FEDERAL COURT OF AUSTRALIA

NAAV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 443    

MIGRATION LAW – protection visa – whether the Refugee Review Tribunal committed jurisdictional error – whether the Tribunal took into account an irrelevant consideration by considering the return of the applicants to India after travelling overseas – whether the Minister failed to accord procedural fairness or natural justice in dealing with a sur place claim – no error found.

Migration Act 1958 (Cth) ss 36(2), 474

Convention relating to the Status of Refugees 1951 Art 1A(2)

Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 179 ALR 238 discussed

NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 approved

Brooks v the Commissioner of Taxation 100 FCR 117 referred to

Ratumaiwai v Minister of Immigration and Multicultural Affairs [2002] FCA 311 cited

APPLICANT NAAV OF 2002, APPLICANT NAAW OF 2002, APPLICANT NAAX OF 2002 and APPLICANT NAAY OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 36 OF 2002

HILL J

10 APRIL 2002

SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed.
2. the applicant pay the Minister’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicants apply to the court under s 39B of the Judiciary Act 1903 (Cth), for relief by way of prerogative writ or declarations in respect of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") or a delegate of the Minister, not to grant to him a protection visa.

2                     It is a criterion for the grant of a protection visa, under s 36(2) of the Migration Act 1958 (Cth), ("the Act"), that before a protection visa is granted the applicant be a person to whom Australia has protection obligations under the Refugee Convention, that being the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as affected by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

3                     It suffices for present purposes to say that an applicant will be a person to whom Australia has protection obligations under the convention if that person is a refugee.  Article 1A(2) of the Convention defines a refugee to be 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 of 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.”

4                     The first applicant, who for present purposes I shall hereafter refer to as "the applicant", is a citizen of India.  He arrived in Australia on 27 September 1999 and shortly thereafter lodged an application for a protection visa.  His application was refused.  Ultimately he applied to the Tribunal for review of that decision. 

5                     As appears from the reasons of the Tribunal, his case to be considered a refugee was that he was a Sikh and as such a member of a visible small community in India.  He claimed that, at least in Maharashtra state, Sikh's were subjected to mistreatment by the mainstream Hindu majority. 

6                     Apparently from 1992 on, the applicant was a voluntary community worker at the Sikh Gurdwara.  His claim was that because of his role at the Gurdwara he was approached by some people who asked him for information about what was going on there.  He was not told what information it was that was being sought.  He said that he had refused to co-operate.  However, he claimed that one of his friends had died for refusing a similar request in 1997 and that that friend was doing “quite wrong things”.  The applicant said that he did not want to do the same “wrong things”.  He did not know what it was that his friend had been doing before the friend was killed.  The applicant claimed that the people who asked him to do these things were Bal Thackeray's men from the Shiv Sena.  It is an issue that is set out in greater detail in the applicant's case. 

7                     The Tribunal, in it's reasons, pointed out that the applicant had no reasonable explanation for why he believed the people in question who have approached him to do "bad things" were from Shiv Sena except that they were Hindu and spoke the local language.  After discussing some of the evidence the Tribunal said, that on the basis of the evidence before it, it was not satisfied that the applicant was targeted for reasons of religious political opinion or any other convention reason. 

8                     The Tribunal then continued as follows:

“Although the applicant claims that he and his family were beaten in 1992 because of his refusal to cooperate with the people who approached him to do ‘bad things’, and threats continued for some time, the applicant took no action to seek protection from his alleged fears until he made his second trip to Australia in late 1999. He continued to pursue his business interests overseas and travelled in and out of India on many, many occasions. The fact that applicant continued to return to India after his trips abroad, and the fact that his family continued to return to India after their holidays to Malaysia and Singapore, indicates to the Tribunal that neither the applicant nor his family had the subjective fear of persecution which they now claim to have. They had many opportunities to seek alternative lives in Kenya (a signatory to the refugee convention), Dubai, Malaysia and Singapore (where they have relatives living), but failed to seek opportunities to stay in any of those countries. The Tribunal is not satisfied that the applicants have a subjective fear of persecution as they claim.

            The Tribunal notes that the applicant’s business in Kenya largely ended in 1998 because of the collapse of a Kenyan bank, causing the applicant to lose a significant amount of money. The Tribunal finds that the applicant, in bringing his family to Australia in 1999, was seeking a better economic future for his family. The fact that the applicant emphasised so strongly at the Tribunal hearing the fact that his children have thrived in Australian schools and his wife’s health has improved since the family’s arrival in Australia, strengthens the Tribunal’s finding that the applicant’s main reason in travelling to Australia was to seek a better future for his family. The Tribunal acknowledges that as a minority group in a Hindu majority city (Mumbai) the applicants’ did not have the same sense of security and well-being that they have in Australia. However, there is no evidence before the Tribunal which satisfies it that the applicant’s concerns about living in Mumbai amount to a fear of persecution or ‘serious harm’ within the meaning of the Convention as applied under Australian law.”

9                     After the hearing had completed (and it is common ground that although the applicant had at some stage been represented by a solicitor, he was unrepresented at the hearing) a migration agent, acting then on behalf of the applicant, wrote to the Tribunal making a further submission being in essence a sur place claim.  The letter said relevantly:

            “We noted that applicant also has sur place claim to Refugee Status based on the activities of the applicant in Australia, he did not raise this issue previously.  Applicant has association with International Sikh Youth Federation, which is considered as a Terrorist organisation by the Indian Authority.

            We submit photographic evidence of the claimant's participation in a demonstration under the banner of International Sikh Youth Federation in Canberra, Australia, this demonstration took place in front of the embassy of his own country of origin on 29/3/00 the participants raising slogans against their country and carrying banners which were advocating independence such as "Fight for Khalistan will continue” etc.

            There is concrete chance that Indian Embassy would have taken serious views and reported the matter to the Indian authority with photographs.  Consequently this will jeopardise the possibility of safe return to their country.”

10                  The Tribunal dealt with this matter quite shortly in its reasons.  For convenience I will set out what the Tribunal said in full:  

“The applicant’s adviser submitted a new claim to the Tribunal on behalf of the applicant following the conclusion of the Tribunal hearing. He claimed that the applicant had participated in a demonstration at the Indian Embassy in Canberra in March 2000, under the banner of the ISYF. The applicant did not mention any involvement whatsoever with the ISYF in any of his written submissions nor in his oral evidence at the Tribunal hearing. The Tribunal is not satisfied that he is actually a member of the ISYF nor that he has participated in any ISYF activities other than the one demonstration in March 2000. The applicant has not claimed to have suffered any consequences for having participated in the demonstration. He has not claimed that the Indian Embassy has contacted him to inquire about his participation. He has not claimed that any relatives still in India have been contacted about the matter. As the applicant has not personally made any claims related to the ISYF (other than through his adviser’s post-hearing submission); he only participated in one single event and has no profile as an activist; and as he has not had any contact with the Indian authorities over the demonstration, the Tribunal is not satisfied that there is anything more than a very remote chance that the applicant will suffer serious harm amounting to persecution as a result of his participation in this demonstration. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution as a result of his involvement in this demonstration.”

It is submitted on behalf of the applicant, who was represented by counsel before me, that the Tribunal made two jurisdictional errors.  The first of these was said to be that in the first passage from the Tribunal's reasoning which I have extracted the Tribunal asked itself the wrong question and:

            “in doing so, placed too much emphasis on not only the overseas travel of the applicant and his family but more importantly, the irrelevant consideration of whether the applicant could have sought refugee status in any of those other countries.”

11                  With respect to the submission, I do not think that the Tribunal in the passage in question either addressed a wrong issue or, for that matter, took into account any irrelevant consideration.  The issue which the Tribunal was addressing was whether the applicant had a fear of persecution for a convention reason.  The Tribunal had already found that it was not satisfied that the applicant was being targeted for a convention reason.  That finding, of course, would permit a conclusion that any fear of persecution the applicant might have was not well founded.

12                  It turned then to consider whether there was a subjective fear of persecution.  It pointed out that the applicant had been abroad on a number of occasions but had always returned.  It pointed out also that the applicant and his family had been in a number of other countries but had not sought to stay there but actually had ultimately come to Australia where, for the first time, an application was made.  It pointed out also that it was of the view that the applicant did so because the circumstances in Australia were better for the family than elsewhere.

13                  In my view, it was open to the Tribunal to conclude from the fact that the applicant returned on a number of occasions to India that the professed fear of persecution which the applicant had was not genuine.  It cannot be an irrelevant consideration that a person who says he suffered persecution returns to the place where that persecution is, nor can it be said to be an irrelevant consideration that a person who claims to fear persecution in one country when out of that country and able to claim refugee status in a third country fails to do so.

14                  That part of the Tribunal's reasons as concerns the fact that the family had thrived in Australia likewise was relevant to the question whether the applicant really had a fear of persecution or rather was seeking to come to Australia for economic or other reasons unconnected with the need or desire for sanctuary.

15                  The second submission was that the Minister had failed to accord to the applicant procedural fairness or natural justice in dealing with the additional sur place claim without giving to the applicant the opportunity of answering four specific questions, on the answers to which the Tribunal's reasons turned.  The relevant questions which it was suggested the Tribunal should have put to the applicant were as follows:

1.         Has the applicant participated in any other ISYF activities?

2.         Whether or not the applicant had suffered any consequences for participating in the demonstrations in March 2000.

3.         Whether or not the applicant had been contacted by the Indian Embassy in connection with his participation in the demonstrations in March 2000.

4.         Whether any relatives of the applicant in India had been contacted by the authorities in relation to the applicant's participation in these demonstrations.

16                  In my view, the Tribunal did not fail to accord to the applicant natural justice in reaching the conclusions it did from the submission that was put by the migration agent to it and which I have set out above.  The submission did not suggest that the applicant had participated in any ISYF activities.  It did not suggest he had suffered any consequence for participating in demonstrations.  Indeed, to the contrary, the submission made it clear he had not.  Thirdly the submission did not suggest that he had been contacted by the Embassy and, finally, there was nothing in the submission that suggested that any relatives of his in India had been contacted.

17                  In my view it was open to the Tribunal to conclude as it did that none of these matters had happened and that the submission did not advance the case that there was a real chance that the applicant would be persecuted for convention reasons were he to return to India.

18                  I am fortified in reaching this conclusion by the comment made by Gaudron J in   Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 179 ALR 238 at [97] where her Honour said:

            “Of course, if a minister rejects an application simply because he or she is not satisfied as to some or all of the information provided by an applicant, there will be no occasion for him or her to consider the exercise of his or her power to invite further submissions or further information.  However, if he or she has regard to information other than that provided by the applicant, a question will arise whether procedural fairness requires that the powers conferred by ss 54(3) and 56(2) be exercised to permit the applicant to put submissions or provide further information.  Inevitably, the answer to that question must depend on the nature of the claims made by the applicant and the information to which the minister has had regard.”

19                  The question of whether natural justice has been afforded will depend upon all the circumstances of a particular case.  Nevertheless, in my view, the Tribunal was entitled to accept or reject the sur place claim on the basis of the material which the applicant, through the Migration Agent, provided and to reach a conclusion that the claim should not succeed.  The present is not a case where the Tribunal had regard to information outside that provided by the applicant where natural justice may require the applicant to be given the opportunity to refute the material relied upon by the Tribunal.  The present is merely a case where the material provided by the applicant is regarded by the Tribunal member as inadequate to sustain the claim that the applicant was a refugee.

20                  It is, accordingly, not necessary for me to consider in detail whether the provisions of s 474(1) of the Act operated to give the Tribunal's decision conclusive force and so as not to permit this Court to grant relief in the form of prerogative writ of declaration.

21                  However, I would make the following comments concerning the natural justice claim.  The question whether s 474(1) precludes an applicant from obtaining prerogative relief in respect of a decision of the Tribunal where there has been a failure to afford natural justice was considered by Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263.  Gyles J, in a carefully considered judgment, formed the view that s 474(1) precluded the Court from exercising its jurisdiction in such a case.  Gyles J did so following a careful consideration inter alia of what was said in the High Court in Miah to which I have already referred in another context.  That case contained a discussion of the effect of s 69 of the Act, whether it was privative and, more relevantly, whether it precluded the High Court from granting prerogative relief in the context of s 75(v) of the Constitution.  There is a difficulty in this court in relying upon that decision even if it be correct that s 69 is a privative clause and its effect is for relevant purposes identical to s 474.  Section 75(v) of the Constitution ensures that parliament cannot legislate so as to exclude the High Court from exercising the jurisdiction referred to in that section.  However, there is nothing to prevent parliament from excluding the jurisdiction of this court to grant prerogative relief.  Section 75(v) is limited to the High Court.

22                  Be that as it may, I would follow the decision of Gyles J in NAAX unless I was of the view that it was clearly wrong: see Brooks v the Commissioner of Taxation 100 FCR 117 at [69] – [70].  I am not of the view that his Honour's decision was clearly wrong.  Indeed, I am presently of the view that it was correct, not only for the reasons his Honour gives but also the additional reason which I have given in Ratumaiwai v Minister of Immigration and Multicultural Affairs [2002] FCA 311.  However, as I have said, this issue does not arise in the present case. 

23                  It follows that I would dismiss the application.  I order the applicant to pay the Minister's costs of it.

Associate:

Dated:              10 April 2002