Applicant A33/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 755

FEDERAL COURT OF AUSTRALIA

Applicant A33/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 755 APPLICANT A33/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1795 OF 2004 HILL J 2 JUNE 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1795 OF 2005

BETWEEN: APPLICANT A33/2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 2 JUNE 2005

WHERE MADE: SYDNEY

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1795 OF 2005

BETWEEN: APPLICANT A33/2003

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE: 2 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT (Ex tempore – revised) HILL J: 1 Before me is an appeal against a decision of a Federal Magistrate dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal. 2 The appellant is a citizen of India. He arrived in Australia on a student visa in January 1999. In January 2001, he applied to the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister) for a protection (class XA) visa. For that application to succeed, the decision-maker, whether a delegate of the Minister or, in the event of a review by the Refugee Review Tribunal, the Tribunal, must be satisfied that the applicant is a person to whom Australia has protection obligations. Generally speaking, an applicant will be a person to whom Australia has protection obligations if that person is a "refugee" within the meaning of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (hereafter referred to as the "Convention"), Article 1A(2) of the Convention relevantly 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 3 A delegate of the Minister refused the appellant's visa application. The appellant then sought review of the delegate's decision by the Refugee Review Tribunal. The Tribunal affirmed the Minister's decision not to grant a protection visa. The appellant then sought judicial review of the Tribunal's decision. That application was heard by a Federal Magistrate. 4 The Magistrate, as already noted, dismissed the application for judicial review. It may be said briefly that the appellant's claim was that he had been a political activist in the Akali Dal student wing in the Punjab. He claimed to have been involved in a variety of activities for the student movement and in result, to have been targeted by the State. He claimed that the police had lodged a false claim against him saying that he had been accused of involvement in anti-State activities, foreign intelligence and conspiracy against the State. He claimed that the police had searched for him in order to arrest and prosecute him and that with the assistance of an agent he had obtained a student visa, which he used to travel to Australia. 5 The Tribunal set out the appellant's claims and certain country information, being a report on human rights practices in India released by the Bureau of Democracy, Human Rights, and Labor on 4 March 2002, a document referred to by the Tribunal as IND30759.EX concerning human rights in the Punjab, apparently published on 12 January 1999, and a document: "India: Sikhs in Punjab 1994-1995" published in Canada by the research branch of the Immigration and Refugee Board in Ottawa in February 1996. Reference is also made to documents CX32164 and CIR368/98 dated October 1998, which appear to relate to information sought perhaps by the applicant himself and answers given to questions dealing with the consequences to persons who are members of the Akali Dal faction. Finally, reference was made to a document, IND26376.EX, dated February 1997, concerning Sikh militancy in the Punjab. 6 The Tribunal accepted that the appellant had played a minor support role for the Akali Dal (Mann) movement while he was at university, although the Tribunal noted that the appellant appeared to have little idea of what the charges were that were said to have been made against him. It accepted the country information to which it had referred, noting that the judiciary in India was independent and that normalcy had returned to the Punjab in the mid-1990s, so that Sikh militancy was no longer an issue there. The Tribunal did not accept that the appellant was wanted by, or of adverse interest to, the Punjab Police or the Indian authorities, as he had claimed. 7 In reaching this conclusion it noted four matters, being, in summary, that the appellant had waited some two years before applying for a protection visa; that he had been able to depart India on a passport issued to him without difficulty; that he had originally said he resided at the one address but in the course of the Tribunal hearing had said that he was hiding and changing addresses from week to week, and finally, that the appellant appeared to have no idea about the matters said to be charges brought against him, and in the Tribunal's words was "fabricating his evidence". The Tribunal noted that, as the judiciary in India was independent, the appellant would be able to defend himself in Court if the charges were, as he claimed, false. 8 The Tribunal's conclusion that it was not satisfied that the appellant had a well-founded fear of persecution depended overall, as the Tribunal noted, upon its finding that he was not a credible witness. In the Federal Magistrates Court, the appellant did not have the assistance of independent legal representation, although he was provided with a Punjabi interpreter. He had filed written submissions in the Federal Magistrates Court and spoke at the hearing before that Court. Since those submissions were repeated before me on the appeal, I need say only here that the Magistrate rejected them. 9 The learned Magistrate noted that the Tribunal's decision had largely depended upon its findings of credit. The learned Magistrate was unable to identify any ground of review suggesting that there was jurisdictional error on the part of the Tribunal. 10 In his notice of appeal, the appellant, apart from alleging error on the part of the learned Magistrate in an un-particularised way, claimed that the learned Magistrate had failed to give any consideration to the submissions which the appellant had made to him. 11 It is quite apparent that the learned Magistrate did give consideration to the submissions. Probably, the appellant's real complaint is that the Magistrate did not accept them, rather than that he failed to give consideration to them. Before me, the appellant relied upon the same written submissions that have been put to the Magistrate. These submissions, in essence, raised five matters. They are: (1) that the Tribunal had not approached the review with an open mind; (2) that the Tribunal had relied upon old material; (3) that in India the bureaucrats were taking revenge under new regulations relating to terrorism (presumably against the Sikh community); (4) that the Tribunal had failed to put to the appellant for comment, its adverse findings in respect of the evidence and supporting documents; (5) that the Tribunal had not understood the difficulty which the appellant had in gathering evidence in support of his claims when he was not living in India. These matters can be shortly dealt with. Bias 12 No doubt, jurisdictional error would exist if it were shown that the Tribunal had approached its task with a closed mind, such that it had essentially decided the case before the appellant was given any opportunity to put his position to it. However, there is no material before me which in any way suggests that this was the case. The appellant had not sought to put before the Magistrate a transcript of the proceedings, which may perhaps have assisted the argument, nor did the appellant seek to put the transcript before me. 13 The only documents before me relevant to the question of bias are the Tribunal's reasons for decision and the material which was before the Tribunal, collected in the Court Book. There is nothing in any of that material which supports the serious assertion that the Tribunal member approached the appellant's case with a closed mind. Old material 14 I have set out earlier in these reasons the dates of the relevant material considered by the Tribunal. It is interesting that, in the written submissions, immediately after making that point, the appellant refers to an event in 1984 when the Sikh Temple of Amritsar was attacked and hundreds of innocent Sikh people were killed by the army. 15 There is nothing before me to suggest that the material upon which the Tribunal gave its decision was out of date or that it did not represent the true position. It was open to the appellant at the hearing before the Tribunal to put before it material relating to the current situation in the Punjab and in India, had he wished to do so. It does not seem that he did and the Tribunal was entitled to rely upon the material which was before it, some of which, at least, would appear to have been considered by the delegate at the time the delegate made its decision. Nor is there anything before me which suggests that the situation relevant to the appellant changed since the dates the country information bore. The revenge of the bureaucrats at times of terror 16 By this submission the appellant seeks to put before the Court factual matters which might go to the merits of the decision. However, the task of a judge in judicial review is to consider whether there has been jurisdictional error on the part of the Tribunal and not to engage in a merits review of the decision. That is even more so in the case of an appeal from a decision of a Magistrate where this Court's task is concerned with error on the part of the Magistrate. Inability to comment on adverse findings 17 The appellant was unable to tell me what he was referring to in this submission, which had also been made before the learned Magistrate. He said he was unwell. While there is no obligation upon the Tribunal to put to the appellant in writing generalised country information of the kind to which it referred, it is obliged by s 424A of the Migration Act 1958 (Cth) ("the Act") (but subject to exceptions there set out) to give to an applicant before it, particulars of any information that the Tribunal considers would be reasons or a part of the reason for affirming the decision under review and invite an applicant to comment on it. Generally, the information to be supplied and the invitation to comment has to be given in writing. That is required by s 441A of the Act. In an appropriate case, as the decision of the High Court in SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 makes clear, a breach of procedural fairness would arise if certain information adverse to an applicant was not provided in accordance with the mechanism in s 424A. As that case also makes it clear, it would not be sufficient for a Tribunal member to communicate the information orally. The obligation under s 424A of the Act must be complied with and failure to do so in an appropriate case would constitute jurisdictional error. To this extent, some of the comments of the learned Magistrate would seem to be inconsistent with the decision of the High Court. 18 However, as already indicated, the appellant was unable to indicate what the matters were to which he was referring which might fall within s 424A. On that basis it seems to me the appellant has not made out a case for saying that the Tribunal denied to him procedural fairness or failed to comply with s 424A in a situation that can be said to have involved jurisdictional error. Difficulties in collecting evidence 19 No doubt, an applicant before the Tribunal, from whatever country the applicant comes, will have difficulties in Australia collecting information that may relate to his or her alleged fear of persecution in another country. That would be even more the case if the applicant were in detention. The present is not a case where the applicant was in detention. 20 However, to the extent that the submission means that the Tribunal failed to take into account a relevant matter, there is nothing in the Act or regulations made pursuant to it that suggests that this is a relevant matter for the Tribunal to take into account in making its decision. Where an argument is made that the Tribunal has failed to take into account a relevant matter, the question whether a matter is or is not relevant will fall to be determined against the statutory background pursuant to which the decision is made. If the submission is not to be taken as involving a failure to take account of a relevant consideration, then it does not seem to me to go to any issue involving the Tribunal making a jurisdictional error. 21 It follows, in my view, that there was nothing in the matters put to the learned Magistrate which made out a case either of bias or jurisdictional error on the part of the Tribunal member. As indicated, it is clear from a perusal of the Magistrate's decision that each of the matters to which I have referred, other than perhaps the matter dealing with bureaucratic revenge, was considered by the learned Magistrate and rejected by him. Subject to the matter of the Magistrate's comments concerning s 424A and natural justice, I can detect no error in the Magistrate's decision. 22 I should note that at the end of submissions which the appellant made, he indicated he wished to withdraw his appeal. It follows for that reason, and as well as for the reasons I have set out above, that the appeal must be dismissed. 23 I order the appellant to pay the respondent Minister's costs of the appeal.