Applicant A163 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677

FEDERAL COURT OF AUSTRALIA

Applicant A163 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 APPLICANT A163 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL S 142 OF 2003 SELWAY J 13 JUNE 2003 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 142 OF 2003

BETWEEN: APPLICANT A163 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 13 JUNE 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The proceedings be dismissed. 2. The applicant pay the first respondent's costs fixed at $5000, including the costs of the proceedings in the High Court. 3. No orders made in relation to the costs of the second and third respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 142 OF 2003

BETWEEN: APPLICANT A163 OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

MEMBER REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

THIRD RESPONDENT

JUDGE: SELWAY J

DATE: 13 JUNE 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for judicial review remitted to this Court from the High Court. The application seeks a writ of certiorari to quash a decision of the Refugee Review Tribunal (the Tribunal) made on 24 June 2002, and other consequential orders. The decision of the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa. The first respondent has applied to dismiss the proceedings under O 20 r 2 of the Federal Court Rules on the basis that no reasonable cause of action is disclosed. It is clear that an order dismissing proceedings in these circumstances can only be made in a very clear case where there is no real question to be tried, or where the claims are clearly untenable and cannot succeed: see General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, and Webster v Lampard (1993) 177 CLR 598. 2 In this case the applicant relies fundamentally on the case of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 (Muin) for two propositions. First, that there is a jurisdictional error in that the applicant was not informed that certain documents that were before the Minister's delegate (the Part B documents) were not before the Tribunal, and secondly, that in any event the proceedings were unfair because the Tribunal took into account various matters and, in particular, country information which had not been disclosed to the applicant. 3 Muin, of course, simply involves an application of the general principle that the procedures in administrative Tribunals must be fair, as understood in the statutory context. The question in this case is ultimately whether there is anything in the proceedings before the Tribunal which was in any way unfair. 4 As to that, the applicant has filed an affidavit from the registered migration agent which suggests that the registered migration agent, who apparently was present at the hearing before the Tribunal, would have done different or other things if he had known how the Tribunal would proceed. 5 With the greatest respect to the registered migration agent, there is material within that affidavit which is plainly untrue. It seemed to be based upon assumptions which themselves are not proved, and no detail is provided as to what would have happened or what should have happened. In the circumstances, I find it unhelpful. The question ultimately is what further material would the applicant have called, given the opportunity to do so. 6 As to that, it is simply necessary to refer to the Tribunal's reasons, which I do. The Tribunal put to the applicant that his protection visa claims were difficult to accept for two reasons. First, because the claims were vague about his connections with political organisations and secondly, because his claim of arrest, detention and torture in June 2000, for the reasons he claimed, was not supported by independent country information to the effect that Sikhs are not persecuted merely because they are Sikhs or because of a peaceful expression of opinion, even if it is against the government. In response to that, the applicant apparently replied, 'the information is probably correct as there is no problem there now but the police want money from fathers involved in the past.' 7 As to that, the Tribunal did make credibility findings. In particular, the Tribunal said that it had grave concerns about the applicant's credibility but, notwithstanding that, the Tribunal said: 'Despite the Tribunal's concerns as to the Applicant's credibility, for the present purpose the Tribunal is prepared to accept that the Applicant was detained for a week from 10 or 11 June by local police, and the Applicant's father had money extorted from him for his release. The Applicant did not know why he was targeted although he suggested that it may be because his father had been active in the Khalistan movement in the past and was still friendly with his friend from a nearby village and both had been jailed for a short period in 1990-91. The Tribunal finds this explanation for the interest in the Applicant now, implausible, and does not accept that the Applicant was targeted for a Convention reason, such as his or his father's actual or imputed political opinion rather than say simply because the police wanted money.' 8 It seems clear, and I find, that the relevant conclusions drawn by the Tribunal from the country information were put to the applicant and, at least in the Tribunal's reasons, were accepted by the applicant. 9 The other matter raised by Mr Clisby, who appeared for the applicant, was that the Tribunal's alternative finding that the applicant, if returned to India, could shift from the place where persecution may have occurred to some other place was not properly put to him. As to that, the Tribunal's reasons record that, in response to its suggestion that the applicant could relocate elsewhere in Punjab or in India away from his family and where his family's history was not known, the applicant replied that he only has his home and the resources there. It would be hard to start over, as his family is poor and he would not get work. He added that the police might find him and his parents. He asserted that it is easy for police in Punjab to track someone down once they have the person's name, and they will do anything for money. His parents are elderly and he would not want to be separated from them. The Tribunal concluded: 'In any event, if the Applicant fears problems from local police in his home area in the future, the Tribunal is satisfied that it is reasonable in the Applicant's circumstances for him to relocate elsewhere in Punjab or elsewhere in India.' 10 It is obvious, and I find, that the Tribunal put to the applicant the case that he needed to meet. He has not been taken by surprise. The procedures were not unfair. 11 As to whether the Part B material was before the Tribunal, the respondent has argued, and I accept, that it is clear the relevant information, in particular the factual information that had been relied upon by the delegate, namely the departmental file, the 'India' country report prepared by the US Department of State in February 2001, the 'Indian Country Assessment' report prepared by the UK Home Office in October 2001 and the 'Information from four specialists on the Punjab' prepared by the Canadian Immigration and Refugee Board, were all before the Tribunal, as is clearly recorded at the end of its reasons. 12 Accordingly, there is simply no basis upon which it could be argued that the applicant has somehow been misled, or that the proceedings were unfair. There is no basis alleged to identify any jurisdictional error in the Tribunal's reasons. For these reasons, it seems to me that the application for judicial review cannot succeed; there is no arguable case and no prospect of success. 13 I make the following orders: 1. The proceedings be dismissed. 2. The applicant pay the first respondent's costs fixed at $5000, including the costs of the proceedings in the High Court. 3. No orders made in relation to the costs of the second and third respondents. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.