FEDERAL COURT OF AUSTRALIA

NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1237

NASF of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 858 OF 2002

SACKVILLE J

SYDNEY

4 OCTOBER 2002

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

THE PROCEEDINGS

1                     The applicant seeks relief in respect of a decision of the Refugee Review Tribunal (“RRT”) dated 28 June 2002, but handed down on 23 July 2002.  The RRT affirmed a decision of a delegate of the respondent (“the Minister”) not to grant the applicant, his wife and child protection visas.

2                     The amended application does not seek the issue of one or more of the constitutional writs referred to in s 39B(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”).  Rather it is couched in terms more suited to an application under the repealed s 476 of the Migration Act 1958 (Cth) (“Migration Act”), in that it simply seeks orders that the decision of the RRT be set aside and the matter remitted to the RRT to be dealt with according to law.  Nonetheless, Mr Smith, who appeared for the Minister, did not suggest that the application should be dealt with otherwise than as one made under s 39B(1) of the Judiciary Act.

3                     The statement of claim filed on behalf of the applicant identifies the grounds upon which the applicant seeks relief as follows:

“(a)     The Tribunal failed to accord procedural fairness;

Particulars

(i)                 The Tribunal failed to consider all relevant material including the totality of the evidence that was before the decision maker.

(ii)               The Tribunal considered Indian legislation without advising the Applicant which particular piece or pieces of legislation were being so considered;

(b)       The Delegate did not comply with his statutory obligations to convey to the Tribunal all that evidence on which he based his decision.”

4                     The applicant’s written submissions did not address the significance for his case of s 474(1) of the Migration Act, which provides as follows:

“474(1)           A privative clause decision:

(a)               is final and conclusive; and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

In these circumstances, it is perhaps not surprising that the submissions did not advert to the decision of a five member Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.  Perhaps more surprising is the fact that the applicant’s counsel did not address the operation of s 474(1) of the Migration Act in his oral submissions.

The RRT’s decision

5                     The applicant, his wife and child are citizens of India.  They arrived in Australia on 15 March 1999 and on 13 April 1999 lodged an application for protection (class AZ) visas.  On 31 May 1999, a delegate of the Minister refused to grant the protection visas.  As already noted, the RRT affirmed the delegate’s decision, although for unexplained reasons it took the best part of three years to reach its own decision.

6                     The applicant, despite being born into a low caste as (as the RRT found), acquired tertiary qualifications in India.  He held responsible positions with the United Bank of India and was a well-known trade union leader in West Bengal, as well as being an office bearer for an organisation seeking to protect the rights of minorities in India.  For about ten years prior to coming to Australia, he had lived in a village about 40 kilometres from Calcutta in the state of West Bengal.

7                     The applicant’s claims to the RRT were summarised by it as follows:

“the Applicant claims that his life will not be safe and he may be killed upon his return to India by activists of the Communist Party of India (Marxist) CPI(M) because of his involvement with the Trinamul Congress Party (TC), his conversion to the Christian religion and his membership of a Scheduled (untouchable) Caste.  The applicant says that if he returns to India his life will not be safe and he fears that he may be killed.”

8                     The applicant gave evidence before the RRT at two hearings held on 12 February 2001 and 27 April 2001.  His adviser filed supplementary written submissions on his behalf after the second hearing.

9                     The applicant claimed that he had been attacked by political opponents on several occasions, on at least two of which he sustained injuries.  The applicant said that he and his wife had been harassed and subjected to penalties by Hindus because they had had Christian affiliations for many years, although the applicant himself finally converted to Christianity from Hinduism in 1999.  He also said that he had been oppressed because of his status as an untouchable.

10                  The RRT recorded its view that the applicant was not a reliable witness and that he would not hesitate to embellish or exaggerate his claims.  Nonetheless, it found that the applicant was a person of “drive and determination” who, despite his humble beginnings, had “enjoyed many successes”.

11                  The RRT rejected many of the applicant’s factual claims made in connection with his claim to have a well-founded fear of persecution for reasons of political opinion.  It found, however, that he had been attacked and injured on one occasion, in December 1997.  But since it was prepared to accept only one incident of harassment with “political overtones”, the RRT was

“not satisfied that the harm the Applicant claims for the Convention reason of his political views has the quality of serious harm now necessary to establish persecution in a Convention sense.”

12                  The RRT rejected the applicant’s claims that he and his wife had been harassed by local villagers because of their Christian affiliations.  Accordingly, it was not satisfied that he had suffered any significant harm because of his involvement with Christians, let alone serious harm necessary to establish persecution in a Convention sense.

13                  The RRT found that the applicant had exaggerated the difficulties he had experienced by reason of his caste, having “develop[ed] his claims as the matter ha[d] progressed”.  While the RRT accepted that low caste persons suffer discrimination in India, it did not consider that what the applicant had endured constituted serious harm in a Convention sense.  Indeed, the RRT characterised the applicant as

“one of those people who has benefited from policies implemented by the Indian central government to assist in breaking down the inequities and discrimination of the caste system.”

Accordingly, the RRT was not satisfied that the applicant faced a real chance of persecution because of his caste.

14                  The RRT concluded its reasons as follows:

“I am mindful that in his evidence at the hearings before me the Applicant was at pains to point out that all three of his grounds for seeking a protection visa are inextricably bound together.  Looking at all of the claims for the Applicant I cannot be satisfied that taken as a whole they have the qualities of being systematic and discriminatory and involving the serious harm now necessary to establish persecution in a Convention sense.

Finally, given that the Applicant was living near Calcutta before coming to Australia, I do not accept that, even if his fears of persecution in the vicinity of his village for the reason of his religion, and his difficulties with political opponents were true, the Applicant would not have been able after sixteen years of service to obtain a transfer to one of the 11,000 branches of the United Bank of India, for example, in the city of Calcutta itself, where he could continue with his political activities with TC (if so minded) and be able to enjoy the security of a much larger Christian community and have the protection of the Kolkata Police and without leaving his home state of West Bengal.

In summary, while there may be a kernel of truth in all of the Applicant’s claims, (political harassment by local CPI(M) supporters, an acknowledged upsurge in mistreatment of Christians in India and ongoing hardship and discrimination of members of the Scheduled Castes, I am satisfied that there is significant exaggeration and embellishment, if not fabrication, in the claims of the Applicant and I am satisfied that he does not face a real chance of ‘serious harm’ for any of the Convention reasons advanced by him.  I confidently conclude that the chances of the Applicant suffering Convention based persecution upon his return to India are remote and that his fears of Convention based persecution are not well founded.  He is not a refugee.”

reasoning

15                  The applicant’s first submission was that the RRT denied him procedural fairness by failing to consider all the material before it.  The complaint appeared to be that the RRT asserted that it had considered the whole of the evidence before it, but in truth did not do so.  Presumably, this was said to be a jurisdictional error which (leaving to one side s 474(1) of the Migration Act) would entitle the applicant to relief of the kind identified in s 39B(1) of the Judiciary Act, including the issue of writs of prohibition and mandamus.

16                  The difficulty with this submission is that the applicant’s counsel did not identify any specific material that the RRT failed to take into account.  The written submissions criticise the RRT for making the following assertion:

“I have carefully considered the whole of the evidence in this matter.  This includes the written claims of the Applicant, the evidence taken at two hearings, submission from the Adviser of the Applicant and a quantity of independent information submitted from time to time by either the Applicant or his Adviser.”

It seems to have been suggested that this statement could not literally be true and that the RRT in any event is under some obligation to “identify with precision the parts of the material relied upon”.

17                  No error, let alone a jurisdictional error, is disclosed by the RRT stating that it had carefully considered all the evidence in the matter.  There is nothing to indicate that the statement, understood in context, was inaccurate or inappropriate.  Nor is it correct to say that the RRT must identify with precision each part of the evidence relied upon.  There is nothing in the Migration Act which imposes any such duty on the RRT: cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

18                  The applicant’s counsel, in his oral submissions, seemed to put the same argument in a different way.  He contended that the requirements of procedural fairness obliged the RRT to refer to each item of “evidence” identified as such by the delegate in the record of decision refusing the applicant a protection visa.  Counsel said that the obligation arose because the applicant was a “litigant” who was entitled to know the case against him.  There was no suggestion that the RRT had relied on any material in the items identified by the delegate (see [24] below) to reach conclusions adverse to the applicant.  The contention seemed to be that the RRT was required to refer to each item, even if it was irrelevant to any of the issues requiring determination.

19                  The submission is misconceived.  An applicant before the RRT is not a litigant who must know the case put against him or her by the RRT.  As Gleeson CJ said in Muin v Refugee Review Tribunal (2002) 190 ALR 601, at 604, a review of a delegate’s decision,

“is not an adversarial proceeding.  There is no contradictor.  No issue is joined.  The applicant seeks to persuade the tribunal that the unfavourable decision under review should be set aside.”

20                  Nor do the requirements of procedural fairness oblige the RRT to refer to material, regardless of its relevance, simply because the delegate designates it as “evidence”.  On the applicant’s case, the RRT was obliged to refer to J.C. Hathaway, The Law of Refugee Status (1991) simply because the delegate wrongly (see Muin, at 601) included the text as one of the items of “evidence” before it in Part B of the record of decision.  There is no foundation in the Migration Act or the principles of procedural fairness to justify such a contention: see Muin, at 616, per Gaudron J.

21                  The applicant’s second complaint was that the RRT suggested to the applicant at the hearing that an Act of Parliament in India was designed to limit the exploitation of “scheduled caste people”.  The RRT was said to have erred by failing to draw to the applicant’s attention to the specific law that it was putting to him.  The point of the RRT’s observation was to give the applicant an opportunity of responding to information which suggested that the Indian Parliament was concerned to abolish the caste system.  In fact the applicant did not dispute that there was such legislation, but asserted that in practice it had not been successful in eliminating discrimination.

22                  It was not suggested that what the RRT said was inaccurate, nor that the applicant wished to take issue with the RRT’s comment.  This complaint does not establish that the RRT denied the applicant procedural fairness.

23                  The third complaint was that the delegate failed to comply with his statutory obligations to convey to the RRT all the evidence on which he based his decision.  The applicant’s written submissions did not identify the source of the relevant statutory obligation, but his counsel at the hearing relied on s 418(3) of the Migration Act, which provides as follows:

“The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.”

It was said that the fact that the Secretary did not comply with the statutory obligation is shown by a comparison between the evidence on which the RRT said it relied and the list of materials considered by the delegate in Part B of the protection visa decision record.

24                  Part B of the decision record lists the following items:

“1.       Departmental file N99/001557 relating to the applicants and consisting of folios 1-81.

  2.       Handbook on Procedures and Criteria for Determining refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees.  Geneva: Office of the United Nations High Commissioner for Refugees, January 1988.

  3.       Hathaway, James C. The Law of Refugee Status.  Toronto: Butterworths, 1991.

  4.       U.S. Department of State.  India Report on Human Rights Practices for 1998.  Released by the Bureau of Democracy, Human Rights and Labor, February 26, 1999.

  5.       ‘Christian Persecution Report’ Downloaded from the Internet (CX33933), dated 1 December 1998.

  6.       ‘Tribes People Protest Attacks on Christians in India’, from Reuters News Service dated 1 February 1999 (CX33511).

  7.       ‘Archbishop Criticizes Government Response to Attacks on Christians’, from BBC Monitoring Service, dated 1 February 1999 (CX33512).”

The RRT’s reference to the evidence, upon which the applicant relied, is extracted at [16] above.

25                  In Muin, the plaintiffs argued that the Secretary had failed to comply with s 418(3) of the Migration Act because he or she did not “give” relevant documents to the registrar of the RRT.  In particular it was said that the Secretary did not send to the RRT hard copies of the so-called Part B documents held in electronic form.

26                  In Muin, there was an agreed statement of facts.  According to the agreed statement, the Part B documents were in the possession and control of the Secretary at all material times and the Secretary considered them to be relevant to the review of the delegate’s decision by the RRT (see at 605, per Gleeson CJ).  The agreed statement also recorded in detail how and to what extent the electronic documents could be accessed by members of the RRT.

27                  Four members of the High Court considered the issue.  Gleeson CJ and McHugh J held that the Secretary had fulfilled the statutory duty by identifying the Part B materials so that they could be accessed by the RRT member through computer databases or libraries: see at 608, per Gleeson CJ; at 629, per McHugh J.  Gaudron J said (at 614) that she could see no reason why documents could not be given to the registrar electronically, by means  including making them available on the databases to which the registrar has access.  In any event, her Honour expressed the view (at 614) that the Secretary’s non-compliance with s 418(3) would not, of itself, constitute jurisdictional error on the part of the RRT, since compliance with s 418(3) is not a precondition to the RRT’s conduct of review proceedings or to its making of a decision on review.  (Gaudron J was considering the legislation, especially ss 424 and 425 of the Migration Act prior to amendments effected by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth).

28                  Kirby J dissented on the s 418(3) issue, taking the view that the word “give” indicated that a physical transfer of documents was required: see at 651.

29                  In the present case, the applicant has adduced no evidence to show that the Part B documents were not sent to the RRT.  Nor is there any evidence to show that the Part B documents were not available to the RRT through electronic databases or libraries.  The observations made by the RRT in its reasons do not assist the applicant on either of these questions.  There is therefore no basis for finding that the Secretary contravened s 418(3) of the Migration Act.  It is not necessary to consider whether a breach of s 418(3), considered independently of s 474(1) of the Migration Act, would constitute a jurisdictional error for the purposes of the relief available under s 39B(1) of the Judiciary Act.

30                  If, contrary to my view, the RRT denied procedural fairness to the applicant, s 474(1) of the Migration Act prevents him relying on that denial as a basis for relief under s 39B(1) of the Judiciary Act.  So much was decided by a majority of the Full Court in NAAV v Minister (Black CJ, Beaumont and von Doussa JJ; Wilcox and French JJ dissenting): see at [648], per von Doussa J (with whom Black CJ and Beaumont J agreed); NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294, at [17], per curiam.

31                  Similarly, if, contrary to my view, the Secretary breached s 418(3) of the Migration Act, s 474(1) would prevent the RRT’s decision being rendered invalid by reason of the breach.  The contravention of s 418(3), on the reasoning of the majority in NAAV v Minister, would not constitute an inviolable limitation or restraint upon the authority and powers of the RRT: see at [633], [636], per von Doussa J (with whom Black CJ and Beaumont J agreed).

CONClusion

32                  The application must be dismissed, with costs.

Associate:

Dated:              4 October 2002