Yarlagadda v Minister for Immigration & Multicultural Affairs [2001] FCA 1105

FEDERAL COURT OF AUSTRALIA

Yarlagadda v Minister for Immigration & Multicultural Affairs [2001] FCA 1105

RAMA DEVI YARLAGADDA -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N373 of 2001

RYAN, MARSHALL and CONTI JJ

6 AUGUST 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

SYDNEY DISTRICT REGISTRY N373 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: RAMA DEVI YARLAGADDA

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGES: RYAN, MARSHALL and CONTI JJ

DATE OF ORDER: 6 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SYDNEY DISTRICT REGISTRY N373 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: RAMA DEVI YARLAGADDA

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGES: RYAN, MARSHALL and CONTI JJ

DATE: 6 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT: 1 The Court, as indicated at the outset of this hearing, has had the opportunity well in advance to review the decision of Hely J and the written submissions which have been made to us. Accordingly, we have been able to come to a unanimous view on the disposition of the appeal and the reasons for judgment which are now delivered as the joint reasons of the Court. 2 This is an appeal from the judgment of Hely J delivered on 21 March this year refusing an application for review of a decision of the Refugee Review Tribunal, the ("the Tribunal"). The Tribunal in turn affirmed a decision of the delegate of the respondent Minister who refused to grant the appellant a protection visa. 3 The appellant is an Indian citizen who arrived in Australia on 8 May 1995. Her application for a protection visa was made more than two years later on 4 July 1997. She had claimed before the Tribunal to have been a student activist from 1979 to 1984 when she was a member of the Radical Students' Union, ("the RSU"), which was the youth wing of the Peoples War Group ("the PWG"), apparently known as the Communist Party of India, Marxist Leninist. Although she claimed that her membership of those organisations had ceased by 1991, she asserted that persecutory treatment, including arrests, torture and imprisonment by the police and the laying of false charges against her had commenced while those affiliations were active and had continued to be attributable to them well after she had given up her membership. 4 The Tribunal accepted that the appellant may have attracted some police attention as a student activist but it found, in a passage quoted by his Honour, that even at that time "the police had no continuing interest in her because she was always released without charge." Moreover, as noted by the learned primary Judge, "the RRT did not however, accept the remainder of her claims" and expressly concluded, as his Honour continued; "... ... the bulk of the applicant's claims are concocted and cannot be relied upon". RRT found that the applicant "is of no continuing interest to the police anywhere in India" and was satisfied that if she were to return to India she would be able "to find employment and support herself independently", that is independently of her husband. 5 After noting further respects in which the Tribunal had concluded that the appellant's account had been concocted, Hely J continued, at [7] of his reasons for decision; "The applicant's written submissions in support of the order of review largely invite the Court to embark upon an impermissible re-determination of the merits of the applicant's claim. The assessment of the merits of the applicant's case is a matter for RRT, rather than for this Court. Those written submissions also seek to make a case that the applicant was badly served by the migration agent retained to assist her in the prosecution of her application for a protection visa. The applicant sought to expand upon those complaints in a statutory declaration made on 18 January 2001. I refused to receive that statutory declaration into evidence because the conduct of the migration agent has no bearing on the question of whether the applicant has made out one of the grounds of review specified in s 476 of the Migration Act 1958 (Cth) ("the Act")." 6 The statutory declaration of 18 January 2001, to which his Honour referred, has been placed by the appellant before this Full Court and she has referred in her written outline of argument to his Honour's refusal to receive that declaration. Each member of this Court has read the statutory declaration which was made before the hearing at first instance in this Court but after the decision of the Tribunal. It is not technically before the Court as part of the appeal papers. The respondent in his outline of argument referred to the statutory declaration as having annexed to it "some supposedly corroborative material." It is well settled that a party to an application for review of a decision of the Tribunal is not entitled to tender to the Court on the review application, evidence which deals with the merits of the claims which were before the Tribunal. 7 As was said by another Full Court of this Court (Sundberg, Emmett and Conti JJ), in Minister for Immigration and Multicultural Affairs v Indatissa (2001) FCA 181 at [27]; "It is beyond question that the power of the Court under s 476(1) generally and s 476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the Tribunal." See also Ozberk v Minister for Immigration & Multicultural Affairs (1998) 79 FCR 249 at p 254 to 255 and Mehrabi v Minister for Immigration & Multicultural Affairs (2001) FCA 472 at [11]. 8 The learned primary Judge dealt one by one with each of the grounds particularised in the appellant's amended application for review. Some he rejected because of the absence of evidence which the Tribunal was said to have disregarded. Other assertions of fact, such as the claim by the appellant to have been raped in front of her husband in a police station cell in 1993, were regarded as included in the Tribunal's omnibus rejection of the bulk of the appellant's claims as a concoction. As his Honour said, at [11]; "...In the light of those findings it was not incumbent upon RRT to deal separately and specifically with the applicant's claim that she had been raped by the police: Abebe v The Commonwealth (1999) 162 ALR 1, 26." 9 Hely J next considered together two assertions that the Tribunal had failed, in assessing whether the appellant had a well-founded fear of persecution, to have regard to the gravity of charges by the police, including, according to the appellant, one of murder, and to the length of time for which those charges had been "hanging over her head". His Honour rejected as simply wrong the assertion that the Tribunal had failed to take into account or state its findings on these claims and we have been unable to discern any error in that conclusion. 10 The next matter considered in the reasons at first instance was the claim that, even after moving to another university in Tamil Nardu, the appellant had been forced to maintain her association with RSU/PWG because she spoke languages which were helpful to those organisations. 11 As the learned primary Judge said, at [16]; "This complaint fails to come to grips with RRTs basic finding that except to the extent of some minor involvement with RSU while she was a student, the applicant did not have the involvement with PWG/RSU which she claimed." 12 In a related context it was pointed out by Mr Krishna who appeared below as solicitor for the appellant "that the RRT had not been called upon to address the question of whether the appellant could relocate to another region in India if she were returned to that country". 13 In that respect, Hely J said, at [19] - [20]: "RRT did not address the issue of relocation. There was no occasion for it to do so, as the issue would only arise if the applicant was exposed to a risk of persecution in a part of India, in which case it would be material to enquire whether it was reasonable for her to relocate elsewhere within that country." The problem for the applicant is that the Tribunal did not accept that the police were her persecutors and it found that the applicant is of no continuing interest to the police "anywhere in India"." 14 The second last ground of review considered below was rejected as the premises on which it was based were not made out. Again we are unable to find anything erroneous in that rejection. 15 The last ground concerned an alleged dereliction of duty to advance her claim for a protection visa. That duty was said to have been owed to the appellant by a migration agent whom she had retained for that purpose. The learned primary Judge rightly observed that any such dereliction, (assuming that it had occurred), had nothing to do with the issues which he was required to resolve. 16 By way of a general résumé of the applicant's case for review of the Tribunals decision, Hely J concluded at [24] -[25]; "During the course of submissions Mr Krishna observed, correctly, that the ultimate issue which RRT had to decide is whether the applicant has a well-founded fear of persecution upon a Convention ground if she were to return to India. There may be cases in which a Tribunal could or should be satisfied as to that question even though it did not accept the applicant as a witness of truth. However, Mr Krishna did not put any submissions to me as to why it was that RRT should have been so satisfied in the circumstances of the present case, where it dismissed the applicant's substantial claims as concoctions. During the course of his submissions, Mr Krishna contended from time to time that RRT failed to realise various matters, or did not appreciate that what the applicant said about various matters was the truth. Submissions to that effect impermissibly invite a merits review of the RRTs decision." 17 We regard that conclusion of his Honour's as not merely unexceptionably open to him but as one which each of us would have arrived at independently had we been conducting the review at first instance. Indeed, the written submissions filed by the appellant, who appeared in person on the hearing of the appeal, did not impute any error of law to his Honour but advanced fresh or restated reasons why the Tribunal should have accepted her account. For example, par 3 of her written submissions asks in part rhetorically; "RRT did not find that I am not a credible witness except the minor involvement if it is like that. Why I have to leave my country and suffering in my life without having any family life. Once I land in India police will arrest me and they will torture me and put me in jail on non conditional bail where I cannot [be] released before one year." 18 As has repeatedly been said, including by Hely J in this case, the making of findings of fact is not only pre-eminently but exclusively the province of the Tribunal in this jurisdiction. Accordingly, despite the sympathy which claims like the one just quoted might evoke in members of this Court, we have no alternative but to dismiss the appeal. For these reasons the order of the Court is that the appeal be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.