any fair chance of an unbiased hearing.
iv. The Tribunal during the course of the hearing did not address the issue of severity of harm etc with the applicant. The question that one therefore needs to address is why would the Tribunal go through the façade of having a hearing, and yet not address these issues with the applicant.
v. One cannot but feel that the Tribunal goes through the façade of a hearing, asks the applicants irrelevant questions then writes a lot of adverse factors in their written decisions. Such actions is not only jurisdictionally incorrect but also one that lacks procedural fairness.
10.The applicant and his family suffered harassment and violence. It has to be pointed out that there is no strict legal definition of “well-founded fear” in the Refugee Convention or in Australian Migration Law.
Particulars
However, there is general agreement that there are two elements in any interpretation of the term:
the first element is the “subjective” part – that the applicant must be afraid to return to their country of origin;
the second element is the “objective” part – the applicant must show that they have a good reason for fear to return to their country of origin.
ii. For example, in the case of Immigrational Naturalisation Service v Cardoza – Fonseca 94 L Ed 2d 434 (1987) the majority opinion of Justices of the Supreme Court of the United States was that to establish that a “well-founded fear” existed “it need not be shown that the situation will be probably result in persecution, it is enough that persecution is a reasonable possibility”.
iii. The Tribunal was therefore wrong in assuming that no serious harm would befall the applicants. In reaching such a decision the Tribunal went over and beyond its jurisdiction and displayed its own subjective views in the matter. In doing so the Tribunal denied the applicants procedural fairness.
11. The primary issue to be addressed relates to the question of fairness and in relation to the information held by the Tribunal either presented by the applicant or that held by the Tribunal that could be adverse to the applicant’s claims. In this case the Tribunal was grossly negligent of its powers and denied the applicant a fair and just hearing.
Particulars
i. Situations such as this can give rise to a breach of common law procedural fairness, include where the information is critical to the Tribunal decision and the applicant is not on notice of the issues raised by the information.
ii. The Tribunal failed to present the applicant the country information that it so readily relied on to make an adverse decision against the applicant.
iii. The Tribunal relied on advice from the Department of Foreign Affairs and Trade and the United States Department of State advice.
iv. In using the advice from these sources the Tribunal did not share the same with the applicant.
v. A brief mention during the hearing gave no indication to the applicant that this information would be used as a substantive basis for finding against him.
vi. At no stage did the Tribunal present this evidence or advice to the applicant; and in denying the applicant this vital information, the Tribunal denied the applicant a chance to rebut the evidence. This would have to be a crucial error on the part of the Tribunal.
12.The Tribunal erroneously concluded that ‘what the applicants fear therefore lacks an ‘official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality’. This was a biased opinion on the part of the Tribunal.
Particulars
i. The Tribunal was wrong to reach such a conclusion. A person suffering persecution does not have to suffer it from an official source or officially motivated authority. The important point to note is whether the persecution is tolerated by the authorities by their inaction to take steps to protect the individual seeking protection.
ii. The applicant pointed out in detail that all complaints lodged with the Indian police did not even result in one complaint being written. Instead the applicant claimed that the police themselves were at the best of times the perpetrators or serious crime including serious attacks on people. This fact is also substantiated by the Tribunal itself as it states under “Relevant Independent Information about India”; that the ‘police took advantage of the civil unrest to take revenge on Muslim traders who had stopped paying them bribes. Houses and shops owned by Muslims were looted and set ablaze in full view of police and police and Hindu rioters killed some riot victims who were at the hospital’.
iii. The above point 33 clearly spells out the nature of the police involvement and this is what the applicant and his family have been afraid of. This is the precise nature of the fear that the applicants hold. The police in India can inflict violence either under an official guise or act independently of any official guidelines and be a power unto itself.
iv. This is something that the Tribunal did not address and also failed to address at the hearing. For the Tribunal to reach such a conclusion, it denied the applicant an opportunity to rebut the Tribunal’s assertions.
13. The Tribunal in its decision record stated that it based its finding ‘having considered the evidence as a whole’. Having stated this fact, the Tribunal denied the applicant an opportunity to view this so called evidence, thus denying the applicant a fair opportunity in negating those points that the Tribunal considered adverse to the applicant.
Particulars
i. The Tribunal displayed bias in that it did not present the applicant the totality of the evidence to make any comments on it to present crucial evidence to negate the Tribunal’s evidence. This then denied the applicant any opportunity to procedural fairness.
ii. The Tribunal also was procedurally wrong in basing its finding by inference when it assumed a number of things that it used adversely against the applicants. If anything decisions should be based on factual accounts rather than on inference or assumptions. Such a ruling goes against the very fabric of natural justice.
iii. The Tribunal denied the applicant a fair chance to rebut any of the Tribunal’s so-called ‘evidence as a whole’. In not giving the applicant this chance the Tribunal proceeded to make a decision that was procedurally wrong.
14. The Tribunal ought to be reconstituted so that the applicant is given a fair and reasonable opportunity to present his case in its entirety so that the claims of persecution can be determined by the Tribunal in an unbiased manner.
Reasons
In the first respondent’s written submissions filed in the Court Registry on 27 March 2006, the following information was brought to the Court’s attention. On 8 March 2006, the first respondent’s solicitors wrote to the applicants in relation to the transcript of the hearing. The first respondent noted that it was not clear whether the applicants intended the transcript to be an annexure to the first applicant’s affidavit, and the applicants had failed to verify that the document was correct and accurate as required by orders made the Court on 1 February 2006. The first respondent’s solicitors also noted that the transcript appeared to be incomplete and put the applicants on notice that if the complete transcript (verified by an affidavit) was not received by 24 March 2006, the first respondent would object to the applicants seeking to rely upon it as evidence of the Tribunal hearing. The first respondent also reserved the right to object to the transcript on other bases. The first respondent’s solicitors also noted that all the documents referred to above were unsealed and requested the applicants to serve sealed copies of any documents they had filed in the Court. On 15 March 2006, the balance of the transcript was received by the first respondent’s solicitors, however that document was not verified by an affidavit.
Although this show cause hearing was initiated by the applicants, other than the documents referred to above, the applicants have not filed written submissions in support of their application. When invited to make oral submissions, they declined to do so. I acknowledge the applicants’ difficulty, being self-represented litigants attempting to participate in a legal system which is conducted in a language that is foreign to them, and a legal system that they do not comprehend. I indicated to the applicants that although there was no order allowing the amended application, and that they initially indicated intention to proceed on a different set of grounds, I would permit the filing of the amended grounds. I granted them leave to do so. This does not disadvantage the respondents’ solicitors because they were in receipt of that document and had prepared written submissions to meet the issues raised in the amended application.
The applicants did not pursue their show cause proceedings, probably because they did not comprehend the nature of that application and their obligation to present arguments in support of it. In these circumstances, I permitted the respondents’ solicitors to pursue the interlocutory orders sought, filed on 11 January 2006, particularly focussing on their second ground challenging the applicants’ pleadings in respect of grounds for review.
The facts that led me to this approach was that the general thrust of the 14 grounds for review in the applicants’ amended application, are similar to the three grounds contained in their original application. Broadly, these three grounds allege a breach of s.424A of the Act and of common law procedural fairness. They claim that the Tribunal did not disclose to them country information, the applicants’ own evidence and the information the Tribunal relied upon, for their comment. Together with an assertion that the Tribunal was biased for so doing and biased in the way it conducted its hearing.
Ms Watson, for the respondents, referred me to specific passages in the Tribunal hearing transcript which she submits indicate that the applicants were given every possible opportunity to put forward whatever material or evidence they wished to rely upon to the Tribunal. For example, I was referred to the following passages:
Member: Yes, as I said, we’ll talk about what’s happened in the past, what’s happening in India today and how your circumstances meet that definition. There’ll be every opportunity for you all to say whatever it is that you want me to know about.” (Transcript p.3.8)
Member: [SZHVT], as I said, I’ve got a number of questions that I’d like to ask you about the material I’ve read already. Is there anything you’d like to ask me or say to me or perhaps your adviser before we start?
A: No. (Transcript p.5.7)
Member: Thank you sir.
Q: I don’t have any actual questions about what I’ve read so far that I need to ask you, [SZHVT]. Is there anything that either of you want to say to me at this point?
A: No. (Transcript p.22.9)
Member: Q: Okay. What I propose to do now is to talk to your wife, your two sons and your two elder daughters, one by one. Is that all right? I won’t be taxing, I think. Before I do that, [SZHVT], are there any things you’d like to say? You can come back at the end, too. (Transcript p.25.1)
Member: Q: Okay, thank you. [SZHVU], are there any particular things you would like to tell me about? I don’t have any other questions that I need to ask you. But if there’s anything else you want to tell me…(Transcript p.27.1)
Member Q: Alright [SZHVU]. Any other things you want to tell me?
A: If you ask anything.
Q: I haven’t got any other questions I need to ask you?
A: Thanks. (Transcript p.27.8)
Ms Watson submits that similar exchanges were also found at other parts of the transcript.(Transcript pp. 28.1, 29.2, 31.5, 32.1) Further, she drew my attention to the fact that the applicants’ adviser ended the hearing with the applicants saying they had nothing further to submit. (Transcript p.29.3) The adviser also commented that he thought the member had conducted “a very very fair hearing”. (Transcript p.30.5)
The Tribunal decision, which is the subject of these proceedings, was decided on 14 October 1999 and was therefore subject to the provisions of s.424A, which was introduced into the Act by the Migration Litigation Amendment Act No. 1 1998, No. 113, accented to on
11 December 1998 and commenced on 1 June 1999. For the purposes of these proceedings, the operative provisions of s.424A at the relevant time were:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
Ms Watson submits that s.424A only obliges the Tribunal to give the applicants particulars of any information that the Tribunal considered would be a reason, or part of a reason, for affirming the decision that was under review. In this case the Tribunal appears to only have had regard to the applicants’ own evidence to the Tribunal and independent country information, neither of which enliven s.424A(1) of the Act. The applicants’ own evidence to the Tribunal included a statement similar to one earlier provided to the Department.
Ms Watson also submits that s.422B of the Act was not in force at the time the Tribunal gave its decision. This provision was not introduced to the Act until 4 July 2002. Consequently, the Tribunal in this case was bound by common law rules of procedural fairness. The basic test to be applied is whether the Tribunal gave the applicants an opportunity to deal with adverse information that was credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550.
Ms Watson submitted that the amended application’s 13 particularised grounds contain a modicum of repetition. She would make detailed submissions in respect of the first ground, then highlight the repetition as it arises in the remaining grounds.
The amended application’s first ground of review alleges jurisdictional error and that the Tribunal denied the applicants an opportunity to present their case for review. The allegation is that there was a denial of natural justice because the Tribunal did not give the applicants a fair chance to detail the husband’s claims for a protection visa. The third particular suggests that “(a)t best as is evidenced by the transcript of the Tribunal’s hearing, the Tribunal misled the applicants with her line of questioning, and set the agenda for the hearing.” The fourth particular states “(t)he approach taken by the Tribunal in manoeuvring the entire hearing process to suit its own ends denied the applicants a fair hearing. The Tribunal acted outside its jurisdictional powers in not addressing the issues at hand during the hearing.”
I have already referred to various extracts from the transcript where the Tribunal member asked the applicants if they had anything to add or if they wanted to give further information to the Tribunal. In each instance, the question was answered in the negative. In addition there was the comment by the applicants’ adviser saying that the Tribunal had conducted a very fair hearing. I am satisfied after reviewing the transcript of the hearing, and in particular the references which I refer at [16] above, that there was nothing during the course of the Tribunal hearing that would evidence a complaint in the way the Tribunal dealt with the matter. I agree with Ms Watson’s submission in respect of this claim. I accept the general contention that there is nothing in the transcript which would demonstrate that the Tribunal has acted unfairly. The applicants, although providing particulars, have not identified any part of the transcript which supports their allegations.
The second ground states that the Tribunal listened to the applicants claims and concluded the hearing without expressing doubts or adverse concerns regarding their testimony.Ms Watson contends that this ground appears to be a complaint that the Tribunal did not during the course of the hearing flag its concerns or problems with the applicants’ evidence.In response to this ground, Ms Watson referred me to VAF v Minister for Immigration [2004] FCAFC 123 at [24] per Finn, Merkel and Stone JJ:
The word [information] does not encompass the tribunal’s subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps….[authorities excluded].
Ms Watson submits that although this discussion in VAF v Minister for Immigration was in the context of obligations of the Refugee Review Tribunal under s.424A, it also relates to what the obligations the Tribunal has generally. Further, except for a possible issue where s.424A might require certain information be given to the applicants, there would not normally be a general obligation on the decision-maker to forewarn an applicant of flaws in his/her case, or concerns that the decision-maker may have. There is no general common law duty for a decision-maker to identify problems in an applicant’s case. Finally, that the cited passage in VAF v Minister for Immigration stands for the proposition that the Tribunal was not obliged to provide the applicants with forewarning of what the problems may be.
Despite this, there did eventuate at the hearing an actual discussion between the presiding member and the applicants’ adviser in relation to some of the Tribunal’s concerns about credibility. Within that discussion were remarks by the member that she was concerned that the independent country information did not support what the applicants were asserting about the position of Muslims in India. There was some discussion in relation to those issues during the Tribunal hearing.I was referred by Ms Watson to the following passages in the transcript:
Adviser: Sorry, can I ask something? It sounds like credibility is not in issue. (Transcript p.29)
Member: You would never get a yes or no answer out of me on that, on the hearing. I mean I don’t know yet. I personally think we have gathered an incredible amount of information to date. I wouldn’t be able to say the credibility is not an issue at this point.
Adviser: You’re undecided.
Member: It’s something I want to think carefully about. (Transcript p.30)
…
Member: There may be issues of degree about the evidence. I will just have to think carefully about what evidence about the DJS – and just what that does or doesn’t mean.
…
Member: It seems to me that, I suppose, really, the most important issue is the DJS issue and the most important issue in terms of credibility is the DJS issue. But even if everything was as it appears, the nature and the extent of that activity is a matter of fact we’re trying to resolve. I certainly will undertake to think carefully about everything that each of you have said.
Member: Are there any other things you would like me to think about?
Adviser: No, I don’t think so. (Transcript p.31)
The first particular of ground two claims:
In the decision record the Tribunal points to a number of adverse findings. In reaching such conclusions without giving the applicants an opportunity to substantiate his claims or the ability to refute the Tribunal’s conclusions, the Tribunal denied the applicant natural justice.
Ms Watson submits that the Tribunal decision does express some doubts about some of the claims made, the evidence given, and the applicant husband’s involvement in DJS. However, the member dealt with the case on the basis that even if she accepted what the applicants said, she need not find that the applicants have a well-founded fear of persecution. Principally, this was on the basis that the member considered that the applicants could avail themselves of protection provided by Indian authorities.(affidavit of Mr Crockett p.31) Following this is a discussion of the profile of the applicant’s (the husband) involvement in the DJS, and other claims, which cause him to be a particular target for harm by Hindus. The Tribunal member then came to the following conclusion:
What he has experienced has in my view been infrequent. On the basis of the evidence before me, I am not satisfied that the incident in 1991 and the pattern of past harassment supports a conclusion that the applicant involvement with the DJS would lead local Hindus to pursue and harm him because of his activism and support of the Muslim community if he were to resume these upon return. (affidavit of Mr Crockett p.32)
Ms Watson submits that is not a question of the applicants’ claim being rejected or adverse findings made. It is rather a question of the Tribunal assessing the country situation against the claims that had been made. First, whether the claims amounted to persecution, and secondly, whether there is a well-founded fear of persecution in view of the country situation.
The Tribunal was entitled to have regard to whatever country information that was available to it and to place what weight it thought appropriate on various parts of that material. Authority for this is found in NAOO v Minister for Immigration [2004] FCAFC 26 at [14] per Beaumont, Lindgren and Tamberlin JJ:
The Tribunal was, of course, entitled to have regard to all of this information in its assessment of the appellant’s claims. Further, there is no ground for judicial review available, as the appellant now claims, because country information ‘was not actually utilized properly’. This is no more than a claim for ‘merits review’.
In SZANK v Minister for Immigration [2004] FCA 1478 at [16] per Hely J held:
I cannot accept these submissions, because it was a matter for the RRT to decide what weight should be given to ‘country information’ as part of its fact finding function. The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court.
His Honour Hely J then referred to NAHI v Minister for Immigration [2004] FCAFC 10 at [11]:
By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on "country information". The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to "guidance”, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on "country information" that is not true. The question of the accuracy of the "country information" is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of "country information", it would be engaging in merits review. The Court does not have power to do that.
I accept the submissions of Ms Watson that no jurisdictional error is established with respect to the Tribunal’s use of country information. Although the particulars suggest that there could be an issue, examination of the decision does not support the claim.
Similarly, in respect of the second particular in ground two, the applicants claim a breach of s.424A and assert that the Tribunal was obliged to give them particulars of information. Yet, this particular does not point to any aspect of the Tribunal decision where information adverse to the applicants was used by the Tribunal in a way that would engage s.424A of the Act.
The third ground appears to be a repetition of a complaint regarding s.424A, or alternatively, a common law obligation to alert the applicants to what the concerns the Tribunal had. Ms Watson submits that the Tribunal decision itself does not made adverse findings in relation to the claims that were made by the applicants. The nature of these pleadings are unclear, especially the second particular of this ground, which states that the Tribunal forwarded an ambiguous invitation to attend a hearing. The applicants were invited to attend a hearing, which they did with their adviser. The complaint seems to be that the Tribunal diverted the proceedings away from the real issues. In the first respondent’s written submissions:
However, it is apparent from the transcript that the applicants were given every possible opportunity to put forward whatever they wished (see p.3.8, p.5.7, p.22.9, p.25.1, p.27.1, p.27.8, p.28.1, p.29.2, p.31.5, p.32.1). The adviser had nothing to submit (p.29.3) and in fact commented that he thought the member had conducted “a very, very fair hearing” (p.30.5).
Ms Watson submits that the particulars bear little relationship to the facts contained in the transcript and the decision.
The fourth ground contains particulars which do relate to findings made by the Tribunal, that the applicant husband left his wife and family in Hyderabad for a considerable period of time when he left the India. Ms Watson submits however that these were not matters that the Tribunal felt that it needed to resolve but relied upon findings which are discussed at [19]-[20] above.
The applicants again assert bias by the presiding member against the applicants. It is submitted and I accept the submission, that this allegation is completely unsupported by any of the material currently before the Court.
The fourth particular in ground four complains that the Tribunal ought to have accepted the explanation given by the applicant wife as a plausible explanation for the rest of the family not moving to Saudi Arabia. Ms Watson submits and I accept the submission that the Tribunal did not have to resolve this issue, because it relied upon country information regarding effective state protection in India. Similarly, the fifth particular raises an issue that was not part of the actual findings of the Tribunal.
The fifth ground, relates to the applicant husband’s statement “I can’t afford to move my family to Saudi Arabia. That’s why I left them in India”. The Tribunal questioned this because the husband had enough money to travel between Saudi Arabia and India, and was able to place his children in boarding school. However, this appears to be part of the presiding member’s thought process. The member’s comment did not lead to any actual findings. There was no denial of natural justice in the Tribunal drawing together some thought processes from the evidence that was presented by the applicants. The Tribunal expressed that it was having some concern about whether in fact statements being made by the applicants would be taken by the Tribunal to be true.
The fifth, sixth and seventh grounds are complaints about the Tribunal expressing concerns. Ultimately, the Tribunal did not make a decision on either issue. There is no requirement by the Tribunal to convey those concerns to the applicants during the hearing, or indeed after the hearing, as they did not form part of the decision-making process adopted by the Tribunal member. The Tribunal considered the applicants claim and there was nothing more it needed to do to complete its exercise of jurisdiction in the way discussed in NABE v Minister for Immigration (No.2) (2004) 144 CLR 1 at [55]-[63]. Although the Tribunal did not record that it did not accept certain information, evidence or claims, this does not mean that such claims and/or evidence were not considered by it in its decision-making process. In SJSB v Minister for Immigration [2004] FCAFC 215 at [15] per Ryan, Jacobson and Lander JJ, Their Honours noted that s.65(1) of the Act:
…does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.
This approach was confirmed in Minister v Immigration v VSAF of 2003 [2005] FCAFC 73 at [17] per Black CJ, Sundberg and Bennett JJ.
The eighth ground cites the Tribunal:
On the basis of the evidence before me, I am not satisfied that the incident in 1991 and the infrequent pattern of past harassment supports a conclusion that the applicant’s involvement with the DJS has led to his life being in danger.
I reject the applicants’ s.424A contention for similar reasons to reasoning on the fourth ground at [37] above.
The other issue that arises with this ground is the Tribunal’s concern that because of the infrequency of the attacks which were not part of a systematic pattern of behaviour, the attacks of themselves did not amount to persecution. Ms Watson submits that is a finding of fact which is open to the Tribunal. This is an ultimate finding and not something that is subject to the operation of s.424A of the Act.
The complaint in the ninth ground is in respect of the following statement made by the Tribunal (affidavit of Mr Crockett p.30):
I am also of the view that the incidents, even if seen cumulatively, are not of the type and severity so as to amount to persecution within the meaning of the Refugees Convention…As well, the incidents described by the applicant husband were in my view infrequent: over a long period…
The applicants complain that the Tribunal only raised this concern in its decision record. Further that the Tribunal ought to have advised the applicants of its findings in order for the applicants to reply. Ms Watson submits that this requirement claimed by the applicants is neither supported by general law principles nor required by s.424A of the Act.
The tenth ground claims:
The applicant and his family suffered harassment and violence. It has to be pointed out that there is no strict legal definition of “well-founded fear” in the Refugee Convention or in Australian Migration Law.
Ms Watson submits that this ground seems to be that the Tribunal did not find from the applicants’ claims that they suffered from persecution and did not have a well-founded fear of persecution. The finding of the Tribunal in its view was that issues complained of by the applicants did not have the necessary qualities to amount to persecution. I refer to [27] above which deals with the same issue of the presiding member’s findings.
Earlier in the decision, after the Tribunal had considered the various events claimed by the applicants to be attacks on him and his family, the Tribunal raises the following findings (affidavit of Mr Crockett p.30):
In considering this evidence, I have had regard to the applicant’s evidence about being involved in gatherings when Hindus and Muslims would abuse each other and sometimes fight. This suggests to me that some of what the applicant husband claims to have experienced could have been undertaken in retaliation for things done by other Muslims to Hindus. I am also of the view that the incidents, even if seen cumulatively, are not of the type and severity so as to amount to persecution within the meaning of the Refugees Convention. (emphasis added – the section of the decision complained about)
One critical factor for the Tribunal was whether the applicants could avail themselves of protection provided by Indian authorities. In the decision, the Tribunal made the following comment (affidavit of Mr Crockett p.31):
The evidence does not in my view support a conclusion that the authorities encourage the type of behaviour feared by the applicants or that the authorities are powerless to prevent it. What the applicants fear therefore lacks an ‘official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality’ which, as stated in the outline of the relevant legal principles earlier in this decision, is necessary for conduct to be regarded as persecution within the meaning of the Refugees Convention.
Ms Watson submits that there is nothing in the Tribunal’s decision to demonstrate that there has been any error in a way in which the Tribunal has looked at the issue of persecution.
The eleventh ground claims:
The primary issue to be addressed relates to the question of fairness and in relation to the information held by the Tribunal either presented by the applicant or that held by the Tribunal that could be adverse to the applicant’s claims. In this case the Tribunal was grossly negligent of its powers and denied the applicant a fair and just hearing.
The first particular does not assist the applicants in establishing this ground. The second particular relates to a failure to provide country information. This issue has been considered above and I accept the submission that s.424A makes clear that independent country information is not the kind of information that is required to be provided to the applicants.
As mentioned above, the applicants’ adviser had raised with the Tribunal member the situation of Muslims in India. In the fifth particular, the applicants seem to accept that there was mention of some country information on this topic at the hearing. Ms Watson submits that there is no requirement that the country information on this topic had to be provided to the applicants. It was the applicants’ adviser that raised and agitated the issue of the situation of Muslims in India and indicated that he make post-hearing submissions on the topic.
The twelfth ground states:
The Tribunal erroneously concluded that ‘what the applicants fear therefore lacks an ‘official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality’. This was a biased opinion on the part of the Tribunal.
The presiding member gave reasons why she felt that the applicants’ claims did not amount to persecution. Ms Watson submits that this is a disagreement with the member’s understanding of what amounts to persecution and the Refugee Convention. Further, that the applicants must establish they cannot be protected in their own country. This usually arises when people flee their country of origin and cannot avail themselves of protection from government officials who would otherwise provide that protection. Alternatively, the persecution may be coming from another source, but the government officials do not providing protection for a Convention-related reason. Further, that the passage of the Tribunal decision that the applicants challenge does nothing more than establish the parameters of the test for refugee status. There is nothing controversial about the Tribunal setting out its criteria in the decision.
In respect of the applicants’ complaints of the police in India, the Tribunal’s finding of fact was that it was satisfied that there was enough effective state protection for the applicants to seek protection in their home country of India, rather than in Australia.
The thirteenth ground states:
The Tribunal in its decision record stated that it based its finding ‘having considered the evidence as a whole’. Having stated this fact, the Tribunal denied the applicant an opportunity to view this so called evidence, thus denying the applicant a fair opportunity in negating those points that the Tribunal considered adverse to the applicant.
The evidence that the applicants refer to is material they supplied to the Tribunal, which was assessed in the manner which it saw fit. That, together with the country information, supported the Tribunal decision that the applicants did not have a well-founded fear of persecution.
The respondents submit that although the amended application is lengthy, it is lacking in particularisation of the allegations made. Ms Watson submits that when considered against the material before the Court, the assertions are not substantiated and consequently the applicants’ application for a ruling to show cause should be refused.
The response filed by the respondents seeks dismissal of the application on the ground that it does not raise an arguable case. I am satisfied that the issues have been considered and that to proceed to a further hearing is not warranted. The applicants have been granted leave to file their amended application. That document does not identify any ground that can be sustained.
The remaining issue which was raised in the response relates to delay. The merits review decision was handed down on 14 October 1999. The applicants joined the Muin and Lie class action on about 9 March 2000. There is a period of five months between the date of the Tribunal decision and the applicants joining the class action. The affidavit of Mr Crockett also shows that there was an order nisi filed as a result of the class action and a dismissal by the Federal Court on
20 February 2004 of the order nisi application.
The application to this Court was filed on 15 December 2005. There has been a substantial delay in bringing an application to this Court after the finalisation of proceedings in the Federal Court. There has been no explanation for either delay. I note that the applicants lodged two separate s.417 applications under the Act. The first was lodged after the Tribunal dismissed the matter and before the applicants joined the class action. The second was filed in April 2004, and resolved in November 2005, in the period between the dismissal in the Federal Court and the application to this Court.
I believe that the applicants have endeavoured to keep the challenge of their protection visa decision alive by either pursuing review applications or applying to the Minister personally. This was on a continuous basis without sizeable periods of delay and relief should not be denied to the applicants on the basis of delay: Minister for Immigration; Ex parte Miah [2001] HCA 22 at [107] per Gaudron J:
It was put that relief should not issue in this case because of the delay involved in bringing proceedings in this Court. The delay has been explained. In brief, the delay occurred only because Mr Miah sought to have his claims properly considered without the need to institute the present proceedings. The Minister declined to exercise powers which may have rendered the proceedings unnecessary. That being so, the argument that relief should be refused on discretionary grounds is wholly without merit.
In the absence of more detailed submissions in respect to this issue, I decline to make any formal finding in respect to delay.
Conclusion
The applicant husband appears before me as a self-represented litigant, which places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Ms Watson, appearing for the respondents, assisted the Court with detailed written submissions supplemented by comprehensive oral submissions. The applicants were relying on a very lengthy and somewhat repetitious amended application that has been prepared for them. Unfortunately the applicants have no comprehension of its contents or the issue that it raised. Similarly, the applicants did not understand the operation of their original pleadings in respect of the show cause proceeding. Even though they indicated at the first directions date before me that they wished to pursue this issue, they had no real comprehension of what was involved at the requested hearing.
The response filed by the first respondent’s solicitors on 11 January 2006 seeks interlocutory orders that the application be dismissed pursuant to r.44.12 of the Rules on the grounds that there has been a delay in seeking remedy: r.44.06(2)(b) of the Rules. Further, that no proper particulars have been provided in support of the grounds for review and in the absence of such particulars, the application does not raise an arguable case for the relief claimed: r.44.12(1)(a) of the Rules. The amended application does not rectify the deficiency of the original pleadings which in essence focus on the same alleged breach of s.424A. The purpose of the show cause proceedings requested by the applicants was explained to them. The applicants appear to have obtained some assistance in filing an amended application in an attempt to overcome the issues raised in the response. Unfortunately, that document does not achieve that objective. I am satisfied this application should be dismissed pursuant to r.44.12 of the Rules.
I am satisfied that an order for costs should be made in this matter. I order that the applicants pay the first respondent’s costs in these proceedings, fixed in accordance with r.44.15 and schedule 1, part 2 of the Rules.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 5 May 2006
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