Applicant S1646 of 2003 v Minister for Immigration & Citizenship [2007] FCA 334

FEDERAL COURT OF AUSTRALIA

Applicant S1646 of 2003 v Minister for Immigration & Citizenship [2007] FCA 334 APPLICANT S1646 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 544 OF 2006

CONTI J

9 MARCH 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 544 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: APPLICANT S1646 OF 2003

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: CONTI J DATE OF ORDER: 9 march 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to 'Minister for Immigration and Citizenship'. 2. The appeal be dismissed. 3. The appellant pay the first 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 NSD 544 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: Applicant S1646 OF 2003

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: CONTI J

DATE: 9 march 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of Federal Magistrate Raphael delivered on 27 February 2006 whereby his Honour dismissed an application for review of the decision of the Refugee Review Tribunal ('the Tribunal'), given on 12 January 1998, and whereby the decision of the Minister's delegate to refuse the appellant a protection visa was affirmed. 2 The appellant is a citizen of India and is of Sikh ethnicity. He first entered Australia in 1986. He returned to India in November 1988 but re-entered Australia on 15 June 1995. On 6 September 1995, he applied for a protection visa and that application was refused on 3 April 1996. The appellant sought review of that decision on 29 April 1996. 3 Following the Tribunal's determination on 12 January 1998 adversely to the appellant, he became a party to the so-called Muin and Lie class actions (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601). When those proceedings were concluded, the appellant subsequently brought the present proceedings seeking judicial review of the Tribunal's decision. 4 The basis of the appellant's claim to have a well-founded fear of persecution for a Convention reason was made on the basis of his asserted political opinion and membership of a particular social group, namely, being of Sikh ethnicity and being a member of the Akali Dal. The Tribunal was dismissive of what it found to be the lack of credibility of the appellant's case and the claims the subject thereof, albeit that it gave the appellant what it appraised to be the benefit of the doubt in relation to a number of controversial evidentiary issues, including his membership of the Akali Dal. However the Tribunal found to be implausible the reasons for those arrests, and the associated police questioning, and concluded that the appellant 'would not be considered a high-profile suspect and therefore would not be at risk of persecution were he to return to India now or in the reasonably [foreseeable] future'. 5 Raphael FM observed in the context of those findings that the appellant's application to the Tribunal, and its subsequent decision-making, occurred prior to the amendments which inserted ss 422B and 424A into the Migration Act 1958 (Cth). His Honour pointed out that any claim made by the appellant in respect of jurisdictional error in the manner in which the Tribunal conducted itself falls to be determined on the law prior to the operation of those two sections, which, in relation to procedural fairness, is the law expressed in cases such as Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Kioa v West (1985) 159 CLR 550 and Australian Broadcasting Tribunal v Bond (1991) 170 CLR 321. As his Honour indicated at [12] of his reasons for judgment below, '[m]y duty is to look at what the law actually was before the amendments and to apply that'. 6 Before the Federal Magistrate, the appellant contended that the Tribunal had made a jurisdictional error by using 'what the applicant said to the delegate against him without putting it to the applicant to comment upon before making the decision'. The appellant was referring in that submission to the statement made to the delegate that the appellant was asked particulars of the whereabouts of a friend named Lali when he was arrested in about 1985. The Tribunal subsequently found this statement to be implausible. The appellant submitted that this adverse material which he asserted had not been put to the Tribunal but only to the delegate, should have been discussed with him before the Tribunal came to the view that the statement was implausible. 7 Federal Magistrate Raphael concluded, in relation to that submission made by the appellant, that: '…I do not need to deal with the problem in that way because the claim concerning what occurred at the arrest is referred to at [CB 155] under the heading "Additional claims and clarifications at the interview with the delegate" where there appears these words at [CB 156]: "At the hearing, the applicant reiterated the above claims, gave additional details and clarified some information." It seems to me therefore that I can assume that this allegation, which the Tribunal did not believe, was a matter raised at the hearing…'. His Honour went on to observe that 'I am satisfied that as the information was confirmed by the applicant to the Tribunal it was not information limited to the delegate alone…', and further that the Tribunal's consideration thereof constituted in any event an obvious and natural evaluation of that material, reference in that regard being made by his Honour generally to observations in Kioa v West (1985) 159 CLR 550 made by Mason J (as he then was) at 573 and 588, and Deane J at 634 concerning fairness and natural justice. 8 Moreover Raphael FM rejected the appellant's submission, recorded below at [19] of his reasons for judgment, that the Tribunal had failed to take into account evidence to the effect that the appellant's sister had been accepted as a refugee in Canada. His Honour pointed out in that regard that the Tribunal had considered that evidence and that the sister's claims to that status were not of assistance in the review proceedings. His Honour also rejected the suggestion that the Tribunal should have made further enquiries in relation to the reasons for the sister's refugee status in Canada.