FEDERAL COURT OF AUSTRALIA
Chopra v Minister for Immigration & Multicultural Affairs [1999] FCA 480
IMMIGRATION – refugees – interpretation and application of test for persecution – ‘course of systematic conduct’ – ‘well-founded fear of being persecuted’ – whether decision of Refugee Review Tribunal based on finding of fact that did not exist.
PRACTICE & PROCEDURE – application for leave to adduce fresh evidence – whether ‘almost certain’ or ‘significant possibility’ that an opposite result would have been reached by the primary judge.
Migration Act 1958 (Cth), ss 5(1), 36(2), 420, 476(1)(e) 476(1)(g), 476(4)(a), 476(2)(b)
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(h), 5(3)
Federal Court of Australia Act 1976 (Cth), s 27
Chopra v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 534 affirmed
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 388, 429-430 referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to
Periannan Murugasu v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, 28/7/87) at 13 referred to
Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 at 20 applied
Mohamed v Minister for Immigration and Ethnic Affairs [1998] FCA 485 at pp 10-11 referred to
Kabail v Minister for Immigration and Multicultural Affairs [1998] FCA 1074 referred to
Hamad v Minister for Immigration and Multicultural Affairs [1998] FCA 1395 referred to
Anjum v Minister for Immigration and Ethnic Affairs [1998] FCA 1633 referred to
Perampalam v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 609 at 615 referred to
Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165 at par 13 referred to
Zayout v Minister for Immigration and Multicultural Affairs [1998] FCA 1420 referred to
Lunardi v Minister for Immigration and Multicultural Affairs [1998] FCA 1091 referred to
Mohammed v Minister for Immigration and Multicultural Affairs [1998] FCA 1077 referred to
Mohamed v Minister for Immigration and Multicultural Affairs [1999] FCA 371 referred to
Paramananthan v Minister for Immigration and Multicultural Affairs and Minister for Immigration and Multicultural Affairs v Vijayakumar Sivarasa (1998) 160 ALR 24 referred to
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 405 referred to
Minister for Immigration and Multicultural Affairs v Hamad [1999] FCA 306 at pars 17-23 referred to
Ibrahim v Minister for Immigration and Multicultural Affairs [1999] FCA 374 at pars 25, 26 referred to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 referred to
Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 at par 31 referred to
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-1 applied
Ratten v The Queen (1974) 131 CLR 510 referred to
Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-9 referred to
Orr v Holmes (1948) 76 CLR 632 at 642 referred to
Gallagher v The Queen (1986) 160 CLR 392 at 396, 402 referred to
DILIP CHOPRA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1045 of 1997
LEE, WHITLAM and WEINBERG JJ
SYDNEY
23 APRIL 1999
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IN THE FEDERAL COURT OF AUSTRALIA |
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NG 1045 OF 1997 |
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BETWEEN: |
DILIP CHOPRA Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NG 1045 OF 1997 |
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BETWEEN: |
Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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JUDGES: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
THE COURT
1 This is an appeal from a decision of Lockhart J (Chopra v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 534) who, on 5 December 1997, dismissed an application by Mr Dilip Chopra for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 November 1996. The Tribunal affirmed the decision of the delegate of the respondent that Mr Chopra, his wife, and their two children, are not refugees.
2 Two issues are raised in this appeal. The first is whether his Honour erred in endorsing the approach adopted by the Tribunal to the question whether the appellant would be at risk of “persecution” if he were required to return to India. The second is whether, pursuant to a notice of motion filed with the Court shortly before the hearing of the appeal, the appellant should be granted leave to adduce fresh evidence which, he contends, will demonstrate that the Tribunal came to an erroneous finding of fact in relation to an issue which he submits was critical to his case.
Background
3 The appellant and his family are Indian nationals who lived, prior to their arrival in Australia, in Allahabad, in the State of Uttar Pradesh. He first came to Australia on business in 1984. Thereafter, he returned to this country on seven separate occasions between 1984 and 1988. He and his family have resided continuously in Australia since April 1988. They obtained temporary residence status in April 1989. He first sought permanent residence status in December 1990 but his application was refused. He challenged that refusal through various internal review processes, but was unsuccessful. In February 1994 he made application for a protection visa. That application was refused by a delegate of the respondent. It was that refusal which was challenged in the Tribunal, and later before Lockhart J.
4 Before the Tribunal, the appellant based his claim to refugee status upon two separate bases. These were (a) individual acts of violence said to have been perpetrated against him in the past, and (b) his involvement with a group known as Rashtriya Swayamsevak Sangh (“RSS”) (a nationalist Hindu organisation known to be strongly anti-Muslim) the members of which were subjected to harassment by reason of their religion and association with that group. He claimed he would be harmed by Muslim extremists if he were required to return to India.
5 In support of the first limb of his claim, namely acts of individual violence said to have been directed against him in the past, the appellant relied on the following incidents:
· On 11 February 1970 he was shot at by unknown persons. He believed this was an attempt by Muslim extremists to murder him. He claimed that the police had investigated the incident, and had discovered that this was part of a Muslim plot to kill him.
· In October 1973 several people had entered his shop (where he conducted a gem trading business) as customers. Armed with knives, they had assaulted staff and snatched goods. They had shouted anti-Hindu slogans. This convinced the appellant that his attackers were Muslims.
· The gem trade, which was based in Old Delhi, was controlled by Muslims. They had subjected his business to a series of trade boycotts.
· From about 1976 he had travelled frequently on business from Allahabad to Bombay. On occasion, when it was known that he was coming to Bombay, groups of around ten to fifteen Muslims would gather and shout abuse, and hurl stones at him. On one occasion he was struck on the head by a stone. He was singled out for such treatment because of his continuous involvement with the RSS and, to a lesser degree, his membership of the Hari Krishna movement.
· On 26 June 1978 he and his family were involved in a collision between their car and a truck. Both the appellant and his daughter had been seriously injured. He believed that the truck had been driven by Muslim extremists who had been trying to kill him. He reported the details of the incident to the police. However, they did not take any action against the offenders.
· In 1992 his gem trading business in Sydney had been robbed. The police were unable to trace those responsible. The appellant claimed that they were Muslims who had set out to ruin him because he was a Hindu.
6 In support of the second limb of his claim, namely involvement in a group the members of which were subjected to harassment by reason of their religion, and their membership of the RSS, the appellant relied upon a number of newspaper clippings which, he submitted, demonstrated that throughout India in the 1990s there had been a number of incidents involving racial tension and communal violence. On some occasions, Hindus had been targeted for attack. There had been, for example, in late 1992 rioting in the wake of the destruction by Hindu militants of the Babri mosque. The appellant believed that there had been a general breakdown of law and order in Uttar Pradesh, and that the bureaucracy had been totally politicised. After the assassination of the Chief Minister of the Punjab, in 1995, allegedly at the hands of militant Sikhs, there had been an escalation in lawlessness and communal violence. The Indian police could not be relied upon to provide protection to those subjected to such violence.
The statutory regime governing protection visas
7 The appellant claims to be a refugee within the well-known Convention definition. By s 36(2) of the Migration Act 1958 (Cth) (“the Act”) a criterion for the grant of a protection visa is that at the time of the decision the applicant is a non-citizen of Australia to whom this country has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Convention referred to in s 36(2) is the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, while the Refugees Protocol is the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 – see s 5(1) of the Act. Additional criteria for the grant of a protection visa appear in Sch 2 to the Migration Regulations under the heading, “Subclass 866 – Protection”.
8 Australia has protection obligations to a non-citizen in Australia if that non-citizen is a refugee within the meaning of Art 1A(2) of the Convention. That paragraph provides, in part, that a refugee is a 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 ….”
9 In order to fall within this definition, an applicant must demonstrate that:
· he is outside his country of nationality;
· he has a well-founded fear of persecution;
· his fear of persecution is based on race, religion, nationality, membership of a particular social group or political opinion; and
· he is unable or, owing to such fear, unwilling to avail himself of the protection of that country.
10 It is now clearly established that a “well-founded fear of persecution” under the Convention exists if a person has a genuine fear founded upon a “real chance” of persecution for a Convention related reason: Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
11 In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 the High Court held that in order to be “well-founded” the person’s fear must have a “real substantial basis”. It must not be “merely assumed or based on mere speculation”. An applicant need not show that persecution is more likely than not to eventuate – a “real chance” will suffice. The “real chance” test should not, however, be used as a substitute for the Convention term “well-founded fear”. The language of the Convention should ordinarily be used when applying the relevant test.
12 The term “persecution” is not defined in the Convention. It has been determined, however, that not every threat of harm or interference with a person’s rights based upon a Convention reason will constitute persecution. In Chan (supra) Mason CJ observed at 388 that persecution involves “some serious punishment or penalty or some significant detriment or disadvantage”. It may, however, be less than a threat to life or freedom, and may include “(m)easures ‘in disregard’ of human dignity” (per McHugh J at 430) and possibly other “serious violations of human rights” (per Dawson J at 400).
13 There has in the past been some uncertainty as to whether the term “persecution” requires some form of “systematic” conduct directed for a Convention reason against the applicant as an individual, or as a member of a group. It is that question which is raised by the appellant’s first ground of appeal.
The Tribunal’s reason for decision
14 The Tribunal accepted the appellant’s claim that shots had been fired at him in 1970. It also accepted that his business had been robbed in 1973, and that he and his family had been involved in a collision with a truck in 1978. The Tribunal did not, however, accept that any of these events were the work of Muslim extremists aimed at eliminating the appellant, as he claimed. Similarly, the Tribunal accepted the appellant’s claim that his gem business had been robbed in 1992 after he arrived in this country. It rejected the appellant’s contention that the robbery was carried out by Muslim extremists who had set out to ruin him.
15 In the course of its reasons for decision, the Tribunal stated:
“It is clear from any consideration of the Applicant’s evidence that he believes that any difficulty he encounters is the fault of the Muslim community. In relation to the robbery in Australia for example, there is simply no evidence that this was the work of anything other than thieves who wished to steal from the Applicant. His reasons for believing that the act was committed by Muslims appears only based on his own prejudices. Likewise, the events in India appear on their face to be unrelated and very unfortunate experiences over a considerable period of time which were not directed at the Applicant because of his religious or political views.
At the hearing before the Tribunal the Applicant advanced claims in relation to political activity involving the RSS which he had not advanced earlier and also the difficulties he encountered in Bombay. The Tribunal does not believe that these claims are true but rather were an attempt by the Applicant to give a clearer politico-religious focus to his application in the face of the rejection of his earlier claims by the delegate of the Minister. The Tribunal does not believe that the Applicant was associated with the RSS, nor that groups would protest against him in Bombay, and throw stones at him whenever he travelled to the city on business.” (emphasis added)
16 The Tribunal then turned to the appellant’s more general contentions regarding communal violence between Muslims and Hindus in India. The Tribunal accepted that considerable tensions between religious groups have existed, and continue to exist, within Indian society. It also accepted that the enmity between Hindus and Muslims is long standing, and results in serious levels of violence between the communities. The Tribunal stated:
“There can be little doubt that this history of struggle between the Hindu and Muslim communities of India is still being played out today. One of the most significant acts of violence by the Hindu majority against Muslim minority of India occurred in late 1992 with the destruction of the Babri mosque in Ayodhya by Hindu groups, in which it is estimated some 1700 people died.
…
In the wake of the riots there have been sporadic difficulties, including bombings in March 1993. These are widely reported to have been in response to the Hindu riots, most probably by militant Muslim activists. …
The Tribunal accepts the Applicant’s claims that such violence will not be entirely eliminated and may recur in the future. The Tribunal also accepts that the on-going religious tensions between the communities can make for life feeling unsafe and unsettled.
In the Tribunal’s view, a fear that generalised communal violence may at some point in the future affect a person, does not constitute a well-founded fear of being persecuted, as required by the Refugees Convention. In the case of Periannan Murugasu v. Minister for Immigration and Ethnic Affairs (unreported, Federal Court, 28/7/87), Wilcox J. notes:
The word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances (at p.13)
This reasoning was adopted by McHugh J. in Chan’s case at p.430. In discussing the evidence in Periannan Murugasu, Wilcox J also draws a distinction between patterns of persecution and patterns of communal violence even where communal violence results in serious harm (at p.8). This means that recurring patterns of violence between groups within a community will not constitute persecution unless it forms part of “a course of systematic conduct”.
Incidents such as those referred to in the newspapers presented by the Applicant are examples of the underlying religious tension between the communities, which on occasion erupt into incidents of violence. The incidents which arise are generally of a sporadic nature and where they occur and the severity and extent of harm is unpredictable. The Indian government does not condone such violence and takes what measures are available to stem its occurrence. Harm which occurs as a result of such violence cannot be said to be a “course of systematic conduct”, but is rather incidental harm which occurs as a result of continuing communal conflict.” (emphasis added)
17 The Tribunal concluded:
“Considering all of the material presented by the Applicant the Tribunal does not believe that it can be said that he holds well-founded fear of persecution should he return to India. The Tribunal does not believe that the unfortunate experiences he has had in the past can be realistically be attributed to a plot by Muslims to harm him. While the Applicant has not been affected by communal violence in the past, it is possible that further violent incidents could occur in the future in India. However, the Tribunal believes that such violence as occurred in the wake of the destruction of the Ayodhya mosque reflect patterns of communal conflict rather than persecution and that therefore fear of harms resulting from such acts cannot properly be said to be well-founded fear of being persecuted. Furthermore, where such acts have occurred in the past they have often been violence of the Hindu majority, the faith to which the Applicant adheres, directed at the Muslim minority. Considered in total the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations. He is not, therefore, entitled to the grant of a Protection Visa.” (emphasis added)
The decision of the primary judge
18 The appellant appeared in person before Lockhart J. His submissions before his Honour bear little resemblance to those now advanced by his counsel, Mr Elliott, before this Court.
19 It should be noted that Lockhart J’s reasons for judgment were delivered ex tempore. They are short, and to the point. His Honour observed that the Tribunal’s reasons for decision were comprehensive, and that it was unnecessary to refer to them in detail. His Honour concluded:
“The applicant has challenged the findings of the Tribunal on a number of grounds which are set out in his application for review and in his affidavits filed in support of the application which I have read. His grounds are summarised in his written submissions which I have had the benefit of reading earlier today.
One ground that he advances is that there was no decision in law because the member of the Tribunal who constituted the Tribunal for the purposes of his review was not in fact validly appointed to the position of hearing his review. I have already dealt with that submission when considering an earlier adjournment application made today by Mr Chopra and I adhere to what I said there and need not repeat it. I rejected the submission as unsound.
Mr Chopra has also submitted that the Tribunal has contravened s 420 of the Migration Act 1958 (Cth) in that the Tribunal did not act according to substantial justice and the merits of the case as s 420 requires. That this may be a ground of review under s 476(1)(a) is now established.
I am not persuaded that any of the matters to which I have been referred as constituting a failure to comply with s 420 have been made out.
The essential attack of Mr Chopra is that the Tribunal did not take the proper steps to find out why he had a well-founded fear of persecution. I have quoted extensively from the Tribunal’s reasons which bear upon that ground of attack upon it’s (sic) findings, but I have by no means quoted all the findings of the Tribunal, although I have of course considered them and taken them into account. I am not persuaded that the Tribunal committed any error of law in the approach it took to the issues before it including the question of whether or not Mr Chopra had a well-founded fear of persecution.
It must be remembered that this court in reviewing decisions of the Tribunal is not a body that can substitute its own views on the facts from (sic) those reached by the Tribunal. The Court is empowered to deal with questions of error of law and I am not persuaded that any of the attacks made upon the decision of the Tribunal have been made out. Accordingly, the application for review is dismissed.”
The appellant’s contentions
20 By an amended notice of appeal filed on 29 January 1999 the appellant relies upon two grounds in support of his appeal from the decision of Lockhart J. These are:
“(i) Pursuant to section 476(1)(e) of the Migration Act 1958, the Court below erred by failing to find that RRT decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the RRT.
Particulars
The appellant sought the grant of a Protection Visa pursuant to s36(2) of the Migration Act 1958 and cl.866.221 of Schedule 2 of the Regulations which required the appellant to satisfy Article 1 of the Refugees Convention. The RRT on page 9 of its decision incorrectly interpreted the words, “well founded fear of being persecuted” in this Article in the case of communal violence as requiring a “course of systematic conduct”: see Abdalla v Minister for Immigration & Multicultural Affairs [1998] 1017 FCA (20 August 1998).
(ii) Pursuant to section 476(1)(g) and (4)(b) of the Migration Act 1958, the Court below erred by failing to find that RRT decision was based on a finding of fact that did not exist.
Particulars
The RRT found the appellant was not associated with the Rashtriya Swayamesevak Sangh (“RSS”) in India, when there was no evidence that the appellant was not associated with that group and the appellant was indeed associated with it.”
21 These grounds are said to raise two separate questions for consideration –
· whether “a course of systematic conduct” is required to establish “a well-founded fear of being persecuted”; and
· whether the Tribunal mistakenly found that the appellant was not a member of the RSS – a finding for which the appellant contends there was “no evidence”, and in relation to which the appellant seeks to adduce further evidence in this Court.
22 We shall deal with these grounds in the order in which they were developed in the appellant’s submissions.
The appellant’s submissions regarding “systematic conduct”
23 Mr Elliott contended that the Tribunal had erred in conducting its review of the appellant’s claim in accordance with the principles laid down by Wilcox J in Periannan Murugasu v. Minister for Immigration and Ethnic Affairs (unreported, Federal Court, 28/7/87). It will be recalled that Wilcox J had stated that the word “persecuted” suggested a course of systematic conduct aimed at an individual or at a group of people. If that formulation was incorrect the Tribunal should not, of course, have acted upon it. It would also follow, Mr Elliott submitted, that Lockhart J had erred in law in dismissing the appellant’s application for review.
24 Mr Elliott submitted that the Tribunal had not only sought to apply the principle formulated by Wilcox J in Murugasu, but had also treated his Honour’s suggested meaning of the word “persecuted” as though it were a sine qua non of refugee status. He submitted that in Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 a Full Court of this Court had rejected Wilcox J’s formulation and, in effect, overruled that part of his Honour’s reasoning in Murugasu. The judgment in Abdalla had not been handed down until August 1998, some eight months after Lockhart J delivered his reasons for judgment in the present case. Nonetheless, counsel for the appellant submitted that his Honour’s judgment could not stand in the light of that decision.
25 Wilcox J’s observation in Murugasu bears repeating. His Honour noted, at 13:
“The word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violent as a result of civil or communal disturbances.” (emphasis added).
26 His Honour’s reasoning commended itself to McHugh J in Chan (supra). McHugh J stated at 429-30:
“The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be “persecuted” because he or she is a member of a group which is the subject of systematic harassment …Periannan Murugasu v. Minister for Immigration and Ethnic Affairs Unreported; Federal Court; 28 July 1987. Nor is it a necessary element of “persecution” that the individual should be a victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of the class, he or she is “being persecuted” for the purposes of the Convention. The threat need not be the product of any policy of the government of the person’s country of nationality. It may be enough, depending on the circumstances, that the Government has failed or is unable to protect the person in question from persecution …” (emphasis added)
27 In Mohamed v Minister for Immigration and Ethnic Affairs [1998] FCA 485, a case decided three months prior to Abdalla, and involving clan membership in the context of the civil war in Somalia, Hill J expressed reservations about what his Honour described as the “intrusion” of the term “systematic” into the test for refugee status. He quoted from McHugh J’s judgment in Chan, and then said (at 10-11):
“It is evident from the passage above cited that his Honour was not suggesting that there needed to be a series of systematic acts against an individual before it could be said that that individual had a “well-founded fear” of persecution. So much appears from the observation made by McHugh J at 430 that a single act of oppression may suffice to show persecution and that it is not necessary that there be a series of acts. Where the fear of persecution is in respect of an applicant’s membership of a group, acts of systematic harassment against the group will show the fear to be well founded. There need not be any particular act in fact perpetrated against the individual. Where the fear of persecution is in respect of an individual’s political or religious beliefs the resolution of the question whether the fear is well founded will be assisted if it is shown that a course of systematic conduct has been actuated against that individual. But it is not a necessary prerequisite for success in an application. Evidence that individuals with a similar belief suffered discrimination amounting to persecution would likewise justify the conclusion that the individual’s fear was well founded even if the individual himself or herself suffers only an isolated act of persecution or none at all. There is no requirement in law that, for an application for refugee status to succeed, the applicant must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic.” (emphasis added)
28 In Abdalla (supra) the appellant was also a Somali national. She had applied for a protection visa claiming that, as a member of a particular clan, she would be persecuted if she were required to return to Somalia. She also claimed that she faced a risk of harm arising from the pattern of civil unrest in that country.
29 The Minister refused to grant the appellant a protection visa. The Tribunal upheld the Minister’s decision. It observed, in its reasons for decision, that the word “persecuted” in Art 1A of the Convention suggested a course of “systematic action” aimed at an individual or a group of people. It found that the patterns of communal violence to which the appellant might be exposed if she returned to Somalia did not form part of a course of “systematic conduct” directed against her particular clan. She did not, therefore, face “a real chance” of “persecution”, and did not meet the test for refugee status.
30 The Tribunal’s decision was affirmed at first instance in the Federal Court.
31 The Full Court in Abdalla, in its judgment in the appeal against that decision, referred specifically to the principles formulated by Wilcox J in Murugasu (supra). The Full Court referred also to the fact that his Honour’s concept of “systematic” conduct had been taken up with approval by McHugh J in Chan (supra). The Full Court then proceeded (at 20):
“In substance the tribunal decided, in the present case, that the recurring pattern of communal violence, which it found to exist in Somalia, did not amount to persecution because there was no systematic course of conduct. The requirement, in our view, was too widely expressed. Where there is a recurring pattern of violence towards a person on a Convention ground, there is no reason why such conduct may not constitute “persecution”. Clearly “persecution” involves more than a random act. To amount to “persecution” there must be a form of selective harassment of an individual or of a group of which the individual is a member. One act of selectiveharassment may be sufficient. The fact that a recurring pattern can be loosely described as communal violence or civil war does not mean that it cannot amount to “persecution”. It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger.
The decision in respect of whether communal violence amounts to “persecution” depends on whether there is a purpose behind the recurring pattern which is referrable to a Convention ground.” (emphasis added)
32 The Full Court held that a recurring pattern of communal violence could amount to persecution if directed towards a person on a Convention ground. However, the violence had to involve “more than a random act”. The question to be resolved was whether it involved “a form of selective harassment” of an individual or of a group of which the individual was a member. Whether or not such communal violence did amount to persecution depended upon whether there was behind it a “purpose” which was referable to a Convention ground. A “purpose” of that type might be demonstrated in a given case without the violence being, in any meaningful sense, “systematic”.
33 Mr Elliott submitted that the decision in Abdalla has generally been considered by the judges of this Court to have overruled the decision of Wilcox J in Murugasu. He referred specifically to Kabail v Minister for Immigration and Multicultural Affairs [1998] FCA 1074; Hamad v Minister for Immigration and Multicultural Affairs [1998] FCA 1395 and Anjum v Minister for Immigration and Ethnic Affairs [1998] FCA 1633 as examples of that approach having been adopted by judges at first instance.
34 Mr Elliott submitted that had the Tribunal in the present case approached the appellant’s claim to refugee status in accordance with the principles later made clear in Abdalla, its findings concerning the patterns of violence and ongoing tensions between Hindus and Muslims would inevitably have led it to conclude that the appellant had a well-founded fear of persecution. By insisting that the appellant demonstrate “systematic conduct” aimed at him, or at a group of which he was a member, as a necessary prerequisite to a finding of persecution, the Tribunal had failed properly to consider whether he had made good his claim.
The respondent’s submissions regarding “systematic conduct”
35 Mr Reilly, for the respondent, submitted that, properly understood, the Tribunal’s reasons for decision were in no way inconsistent with the principles stated by the Full Court in Abdalla. Though the Full Court had concluded that Wilcox J’s formulation in Murugasu, had been “too widely expressed” it had qualified, rather than overruled, that particular formulation in his Honour’s judgment. The Full Court had not held that it would inevitably constitute reviewable error for the Tribunal to ask whether the conduct said to have given rise to the well-founded fear of persecution was “systematic”. Whether or not it bore that character could be relevant to that issue, depending upon the circumstance. Any error would lie in treating the systematic character of any violence which had occurred as a necessary prerequisite to a successful claim to refugee status, not in treating that issue as relevant to the success of such a claim.
36 It may be noted, in this context, that the word “systematic” is defined in the Concise Oxford Dictionary as “methodical, according to a plan, not casual or sporadic or unintentional, classificatory” (emphasis added).
37 Mr Reilly submitted that, understood in context, the term “systematic” had been used by the Tribunal in an entirely appropriate manner when it considered whether or not the past communal violence between Hindus and Muslims could be said to amount to persecution. The Tribunal had used the term “systematic” merely as the converse of “sporadic”. It had not used that term in any sense which implied that a high level of coordination in the attacks made upon the appellant was a necessary prerequisite to a successful claim to refugee status.
38 Mr Reilly submitted that the Tribunal had been entitled to conclude that the sporadic and unpredictable racial tensions which, in India, spilled over into communal violence from time to time, could not be equated automatically with conditions in countries where law and order had broken down completely, and civil war reigned, like Somalia. Not all communal violence in which religion is a factor will amount to “persecution” in a Convention related sense. Sporadic and unplanned outbreaks of religious violence, such as those which the Tribunal found had occurred, do not fit comfortably within the concept of “persecution”. Such violence must be “selective” and “purposive” in nature in order to constitute “persecution”. Moreover, the Tribunal found that such communal violence as had occurred was not condoned by the Indian government, which had taken such measures as it could to prevent it. It should not be forgotten, he submitted, that Hindus make up the overwhelming majority of the population in India. It was hardly likely that they could be viewed as a religious group subject to persecution by the vastly smaller number of Muslims who live in that country.
39 Mr Reilly contended that if, contrary to his earlier submissions, this Court were to conclude that, in the context of claims to refugee status, the Full Court in Abdalla had rejected entirely the use of the term “systematic conduct”, it had done so only with regard to those claims based upon past acts of violence directed against an applicant as an individual, and not with regard to those claims based upon membership of a particular group. Where the fear of persecution is said to arise from membership of such a group, acts of systematic harassment against that group will show the fear to be well-founded (per Hill J in Mohamed (supra)). Moreover, Mr Elliott submitted, acts of systematic harassment are, in such cases, a necessary prerequisite to demonstrating that the fear is well-founded.
40 The distinction drawn by Mr Reilly between acts directed against individuals and acts directed against the members of a group appears to have been first articulated by Hill J in Mohamed. His Honour appears also to have been the first member of the Court to cast doubt upon the use of Wilcox J’s term “systematic” in the context of refugee claims. Mohamed, though not referred to by the Full Court in Abdalla, might be thought to be a precursor to that decision. Hill J had certainly accepted that the requirement that there be “systematic harassment” was greater in the case of group harassment than it was in the case of individual harassment. Whether his Honour regarded “systematic harassment” as a necessary prerequisite to demonstrating a well-founded fear of persecution in cases of group harassment is not, however, altogether clear.
41 Mr Elliott submitted that the distinction drawn by Hill J between individual and group harassment had not been rejected by the Full Court in Abdalla. The issue in Abdalla had been one of individual harassment. It had not been necessary to deal with group harassment in Abdalla. Nothing said by the Full Court in that case should be regarded as having in any way weakened the force of Hill J’s reasoning.
42 In the present case, the Tribunal rejected the appellant’s claims to individual harassment essentially because it did not accept as being at all credible his account of having been subjected to past violence by Muslim extremists. The Tribunal’s reasons for decision in relation to this limb of the appellant’s claims had nothing whatever to do with whether the violence to which he had been subjected could be characterised as “systematic”. Such violence had not been directed against the appellant because of his religious or political views.
43 When the Tribunal came to deal with the appellant’s group harassment claim, however, his credibility regarding past events was not really in issue. There, Mr Reilly submitted, the Tribunal, in rejecting his claim to a well-founded fear of persecution, had properly taken into account the absence of any “systematic harassment” against the members of the group to which he belonged.
44 Mr Reilly also submitted that the decision of the Full Court in Abdalla was part of a developing line of authority concerning the use of the word “systematic” in cases involving civil war (in practice mainly, though not exclusively, cases involving Somalia). He submitted that these cases, properly understood, had determined nothing more than that any requirement by the Tribunal that an applicant demonstrate that he had personally suffered systematic abuse in order to show a well-founded fear of “persecution” would amount to error because, as McHugh J in Chan (supra) had noted, a single act of oppression might be sufficient to constitute such persecution in cases of individual harassment. Group harassment, however, in Mr Reilly’s submission, if it were to constitute a basis for such a finding, had to be “systematic” ie “non-sporadic” and “non-random”.
Conclusion regarding “systematic conduct”
45 We are not persuaded that the Tribunal’s reasons for decision, when read fairly, and not scrutinised upon over zealous judicial review, in accordance with the principles laid down by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra), are in any way inconsistent with the principles laid down by the Full Court in Abdalla. In our view, the Tribunal found essentially that the situation in India today did not justify the conclusion that the incidence of communal violence in that country was any more than “sporadic”. The severity and extent of harm flowing from such violence as occurred from time to time was “unpredictable”.
46 This finding, read in context, was tantamount to a finding that this communal violence was essentially “random” in nature. “Random” violence is not merely “non-systematic”. It is also “non-selective”. It is, therefore, “non-purposive”. Such violence does not, in our view, meet the test for “persecution” laid down in Abdalla.
47 The Tribunal did not, in our opinion, fall into the error of having treated “systematic persecution” as a necessary prerequisite for a successful claim to refugee status. When its reasons for decision are closely examined, and individual sentences are not read out of context, it is clear that the Tribunal used the word “systematic” not as requiring the appellant to show a series of coordinated acts directed against him, or against the group of which he was a member, but rather to distinguish the religious tensions and sporadic violence which it found to occur (which was “non-selective”, “non-purposive” and, in effect, “random”) from the type of group harassment that could be said to be “selective”, “recurring” and “purposive”, and referable therefore to a Convention ground. There was no error, in our view, in the Tribunal approaching the matter in that way.
48 It is clear that the mere use by the Tribunal of the word “systematic” does not, of itself, invalidate a decision refusing a protection visa – see Perampalam v Minister for Immigration and Multicultural Affairs (1998) 158 ALR 609 at 615 per Hill J. His Honour there found no error in the Tribunal’s finding that what happened to the applicant was not “systematic conduct aimed at the applicant for a Convention reason”. We note that the appeal to the Full Court in that case succeeded – Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165. However, nothing in the judgment of the Full Court suggests that the Tribunal’s adoption of the term “systematic” was itself an error. Indeed, Burchett and Lee JJ observed at para 13 of their joint judgment that a Tribunal would not necessarily err if it used the expression:
“… a course of systematic conduct aimed at the applicant for a Convention reason”
because
“In some contexts, that might be sufficient, precision not being required …”.
49 Similarly, in Zayout v Minister for Immigration and Multicultural Affairs [1998] FCA 1420 Hill J declined to set aside a decision of the Tribunal although it had stated in its reasons for decision:
“…I am not satisfied that the applicant was subjected to a systematic course of conduct amounting to persecution.”
50 His Honour referred to the decision of the Full Court in Abdalla. He did not, however, regard that decision as requiring him to overturn the Tribunal’s reasoning. See also Lunardi v Minister for Immigration and Multicultural Affairs [1998] FCA 1091 (per Madgwick J) and Mohammed v Minister for Immigration and Multicultural Affairs [1998] FCA 1077 (per Madgwick J) and Mohamed v Minister for Immigration and Multicultural Affairs [1999] FCA 371 (per Carr J) for other examples of the use of the term “course of systematic conduct” not necessarily leading to reviewable error.
51 In Paramananthan v Minister for Immigration and Multicultural Affairs and Minister for Immigration and Multicultural Affairs v Vijayakumar Sivarasa (1998) 160 ALR 24 both appeals were heard on consecutive days by a Full Court which was constituted by the same three judges. Each member of that Court delivered a single judgment dealing with both appeals. Merkel J, in a helpful summary of the relevant principles, concluded that the authorities established the following propositions relating to persecution for a Convention reason (at 49-50):
“(1) Harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm: see Chan Yee Kin (at CLR 388 per Mason CJ and at 430 per McHugh J);
(2) The harm or threat of harm need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution: Chan Yee Kin (at CLR 430 per McHugh J).
(3) Although persecution involves the infliction of harm, it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution: Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568; 130 ALR 314 per Burchett J.
(4) In the context of a country torn by war or terrorism, random acts of violence which occur during civil war and acts done pursuant to laws for the protection of the community in the course of the identification or punishment of criminals or terrorists would not ordinarily be seen as persecution of the individuals affected even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. However, law or its enforcement must be appropriately adapted to achieve some legitimate end of government policy. A law or its purported enforcement will be persecutory if its real object is not the protection of the public but the oppression of the members of a race, religion, nationality or particular social group or the holders of particular political opinions: see Chan Yee Kin (at CLR 354 per McHugh J).
(5) If measures constituting serious violations of human rights are directed, for example, to members of a particular race, that circumstance may be thought to constitute persecution for the purposes of the Convention. As Davies J said in Paramananthan, that is because an inference can be drawn from the excess of the measures taken, the inappropriate violence or detriment in what is done, that the measures involve an intent to inflict harm or penalty for reasons of race, political opinion etc.
(6) The central thread running through the above authorities, as Davies J correctly emphasised, is that persecution for the purposes of the Convention involves something more than a person showing they are at risk on their return; a “discriminatory” or “differential” impact is required; the victim must be able to show fear of persecution for reasons which are over and above “the ordinary risks” incurred by other citizens in the country whether ravaged by civil war, terrorism or otherwise: see Adan v Secretary of State for the Home Department [1998] 2 WLR 702 at 713 per Lord Lloyd and Hussein v Minister for Immigration and Multicultural Affairs (Fed C, Lindgren J, 3 November 1998, unreported) at 16-19. Accordingly, indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution would not constitute persecution for a Convention reason: see Chan Yee Kin (at CLR 388 per Mason J). In Applicant A McHugh J (at CLR 258; ALR 354), after observing the “infinite variety of forms persecution may take”, said:
“Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group. Ordinarily, the persecution will be manifested by a series of discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain political opinions in a way that shows that, as a class, they are being selectively harassed. In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct. Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee.”
Discriminatory conduct ordinarily establishes a causal nexus between the harm said to be inflicted and the reason for its infliction.
(7) Whether conduct satisfies the discriminatory criterion is a question of fact which involves evaluation of matters of fact and degree. The evaluation may require consideration of whether the alleged persecutory conduct is in pursuit of a legitimate national objective but, ordinarily, only for determining whether the discriminatory criterion for establishing persecution for a Convention reason has been satisfied: see Applicant A (at CLR 258-9 per McHugh J).”
52 We consider that there is considerable force in the observation by Hill J in Mohamed that the use of the term “systematic” in the context of a group harassment claim is a helpful guide to whether or not the violence was “directed against” or “aimed at” the group, or at the individual by reason of his membership of that group. Violence which can properly be characterised as “systematic” is more likely to satisfy these criteria than violence which is “non-systematic” – see also Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 405 per Davies J, and see Kabail (supra) per Burchett J. This approach is entirely consistent with the summary of the relevant principles governing this matter set out by Merkel J in Paramananthan (supra).
53 It is also consistent with a still more recent decision of a Full Court of this Court. In Minister for Immigration and Multicultural Affairs v Hamad [1999] FCA 306 one issue which arose was what meaning was to be attributed to the word “systematic” in the context of various judicial formulations which had purported to explain the concept of “persecution for a Convention related reason”. In a joint judgment, their Honours O’Connor, Tamberlin and Mansfield JJ stated (at pars 17-23) :
“The phrase "systematic conduct" can be, and often is, used in two senses - either to refer to the motive, or evidence revealing the motive for the acts of the perpetrator or alternatively to refer to a number of acts or the volume of acts which are necessary before persecution is established. It is in the first sense that the word is used in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 in this often-quoted passage from the judgment of McHugh J:
"But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes "being persecuted". The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be "persecuted" because he or she is a member of a group which is the subject of systematic harassment." (our emphasis)
Wilcox J in Murugasu v Minister of (sic) Immigration and Ethnic Affairs (unreported, Federal Court, 28 July 1987) made observations to the same effect when he said, at 13:
"The word "persecuted" suggests a course of systematic action aimed at an individual or a group of people. It is not enough that there be a fear of being involved in incidental violence as a result of civil war or communal disturbances." (our emphasis)
It may be, and frequently is, the case that the paucity of acts or occurrences relied on, or the circumstances in which they occur may lead a decision maker properly to conclude as a matter of fact that there is no persecution. However, the presence or absence of conduct which can be characterised as "systematic" does not of itself, determine the issue.
This issue was addressed by a Full Court of the Federal Court in Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 at 20 in the following way:
"In substance the tribunal decided, in the present case, that the recurring pattern of communal violence, which it found to exist in Somalia, did not amount to persecution because there was no systematic course of conduct. The requirement, in our view, was too widely expressed. Where there is a recurring pattern of violence towards a person on a Convention ground, there is no reason why such conduct may not constitute "persecution". Clearly "persecution" involves more than a random act. To amount to "persecution" there must be a form of selective harassment of an individual or a group of which the individual is a member. One act of selective harassment may be sufficient. The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount to "persecution". It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger.
The decision in respect of whether recurring communal violence amounts to "persecution" depends on whether there is a purpose behind the recurring pattern which is referrable to a Convention ground. In the present case, the tribunal has found that the frequent fighting against the Marehan clan is partly based on settling long standing scores dating back to the Siad Barre regime and partly based on competition for territory. In so far as the threatened oppression arises from the settling of scores with the Marehan as a clan, it can be concluded that the fighting was directed at them as a group which had the former president as a member. This, in our view, is within the concept of persecution. Competition for territory, depending on the circumstances, may also lead to persecution.
This precise question as to whether the present circumstances amounted to persecution was apparently not investigated before the tribunal, presumably because the decision-maker formed the view that communal violence within the framework of a civil war is not a form of "persecution" within the meaning of the Convention. This approach, in our view, is not correct. Much will depend on the purposes for which the war is being fought. For example, if it is fought to eliminate or punish members of another clan, it may amount to "persecution" for a Convention reason."
In the case before us the RRT appeared to understand that the investigation must be directed, even where there is communal violence, at the motive for the acts which are accepted as having occurred. At 16 the decision maker said:
"It is appropriate to consider whether the fighting is aimed at establishing or maintaining power or establishing control over land or resources, which would generally not be persecution, or whether it can properly be regarded as part of a course of systematic conduct aimed at "the destruction of persons suspected of being adversaries because of their race, ethnic origin, religion or political opinion" or the "purposeful destruction of the ethnic, cultural or religious identity of the insurgent part of the population". Again, this will be a question of fact and degree."
The appellant relies on to this passage to argue that the RRT understood its task and that its reference to systematic conduct in its findings amounted to no more than an evidentiary conclusion based on an assessment of the particular circumstances of the case and not as a determining criterion. Relying on the oft quoted principle adopted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, that it is important to adopt a restrained approach to identifying errors of law by not construing reasons "minutely and finely", the appellant said it was "not appropriate" to seize upon words such as “systematic” and find, in their use, a demonstration of legal error, particularly when the word has been used in a specific conceptual framework with judicial support from the High Court.
We do not consider that his Honour did take this approach. He identified in his reasons an important part of the process of decision making when assessing refugee status namely the way decision makers approach the task of determining the existence of persecution for a convention-related reason. The elevation of "a course of systematic conduct" to a legal standard or determining criterion which must be met by those asserting persecution is, in our view, a fundamental legal error. We adopt the reasons given for this conclusion in Abdalla (cited above).”
54 In Minister for Immigration and Multicultural Affairs v Hamad (supra) it was the elevation of “a course of systematic conduct” to a legal standard or determining criterion which had to be met by the applicant which constituted the error identified by the Court, not the use of the expression as such. See also Ibrahim v Minister for Immigration and Multicultural Affairs [1999] FCA 374 at par 25, citing Hamad with approval.
55 We do not consider that the Tribunal in the present case elevated the expression “a course of systematic conduct” into a legal standard or determining criterion which had to be met by the appellant. Nor did the Tribunal use the term “systematic” to signify “habitual behaviour according to a system, regular or methodical” – cf Ibrahim (supra). Rather, in context, the Tribunal used that expression only to indicate that, unlike the situation in a number of the Somali cases, the communal violence in the present case was sporadic, and unpredictable. In other words, the Tribunal found, in effect, that there was “a paucity of acts or occurrences relied on” by the appellant, (to use the language of the Full Court in Hamad), and those acts or occurrences were essentially “random” in nature, rather than relevantly “selective”. The acts were not “deliberate or premeditated or intended” – Ibrahim (supra) at par 25.
56 There was, in our view, no error in that approach by the Tribunal. Nor did Lockhart J err in upholding the Tribunal’s findings. It is instructive to note that his Honour’s judgment in this very case was cited by the Full Court without any apparent disapproval in Ibrahim (supra) at par 26. That is significant because Ibrahim turned upon whether or not the use of the expression “systematic conduct” in that case vitiated the Tribunal’s decision. There it had, but the Full Court plainly did not think that this would inevitably be so.
57 It goes without saying that the Tribunal must avoid suggesting that an isolated act against an individual, which is not part of any systematic conduct against a group, cannot amount to persecution. In Mohamed Hill J found that the Tribunal had made that error. Its decision was, therefore, set aside. The Tribunal in the present case, and Lockhart J, did not, however, fall into that error. The Tribunal simply rejected the appellant’s contention that such violence as had been directed against him in the past was the result of his religious or political views, and Lockhart J discerned no error in that finding.
58 The Tribunal’s use of the term “systematically” in the context of the appellant’s “group” claim was limited to treating its non-systematic character as relevant to that claim. This was appropriate, and conforms with what the authorities have held to be permissible.
59 In our view, ground one should be dismissed.
The “no evidence”/“new evidence” ground
60 The Tribunal did not accept the appellant’s account of having been associated over many years with the RSS. The principal reason given by the Tribunal for rejecting that account was that it had been proffered for the first time in 1996, shortly before the Tribunal dealt with the appellant’s case, never having previously been mentioned by him. Significantly, he had omitted any mention of any past association with the RSS in his application for review of the delegate’s decision, in 1994. This was considered by the Tribunal to have been a striking omission, particularly since he had gone out of his way to include in that application details of his past membership of the Hari Krishna movement.
61 The Tribunal was entitled to form the view that the appellant’s claim to past involvement with the RSS was, in effect, a recent invention, designed to bolster his claim to refugee status. Any such past association would obviously be seen as relevant to his claims of persecution. The appellant must, in our opinion, have been aware of this fact. The only explanation proffered by Mr Elliott for the appellant’s failure to mention this past association was that he had not appreciated its potential significance until he came first to be represented by Mr Elliott, shortly before this appeal. He had not previously been represented. That is an explanation which, in the context of the appellant’s obvious ability to set out clearly, and in great detail, the nature of his claims, strikes us as unconvincing.
62 The “no evidence” point must, in any event, fail. It is a ground of review which is only available under s 476(1)(g) of the Act. Section 476(4) of the Act provides that the ground specified in para (1)(g) is not made out unless one or other of the conditions set out in paras (a) or (b) of s 476(4) is established. These provisions are virtually identical to ss 5(1)(h) and 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). They have been held to have a limited role, merely complementing the other powers of review in s 5, and requiring the conditions under which they may be involved to be first satisfied. See generally Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 per Mason CJ; and Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 at par 31.
63 It was accepted by Mr Elliott that s 476(4)(a) is inapplicable to the appellant’s situation. We need say no more about the conditions set out therein. The conditions necessary in order for s 476(4)(b) of the Act to be met require that the person who made the decision based it on the existence of a particular fact, and that fact did not exist.
64 We are not persuaded that the decision to refuse the appellant a protection visa was, in any relevant sense, based on the existence of a particular fact, namely that identified by Mr Elliott, as “his non-membership of the RSS”. That seems to us to have been but one of a number of considerations, any one of which would have been sufficient to lead the Tribunal to refuse his application. It was not, in our view, in any relevant sense, “critical to the making of the decision” - Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-1 per Black CJ with whom Spender and Gummow JJ agreed.
65 The reality is that the Tribunal rejected a number of the appellant’s assertions as utterly implausible. It was entitled to arrive at that conclusion. Some of his claims were made without a shred of evidence to support them, and one such claim, that relating to the 1992 robbery, was made in the face of such objective evidence as did exist. The Tribunal’s rejection of the appellant’s claim to past association with the RSS was not, in our opinion, a matter which assumed anything like the importance before the Tribunal which Mr Elliott has submitted that it did. The Tribunal’s decision was not based on that finding of fact, but rather upon its refusal to accept that the specific acts of violence to which he alluded were brought about by Muslim extremists attacking him because of his religious beliefs, and practices. It follows that whether or not the fact that he did not have a past association with the RSS, as he claimed, did not exist,and whether or not the letter which the appellant now seeks to tender is capable of proving the non-existence of that fact, cannot be of any relevant consequence. That issue simply does not arise. The “no evidence” point cannot, therefore, succeed.
66 As to the appellant’s application to have this Court receive new evidence concerning his membership of the RSS, it is necessary to set out the nature of the material upon which he now seeks to rely. It consists of a one page letter written in Hindi, and sent by facsimile on 9 February 1999, a few days before the hearing of the appeal by this Court. The letter purports to be sent from an address described as M Chugh Comm & Publicity Services, somewhere in India. There is available a translation prepared by the appellant, and annexed to an affidavit sworn by him. It reads:
“RASTRIYA SWAYAMSEWAK SANGH
(BRAT PRADESH)
Regional Office Madhav Bhavan 173 Vir Sarvarkar Nagar Agra
No ….. Date …..
Certified that Sri Dilip Chopra, son of Sri Ram Lal Chopra, is a active Rastriya Swaymsewak worker.
From 1965 to 1988 he has been very active in the Sangh actions. He readily rushed to action where ever he was ordered to go to in action. We pray for his future success.
Signed
Prasad Agra
(Head of Regional Office)”
67 This Court has power, in its discretion, to receive further evidence either on affidavit or by oral examination; s 27 of the Federal Court of Australia Act 1976 (Cth) and O 52 r 36(5) of the Rules. See Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-9. The principles which govern the reception of such further evidence are well-established. An important consideration is whether the appellant could, with reasonable diligence, have procured the evidence now sought to be relied upon when this matter was first dealt with before the primary judge.
68 In our view, the appellant has failed to provide any adequate explanation as to why this material was not obtained much earlier in the proceedings, whether before the Tribunal, or before Lockhart J. It is not, in our opinion, an adequate explanation that the appellant had, at those times, been unrepresented. By the time the application to review the Tribunal’s decision came to be heard, the appellant had had ample opportunity to study its reasons. Even a cursory reading of those reasons would have revealed that the Tribunal had rejected his claim to any past association with the RSS. No satisfactory explanation has been provided as to why the appellant could not have sought, and obtained, some form of confirmation of that past involvement, such as the letter which he now seeks to tender, before the hearing of his application for review before Lockhart J. He could, with reasonable diligence, have obtained such evidence – Ratten v The Queen (1974) 131 CLR 510. It is not, to use the language traditional in such cases, “fresh evidence”.
69 On one view, further evidence of this type should only be received if it is “almost certain” that had it been available, and led at the trial, an opposite result would have been reached by the primary judge - see Arnotts Ltd v Trade Practices Commission (supra) at 367-8; Orr v Holmes (1948) 76 CLR 632 at 642 per Dixon J. Putting the matter at its highest for the appellant , and assuming that the less stringent test now generally adopted in criminal cases were applicable, such further evidence should still only be received if there really is a “significant possibility” that the outcome of the earlier proceedings would have been different had the letter been tendered in those proceedings.
70 The letter now sought to be relied upon in this appeal comes in a form which can hardly be regarded as satisfactory. It contains hearsay. It can scarcely be described as being credible or cogent, or even “apparently credible” – Gallagher v The Queen (1986) 160 CLR 392 at 396 per Gibbs CJ. That is not, however, the basis upon which we rest our decision that it should not be received.
71 As noted earlier, the Tribunal’s decision to reject the appellant’s claim to refugee status was not, in our view, based upon its finding that he had not been associated in the past with the RSS, as he claimed. Rather, the Tribunal’s decision to reject those parts of his evidence in which he attributed various incidents in his past to attacks upon him by Muslim extremists was based, in general, upon the inherent improbability of much of what he had to say. The Tribunal, having seen and heard the applicant, simply did not believe him in this regard. It considered that he was prepared, without the slightest foundation, to blame Muslim extremists for any and all misfortunes which had befallen him over the years.
72 The appellant’s claims concerning the robbery at his gem business in 1992 illustrate why the Tribunal rejected his account of past persecution. There was not a shred of evidence to support his claim that Muslim extremists were behind the robbery. The description which he gave to the police of those who carried out that robbery did not support in any way, shape, or form that that was so. The damage which that unfounded claim did to his credibility would certainly have entitled the Tribunal to view with suspicion all of his other claims.
73 We are not persuaded that there is any likelihood, or even a “significant possibility”, that had the “new evidence” upon which the appellant now seeks to rely been before the Tribunal, it would have altered the outcome of his application for a protection visa. Nor is there a “significant possibility” that had that evidence been tendered before Lockhart J, it would have altered the outcome of his application for review – Ratten v The Queen (supra); Gallagher v The Queen (supra) at 402 per Mason and Deane JJ. We reject its tender.
74 It follows that the appellant’s second ground of appeal must also be dismissed.
75 It also follows that the appeal must be dismissed, with costs.
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I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. |
Associate:
Dated: 23 April 1999
|
Counsel for the Applicant: |
G M Elliott |
|
Solicitors for the Applicant: |
Horowitz & Bilinsky |
|
Counsel for the Respondent: |
Timothy Reilly |
|
Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
16 February 1999 |
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Date of Judgment: |
23 April 1999 |
