FEDERAL COURT OF AUSTRALIA

SZADS v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1251

MIGRATION – appeal – whether specific country information not put by RRT to appellant – no breach of s 424A of Migration Act demonstrated – no appellable error.

Migration Act 1958 (Cth), s 424A

Federal Court Rules, 0 52 r 36

Muin v Refugee Review Tribunal (2002) 190 ALR 601

Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 179 ALR 238

VBAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 205

Coulton & Others v Holcombe & Others (1986) 162 CLR 1

Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168

VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 437

SZADS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 882 OF 2003

CONTI J

6 NOVEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         Appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

The appeal to the Court

1                     This is an appeal from the decision of Federal Magistrate Raphael given on 3 July 2003, whereby his Honour dismissed the appellant’s application for review of the decision of the Refugee Review Tribunal (‘the RRT’), made on 17 January 2003, whereby the RRT affirmed the Minister’s decision of 29 November 2002 to refuse the appellant a protection visa. I conducted the appeal as a single justice, after the Chief Justice so directed.

2                     The notice of appeal is very lengthy. It addresses various findings of Raphael FM made in the appellant’s favour, and asserts that those findings should have been sufficient for upholding of the review application pursuant to s 39B of the Judiciary Act 1903 (Cth), and thereafter seeks the grant of prerogative relief to prevent the Minister from taking any steps pursuant to his Honour’s affirmation of the RRT’s decision, and the remission of the appellant’s application for the grant of a protection visa for decision by a differently constituted RRT.

3                     It is appropriate to set out in some detail the findings of the RRT, and thereafter the opinions and conclusions of his Honour critical of those findings, culminating albeit on the single basis upon which he dismissed the application for review of the RRT decision. The reason why I have found that course to be appropriate has been in order to distil the limited basis upon which the Minister ultimately succeeded below, and also to put the basis of that limited success of the Minister into context.

4                     The submissions of the parties, both to this Court on the present appeal, and on the appellant’s earlier application for review of the RRT decision made to Raphael FM, are detailed and comprehensive. The reasons for decision of the RRT extended over 28 pages, and the reasons for judgment of his Honour extended over 18 pages. I have been assisted by the respective submissions of counsel for both parties, albeit that I have not found it ultimately necessary to refer to the same in any detail.

Background to the RRT review

5                     The RRT found the appellant’s claims, and the reasons advanced in support thereof, to be implausible, and contradictory, and that the appellant did not have a subjective fear of persecution.

6                     The appellant is a Sikh who was born on 22 November 1961 in Punjab. He speaks, reads and writes Punjabi and Hindi. He was educated over a period of twelve years. In India he was a salesman. He is presently a widower.

7                     The following chronology of events, based on the appellant’s evidence given to the RRT, may serve as an appropriate background description of the appellant’s circumstances then prevailing:

(i)         In October 1983, he was arrested and detained by local police, due to his association with the Sikh Student Federation (‘SSF’);

(ii)        He relocated in New Delhi after further police harassment; subsequently he left India in 1984 and travelled to the Middle East;

(iii)       He returned to India on a number of occasions, spending most of his time in Bombay or New Delhi;

(iv)       On one of these occasions, which was in 1993, he married, but returned to the Middle East after four weeks, and his wife remained with her parents;

(v)        On 25 July 1997, unknown persons entered the family home and brutally assaulted all family members; the appellant’s wife and children were murdered;

(vi)       He entered Australia on 29 July 2000, and applied for a protection visa on 18 August 2000; the application was refused by the Minister on 22 September 2000; the RRT affirmed the Minister’s decision on 31 January 2002 (not 2 February 2000 as erroneously recorded in the second RRT decision referred to below);

(vii)      The appellant entered Australia for a second time on 23 March 2002, after having first journeyed from Australia to Kuala Lumpur in Malaysia, following upon his unsuccessful challenge to the RRT concerning the refusal of his first protection visa application; and

(viii)      On 21 November 2002, the applicant re-applied for a protection visa; as stated in [1] above, the application was refused on 29 November 2002; thereupon the appellant lodged with the RRT the abovementioned application for review on 9 December 2002, which was again unsuccessful. That unsuccessful challenge led to the application for review to the Federal Magistrates Court, and thereafter to the present appeal.

The RRT’s reasons for decision for refusal of the appellant’s application for review of the refusal of his second visa application

8                     In comprehensive reasons for decision of 17 January 2003, the RRT set out the applicable legislative scheme bearing upon the appellant’s application for review of the Minister’s decision to refuse the appellant a protection visa for a second time. The RRT recorded that an application for the subject protection (class XA) visa was to be considered against the criteria for each of subclasses 785 (Temporary Protection) and 866 (Protection). The RRT observed that under s 65(1) of the Migration Act 1958 (Cth) (‘the Act’), a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been fulfilled. It addressed the provisions of s 36(2) of the Act, which provide that the criterion for a protection visa is that the appellant be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. The RRT recorded that further criteria for the grant of protection visas class XA subclasses 785 and 866 are to be found in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994 (Cth). The RRT discussed the meaning of ‘refugee’, and articulated the four key elements of the Convention definition. The appellant did not, in these present appellate proceedings, challenge the RRT’s analysis of the applicable legislative and regulatory requirements.

9                     Under the heading ‘Claims and Evidence’, the RRT recorded that in the appellant’s first (or earlier) protection visa application made on 18 August 2000, the appellant disclosed that he had been a member of the SSF in India, and that he became the target of the security forces in India and thereby faced persecution, and that later, during his absence in the Middle East, his home had been attacked by the security forces on 25 July 1997, being the time when his wife and two sons were murdered. A grave and traumatic picture was thereby painted by the appellant, involving what Raphael FM rightly described as ‘a very serious claim’, and ‘a shocking claim to make if it is untrue’.

10                  The RRT put to the appellant that it was ‘implausible’ that it would take him eight months after his arrival in Australia for the second time to lodge a protection visa, and yet have a legitimate fear of persecution in India. That circumstance was contrasted by the RRT with the timing of the appellant’s first or earlier protection visa application made three weeks after his first arrival in Australia, with the assistance incidentally of a migration agent. The appellant explained the delay to the RRT thus: ‘the solicitor advised me that since my interview with the federal police was continuing – he said we wait for the decision and maybe we can have it reviewed. Because I’m illiterate and I rely on his advise (sic)’. The RRT asked the appellant why the federal police were interviewing him and he replied ‘because the federal police were trying to find out about the person who helped me getting (sic) this fake passport’. The appellant claimed moreover that a solicitor who was assisting him in relation to those police investigations had assured him that there was no need to lodge any application for a protection visa ‘at the moment’. He said that the solicitor promised the appellant that he could ‘get [him] out on bail’. As will later be explained, there was in fact a basis for that delay in application to the Minister’s delegate after his second arrival in Australia, being a basis provided to the Federal Magistrate.

11                  The RRT also put to the appellant that the various claims listed in his second protection visa application were vague and unspecific, and recorded its concern with the paucity of detail provided in support of that application. The appellant said ‘[w]hatever dates I could remember I put in the application’, but when asked when he became a member of the SSF, the appellant said that he could not remember. The RRT recorded the following exchange with the appellant, at a time when he was afforded the opportunity by the RRT of expanding upon what he claimed to have been the activities in which he engaged with the SSF:

‘When asked what his activities were, he stated: “I put up posters in the meetings I organised the food and similar activities”. It was therefore suggested that he was only an ordinary member, rather than a leader to which he stated: “I was one of the main persons, because I organised everything”. It was pointed out that he did not have an elected position, however. In response he stated: “All the activities happened through me, like organising demonstrations”. When asked why he was arrested in 1983, he stated: “There were people against us, and people started to hate us”. It was pointed out that this claim was not included in his first application and therefore it appeared to be a recent invention. In response he stated: “That time I mentioned that I had a lot of problems. At that time things weren’t clear. There was no one assisting me”.’

12                  The appellant could not recall to the RRT how long he was in detention in India following his arrest in 1983, except to say that he was released in 1984. Similarly in relation to a further claim that his parents had also been put in detention by Indian authorities, the appellant was unable to identify any specific time frame, but said it was a ‘continuing process, sometimes they would release them the next day’. Although the appellant’s claim that his parents had been detained by the police had not been mentioned in the context of his first protection visa application, the appellant explained ‘whatever I wrote in the application is true. A lot of things have come clear. For six months I didn’t contact anyone from here because I was afraid’.

13                  The RRT recorded that the appellant testified, in the context of his time spent in New Delhi in about 1984, that he was unable to specify the name of the political party which he claimed to have there harassed him, other than that it was ‘a Hindu party, and Congress was also part of this…’. When asked for an explanation why that claim was not mentioned in his first visa application in Australia, the appellant responded ‘[b]ecause my parents spent a lot of money for me, and they didn’t tell me a lot of things. They didn’t want to upset me’. The RRT’s reasons for decision in relation to that earlier history included the following:

‘He stated that the group found out where he was staying in Delhi two or three months before he left for Bombay, in October 1984. It was pointed out that his claim that from his village he went to Delhi, then to Bombay and then departed the country contradicted his protection visa application, that after going to Delhi he returned to his home town. In response he stated “I never went back to my home town. I went to Bombay”. The applicant stated that he left India in 1984 travelling on a passport issued in his own name and with his own photograph in it.’

(I should refer in that latter regard to what I have already recorded in 7(iii) above).

14                  The appellant was questioned by the RRT member as to which month and year it was that his family told him the authorities and opposition group were harassing them and asking about him. The appellant responded ‘[s]ince I left the country, whenever I used to ring them, they used to tell me’. The appellant was then asked how many times, and in which years, he frequented India. The appellant could not recall, but said that he had been to India many times, sometimes for a week, and other times for 15 or 28 days. The appellant maintained that he had never visited his village but spoke of the ease with which he was able to enter India, saying ‘[i]n India you can easily get in and out by paying money’.

15                  When the RRT member asked the appellant why his claim that his wife had been harassed was not included in his first protection visa application, he said that he wrote everything in his application, and repeated that his wife and two children had been killed. The RRT observed that the appellant did not express any emotion when he mentioned on that occasion that his wife and children had been murdered, being an observation upon which it placed some reliance in its reasons for decision. Since the appellant claimed in his first application for a protection visa that the Indian security forces took part in the alleged murder of his wife and children, the RRT asked why it was that in the present protection visa application, the appellant referred to his persecutors as ‘unknown people’; the appellant responded as follows:

‘Both applications were filled in as I was told by my parents and family members. I wasn’t physically there.’

16                  The appellant was invited by the RRT to comment on its concern that independent country information indicated that ‘only those Sikhs who have engaged in violent anti-state activities in the Punjab would be at risk of persecution today’. The appellant responded that he was ‘an active member of the party’, and that he would not receive protection from the Indian authorities because he would regard himself as obliged to ‘wear a beard and a turban’, and thus would readily ‘stand out’ as a Sikh. The RRT further put to the appellant that the ‘country information did not support his claim about the murder of his family, and he did not lodge any death certificates’. The appellant’s response was that ‘[t]here’s no one there to do this paperwork for me’.

17                  Under the heading ‘findings and reasons’, the RRT accepted the appellant’s evidence that he was a Sikh who was born in the Punjab. It also accepted his evidence as to his travel and period of residence in the Middle East from 1992 to 2002, and further that he left India legally, via Bombay, in October 1984. However, the RRT made the following findings unfavourably to the appellant:

(i)         he had not provided a satisfactory explanation for the long delay of eight months from the time of his arrival in Australia on 23 March 2002 until lodgment of his second protection visa application, being a delay consistent with his not having a subjective fear of persecution;

(ii)        his ability to leave India legally in October 1984 was consistent with him not being of interest to the authorities;

(iii)       since he was en route to India when he left Australia after his earlier visit in 2000, he did not have a subjective fear of persecution in India;

(iv)       his claims were vague and general in character, notwithstanding that he had the assistance of a migration agent in the context of his first review application;

(v)        his claim to have been arrested in October 1983 was a recent invention which was fabricated to create a refugee profile, that claim not having been mentioned in the context of his first visa protection application;

(vi)       his claim that his family was taken to the police station on numerous occasions was vague and a recent invention, and should therefore not be accepted;

(vii)      his claim that after members of an opposition group had harassed him in Delhi, he went to his home town, was inconsistent with his claim in his second visa protection application, and constituted a recent invention, and should not therefore be accepted;

(viii)      his claim that an opposition group and the authorities had harassed his family and asked about his whereabouts was vague, and should not be accepted; in that context the RRT mentioned that the appellant had been able to legally leave India;

(ix)       the fact of his return to India on many occasions since his departure in 1984 was inconsistent with his having any subjective fear of persecution, and the further fact that he had not been harmed during any of those visits indicated that the authorities were not interested in him;

(x)        his claim that his family was assaulted on 25 July 1997 should not be accepted; there was a material contradiction between his claim in his first protection visa application that the assault was committed by security forces, and his claim in the second application that this was carried out by unknown people;

(xi)       he lacked ‘even the faintest of emotion’ when he referred to the murder of his wife and two children; and

(xii)      his failure to appear at the first RRT hearing was consistent with him not having a subjective fear of persecution.

18                  The above findings of the RRT led to the RRT’s conclusion that the appellant did not have a well-founded fear of persecution for a Convention reason. They were findings essentially of a factual nature, which appear to have been generally speaking open to the RRT to reach, in the course of exercise of its fact finding assignment. The RRT further concluded importantly to the effect that even if the totality of the appellant’s claims were to be accepted as both credible and reliable, the appellant could not be said to have a well-founded fear of persecution, because the chances were ‘remote at best’ that the appellant would face persecution if he returned to India.

19                  The RRT further found that the appellant ‘was only an unelected and ordinary member’ of the SSF, and ‘had a low level political profile, at best’. The RRT explained that this finding was:

‘… consistent with the view that he was not of sufficient interest to the authorities, since according to his testimony during the hearing before the [RRT] he was allowed to legally leave the country and return on many occasions without any adverse consequences.’

20                  The RRT further found that the appellant would not be of sufficient interest to the Indian authorities for political or other convention related reason, concluding in that regard as follows:

‘If the Indian authorities were not sufficiently interested in him in 1984, when he was able to leave India legally, it is even less likely that they would be interested in him now, almost two decades later, and in the absence of any evidence that he has engaged in activities in Australia which would be construed as constituting evidence that he could be perceived as a sur place refugee.’

21                  The RRT described the independent country information as ‘strengthening’ its above summarised findings, and found in that context, importantly, as follows:

‘The [RRT] accepts that the period of serious human rights abuses by the Punjab security forces ended in 1993-1994… The above-cited independent evidence demonstrates that the human rights situation in the Punjab has improved greatly since that time. It also indicates that Sikhs can safely relocate elsewhere in India. The [RRT] was unable to locate any references to any persecution of AISSF members in any of the many sources consulted by the [RRT] in the 12 months prior to the haring before the [RRT], and any reference of harassment of AISSF members in the Punjab or other parts of India… This would indicate that this leading militant Sikh organisation is no longer suffering persecution in Punjab or other parts of India, and that it did not suffer persecution in 1996, 1997 and 1998, let alone over the past 12 months. This would suggest to the [RRT] that a substantial and durable change in conditions has occurred in the Punjab since 1994 which removes any reasonably foreseeable risk to the applicant.’

22                  The RRT expressed its reliance upon the evidence of Professor John Spellman to the effect that it was unlikely that ‘the local police would be concerned about an AISSF member’. Moreover whilst DFAT documents dated 14 July 1998 were said to have indicated to the RRT that ‘an active AISSF member could be arrested by the Indian police if they were suspected of involvement in or incitement of subversive or terrorist activities’, the RRT was of the further view because the appellant ‘only engaged in low-level political activities in his home town’, that the appellant ‘could not have been suspected of engaging in such terrorist or violent activities’. The RRT further found that the circumstance that the appellant was able to leave India legally was ‘consistent with the view that the authorities believed that he was not an active AISSF member, militant or leader, or that he had engaged in subversive or terrorist activities’.

23                  The RRT’s decision concluded in the following terms:

‘… The 5 May 1997 letter from Cynthia Mahmood indicates that militants and close affiliates of militants are the key category of individuals at risk in India, although political activists and human rights activists may also have a well-founded fear of persecution. However, the applicant, on his own evidence, does not have any of these profiles. Without more, merely supporting the AISSF could not be perceived as being a “close affiliate” of a Sikh militant. The Tribunal also finds that the applicant would not face a real chance of being subject to persecution at the hands of the authorities for merely being a Sikh or a Sikh who had been detained by the authorities. This finding is strengthened by the above-cited October 2002 UK Home Office report.

…

In these circumstances, the chance that the applicant will be persecuted now or in the reasonably foreseeable future due to his political opinion, religion, race or any other Convention reason is remote at best. Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.’

24                  I have not referred in detail to the entirety of the RRT’s extensive findings and reasons, but what I have recorded above should demonstrate the essence of the RRT’s approach and its reasons for decision. I have found it appropriate to take this course, because of the nature of the issues raised by the appellant, particularly on appeal to the Federal Magistrate.

Federal Magistrate’s reasons for decision

25                  Federal Magistrate Raphael concluded his reasons for judgment to the effect that ‘… notwithstanding criticisms which I have made of the [RRT’s] procedures in relation to the credibility issue, I would find that there are no grounds to set aside the [RRT’s] decision’. Those criticisms are summarised below, and are of significance in the light of the grounds of appeal which purportedly reflected the same. It is appropriate that I first address the basis of those criticisms, in the sequence in which they appear in his Honour’s reasons for judgment.

26                  The first matter involved the presentation to the Court below, but not earlier to the RRT, of an affidavit by the appellant’s former solicitor in purported explanation of the delay of eight months in lodgment of the second visa application, namely that the solicitor had erroneously thought that the application was not allowable by reason of the operation of s 48A of the Act. Raphael FM considered that had the appellant provided to the RRT that explanation of the solicitor which it subsequently provided to the Federal Magistrate’s Court, the RRT may have come to a different conclusion, but in the absence of anything but an uncorroborated statement tendered by the appellant as to what his solicitor had told him, the RRT was entitled to consider the factors which otherwise bore upon its decision, and come to the view that the explanation was not satisfactory. Hence his Honour concluded that no reviewable error had occurred in that regard.

27                  The second matter related to the appellant’s contention that there was no proper basis for the RRT to find that the appellant was only an ordinary member of the SSF. His Honour referred to the uncontradicted testimony of the appellant as to his extent of involvement in the SSF, and considered that the words used by the appellant were capable of being interpreted in the limited sense found by the RRT, and bearing in mind the Tribunal’s concern as to the possibility of recent invention, the finding that the appellant had ‘only a low level political profile, at best’, was therefore available to the RRT.

28                  The third matter concerned the comparison made by the RRT of the handwritten statement made by the appellant in support of his first or earlier visa application, and the typed statement which he made in support of his second (ie the subject) visa application; in the latter but not the former circumstance, the appellant claimed that he had been arrested in 1983 by the authorities. The RRT member was recorded in that context of accusing the appellant of ‘telling a lie’, upon the footing that the appellant had the acknowledged assistance of a migration agent in connection with the preparation of his first application, yet with that expert assistance had omitted an account of a controversial circumstance which would be expected to have been mentioned. Raphael FM considered that the RRT had no basis for asserting that what the appellant said in that regard was untruthful, or that in the actual preparation of his earlier refugee application in 2000, the appellant had the benefit of any such assistance. Moreover as his Honour further pointed out, the ‘applicant’s concerns about the comparison of the two statements does not stop there’, and that ‘the Tribunal, possibly influenced by its views on the appellant’s credibility based on the matters previously recited, then looks for other areas in which the two statements are not consistent’. Yet there was in fact no inconsistency, as his Honour found, between the two statements, except that in the first statement, the appellant had said that unknown people had come to his family home and there assaulted and murdered his wife and children, and in the second statement, he claimed that it was the security forces which were involved on that occasion. His Honour concluded upon those controversial matters, after referring to case authority, as follows:

‘… the Tribunal here did fall into error by making an erroneous finding about the applicant’s use of a migration agent in preparation of his statements. It used that erroneous finding to support its views about the lack of credibility of the applicant. Then on the basis of those views turned what otherwise might be seen as no more than a difference of language into a “material contradiction” which further dammed the applicant’s credibility.’

29                  Without at that stage determining the implications of the foregoing finding in the appellant’s favour, his Honour proceeded to address what he described as another finding by the RRT of a material contradiction, where the RRT had characterised as a recent invention the claim by the appellant of harassment by members of an opposition group when he was in Delhi, being a claim not referred to in the appellant’s first visa protection application. Raphael FM found however in that regard that ‘[t]he Tribunal has once again read something into the applicant’s statement which does not appear to be there’, and further that ‘[it] is difficult to see how the Tribunal could have come to the conclusion that what occurred constituted a material contradiction on the part of the appellant’, and further that ‘[o]nce again the Tribunal has fallen into the error of misreading the evidence and then basing findings of credibility upon those misreadings’.

30                  The remaining segment of mistaken findings distilled in his Honour’s reasons for judgment, to which I would refer, related to the harassment of the appellant’s wife after the appellant had departed from India for the Middle East in 1984. The RRT thought it to be significant that the appellant had not mentioned that circumstance in his ‘first statement’ to the Department in the year 2000, and characterised the same as a recent invention. His Honour was critical of that approach, emphasising that the segment of the Departmental form headed ‘Why did you leave that country?’ did not, by its relatively limited provision of blank spacing, encourage lengthy statements, and that what was of paramount importance to the appellant, if of course he was to be believed, was that his wife had been murdered. Raphael FM concluded on this matter of controversy as follows:

‘On its own, the finding by the Tribunal that the claim that his wife had been harassed was a recent invention because it was not mentioned in the first application might be considered harsh but not erroneous. The difficulty lies with it coming after what I have found to be a series of erroneous findings which appear to have affected the Tribunal’s views upon the applicant’s credibility. A finding of recent invention is a finding on credibility. This finding must therefore be infected by the same error as the previous findings.’

31                  In the context of those criticisms of the RRT’s reasons for decision which I have recounted, Raphael FM addressed the remaining issue of the independent country information in evidence before the RRT, the impact whereof, with one exception, he considered to be outside the scope of the RRT’s obligation imposed by s 424A of the Act. His Honour expressed his satisfaction that in all alleged cases but one, the information utilised by the RRT, and the questions put in relation thereto, were of the kind which the RRT was under no duty to disclose under s 424A(3) of the Act. That exception was the RRT’s statement put to the appellant below:

‘The Tribunal also has country information that does not support your client about the murder of your family and that would seem to be suggesting that the claim is not a creditable claim.’

As Raphael FM observed, I think correctly, ‘… It is a shocking claim to make if it is untrue. I have absolutely no doubt that evidence about such a claim is the very type of evidence which the Tribunal is required to put to the applicant by virtue of s 424A(1)…’.

32                  After setting out certain passages from his Honour’s reasons for judgment, Raphael FM observed that there was nothing to suggest, from the reasons for decision of the RRT, that the RRT put to the appellant the existence of any country information concerning the murder of his family. His Honour thereafter observed that the RRT appeared to have come to the conclusion that the murder did not take place because the appellant had said in his first statement that it was the security forces that took part in the incident, but said in his second statement that the persons who took part were unknown (the RRT did not say that to have been the exclusive reason why it came to that view). To my passing observation, the distinction so drawn by the RRT was at least debateable in the context in which it was made. In any event, his Honour cited Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [64] (per Gaudron J) and at [134] (per McHugh J). McHugh J there adopted a passage from his earlier judgment in Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 179 ALR 238 at 269-70), namely that ‘… material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application…’, in contrast, for instance to ‘new material’ of which the appellant may be unaware, and which is or could be decisive against the appellant’s claim for refugee status.

33                  Raphael FM took a critical view of the RRT’s omission which he had thus distilled; his Honour observed firstly as follows:

‘To tell someone that you have information that would seem to suggest that a claim that his wife was murdered is not a credible claim but then not to provide him with that information and expect him to respond would seem to me to be denying the applicant natural justice. The respondent argues that all that happened was that the Tribunal put to the applicant the conclusion it had come to from consideration of the country information. But we are not talking here about some generalised fear of persecution, we are talking about a particular and (if true) horrific incident. If the Tribunal was prepared to take into account pieces of general country information to come to a view that a particular woman and her children were not murdered at a particular time in a particular place then the Tribunal must put that process of deduction to the applicant so that he can have an opportunity to refute it. The respondent would argue that the Tribunal’s reasons for decision would seem to indicate that it did not utilise the material in the way in which it was put to the applicant. Certainly there is no reference to other country information and the finding of the Tribunal upon this incident appears to be based in great part upon the alleged inconsistency in the statement. But can one be sure of that? Natural justice requires that a court reviewing such a decision does more than utter a pious hope that the Tribunal meant nothing by its earlier statements to the applicant and relied not at all upon the alleged information.’

34                  Raphael FM recorded that the appellant tendered to him two examples of questions which his Honour thought might be said to indicate the type of information to which the RRT was above referring in the present context. The first was recorded by his Honour as follows:

‘The Tribunal also has a report, the most recent report from the United Kingdom of October 2002 which says that rank and file members of groups which were at one time targeted, for example the All India Sikh Student Federation are in general terms now safe. Again that would seem to suggest that your claims are at odd with that evidence. Would you like to comment?’

His Honour observed that there was no evidence that the report above identified was shown to the appellant, and moreover that it was an updated report of country information published subsequently to the time of the alleged murder of the appellant’s wife in 1997. That observation was correct; the report purported to speak in the present tense: see the words ‘in general terms now…’, as appear in the above extract.

35                  The United Kingdom report relevantly continued as follows:

‘Amnesty International detected a pattern to the arrests, detentions, torture and disappearances which they reported. They concluded that Sikh’s were often arrested on mere suspicion that they were linked to armed secessionist groups. Family members of suspects were arbitrarily detained and tortured in order to extract information about the suspect’s whereabouts or activities.

Amnesty said that women had been arrested and tortured simply to deter them from giving food and shelter to Sikh militants and… Amnesty International also reported that hundreds of members of sympathisers of armed Sikh groups were allegedly captured, sometimes tortured, and then extra-judicially executed, the killings attributed by the police repeatedly frustrated attempts to bring those accused of human rights violations to justice.’

His Honour observed that ‘[t]hose extracts would appear to refer to activities taking place up to the mid-1990’s’, and that ‘[t]here is no clear evidence what the situation was in 1997’. His Honour’s citation from this same report then proceeded as follows:

‘Sikh’s do not constitute a persecuted group at the present time, and rank and file members of groups that were at one time targeted eg the AISSF, are in general terms now safe. There are exceptions such as people with a local history of abuse at the hands of the police, who may continue a personal vendetta; and militants together with their close relatives and supporters who continued to be followed as potential seeds for further rebellion.’

36                  Raphael FM concluded on this point, tentatively up at that stage in favour of the appellant, as follows:

‘I am satisfied that the Tribunal failed to comply with its obligations under s 424(1) to put to the applicant the relevant information which it had that might indicate that his wife and children had not been murdered.’

That reference to s 424(1) was in context clearly intended to be to s 424A(1).

37                  Moreover his Honour observed that there was other evidence, such as the report of Professor Cynthia Mahmood, that would tend to indicate that there are still problems for Sikh’s, and further that he was unable to find any evidence reproduced in the Court Book from which the RRT would be able to deduce that it was unlikely that a murder took place in 1997.

38                  After citing the following passage in VBAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 205 at [28] (Ryan J) concerning what Raphael FM described as the limited circumstances in which a denial of procedural fairness will be held to be jurisdictional error, namely:

‘In this limited sense, a denial of procedural fairness can constitute jurisdictional error, but not every case will disclose such a denial. What is required is more than an infraction of a rule of natural justice; it is a failure to exercise a jurisdiction, which the Tribunal was bound to exercise, in the manner in which it was bound to do so.’

39                  Against the context of what I have extracted and recounted from his reasons for judgment, his Honour proceeded to dismiss the appellant’s application for review to the Federal Magistrate’s Court on the following basis:

‘If the Tribunal’s reasons for decision had concluded at this point I would have found that the errors to which I have pointed constituted jurisdictional errors that directly bore on the making of the decision. As such I would have found the decision to have been invalid and required the matter to be referred back to the Tribunal differently constituted to be heard in accordance with law. However… the Tribunal says this:

            “However, even if the Tribunal has arrived at a wrong conclusion as to the applicant’s credibility, and it were to accept that the applicant’s claims are credible and to accept his claims of past events, it finds that the applicant does not have a well founded fear of persecution for a Convention reasons.

            The Tribunal finds that the chance that the applicant will be persecuted for reasons of his political opinion, religion, race or for any other Convention reason is remote at best. On his own evidence, he was only an unelected and ordinary member of the Sikh Student Federation. He therefore only had a low-level political profile, at best. This is consistent with the view that he was not of sufficient interest to the authorities, since according to his testimony during the hearing before the Tribunal he was allowed to legally leave the country and return on many occasions without any adverse consequences.

            If the Indian authorities were not sufficiently interested in him in 1984, when he was able to leave India legally, it is even less likely that they would be interested in him now, almost two decades later, and in the absence of any evidence that he has engaged in activities in Australia which could be construed as constituting evidence that he could be perceived as a sur place refugee. Therefore, the Tribunal is not satisfied that the applicant was or is of sufficient interest to the Indian authorities for political or other reasons, and is not satisfied that he has a well-founded fear of persecution for reasons of actual or imputed political opinion or any other Convention reason.”

In the following two paragraphs the Tribunal provides further reasons based upon available country information to support these findings. These findings are not reliant in any way upon the credibility of the applicant. There is therefore no link between the jurisdictional errors to which I have previously referred and these findings. The findings were clearly available to the Tribunal and provide in themselves a reason for upholding the decision of the delegate not to grant the applicant a protection visa. In these circumstances, notwithstanding the criticisms which I have made of the Tribunal’s procedures in relation to the credibility issue I would find that there are no grounds to set aside the decision and would accordingly dismiss the application…’

Should further evidence in this appeal be received?

40                  By notice of motion dated 3 September 2003, the appellant made application to this Court, in advance of the hearing of his appeal, to entertain the following evidence which was not placed before Raphael FM:

(i)         The affidavit of Tejpal Singh sworn 12 August 2003 relating to mistranscribed evidence before the RRT;

(ii)        The affidavit of the appellant sworn 1 September 2003 explaining the delay in raising the apparent mistranslation; and

(iii)       The affidavit of Asif Daniel sworn 1 September 2003 confirming that he read the appellant’s affidavit to him in the Punjabi language.

41                  The appellant submitted that the affidavit of Tejpal Singh, who is a qualified translator, established that there occurred a mistranslation of two answers given by the appellant in response to questions asked of him by the RRT. The appellant submitted that this apparent mistranslation led the RRT into error in finding that the appellant was only an ordinary unelected member of the SSF.

42                  The respondent objected to the above affidavits being received for the purposes of these appellate proceedings. The respondent firstly submitted that the affidavits were filed on about 2 September 2003, and consequently out of time. In this respect, it appears that the appellant did not adhere to the requirements of Order 52 r 36 of the Federal Court Rules which provides:

‘36       Further evidence on appeal

            (1)        This rule applies to any application to the Court to receive evidence in a proceeding on an appeal additional to evidence in the Court below.

            …

(6)        The applicant shall file any affidavit not later than 21 days before the hearing of the appeal.

…’

However the respondent did not exemplify the existence of any prejudice occasioned by the tender of this evidence out of time. It was more in the nature of an objection in principle, rather than one based on prejudice.

43                  The respondent secondly submitted on the subject of the tender as follows:

‘In the proceedings in the Magistrates Court the appellant issued a notice to admit facts dated 19 May 2003. This required the respondent to admit for the purpose of those proceedings the extracts from the recording of the proceeding before the [RRT] which appear in the [written] submissions of the appellant dated 19 May 2003 were a true and correct transcription of the evidence which was given. At the hearing in the Magistrates Court counsel for the respondent indicated that the transcription as it appeared in the submissions was accepted as a “broadly accurate” record of those parts of the hearing.’

44                  The respondent thus contended that the appellant was bound by the way in which his case was conducted before Raphael FM, and could not seek to introduce evidence which was inconsistent with the evidence which he had tendered before his Honour, which was the basis of submissions by both parties, and of the Magistrate’s consideration of those submissions. Counsel for the respondent relied upon dicta of Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton & Others v Holcombe & Others (1986) 162 CLR 1 at 7-8. The submission was I think correct, and must be upheld.

45                  In any event, the problem for the appellant would have remained as to whether such evidence, if admitted, would have served to produce any different result to the outcome of the appeal which I have reached below. I am unable to identify a sufficiently viable basis for the contention that the errors said to have been made by the interpreter would have been decisive to the conclusions reached by the RRT adversely to the appellant (Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18]).

Resolution of the appeal to the Federal Court

46                  The critical issue arising on the appeal to this Court is whether Federal Magistrate Raphael erred in holding that the RRT did not fall into jurisdictional error, in the sense formulated by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 1, in relation to his Honour’s conclusion extracted in [39] above. His Honour’s reasons for judgment focused upon the operation of s 424A of the Act in its updated form.

47                  On the day next following delivery of the reasons for judgment of Raphael FM, that is to say, on 4 July 2003, Gray J delivered reasons for judgment in VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678, in the course of which his Honour addressed at length the implications of subs 3(a) of s 424A of the Act in its present form (see pars [30-49] thereof). Earlier on 5 May 2003 in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 437, Merkel J had also discussed at some length the implications of s 424A in its present form, though in the narrower factual context of what he colloquially described as a ‘dob-in letter’. The appellant did not seek to rely on any of the wide ranging discussions of the operation of s 424A appearing in those judgments.

48                  Many submissions and propositions were raised by counsel for the appellant in his written submissions, by way of criticism of the RRT’s reasons for decision. His industry in the formulation of those submissions was commendable, but in the circumstances travelled beyond the limited parameters of an appeal to this Court from a decision of the Federal Magistrates Court, involving in turn administrative review of an RRT decision. Thus many of the submissions proceeded implicitly on the basis that an appeal from a decision of the Federal Magistrate is in the nature of a rehearing. One example was an endeavour to demonstrate from the country information in evidence before the RRT that it was more likely than not that the murder of the appellant’s wife and children took place in the circumstances put forward by the appellant to the RRT.

49                  I have been unable to distil, from the very wide-ranging submissions made on behalf of the appellant, the committal of any jurisdictional error on the part of the RRT, and in particular, any error based upon the RRT’s obligations imposed by s 424A. I have set out in detail the reasons for decision of the RRT, and the reasons for judgment of the Federal Magistrate, in order to demonstrate the nature and extent of the many issues which were raised on behalf of the appellant. I find myself bound to conclude that the appeal must be dismissed, upon the basis that no appellable error on the part of his Honour below has been demonstrated. On the contrary, the reasons for judgment of Raphael FM, and in particular his critical finding set out in [39] above, demonstrate a competent and careful analysis of the numerous issues raised before him. To repeat, by these reasons for judgment the analysis undertaken on his Honour’s part is not called for, and would be inappropriate in the particular circumstances of this case.

50                  It is apparent that the RRT did not rely on any country information in formulating its findings, adversely to the appellant, concerning the account of the murder of the appellant’s wife and children in the Punjab. The findings of the RRT relating to that startling circumstance may be found in the following passage:

‘In the protection visa application the applicant claimed that on 25 July 1997 unknown people entered his family home and brutally assaulted all his family. During this incident his wife and two children were murdered. But in the first protection visa application he claimed that it was the security forces who took part in this incident. The Tribunal finds that this is a material contradiction, which has not been explained to the Tribunal’s satisfaction. The applicant’s explanation – that his two applications were completed as per what his family told him – is unsatisfactory, because it did not explain this contradiction. During the hearing the applicant referred to the alleged murder of his wife and two children, but without expressing even the faintest of emotions. The Tribunal does not accept as plausible that the applicant would not express any emotion at all in this regard, especially since he also claimed that his father had a heart attack and his mother had to undergo surgery twice at the time. Therefore, the Tribunal does not accept this claim.’

51                  It was independently of those findings that the RRT concluded that the country information, relating to the current political and administrative climate in India, objectively indicated that it was unlikely that the appellant would be persecuted on his return to India, because of his earlier SSF activities. It was that discrete and critical finding that the Federal Magistrate was entitled to quarantine, in the way that he did, as the basis for dismissal of the application made to him for review of the RRT’s decision.

52                  After the conclusion of the appeal to this Court, and with leave so to do, the appellant made further extensive written submissions ‘addressing the issue as to the extent to which the questions… put to the appellant by the [RRT] based on the country evidence in its possession were supported… by that information’. Having studied that material, I am unpersuaded that the questions that were asked of the appellant by the RRT were without foundation, or that the same adversely affected the RRT’s decision-making processes relevant to the appeal to this Court.

53                  Notwithstanding my view that no basis for appeal from the judgment below has been established, I am constrained nevertheless to offer certain observations which the Minister may be prepared to consider before acting upon the basis of my dismissal of the present appeal. The Federal Magistrate exposed a number of errors on the part of the RRT, albeit not ultimately bearing upon his reasons for rejecting the application for review of the RRT decision. I have summarised those errors of the RRT exposed by his Honour in some detail above. Having given the matter some thought, I think that I should presume to recommend to the Minister that a further opportunity should be extended to the appellant to put forward, for the Minister’s urgent consideration, such additional country information as the appellant’s legal representatives might be able to obtain, prior to taking steps on the basis of my dismissal of the present appeal. Having studied the most up to date country information in evidence, I must confess to having been somewhat concerned with its generality and lack of detail.

54                  The appeal must therefore be dismissed. Though I might have taken a different view to his Honour in relation to the order as to costs which he made below, in the light of the many errors in the RRT’s reasons for decision exposed by his Honour, I am constrained to order that the appellant nevertheless pay the costs of the present appeal to this Court.

Associate:

Dated:              6 November 2003