FEDERAL COURT OF AUSTRALIA Applicant VBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1141 MIGRATION – protection visa – appeal from Federal Magistrate – whether failure to consider submissions on post hearing legislative changes referred to in judgment constitutes breach of natural justice Migration Act 1958 (Cth) ss 36, 65, 91R VBB v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FMCA 117 affirmed Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 cited Kioa v West (1985) 159 CLR 550 followed Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 followed Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 followed Stead v State Government Insurance Commission (1986) 161 CLR 141cited APPLICANT VBB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V481 of 2003 HEEREY J 21 OCTOBER 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V481 OF 2003 On appeal from a Federal Magistrate BETWEEN: APPLICANT VBB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 21 OCTOBER 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V481 OF 2003 On appeal from a Federal Magistrate BETWEEN: APPLICANT VBB APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HEEREY J DATE: 21 OCTOBER 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 A Federal Magistrate (FM Barnes) dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) which had affirmed a decision of a delegate of the Minister to refuse the appellant's application for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act): VBB v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FMCA 117. The appellant now appeals. 2 The learned Magistrate's decision was handed down after s 91R, introduced by the Migration Legislation Amendment Act (No 6) 2001 (Cth) (the 2001 amendment), came into effect on 1 October 2001. Although the protection visa application had been made before that date, the learned Magistrate correctly applied s 91R because of the transitional provision in cl 7(c)(iii) of Pt II of Sch 1 to the 2001 amendment. However, the appellant contends that there was a breach of natural justice in that the Tribunal failed to give him the opportunity to make submissions on the effect of s 91R. This is said to amount to jurisdictional error within the meaning of that concept as explained in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. 3 The appellant's argument before the learned Magistrate was that failure to give him this opportunity involved a breach of s 425 of the Act. This argument was not advanced on appeal. Rather the appellant relied on what was said to be a breach of the rules of natural justice. Counsel for the Minister formally opposed leave being granted to the appellant to raise this point for the first time. It is appropriate that leave be granted. No forensic prejudice is alleged by the Minister. The point is an important one, having implications beyond the present case. Legislation 4 Section 65 of the Act requires the Minister to grant or refuse an application for a visa, depending on whether or not he or she is satisfied that the criteria for the visa are satisfied. Section 36 provides for a class of visas known as protection visas. By virtue of s 36(2) one of the criteria for a protection visa is that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugee Protocol. The Refugees Convention in Article 1A(2), relevantly for present purposes, defines a refugee as any person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…" 5 At the time the Bill for the 2001 amendment was introduced into the Parliament the accompanying Explanatory Memorandum stated, in part, that the Bill's purpose was to "restore the application of the Convention in Australia to its proper interpretation". It was further said that "over recent years the interpretation of the definition of a 'refugee' by various Courts and Tribunals has expanded the interpretation of the definition so as to require protection to be provided in circumstances that are clearly outside those originally intended." 6 Section 91R is included in what became subdiv AL of Div 3 of Pt II of the Act headed "Other provisions about protection visas". Section 91R is concerned with the concept of persecution. Other provisions in subdiv AL deal with membership of a social group, non-political crime and other substantive and procedural issues. 7 Section 91R relevantly provides: (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) … (e) … (f) … " Application of the appellant 8 The appellant is a male citizen of India now aged twenty-five. He arrived in Australia on 15 October 1999 on a visitor visa valid for one month. He applied for a protection visa on 3 November 1999. 9 In his application form he claimed that he is a Sikh born in the Punjab. He lived there until 1994 and then joined the Indian Army where he served until 1998, living in various locations in India. He departed India on a valid passport issued in July 1994 but had not travelled outside India before coming to Australia. 10 The appellant's typed statement describing his reasons for his application was as follows: "I am a refugee from India. I am a member of the Akali Dal Man Sikh Independance (sic) movement society. On or about 1994 I joined the India Army as a soldier. I stayed in the Army for 5 to 6 years. Whilst I was there I was constantly tortured by the Hindu soldiers for my strong believes (sic) in the Akali Dal and their struggle for independance (sic). For 5 long years I was hit, slapped, beaten up with battons and endured all sorts of punishment and discrimination. Finally in 1998 I went home for holidays to Dhakansu and refused to return to the Army for fear that I will be further tortured. My father has been a strong member of the Akali Dal and I have followed in his footsteps and attended militant activities on behalf of the Akali Dal movements like carrying banners in support of the party and distributing phamplets (sic) to supporters asking for a free state for Punjab. On a number of occasions when we had party meetings the Police have intervened and kicked and punched me for involvement in the group. On two occasions in June 1998 I have been taken to the police stations and questioned about my involvement with the Akali Dal and I have been beaten up for 2 hours and sent home. The police have made false charges against me saying that I have been involved in terrorist activities. For this reason they are presently searching for me to put me in jail. I am afraid to return to India for fear that my life is in danger. In September 1999 an agent assisted me to obtain a Visa to travel to Australia. I managed to flea (sic) the country on 14 October 1999 and arrived here in Australia." Tribunal hearing 11 Following the refusal of his application by a delegate of the Minister the appellant sought review by the Tribunal. He gave evidence before the Tribunal at a hearing on 16 March 2001. 12 Before the Tribunal the applicant described his time in the army. His duties included guard duty and performing "butler" duties for officers. He said that recruits usually join up for five years but can resign earlier if they wish. He came home on leave in February 1998 and decided that he was not being treated well and wrote a letter of resignation. When asked by the Tribunal why he quit the army he said that he enjoyed his initial nine month training period and also a period thereafter when he was posted to Sikkim in the infantry doing general duties. However after he returned from two months leave he started being treated differently and harshly. Someone had spread incorrect information that his father had joined the political party Akali Dal (Mann). On his return his duties changed. Sometimes he was given butler's duties, sometimes he had to help the cook in the kitchen. As a butler if he did not polish the officer's shoes to their satisfaction he would be "given slaps". He did not want to do such work but preferred the variety he had before he went on leave which included night duty doing security and day work as a butler. He later appealed against his allocated duties and they were "changed somewhat". 13 He said that he had been given the unpleasant tasks to do because the person who allocated the duties knew he was a supporter of the Akali Dal (Mann). He thought he was singled out because he was a Sikh and because his father was thought to be working for the Akali Dal (Mann)and thus being seen as in league with terrorists. The Tribunal pointed out to him that country information indicated that Akali Dal (Mann) was a registered political party and not a terrorist organisation. 14 The appellant said he believed the police would arrest him if he went back to India. He said that a doctor had been killed in April 1998 in Rajpura and the police thought he was involved. In June of that year he was taken to the police station and questioned about his involvement in Akali Dal (Mann) and in the killing. He said that a month or two later the police picked him up from his home, took him to the police station and interrogated him. They asked him who was with him when the killing took place. He was questioned for about two hours, during which time the police hit him. His parents came to the police station and he was charged and released on bail. He was due to appear in court on 3 December 1998 but did not appear and the bond of 118,000 rupees was forfeited. 15 In May 1999 a warrant was issued which required the applicant to attend another hearing on the charges of terrorism and murder and that he had placed a bomb at the police station in Rajpura. He remained in hiding until he left for Australia. The Tribunal's decision 16 As already noted, the 2001 amendment came into force on 1 October 2001. Without further reference to the appellant the Tribunal on 12 October 2001 handed down its decision affirming the refusal. 17 The reasons commence in the usual form setting out the legislation and the definition of "refugee" and reference to a number of High Court cases. Then the key elements in the Convention definition are discussed. Before that, the reasons state: "Sections 91R and 91S of the Act now qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person." 18 Under the heading "Findings and Reasons" the Tribunal noted that country information indicated that the treatment of many Sikhs in the Punjab from the mid 1980s to the early 1990s could be described as persecution. However, country information indicated that, apart from some isolated incidents usually involving high profile activists, the situation there was now much more settled. The Tribunal continued: "The applicant in this instance willingly joined the Indian army after leaving school and remained in the army for almost five years. His father had also spent some fifteen years in the army. The Tribunal accepts that the applicant, as someone who joined when he was sixteen and remained in the army until he was twenty, may have faced some situations and duties in the army that he did not like or find pleasant. However, the Tribunal does not accept that the applicant was singled out from other recruits because of a perception about his and his father's support of a particular political party in Punjab. In any case, the Tribunal does not accept that being treated sternly by army superiors or being given duties he did not like amounts to persecution as defined in section 91R of the Act. The country information indicates that the applicant had the right to resign at any time during that five year period for which he signed up. He chose to remain for more than four and a half years of that term. The Tribunal is not satisfied that the applicant was persecuted whilst in the Indian army on the basis of his imputed political opinion or any other Convention ground." 19 The Tribunal then found that the appellant's limited awareness of the Akali Dal (Mann) party and its leader, combined with his never having voted or formally joined the party, led to a finding that he did not have the profile of a political activist in the Punjab or any other part of India. The Tribunal did not accept that he had been charged with a politically motivated murder of a doctor in Rajpura or terrorist activities. The Tribunal accepted that he possibly has been charged with a criminal offence that he was not prepared to disclose and that he may have broken bail conditions by leaving India, even though it did not accept that this had been in relation to serious criminal and/or terrorist charges. However, the Tribunal was not satisfied that the applicant faced Convention based persecution if he was forced to return to India to face any criminal charges, including breaking bail conditions. The Tribunal noted that he was free to locate in other parts of India where there are many Sikh communities in different parts of the country. Considering the evidence as a whole the Tribunal was not satisfied the applicant was a person to whom Australia had protection obligations under the Refugees Convention. Magistrate's decision 20 The learned Magistrate said: "19. There was no error in the Tribunal's reliance on s 91R in its finding that the acts of mistreatment were not of such severity to constitute persecution. This is a finding of fact (see Arumugam v MIMIA [1999] FCA 251 at [37] and on appeal [1999] FCA 1285). The time for assessment of whether the requisite elements of the Convention definition were satisfied was the date of determination and s 91R applied at this date. Indeed the applicant did not take issue with the Tribunal's application of s 91R – rather it was claimed that a second hearing was required. However, it is misconceived to submit that the Tribunal was under an obligation to recall the applicant to advise him of the change in the law in relation to the definition of persecution." 21 The Magistrate then went on to deal with the case on s 425 which, as already mentioned, is not now in issue. Was there a breach of the rules of natural justice? 22 Natural justice involves a duty to act fairly. The particular action which the duty requires in a given situation depends on the circumstances of the case including the nature of the enquiry, the subject matter and the statutory context: Kioa v West (1985) 159 CLR 550 at 563, 584, 611, Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [60]. 23 As counsel for the appellant submits, natural justice is not necessarily limited to giving or adducing evidence. In appropriate circumstances natural justice may require that a person be given the opportunity to present arguments and make submissions: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [141]. The issue is whether natural justice required such an opportunity to be given in the present case. 24 There are two distinct questions: has there been a breach of the rules of natural justice and, if so, should the court grant relief: Aala at [2], [17], [86]-[87], [127]. If the first question is answered affirmatively, there is a strong presumption in favour of relief. The party defending the validity of the decision has to show that the grant of natural justice could not possibly have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147, Aala at [80]-[81], [131]. 25 In the present case the first question must be answered in the negative. There has been no breach. The reference by the Tribunal to s 91R came in the context of dealing with the appellant's account of his time in the Indian Army. If the Tribunal had accepted the account given in the appellant's initial application quoted above (at [10]), it cannot be doubted that this would amount to persecution as that concept has been applied in Australian courts both before and after the introduction of s 91R. But plainly the Tribunal did not accept that account as a matter of fact. From the Tribunal's summary of the evidence given before it, the appellant's account at that stage was of a very much milder experience, which was fairly summarised in the Tribunal's words as "being treated sternly by superiors or being given duties he did not like", something common to most forms of military service. And, equally clearly, this would not amount to persecution, whether or not s 91R applied. The Tribunal's factual finding was buttressed by the circumstance that the appellant was legally free to leave the army at any time during his four and a half year's service but chose to remain. 26 Whether or not s 91R did in truth make any difference to the construction put by Australian courts on the concept of persecution, or the sub-concept of serious harm, may be open to doubt. But it could not make any difference to the practical conduct of the present case. Counsel for the appellant, who advanced a detailed and thoughtful argument, was not able to formulate any submission which the appellant might have made had he been invited to do so. At most, counsel submitted that the appellant might have been able to say that s 91R did not impose a more severe test in the circumstances of his case. But the Tribunal did not suggest the contrary. The introduction of s 91R did not, in the circumstances of this case, enliven a natural justice requirement that the appellant be given the opportunity to advance what could be no more than an abstract proposition. 27 The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making: Aala at [62]. When, at a stage prior to the final decision, s 91R became applicable to the Tribunal's task, natural justice would have required the appellant to be given the opportunity to comment or make submissions if this new circumstance might have weighed against the appellant. But that was not the case. 28 The appeal will be dismissed with costs. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 21 October 2003 Counsel for the Applicant: S Donoghue Solicitors for the Applicant: Ravi James Counsel for the Respondent: J A Gibson Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 13 October 2003 Date of Judgment: 21 October 2003