Applicant A216 of 2003 v Refugee Review Tribunal [2004] FCA 1540

FEDERAL COURT OF AUSTRALIA

Applicant A216 of 2003 v Refugee Review Tribunal [2004] FCA 1540 APPLICANT A216 OF 2003 v REFUGEE REVIEW TRIBUNAL; SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND THE COMMONWEALTH OF AUSTRALIA SAD 765 of 2003 SELWAY J 18 OCTOBER 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 765 OF 2003

BETWEEN: APPLICANT A216 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

THE COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 18 OCTOBER 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant to pay the third respondent's costs. 3. No order in relation to the costs of the first and second 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 SAD 765 OF 2003

BETWEEN: APPLICANT A216 OF 2003

APPLICANT

AND: REFUGEE REVIEW TRIBUNAL

FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SECOND RESPONDENT

THE COMMONWEALTH OF AUSTRALIA

THIRD RESPONDENT

JUDGE: SELWAY J

DATE: 18 OCTOBER 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The applicant is an Indian national who entered Australia on 24 August 1996. On 13 February 1997 the applicant lodged an application for refugee status with the Department of Immigration and Ethnic Affairs. In order to succeed in this application the Minister had to be satisfied that Australia had protection obligations to the applicant, pursuant to the Refugee Convention. In general terms the Minister has to be satisfied that the applicant: … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, or was outside the country of his nationality and was unable, owing to such fear, or unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, was unable, or owing to such fear, was unwilling to return to it. 2 On 22 May 1997 a delegate of the Minister decided to reject the application. On 19 June 1997 the applicant appealed to the Refugee Review Tribunal (the Tribunal). On 23 April 1998 the Tribunal affirmed the delegate's decision that the applicant was not a refugee. The applicant sought judicial review of that decision. On 18 December 1998 the Federal Court of Australia, comprising von Doussa J, made a decision to allow the applicant's application for judicial review and remitted the matter to the Tribunal for re-hearing. 3 The Minister appealed from that decision. That appeal was allowed, by consent, in the Full Court on 31 August 1999 and the matter was remitted to von Doussa J. He again allowed the appeal and on 27 October 1999 again remitted the matter to the Tribunal. A further hearing before the Tribunal was conducted on 22 March 2000. It is this hearing of the Tribunal with which these proceedings are concerned. References to the Tribunal and its decision elsewhere in these reasons are references to this second hearing and determination. 4 On 10 April 2000 the Tribunal decided to affirm the decision not to grant a protection visa to the applicant. The plaintiff subsequently instituted proceedings in the High Court. At one stage they formed part of the proceedings in Muin v Refugee Review Tribunal (2002) 190 ALR 601. 5 In about May 2003 the applicant filed an affidavit in the High Court, seeking an order nisi, directing the Tribunal to hear and determine the applicant's application for review. In accordance with the previous orders made by the High Court that matter was then remitted, instanter, to this Court. The draft order nisi, attached to the affidavit filed in the High Court, seeks certiorari and mandamus. It is alleged that the decision of the Tribunal was invalid for failure to afford the applicant a fair hearing. Although the matter that has been remitted is an application for an order nisi, the appropriate course is to proceed directly to the question of whether final relief should be granted. 6 The applicant's claim for refugee status varied from time to time. The claims were described by the Tribunal as follows: 'In his application form, [the applicant] requested time in which to submit a statement, which he provided about three weeks later. In that statement of 4 March 1997, he claimed that he had been advised by other Sikhs that they had made similar claims and been successful in obtaining protection visas. He conceded that while the level of violence had decreased in the Punjab over recent years, he had … "seen, read or heard of many acts of violence and other breaches of human rights which have occurred in the Punjab. My father was an active supporter of the Akali Dal political party, but I have had no active involvement with a political party to this time." He went on to explain that he was an instrument maker who went to work on his family farm when his father's health deteriorated. He had a brother but that sibling still needed to be educated and could not operate the farm. He explained that he belonged to … "a social group, Small Farmers, who lead lives of near poverty and I expect the situation to get worse," adding that violence would increase as the poverty gap widened. He concluded … "to sum up I am the father of two young children, coming from an area subjected to varying levels of violence and government inactivity and knowing that difficulty lies ahead." Prior to his previous Tribunal hearing, the Applicant submitted some new claims and information. He provided a letter from the secretary of the Mann faction of the Akali Dal Party, an arrest warrant dated 22 December 1997 and a letter from his attorney. The documents indicated that the Applicant had been an active member of the Akali Dal Party, fighting for the rights of Sikhs; that he was a supporter of the Khalistan movement; that he was subject to arrest for sheltering terrorists and collecting arms; that his brother had been detained and tortured by police who raided the family house; and the Applicant will be tortured and later killed in a fake encounter should he return to India. At the previous hearing, he explained that he had been arrested by police in 1989 or 1990 just because he is a Sikh. He was released on payment of a bribe. He said he joined the Bhindranwale Tiger Force (the youth wing of the Akali Dal Party) in 1989 and the Akali Dal Party in 1991, and he had spread propaganda although he did not participate in violent activities. He said he was again arrested in 1993 with two colleagues who disappeared. The Applicant threatened to take action over their disappearance and the police severely tortured him in response. He explained that subsequently he had some protection through a family contact with a government Minister, but when that person passed away the police alleged the Applicant was storing ammunition in his shop. The Applicant fled to avoid arrest and hid at various places until he could flee to Australia. The Applicant's claims were summarised in a written review submission dated 15 February 2000, where it was said he was … "a member of a particular social group, namely small farmers who led a life of near poverty" and reiterated the reasons he had provided in his initial statement, adding that he was … "a member of a political family group he suffered persecution (sic)." The submission states that … "the real persecution can be gleaned in this case as he suffered economic proscription apart from torture." He submitted that he was not harassed in India because he had the protection of a Punjabi government Minister. However, that person passed away in 1996 and the police … "again became active and fabricated case against the applicant in the absence of said protection. To save his life he fled to other states and finally arrived in Australia. Consequence of the said false case an arrest warrant was issued in 1997, as jurisdiction system is very slow in India."' The Tribunal continued: 'At the present hearing, the Applicant reiterated that he had joined the Bhindranwale Tiger Force and then the Akali Dal Party (Mann faction) in 1991. He said his father was a prominent activist and he was his assistant and supporter, and that both of his legs were broken when he was detained in 1993. However, he met the Punjabi Minister after he was released and that person protected him. He said his business continued to do well for the following two years, during which he also continued to be politically active. In response to the Tribunal's inquiry as to why a Punjabi Minister would protect an anti-government activist, he said he conducted his political activities clandestinely. He explained that he had not mentioned that information in his initial statement because he did not speak good English and did not know what he had signed. He also explained that he had not made an application for protection soon after he arrived in Australia, nor had he disclosed his political activities when he did make that application, because he was afraid the information might be relayed back to India. He said that he had been bothered by police because he worked for a Sikh cause and his business was destroyed. He claimed that no Sikh is safe under an Indian government and claimed that laws discriminated against Sikhs. For instance, Sikh marriages had to be registered under a Hindu Act and Sikhs were not permitted to carry their ceremonial daggers into places where dignitaries gathered.' The Tribunal continued on: 'The Applicant agreed that the Akali Dal Party has recently been in a coalition with the BJP party in the Punjab but the faction in that coalition (the Badal faction) is not the same as the faction to which he belongs. He agreed that his own faction is registered and, in response to advice from the Australian Department of Foreign Affairs and Trade (DFAT) that Akali Dal members, including the Mann faction to which the Applicant belongs, can go about their political activities without government harassment and, if necessary, with government protection (see Cisnet CX32164 - Country Information Report 368/98 of 7 October 1998), he said he had problems and his business was destroyed in 1996. He said that if he returns to India his life and the lives of his family members will be in danger. He said his business had been destroyed and he could not obtain a bank loan to start another business. In his post-hearing submissions (dated 31 March 2000), the Applicant acknowledged he had never been a card carrying member of any political organisation but claimed he actively supported Akali Dal through following the directions of his father, who was a member. He could not disobey his father's directions and, as a consequence, was harassed by police between 1991 and 1993. He claimed he was arrested and tortured, including having both his legs broken, being hung up by the hair and beaten. His father arranged his release on each occasion by paying bribes. The harassment stopped when he was befriended by the Minister, but resumed in 1996 when his protector died. He was arrested on one other occasion and then fled and hid in various places until he came to Australia and sought protection. He submitted that his claim was "on the basis of his 'family' political beliefs and on the basis of a social religious and cultural group and of receiving no help, assistance or protection from the authorities."' 7 The Tribunal dismissed those claims on various bases. The first reason for doing so was that the Tribunal rejected the applicant's credibility. As the Tribunal said: 'It accepts that he is a Sikh from the Punjab and that he was trained and employed as an instrument maker before he began working his family farm when his father fell into ill-health. In his initial claims, he expressly said that he had no active political involvement. His claim was on the basis of being a small farmer who foresaw economic difficulties with the possibility of some general violence. Subsequently he claimed that he was an active member of the Mann faction of the Akali Dal and provided documents to that effect. However, after his last hearing, he acknowledged that he was not a "card-carrying" member of that organisation. That is at odds with the letter from Shiromani Akali Dal, which states he is an "active member". In view of his initial and ultimate submissions, the Tribunal is satisfied that the letter claiming he is a member of a political party has been contrived for the purposes of strengthening his claims to be a refugee. It is satisfied that he has not been a member of any political organisation.' 8 Consequently, the Tribunal concluded: 'The Applicant did not initially claim to have been the victim of any mistreatment, yet made subsequent claims of appalling injuries. It may be the case that he suffered broken legs at one stage, but the Tribunal does not accept that arose from police torture in the circumstances he described or for any other Convention reason. In his final written submissions, the Applicant claims that his father was a prominent activist for Akali Dal and the Applicant was forced to obey his directions. His claims basically relate to sheltering people at his parents' farm, so it is odd that his father, the leading activist in the family and the owner of the terrorists' shelter was not only not detained but was able to pay bribes to the police who were said to be persecuting the Applicant for assisting Sikh terrorists. The Tribunal finds that the Applicant did not assist Sikh terrorists, was not harmed for that reason and is not wanted by the authorities for any connection with the terrorists' cause.' 9 The Tribunal found that the applicant's reasons for leaving India was his poverty; not a Convention reason: 'In considering the Applicant's claims and the evidence before it, the Tribunal is satisfied that his initial submissions reflect his true claims and that he contrived claims of political activity and punishment at a subsequent time. In assessing his credibility, it has been aware that asylum seekers may feel compelled to embellish or fabricate evidence and it realises that untruth in one aspect of a claim does not mean other aspects are true. Nor does it mean that person cannot be recognised as a refugee. The Tribunal accepts that the Applicant's family has had some connection with Akali Dal, although the Applicant has acknowledged that he is not a member of that organisation. It does not accept that the Applicant was harmed because of his family's affiliation with Akali Dal, nor does it accept that his brother was detained as alleged in the Attorney's letter. According to the Applicant's own evidence, his father appeared to escape harm at the hands of the authorities. The Tribunal is satisfied that there is not a real chance the Applicant faces persecution because he is a member of a political family …' 10 There were other bases upon which the Tribunal dismissed the claims. First, the Tribunal found that some of the concerns that the applicant had did not arise under the Convention. For example, the Tribunal made reference to criminal charges against the applicant. Finally, the Tribunal found that whatever the situation had been in India it had changed and that the applicant was no longer at risk. For that purpose the Tribunal relied upon certain country information. 11 In the case before me the applicant says that the Tribunal fell into jurisdictional error in two ways. First, he says the Tribunal relied upon country reports, which it did not put to him and about which he had no opportunity to comment. Second, he says the Tribunal did not have before it country reports which had been before the delegate and which the applicant had assumed were before the Tribunal. 12 The applicant relies upon the High Court decision in Muin v Refugee Review Tribunal. In my view it is unnecessary to consider whether there was a breach of the principle in Muin. That is because the credibility finding made by the Tribunal was not, in my view, based upon the country information, which was, or as the applicant says, should have been before the Tribunal. The credibility finding seems to me to have been fairly open to the Tribunal. No jurisdictional error was involved in that finding. It does not seem to me that any difficulty with the use of country information affected the ultimate result, based as it was upon that credibility finding. 13 The applicant submits that if the country information had been before the Tribunal, the Tribunal may have reached a different conclusion on credibility. There is nothing in the reasoning of the Tribunal which suggests that its decision on credibility was affected by country information, nor does it seem to me that any breach of the duty to afford a fair hearing, as is alleged by the applicant, could sensibly have affected the credibility decision that the Tribunal ultimately reached. 14 In these circumstances it is unnecessary to consider the other grounds of alleged jurisdictional error argued by the applicant. Whether or not those grounds might otherwise be made out, they did not affect the result. 15 For these reasons it seems to me that the application for certiorari and mandamus must be dismissed, whether or not there was any jurisdictional error in the way the Tribunal dealt with the country information. Consequently the application must be dismissed.