FEDERAL COURT OF AUSTRALIA

Doss v Minister for Immigration & Multicultural Affairs [1999] FCA 1780

MIGRATION – Refugee Review Tribunal not in breach of s 430 (1) (c) of the Migration Act 1958 (Cth) by failing to give reasons for rejecting parts of an Amnesty International submission relevant to its findings on a material question of fact.

Migration Act 1958 (Cth) s 430 (1) (c)

Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740, applied

LUCAS ANTHONY DOSS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 730 of 1999

WHITLAM, RD NICHOLSON & GYLES JJ

SYDNEY

17 DECEMBER 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

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.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a judgment of Beaumont J dismissing, with costs, an application to review the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 November 1998, by which it affirmed a decision to refuse to grant a protection visa to the appellant.  The sole ground of appeal is specified as follows:

“His Honour erred in holding that the Refugee Review Tribunal complied with its obligations under s.430 of the Migration Act 1958.  His Honour ought to have found that the Tribunal’s [sic] erred by failing to address and make findings about the information before it about the risk protestors and dissidents face in India of being the subject of charges fabricated by the police.”

The “information” referred to is contained in a document prepared by Amnesty International.  Its relevance may be briefly explained.

2                     The appellant is an Indian national from the state of Tamil Nadu.  He claimed to fear persecution on account of his left wing political opinion.  The Tribunal did not accept that “left wing activists suffer persecution because of their beliefs and activities at the hands of the authorities in Tamil Nadu and that [the appellant] has so suffered because of his political views and actions.”  Specifically, the Tribunal said that, “a central question to address in considering the applicant’s claim under the Refugees Convention” was whether “drug charges which led to his imprisonment in 1993 were fabricated and were laid against him because of his political activities”.  The Tribunal was not satisfied that such charges were laid against the appellant “because of his political views or actions”.  It said:

“The claim that charges had been fabricated against the applicant was made at the first hearing.  I found it surprising that this had not been mentioned previously given its conspicuous relevance to his claim of persecution because of his political opinion.  As well, the applicant seemed to have difficulty communicating concepts such as charge, sentence, bail and appeal although I recognise that these concepts may be difficult to describe through an interpreter.  However, given his claims that he frequently gave speeches against the government, he would not have been unaccustomed to complex terms or processes and I found his apparent vagueness about specific legal matters which had such an impact on his life notable.  This, together with the independent information about the limited response by the authorities to left wing activists in Tamil Nadu, has meant that I am unable to be satisfied that the charges laid against the applicant in 1993 were as a result of his political activities.  I make no finding on whether the charges were fabricated or whether there was evidence to justify the police action but I do not consider that what occurred was connected to the applicant’s political activities.  I accept that he was committed to communist ideals, that he took part in protests and agitated against the government but the evidence does not in my view support a conclusion that the authorities would act to fabricate drug charges against him as a consequence of these political activities.”

3                     The “independent information” referred to by the Tribunal in the above passage had been set out earlier in its statement, where it cited Amnesty International as the source of several reports.  The citations included a submission in July 1997 by Amnesty International to the Human Rights Committee established under the International Covenant on Civil and Political Rights.  That submission is a document comprising eighty-three pages.

4                     The document was apparently not given to the Tribunal by the appellant or his advisers.  However, in the Court below, the appellant identified in six paragraphs (a)-(f) several matters in the Amnesty International submission, which he alleged were material to his claims and in respect of which, he complained, the Tribunal made no findings.

5                     Beaumont J held that the Tribunal did not breach s 430 (1)(c) of the Migration Act 1958 (‘the Act”).  His Honour said that the Tribunal was not bound to deal explicitly with the matters in the Amnesty International submission.  He concluded:

“The approach adopted by the Tribunal was to focus particularly upon the position of the applicant, and specifically upon the credibility of his assertions.  In principle, this was a correct approach, even if it meant that no attempt was made by the Tribunal to evaluate Amnesty’s claims which, as I have noted, were generally expressed and attempted to describe a very large area of human activity.

In short, the Tribunal appears to have taken the approach that the position of the applicant was material, but that the details of Amnesty’s general claims were not.  I am not satisfied, for the purpose of testing compliance with           s 430(1)(c), that this course was not open to the Tribunal.  It was, I think, essentially a matter for the Tribunal’s judgment.”

6                     Counsel for the appellant submits that the Tribunal was obliged to deal with the claims in the Amnesty International submission because they were of obvious importance to a critical issue, namely, the approach of Indian police to dissidents, and that Beaumont J erred in holding otherwise.  Counsel has apparently now subjected this document to even more exquisite scrutiny and has teased out of it nine separate matters that he identifies in paragraphs (a)-(i) in his submissions, in respect of which he contends the Tribunal should have made findings.

7                     It is not necessary to summarize the information in Amnesty International’s submission.  It is sufficient to say that the document contains assertions which, if accepted, would tend against the Tribunal’s conclusion that left-wing activists do not suffer persecution because of their beliefs and activities at the hands of the authorities in Tamil Nadu.  Whilst the statements in the submission do not directly affect the precise position of the appellant, some of them concerning India generally would, if taken at face value, not exclude Tamil Nadu.  Accordingly, in that sense, it may be possible to point to an inconsistency between the contents of the Amnesty International submission and the Tribunal’s conclusions.

8                     The Tribunal’s actual finding concerned the fourth key element in the Refugees Convention definition of “refugee”, namely, whether an asylum claimant has a “well-founded” fear of persecution.  In Sivaram v Minister for Immigration & Multicultural Affairs [1999] FCA 1740 we have decided that the Full Court in Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940 was correct in holding (at para 24) that s 430 of the Act does not require the Tribunal to give reasons for rejecting evidence inconsistent with findings of material fact which are made.  In our opinion, those parts of the Amnesty International submission to which the Tribunal did not refer were, at the highest, evidence or other material relevant to the findings of the Tribunal on a material question of fact, rather than being material facts in themselves.  It follows that the Tribunal was not obliged to give reasons for not accepting them.  It is not necessary for the purposes of this case to decide what is truly a material fact within the meaning of s 430(1)(c).

9                     We agree with Beaumont J that the Tribunal has not breached s 430 of the Act. The appeal will, accordingly, be dismissed with costs.

Associate:

Dated:       17 December 1999