NBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 231

FEDERAL COURT OF AUSTRALIA

NBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 231 NBAP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N471 OF 2004

NORTH, DOWSETT & CONTI JJ 20 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N471 OF 2004

On Appeal from a Judge of the Federal Court of Australia

BETWEEN: NBAP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: NORTH, DOWSETT AND CONTI JJ

DATE OF ORDER: 20 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N471 OF 2004

On Appeal from a Judge of the Federal Court of Australia

BETWEEN: NBAP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: NORTH, DOWSETT AND CONTI JJ

DATE: 20 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT: 1 Before the Court is an appeal from a decision of Lindgren J delivered on 19 March 2004. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 15 January 2004. The Tribunal affirmed a decision of the delegate of the respondent to refuse the appellant and his wife protection visas. 2 The appellant and his wife are citizens of India from West Bengal. The appellant was born in 1979 and is a computer engineer by occupation. The appellant and his wife left India for New Zealand on 25 July 2002. The appellant held a student visa which, after it was extended, was valid until 31 July 2003. On 9 April 2003, before the appellant's student visa expired, the appellant and his wife arrived in Australia. 3 The appellant was represented by a migration agent before the Tribunal where he claimed to fear persecution because of his political opinion. He said he was an active leader of the opposition party known as Trinamul. He claimed he was assaulted and harassed by CPM (a wing of the communist party) hooligans, and despite appeals to police, was not protected. 4 On 30 October 2003, the Tribunal directed, under s 424 of the Migration Act 1958, that the appellant provide further information on some aspects of his claim, including his claim to be a youth leader of the opposition (par (b)), his claim to have been physically assaulted (par (c)), and his claim to have appealed for police protection and to have been refused (par (d)). On 9 December 2003, the appellant responded under cover of a letter from his migration agent. On 16 December 2003, the Tribunal conducted a hearing and the appellant gave evidence. The details of the appellant's response to the s 424 notice, and his evidence at the hearing are summarised in the Tribunal's decision, and it is not necessary to repeat those details. 5 The Tribunal summarised its conclusions as follows: 'Summary of findings 41. In summary, I do not accept that the applicant has a genuine or well-founded fear of persecution by reason of his political opinion or for any other Convention reason. I do not accept that the applicant is a witness of truth and I am not satisfied, for the reasons I give below, that the applicant's claims are true. Those reasons are, in summary, because his claims are vague, he failed to raise a significant claim until late in the refugee determination process despite frequent and specific directions to provide all claims and evidence in a timely manner, he failed to provide support, documentary or otherwise, for his claims, and his behaviour is inconsistent with a genuine fear of persecution.' 6 The central conclusion of the Tribunal on the vagueness of the claims reads as follows: 'Vague claims 42. Paragraphs (b), (c) and (d) of the s.424 notice indicate those aspects of the applicant's claims for which he was directed to provide complete details. The applicant's response to the s.424 notice (set out above) failed to provide such details and his evidence at the hearing was no more detailed about the incidents which form the basis for his claim to refugee status. In the absence of such details I am unable to undertake independent research which may provide a basis on which to assess the truth of his claims, and the applicant has not provided any corroboration for the claims he made. Lack of such details also renders it impossible for me to be satisfied that the applicant's claims are sufficiently compelling in their particulars to convince me of their credibility in the absence of any corroborative evidence. In addition, the lack of detail of the applicant's claims precludes my examination of the events on which he bases his refugee claims to determine whether those events are Convention related or whether there were non-Convention reasons for those occurrences. 43. In these circumstances, I am not satisfied that the applicant's claims are true. I do not accept that the applicant was a member of a political party, that he was a "youth leader" of that party, or that he experienced harm by reason of that membership by his political opponents and was denied the protection of the Indian authorities for that harm.' 7 The appellant was self-represented before Lindgren J, but relied on a written submission prepared by a lawyer. The only complaint made in that submission was that the Tribunal had refused to allow the appellant more time to obtain support in documents. Lindgren J carefully recorded the history of the attempts by the Tribunal to get the appellant to detail his claim at [13] – [25], and concluded that the appellant had ample opportunity to provide the documents he wished to obtain. His Honour noted that, even at the time of the hearing, the appellant did not have the documents he wished to rely upon. 8 Although the appellant did not rely on the original ground stated in the application to the court, his Honour dealt with them and rejected them. Those grounds were summarised as absence of good faith, denial of procedural fairness, bias, failure to observe procedures, failure to consider the claim against the current socio-political situation in India, and error in interpretation or application of the law. 9 Before this Court the appellant was again self-represented. The notice of appeal sets out five grounds. They seem to have been drawn by the appellant. The appellant also filed a three page written submission. Standing alone, the grounds of appeal are not readily understandable. Read with the written submission, it is possible that the grounds of appeal can be given some meaning. They seem to resolve into the following points. 10 First, the appellant takes issue with Lindgren J's conclusion that the appellant had ample opportunity to supply the Tribunal with the supporting documents. Lindgren J dealt with this issue at length [12] – [27]. 11 In the course of this discussion his Honour said at [26]: 'On the hearing today he states that he did in fact receive one important document on 22 December 2003, that is, six days after the hearing, four days after the making of the decision, but prior to the handing down of the decision on 15 January 2004. He states that he did not forward that document (which I have not seen) to the RRT because the Member had said that she would be proceeding to make her decision on the basis of the existing evidence.' It appears that his Honour did not receive the document referred to at [26] of his decision. He may have taken the view that the document could not be relevant because it was not before the Tribunal, and hence, could not be used to impugn the decision made by the Tribunal to refuse the appellant further time. Whether that approach is correct does not arise on the view we take. 12 As the appellant was self-represented we asked him to produce the document. He had the original in Court. The Court received it in support of the appellant's oral application to lead further evidence on the appeal. The document related to the question of whether the appellant was denied natural justice. The document is a letter from the "General Secretary Anchal, Trinumool Congress Committee" which addresses several issues relied on by the Tribunal to determine the application adversely to the appellant. In order to advance the application to lead further evidence on appeal, the appellant was asked by the Court to file an affidavit setting out the circumstances in which he sought and received the letter. The presiding judge said: 'What the Court is concerned about is that the circumstances in which you obtained this letter are explained to the Court on oath. That means that you have the option to swear an affidavit or make a statement that is sworn that explains how you came to get this letter, when you asked the author, if you asked, how the author came to write the letter and when you received it; that would be of great assistance to your case, and without it Mr Bromwich is saying there might be legal reasons that the Court may not be able to act on you just handing up the letter.' The appeal was adjourned for a few days to allow the appellant to provide the material indicated. He filed a very short affidavit, which only addressed the date of receipt of the letter. He provided no evidence explaining the failure to obtain the letter in time for the Tribunal hearing. 13 The appellant also sought to rely on an email from lawyers in New Zealand to establish that he had received advice not to make an application for refugee status in New Zealand. The email was not available on 16 August 2004, the first day of the hearing of this appeal. On 19 August 2004, at the adjourned hearing of the appeal, the appellant produced an email from New Zealand lawyers. It was not a copy of the original email. It was a new email dated 19 August 2004, the day of the adjourned hearing of the appeal. The contents do not clearly support the appellant's contention. But again, the appellant provided no evidence explaining why the information contained in the email had not been produced to the Tribunal. 14 The Court has a wide discretion to admit further evidence on appeal: CDJ v VAJ (No 1) (1998) 197 CLR 172. In the absence of evidence of an explanation for the failure to produce the letter or the email to the Tribunal, it is not appropriate at this late stage to permit the appellant to rely on that further evidence. 15 Thus, the evidentiary position of the appellant's case remains as it was before Lindgren J. We agree with his Honour's reasons for deciding that there was no denial of natural justice by the Tribunal in proceeding to determine the application without allowing further time to produce documents. 16 In his second ground of appeal, the appellant contends that Lindgren J did not consider all the legal arguments put forward by the appellant. However, the appellant did not specify any argument which was not considered by his Honour. In fact, Lindgren J dealt with all the grounds set out in the application to the Court, even though those grounds were not pursued by the appellant at the hearing. 17 Next, the appellant suggested that, despite a request for a Bengali speaking interpreter with a Calcutta background, no such interpreter was provided, and as a result, the Tribunal did not understand what the appellant said. It seems that this was one of the matters relied upon in the original application to the Court, and was one of the matters which did not persuade Lindgren J. Quite apart from that problem, there is no reference to the nature of the alleged errors of interpretation, or whether they went to any critical issue in the proceeding. The appellant has not demonstrated any legal error on this subject. 18 Then, the appellant contended that the Tribunal confused and harassed him during the hearing. In particular, this allegation seems to relate to what the Tribunal described as the 'late raised claim'. On this question, at [32], Lindgren J said: 'It was open to the RRT to form this adverse view in relation to the late raising of this claim. That, of course, was not the only matter relied on by the RRT in forming an adverse view of the applicant's claims more generally.' We agree with his Honour. 19 Finally, the appellant's submissions complain of bias and unfair treatment by the Tribunal. In truth, these allegations reflect a challenge to the fact findings of the Tribunal. For instance, the submissions commence as follows: '1. The RRT and Federal Court Decision completely put my dependent and my life in jeopardy and forced to return to India where our lives are in constant threat. I became the optimum target, due to my political association with the Trinomul Congress. Of the people patronized by the current administration. The CPM (In West Bengal) and associated parties (In Central). I could be killed by their hooligans and political fanatics. My parents in India still being intimidated and persecuted by the current west Bengal state administration. Even today (09/08/2004) I have been informed from India that their officials (hooligans) visit my father's small business and said to pay INR 50,000 other wise they will put my parents in jail on petty criminal charges. All these serious issues were overlooked and rather than non relating issues ware [sic] raised one after one and several time by the tribunal member when my claim was considered to make me confuse at the interview in the Tribunal (Please Listen the RRT Hearing Tape). I am convinced by going through their decision, that the tribunal has ignored the merits of my protection claim and did not act in good faith in regards to the claim.' 20 The function of the Court on this application is to conduct judicial review, not a review of the merits of the application. The conclusions expressed by the Tribunal were open to it on the evidence. The complaints made by the appellant do not demonstrate any jurisdictional error which would allow the Court to intervene. 21 The appeal must be dismissed with costs. I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.