FEDERAL COURT OF AUSTRALIA

NANI v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1082

ADMINISTRATIVE LAW – functus officio – obligation to consider evidence after the tribunal hearing

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), s 425

Applicant V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536 referred to

Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 170 applied

Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 referred to

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 52 referred to

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 referred to

Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 applied

Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18 applied

X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319 referred to

NANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N434 of 2003

JACOBSON J

SYDNEY

10 OCTOBER 2003

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The Respondent pay the Applicant’s costs.

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

REASONS FOR JUDGMENT

Introduction:

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) for writs of certiorari and prohibition quashing a decision of the Refugee Review Tribunal (“the RRT”) handed down on 14 March 2003. The RRT affirmed a decision of a delegate of the Minister given on 18 December 2002 refusing to grant the Applicant a protection visa. The Applicant also seeks injunctive relief and a writ of mandamus.

2                     The Applicant claimed to have a well-founded fear of persecution on the ground of race or religion. He is a Sunni Muslim from India who said he had a romantic relationship with a Hindu woman from a high caste family. Before his departure from India, the Applicant ran a shop. He claimed that, because of his relationship with his girlfriend, the shop was burned, his family home was vandalised and his family was assaulted.

3                     He claimed that his girlfriend’s brother was a member of an extremist Hindu group with strong government connections and influence. The Applicant claimed that as a result of this his complaints to the police were not dealt with.

4                     The Applicant’s claims were rejected by the RRT primarily on credibility grounds. However, the RRT gave other reasons for refusing the claim which included a finding that, even if his claimed fear of persecution was true, the Applicant could be expected to relocate within India.

5                     The principal question which arises on this application is whether the RRT committed jurisdictional error in failing to consider documents submitted by the Applicant to the RRT on 14 March 2003, ie on the day on which the decision was handed down.

6                     The documents which he submitted were statements from persons who said they witnessed the burning of the shop and certificates of the Applicant’s girlfriend’s education.

7                     The Applicant submits that the Applicant failed to consider the documents either because it considered itself to be functus officio when the documents were received or because it applied RRT policy in refusing to consider the documents and that it did so without considering the merits of the case.

8                     The Applicant submits in the alternative that the failure of the RRT to consider the documents amounted to a breach of the provisions of s 425 of the Migration Act 1958 (Cth) (“the Act”) or a denial of procedural fairness.

9                     The Minister takes issue with each of the bases on which the application is put. However, the Minister contends that even if the claim of jurisdictional error could be made out (which the Minister denies) the result could not possibly have been different. This is because the third ground on which the application was rejected, (i.e. the ability to relocate), is said to be an independent ground which did not turn on the rejection, on credibility grounds, of the Applicant’s claimed fear of persecution.

Background facts up to the time of delivery of the Applicant’s documents on 14 March 2003

10                  The Applicant is a citizen of India. He arrived here on a false passport in April 2001 and was admitted entry on a student visa issued in New Delhi about two months earlier.

11                  Upon the expiry of the student visa, the Applicant became an unlawful non-citizen. He was detained in November 2002 and placed in immigration detention.

12                  On 6 December 2002, the Applicant lodged his application for a protection visa. This application was, as I have already said, refused by a delegate on 18 December 2002.

13                  On 19 December 2002, the Applicant lodged an application for review of the delegate’s decision and he was released from detention on or shortly after 23 December 2002.

14                  By letter dated 24 January 2003, the RRT informed the Applicant that it was unable to make a decision in his favour on the material which he had submitted. He was invited to attend an oral hearing to be held on 17 February 2003 and to “send any new documents” by 11 February 2003.

15                  On 10 February 2003 the Applicant phoned the RRT to ask for an adjournment. The RRT made a note of the conversation in the following terms:-

“10/2/03 Applicant called to ask for a postponement as he was only informed of his hearing a few days ago and wanted more time to acquire documentation from India. I told the applicant that he could always forward these documents after the hearing if agreeable to the Member and stated that I would inform the relevant case officer who would call him back after she discussed his request with the Tribunal Member”.

16                  There is a handwritten note at the foot of the document which states that there would be no adjournment and that the Applicant’s agent had been advised. The handwritten note is signed by the Tribunal Member who heard the application.

17                  On 17 February 2003 the Applicant attended an oral hearing before the RRT. He said that he wanted more time to produce the documents which were on their way from India. The RRT refused to grant an adjournment.

18                  The relevant portion of the transcript of the hearing on 17 February 2003 is as follows:-

“RRT member: Are they the full extent of your claims?

Applicant: There are a few more evidences which I wish to produce and they are on their way from India to the Court and I am to produce those evidence.

Applicant: For example, they burnt my shop and I have got statements of the witnesses to this incident and also certificates of my girlfriend of her school.

RRT Member: What do you mean ‘of my girlfriend of my school’?

Applicant: I wish to produce the schools and college certificates of my girlfriend pertaining to her education.

RRT member: And what would that be of any importance for?

Applicant: That is to prove that my story is true and it is not a made-up story.

RRT member: And just so I understand the documents that you say you want to get from India are they just school certificates of the person who you say is your girlfriend?

Applicant: Yes, besides her educational certificates are waiting for the statements of those witnesses who saw the burning of my shop because I don’t have any case report; I want to produce the statements of those witnesses to the burning of my shop.

RRT member: Who are the witnesses?

Applicant: The people who were my neighbours, one of them is Kamel and one is Ashock. And there are a few others I am trying to find out who actually saw that incident so that they could help me.

RRT member: Why haven’t you thought to obtain this evidence before?

Applicant: Because I did not know that I was requiring these documents and my previous solicitor did not inform me anything about it but my later solicitor informed me that I would be requiring these documents.

RRT member: I’m not prepared to give you any extra time to obtain these documents [Applicant’s name].

Applicant: I am requesting that you try to give me some time.

RRT member: No, I’m not prepared to. You’ve been in Australia nearly two years – if you’d wanted to obtain any evidences in relation to anything that happened, you’ve had plenty of time to do it.

RRT member: Anything else you’d like to tell me or ask me about today?”

19                  On 24 February 2003 the RRT member signed his decision and on 25 February 2003 the RRT wrote to the Applicant informing him that the decision would be handed down at 2:30 pm on 14 March 2003.

The Events of 14 March 2003

20                  There were three file notes made by officers of the RRT as to the events which took place.

21                  I will set out the file notes as follows:

“14.3.03 Applicant came to receive his decision. At counter he stated that he had documents to present to the Tribunal. S. Alexandrou was informed of this by K Hurley. The matter was referred to Legal who informed S. Alexandrou that the day of handing down was too late for submissions. I passed on this information to applicant. C. Bird

14.3.03 Please refer to the above entry by C. Bird. Mila Males from Legal initially advised that we should inform the applicant that we could not accept submissions as the decision was already finalised on the date of handing down (according to Tribunal policy). However, Mila then called back and said that we could accept the documents, but make it clear to the applicant that the decision was already final and would still be handed down today. I informed the applicant of this at the handing down. He said he still wished to submit the documents. Mila subsequently advised by e-mail that she had spoken to the Tribunal Member who had decided to follow Tribunal policy and not consider the submissions. NB: Applicant asked that a copy of the documents be made for the file and the originals returned to him. S. Alexandrou.

14.3.03 On advice of Team Leader, HCT, the submissions received at the counter when the applicant called at RRT for the handing down were submitted for perusal by the Member. The Member perused the submissions and made no comments. RWONG.”

22                  Also on 14 March 2003 at 3:21 pm, Ms Mila Males sent the following email to Ms Soula Alexandrou:-

“Hi Soula – for your info: I advised the Member about the applicant (sic) wanting to make submissions – he decided to follow the policy and not consider the submissions. I have advised him to make a file note of that decision.”

RRT Policy

23                  The Applicant submits that the references in the second file note of 14 March 2003 to “Tribunal Policy” was to a paragraph in directions given by the RRT under s 420A of the Act.

24                  The relevant paragraph is part of item 11 of “Directions under s 420A Relating to the Application of Efficient Processing Practices to the Conduct of Reviews by the Tribunal” (“the Practice Direction”) given on 26 March 2001. The paragraph is as follows:-

“Any information received by the Tribunal from, or on behalf of, the applicant(s) after the decision has been finalised in accordance with Direction 13, but before the decision is handed down, shall be referred to the Presiding Member. The Presiding Member shall in such a case, evaluate the material and determine whether in the light of that material the finalised decision should be recalled and reconsidered. Where the information is submitted on or after the date of the handing down, the Tribunal is functus officio and the information shall not be considered.” (emphasis added)

25                  The only other item in the Practice Direction which is relevant is item 10 which provided that all written material submitted by an applicant in a language other than English must be accompanied by an English translation. Portions of the documents which the Applicant submitted were not in English.

The RRT’s decision

26                  The RRT stated that it did not accept the Applicant’s claims “relating to being in a relationship with a Hindu woman”. Nor did it accept his claim that he was of interest to the girl’s family or to any Hindu extremist party.

27                  The RRT considered that these claims were fabricated and that the Applicant was not a credible witness.

28                  In coming to these views, the RRT took into account the fact that the Applicant had made two previous applications for a visa to enter Australia and that he had made misleading statements to the Australian High Commission in those applications.

29                  The RRT said that “even if his story is true”, nothing had happened to the Applicant’s family since he departed from India and nothing had happened to the Applicant after he left his home town prior to his departure for Australia.

30                  This was a second ground on which the RRT dismissed the Applicant’s claims.

31                  The third ground was as follows:-

“It is also apparent that even if the applicant had a problem in his home town in the North of India, he could have lived anywhere else in India. Country information indicates that there is free movement within India and a person from his home state can move and live in any other state in India. This was a course of action open to the applicant if indeed he had any problem in his own area. He is well educated with a university degree, is not wanted by the authorities and had on his evidence established a prosperous business in India. He can reasonably be expected to relocate within India.”

Whether the RRT committed jurisdictional error in failing to consider the documents

32                  This question turns on the content of the RRT’s obligation to consider submissions delivered after completion of the hearing. A question also arises as to whether the RRT was functus officio or whether it considered itself to be functus officio by applying the policy stated in the last sentence of the Practice Direction.

33                  The documents were submitted before the decision of the RRT was handed down. The RRT was therefore not functus officio when the Applicant sought to put them before the decision-maker; see Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 (“Semunigus”); Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18 (“Singh”); and Applicant V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536 at [77].

34                  But it does not follow from this that the RRT was bound to consider the documents. As Spender J said in Semunigus at [20], the rules of natural justice do not require the RRT to receive as many submissions as an applicant chooses to submit at any time prior to the decision. As his Honour observed, an applicant is entitled to a reasonable opportunity to present his or her case. The observations of Higgins J at [91] were to similar effect.

35                  It seems to me that the correct view is that where documents or submissions are sought to be tendered after the conclusion of the hearing the RRT’s obligation is to do no more than to consider, in light of all the circumstances, whether it ought to receive and consider the material; see Singh at [32] and Semunigus at [109].

36                  In my opinion, the proper inference from the file notes and the email of 14 March 2003 is that the RRT did not do this.

37                  It is plain from the file notes that when the documents were presented at the counter there was debate between the RRT officers as to whether to accept them. There was then a conversation between Mila Males from Legal and the RRT member. This conversation must have taken place before the decision was handed down. I accept the submission of the Minister’s counsel that a conversation in those terms would not have made sense if the decision had already been delivered.

38                  It seems to me that the statement that the member had decided “to follow Tribunal policy and not consider the submissions” was a reference to the last sentence of the paragraph from the Practice Direction set out at [24]. That is to say the evidence or information was submitted on the date of handing down of the decision and accordingly the RRT applied its stated policy that “the Tribunal is functus officio and the information shall not be considered”.

39                  I am satisfied that the RRT applied this policy inflexibly without considering the merits (ie. whether in the circumstances it ought to consider the documents); see Braganza v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 170 at [36].

40                  Accordingly, I do not need to consider whether the RRT had an obligation to actually consider the documents; see X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319 at [23] – [24] per Gray J.

41                  Although I have come to the view that the RRT was in error in failing to consider on the merits, whether it ought to consider the documents I do not need to decide whether this constituted jurisdictional error. The reason I need not do so is that in my opinion the result could not possibly have been different; see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”) and see [54] to [59] below.

Whether the RRT failed to consider an item of evidence tendered by the Applicant

42                  In his affidavit of 8 August 2003 the Applicant said that he had handed some photographs to the Tribunal which corroborated his claim to have had a Hindu girlfriend. One of the photographs was of a young woman with a “bindi” or black spot on her forehead. Apparently only Hindu women have bindis.

43                  It was submitted on behalf of the Applicant that the evidence was relevant but that the RRT refused to accept or consider it.

44                  However, the RRT’s reasons indicate that the photo was produced by the Applicant to the RRT which received it and returned it to him. In my view, it does not follow that the RRT failed to consider the photograph. It was not bound to retain it as an exhibit. No error is disclosed.

Section 425 of the Act

45                  In my view there was no breach of this section. The Applicant was invited to, and did appear, before the RRT to give evidence and present his arguments.

46                  There is nothing to suggest that the invitation was “a hollow shell” or “an empty gesture”; see Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31] per Goldberg J.

Whether the refusal to grant an adjournment constituted a denial of natural justice

47                  The Applicant’s counsel submitted that in failing to accede to the Applicant’s request for time to submit documents the RRT did not provide the Applicant with a reasonable opportunity to present his case.

48                  He noted that the Applicant had contacted the RRT on 10 February 2003, (i.e. within about two weeks of the date on which he was invited to attend the hearing), to request an adjournment.

49                  He also referred to the transcript of the hearing on 17 February 2003 and, in particular, to the Applicant’s statement that the documents were on their way from India.

50                  However, the RRT took into account the fact that the Applicant had been in Australia for nearly two years. No error is disclosed in this.

51                  The Applicant also submitted that he was misled into thinking that he could submit documents after the hearing which would be considered by the RRT. He relied on the note of the conversation of 10 February 2003 which I have set out at [15].

52                  The short answer to this is that the conversation was very quickly overtaken by other events. The RRT member’s handwritten note of 10 February 2003 indicates that the Applicant’s migration agent was informed that the RRT would not grant an adjournment and a further application for an adjournment was refused on 17 February 2003.

53                  It follows that in my view the Applicant was not misled.

Possibility of a different result

54                  The evidence which the Applicant wished to put before the RRT was relevant to the claim of persecution.

55                  But it could not have affected the RRT’s finding on the third ground on which it dismissed the application ie the availability of protection elsewhere in India.

56                  This finding was clearly an alternative ground on which the application was dismissed. This appears from the opening words of the paragraph which I have set out at [31] and in particular from the words “even if the applicant had a problem in his home town”.

57                  The Applicant’s counsel submitted that the additional evidence may have encouraged the RRT to look more favourably on the Applicant as a credible witness. Thus it was said that the RRT may have placed more weight on the Applicant’s evidence that he would not be able to relocate anywhere in India.

58                  However, it seems to me that the RRT’s finding proceeds upon an assumption that the Applicant’s claims about his relationship with a Hindu woman, his fears about her family and extremist groups and the burning of his shop, were true.

59                  It follows that, in my opinion, even if the RRT fell into error in failing to consider whether it ought to consider the Applicant’s documents, this could not possibly have produced a different result; see Aala; see also NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 52 at [31] per Lindgren and Stone JJ.

Conclusion and Orders

60                  Accordingly, the orders I will make are that the application is dismissed with costs. However, I express my appreciation to counsel who appeared pro bono for the Applicant for his assistance.

Associate:

Dated: 10 October 2003