FEDERAL COURT OF AUSTRALIA

Applicants S61 of 2002 v Refugee Review Tribunal [2003] FCA 1274

MIGRATION – affirmation by Refugee Review Tribunal of decision refusing to grant protection visas – applicants husband and wife Brahmin Hindus and their infant child – claim of well-founded fear of persecution on grounds of religion, political opinion and membership of a particular social group – marriage of two Brahmin Hindus sharing same ancestral name –non-sending by Departmental Secretary to Registrar of Tribunal of certain documents referred to in Decision Record of Minister’s delegate – non-production of documents before Court – whether non-production should tell against Minister – whether it should be inferred against Minister that a document not produced contained information favourable to applicants’ case – onus of proof – whether Tribunal had failed to comply with s 424 of Migration Act 1958 (Cth) by failing to refer to two books in its library which were likely to contain relevant country information.

Migration Act 1958 (Cth) s 418(3), 424

Muin v the Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 distinguished

Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 cited

Stead v State Government Insurance Commission (1986) 161 CLR 141 cited

Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 cited

NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 cited

Ayan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 139 cited

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 cited

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 cited

Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 cited

BC v Minister for Immigration and Multicultural Affairs (2001) 67 ALD 60; on appeal [2002] FCAFC 221 cited

Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003]FCA 1054 cited

Re Ruddock; Ex parte LX  [2003] FCA 561 cited

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 distinguished

Luu v Renevier (1989) 91 ALR 39 distinguished

Rahman v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1277 distinguished

APPLICANTS S61 OF 2002 v REFUGEE REVIEW TRIBUNAL & ANOR

N 48 of 2003

LINDGREN J

11 NOVEMBER 2003

SYDNEY

On remittal from the High Court of Australia

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The two applicants who have attained the age of eighteen years and who are the parents of the remaining applicant, pay the respondent’s costs.

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

On remittal from the High Court of Australia

REASONS FOR JUDGMENT

INTRODUCTION

1                     On 18 March 2002 proceeding No S61 of 2002 was commenced by the present applicants (‘the applicants’) as prosecutors in the High Court of Australia.  The draft order nisi was for writs of mandamus and certiorari and an injunction in respect of a decision of the first respondent (‘the Tribunal’), given on 18 September 2000 and handed down on 5 October 2000, confirming a decision of a delegate of the second respondent (‘the Delegate’ and ‘the Minister’ respectively) not to grant the applicants protection visas.  The applicant are three individuals, being a husband and  wife and their infant child.

2                     On 25 November 2002, Gaudron J ordered that further proceedings on the application be remitted to this Court and that the application proceed in this Court as if the steps already taken in the High Court had been taken in this Court.

3                     The Tribunal has filed an appearance submitting to any order save as to costs.

4                     The draft order nisi identified two grounds.  On the hearing before me, the applicants, with leave, added third and fourth grounds.  Accordingly, the hearing proceeded on the basis that the applicants relied on the following four grounds:

‘1.        On 30 March 1998 an officer of the Department of Immigration and Multicultural Affairs (‘the Department’) made a decision refusing to grant the prosecutors a protection visa (‘the Department’s decision’).  The prosecutors applied to the first respondent for review of the Department’s decision.  Section 418(3) of the Migration Act 1958 (Cth) provided at all relevant times that if an application for review is made to the first respondent the Secretary of the Department must give to the Registrar of the first respondent various documents that are in the Secretary’s possession or control and are considered by the Secretary to be relevant to the review of the decision.  The documents referred to in Part B of the Department’s decision were in the possession or control of the Secretary.  It appears that the Secretary did not give a number of these documents to the Registrar, giving rise to a contravention of s 418(3).  The contravention of s 418(3) gives rise to jurisdictional error of a type for which relief can be granted under Part 8A of the Migration Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 and the Migration Legislation Amendment Act (No 1) 2001.

2.         In a letter to the prosecutors the first respondent invited the prosecutors to come to a hearing before the first respondent.  The first respondent stated in the letter that it ‘has looked at all the material relating to your application’.  In fact, the first respondent had not looked at all the material relating to the prosecutors’ application, giving rise to a denial of natural justice.  Denial of natural justice is jurisdictional error of a type for which relief can be granted under Part 8A of the Migration Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 and the Migration Legislation Amendment Act (No 1) 2001.

3.         The RRT, in considering whether the applicants had a well-founded fear of persecution for reason of religion or membership of a particular social group, failed to consider two past incidents in assessing the claims.  The past incidents were an attack in a marketplace in Jalandhar in December 1995 and an attack on the applicants’ house in March 1997.  The RRT’s failure to consider these matters gave rise to jurisdictional error.

4.         The RRT had on its file the covers of two books:  ‘Concepts of person: Kinship, Caste and Marriage in India’ published in 1992 and ‘Family and Caste in Urban India’.  It appears from handwriting on the copies of the covers that the books were in the RRT library.  In the circumstances of the case, either:

(a)       the RRT should have looked at the contents of the books and its failure to do so gave rise to jurisdictional error; or

(b)       the RRT failed to comply with s 424 of the Migration Act.’

PROCEDURAL BACKGROUND

5                     The applicants are citizens of India.  They arrived in Australia on 15 November 1997.  On 12 December 1997 they lodged with the Department of Immigration and Multicultural Affairs (‘the Department’) an application for protection (Class AZ) visas under the Migration Act 1958 (Cth) (‘the Act’).  The applicant wife made specific claims under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.  On 30 March 1998 the Delegate refused to grant the visas.

6                     The Delegate’s decision was recorded in a ‘Protection Visa Decision Record’ (‘the Decision Record’).  In Part B of the Decision Record, headed ‘Evidence Before Me’, the Delegate stated:

 ‘Evidence used in making my decision is found in the following documents:

1.         Departmental file N98/0021 relating to the applicant, consisting of folios 1-59

2.         Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379

3.         Hathaway, JC The Law of Refugee Status Butterworths Canada 1991

4.         UNHCR Handbook on Procedures and Criteria for Determining Refugee Status Geneva 1988

5.         Ram v Minister for Immigration and Ethnic Affairs (1996) 57 FCR 565

6.         CX2605 ‘Political organizations. Major national political organizations and major regional political organizations’, 1993

7.         CX16530 ‘India: political background’, 1996

8.         India Country Report on Human Rights Practices for 1996, US Department of State.  Released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1997.’

7                     The sixth, seventh and eighth documents listed assume importance.  I will refer to them as ‘the Part B country information documents’.

8                     In para 5.3.1 of the Decision Record, the Delegate stated:

‘In view of India’s racial and religious complexity, all minority groups in India can be said to have conflict with the dominant Hindu population in varying degrees at social, economic, religious and administrative levels.  DFAT comments that levels of discrimination or persecution employed against parties to a mixed marriage would be dependent upon a number of factors, such as the type of community in which the couple lives and their position in society.  A well educated couple would be well placed to relocate should discrimination be levelled against them.’  (my emphasis)

The parties have not been able to source the comment of the Department of Foreign Affairs and Trade (‘DFAT’).  I will refer to that unidentified source as ‘the DFAT document’.

9                     On 30 April 1998 the applicants applied to the Tribunal for review of the Delegate’s decision.  Also on that date, the Tribunal sent a letter to the applicant wife, which include the following:

‘The Tribunal has asked the Department to send a copy of its documents about your case to the Tribunal.

When we receive the Department’s documents, the Tribunal will look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately.  This is known as ‘review on the papers’.’  (my emphasis)

The letter directed the applicant wife to inform the other applicants about the letter.

10                  The Tribunal’s request of the Department referred to in the letter is to be understood in the context of s 418 of the Act.  That section required that when an application sought review of a delegate’s decision, the Registrar of the Tribunal (‘the Registrar’) must notify the Secretary of the Department (‘the Secretary’) of the making of the application.  The Delegate was an officer of the Department.  Subsections 418(2) and (3) were as follows:

‘(2)      The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

(a)       sets out the findings of fact made by the person who made the decision; and

(b)       refers to the evidence on which those findings were based; and

(c)        gives the reasons for the decision.

(3)       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.’

As will appear later, the applicants submit that the Secretary contravened subs 418(3) and that the contravention entitles them to relief.

11                  On 11 June 1998 the Tribunal wrote to applicant wife stating, inter alia:

‘The Tribunal has looked at all the papers relating to your application but it is not prepared to make a favourable decision on this information alone.  You now have an opportunity to come to a hearing of the Tribunal to give oral evidence in support of your claims.’  (my emphasis)

Again, the letter directed the applicant wife to inform the other applicants about the letter.

12                  The applicants gave oral evidence before the Tribunal.

13                  On 18 September 2000 the Tribunal decided to affirm the Delegate’s decision.

14                  On 20 September 2000 the Tribunal wrote to the applicant wife advising her that it had ‘considered all the material relating to [her] case’ and had made its decision.  It invited her or her representative to attend the handing down of the decision on 5 October 2000, and again directed her to inform the other applicants about the letter.

15                  On 5 October 2000 the Tribunal handed down its decision.

16                  On 1 November 2000 the applicants filed in this Court an application for review of the Tribunal’s decision pursuant to s 476 of the Act as it then was.  The filing of that application commenced proceeding N 1165 of 2000.  The grounds relied on were that the decision involved an error of law (a ground of review allowed by the then s 476(1)(e) of the Act) and was induced or affected by actual bias (a ground of review allowed by the then s 476(1)(f) of the Act).

17                  On 7 February 2001 Madgwick J ordered that the application be dismissed and that the applicants pay the respondent’s costs ([2001] FCA 57).  His Honour concluded that a finding by the Tribunal that relocation in India was reasonably available to the applicants was ‘legally unassailable’ and ‘decisive of the case’ in so far as it turned on the error of law ground.  As to the other ground, his Honour concluded that the matters relied by the applicants did not demonstrate actual bias.

18                  The applicants appealed against Madgwick J’s decision but did not appear on the hearing of the appeal on 10 August 2001.  A Full Court (Moore, Sackville and Kiefel JJ) dismissed the appeal for that non-appearance ([2001] FCA 1119).  The applicants filed a notice of motion seeking to have the order of dismissal set aside, but on 7 November 2001, a differently constituted Full Court (Branson, Mansfield and Katz JJ) dismissed the motion ((2001) 115 FCR 197)).  (Counsel for the applicants, Mr Zipser, learned of the earlier proceedings initiated by his clients, only on the morning, and just before the commencement, of the hearing before me!)

19                  It was following that dismissal that the applicants filed their application in the High Court on 18 March 2002.

GENERAL BACKGROUND

20                  I need not recount the applicants’ claims and evidence in detail.

21                  As noted earlier, the applicants are nationals of India.  They are Brahmin Hindus.  The husband and wife share the same ancestral name, and come from the same city in the State of Punjab.  Both are university educated young people.  The husband has run his own business and is apparently a renowned motorcyclist.

22                  According to the applicants’ claims, they encountered problems of two kinds in India.  First, they claim that because they belong to the same caste or sub-caste, they are considered brother and sister according to Hindu belief.  They claim that their friendship and later marriage and the birth of their child therefore generated hostility from other Hindus, and that their families disowned them.  Many of their claims were of abuse that they received from Hindus on account of their relationship and marriage and their having produced a child.

23                  The second source of difficulty was that the husband was an adherent of the Congress Party and encountered problems with a conservative BJP (Bhatatiya Janata Party) politician.

24                  The Tribunal took into account opinions expressed by experts and a considerable body of country information in relation to the marrying of two Brahmins with the same name.

25                  The Tribunal was not persuaded by the applicants’ claims, whether they were regarded as being of persecution for reason of political opinion, religion or membership of a particular social group.  The Tribunal also found that, in any event, it was reasonably open to the applicants to relocate within India.

EVIDENCE ON THIS PROCEEDING

26                  The applicant wife swore an affidavit directed to establishing that she was misled by the Tribunal’s letters.  Relevantly, her affidavit contained the following paragraphs:

‘3.        I do not recall receiving the Department’s decision refusing to grant me a protection visa.  However, I assume I received it, since I would need to receive it in order to apply to the Tribunal.  Assuming I received the Department’s decision refusing to grant me a protection visa, I would have read the decision closely.  I would have gone through the decision to work out why the Department refused to grant me a protection visa.  I don’t want to go back to India.  This case was important to my life and to the life of my child.

4.         I recall that after I applied to the Tribunal, I received a number of letters from the Tribunal about my matter prior to the hearings in my matter.  I don’t recall the specific letters.  However, I recall that I read and considered each letter carefully.  Again, this case was important to my life and to the life of my child, and I wanted to make sure that I understood the letters from the Tribunal and do everything I could to win the case.

5.         Sometime after I applied to the Tribunal I got a migration agent through Legal Aid.

6.         On 8 September 2003 my solicitor, Adrian Joel, showed me three letters from the Tribunal to me.  [The three letters were those dated 30 April 1998, 11 June 1998 and 20 September 2000 referred to earlier.]

7.         I expect I received these letters from the Tribunal.  As stated in paragraph 4 above, I would have read and considered each letter carefully.  Today I cannot remember what I thought when I read the letters.

8.         In the letter dated 30 April 1998 there is the sentence: ‘The Tribunal has asked the Department to send a copy of its documents about your case to the Tribunal’.

9.         I expect the Department would have had my protection visa application when it made its decision.  I do not know what other documents the Department used when it made its decision.  However, if the Department had used documents from or about India for its decision (for example the newspaper articles or reports on India), I understand from the sentence in paragraph 8 above that these documents would have been sent by the Department to the Tribunal.

10.       There were a number of hearings in my matter in the Tribunal.  If, in this period, I had come to know that there were documents relevant to my case before the Department which were not before the Tribunal, I would have wanted to know what was in the documents.  If there was anything in the documents useful to my case, I would have wanted to get the documents from the Department and give them to the Tribunal.  In order to get the documents, I would have discussed this matter with my migration agent and worked out ways that I could get the documents.

11.       In the period my matter was before the Tribunal, I was very active in preparing my case.  I went to Kogarah Library about 20 times to do research for my case.  I bought a few books on India from Indian shops in Sydney, I got some magazines and newspaper clippings from the Sikh Temple at Parklea, and I located a few articles on the Internet.  When I found useful material, I gave it to my migration agent to give to the Tribunal.  The above activities demonstrate that I was active in my case and conscientious in doing everything that I could to succeed in the Tribunal.’

27                  On 31 March 2003 the Australian Government Solicitor (‘AGS’) who represented both the Minister and the Tribunal, forwarded to Adrian Phillip Joel, the applicants’ solicitor, the Part B documents referred to in the Decision Record and, according to the AGS’s letter, ‘[t]he country information referred to in the RRT’s decision dated 18 September 2000’.

28                  An affidavit of Mr Joel sworn 11 September 2003 annexes the documents forwarded to him by the AGS (which he received on 2 April 2003).  They do not include the DFAT document.

29                  On 3 April 2003 Mr Joel wrote to the AGS requesting the DFAT document but it has never been supplied.

REASONING

30                  In his written submissions, counsel for the applicants, Mr Zipser, contends that there are eight issues which arise for decision.  I will deal with those issues below, but before doing so, I think it important to make two general observations.

31                  The first general observation relates to Muin v the Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin and Lie’) on which the applicants heavily rely.  Mr Muin and Ms Lie (‘the plaintiffs’) were both Indonesians of Chinese ethnicity.  Both applied for protection visas.  A delegate of the Minister refused to grant them the visas.  As in the present case, in each case documents were listed under the heading ‘Part B Evidence Before Me’ in a ‘decision record’ which recorded the delegate’s decision.  In each case, the Department despatched its file to the Registrar but none of the Part B documents were included.

32                  The Tribunal sent to the plaintiffs letters generally similar to those which the Tribunal sent to the applicant wife in the present case.  The plaintiffs attended hearings before the Tribunal.  In each case, the Tribunal affirmed the delegate’s decision.

33                  The plaintiffs applied in the original jurisdiction of the High Court for constitutional writs.  Gaudron J referred certain questions to a Full Court.

34                  It is important to observe that the hearing before the Full Court proceeded on the basis of stated facts and the inferences, if any, to be drawn from those stated facts, and that the stated facts included the following:

(1)        At the time of the making of the delegate’s decision, the Part B documents were in the possession and control of the Secretary, and the Secretary considered them to be relevant to the review of the delegate’s decision by the Tribunal;

(2)        The plaintiffs believed that the Part B documents were sent to and looked at by the Tribunal in the making of its review on the papers and/or the final decision on their protection visa applications;

(3)        The Part B documents contained some information ‘which assisted [the plaintiffs’ cases] concerning the then bad situation of ethnic Chinese people in Indonesia’; and

(4)        If the plaintiffs had been aware of the facts, if they be the facts, that the Department or the Secretary did not transfer or send to the Tribunal all of the Part B documents prior to the making of the Tribunal’s decision, the plaintiffs would have:

(a)        ‘arranged to have a migration agent or a solicitor/migration agent act for [them] in order to make further written submissions to the Tribunal and seek to appear at the oral hearing’;

(b)        made submissions to the Tribunal, going to the content of the Part B documents, highlighting passages in those documents which assisted their cases and challenging the correctness or significance of that part of the Part B documents adverse to their cases;

(c)        sought to bring before the Tribunal additional evidence as to the true position in their home country to the effect that a return home would be unsafe for them; and/or

(d)        undertaken research or further research and submitted additional information or documents favourable to ethnic Chinese persons from Indonesia seeking refugee status in Australia, containing references to other decisions of the Tribunal dated prior to the date of delivery of the Tribunal’s decision.

(The stated facts are recounted, and largely quoted, by Gleeson CJ at [14]–[16].)

35                  In both cases, it was held by majority that there was a failure to accord procedural fairness in relation to the Part B documents.

36                  The second general observation foreshadowed earlier is that counsel for the applicants states as follows in his written submissions:

‘In relation to the three country information documents listed in Part B of the delegate’s decision, the applicants concede that there is no information in the three documents favourable to the applicants’ case.’ 

Accordingly, the applicants do not rely on the Part B country information documents, although the solicitor for the Minister conceded that hard copies of the Part B country information documents and the DFAT documents were not on the Tribunal’s file.

37                  I proceed now to deal with the issues raised by the applicants.

‘(a)      The first issue is as follows.  The applicants have taken steps to obtain copies of the Part B documents and the country information documents before the RRT.  The applicants have filed in this Court the documents they have obtained.  However, there are the Missing Documents.  A question is whether, if the Missing Documents are or may be relevant to the resolution of the applicants’ claim in this Court, the applicants on the one hand or the respondents on the other hand have the onus of filing the documents.  (‘the Missing Documents issue’)’

38                  The applicants’ written submissions do not define ‘the Missing Documents’.  One might have thought that this first issue related only to the DFAT document.  But the plural form suggests otherwise.  In his written submissions, Mr Zipser observes that ‘[t]here are a number of country information documents referred to in the RRT decision which the applicants have not been able to obtain’.  He lists those further ‘missing documents’ in his submissions as follows:

‘(a)      The Far East and Australasia (1994, Europa Publications, p 280);

(b)       Inter Press Service, 21 April 1998, ‘India: Marrying for love can be disastrous’;

(c)        Manchester Guardian Weekly, 24 April 1994, ‘Daltis turn on Chandi’;

(d)       The Ethnic News Watch, 18 February 1994, ‘Intercaste Marriages more acceptable now’;

(e)        The Sunday Telegraph, 2 May 1993, ‘India Dances on the Titanic’; and

(f)        News India, 25 November 1994, ‘A social revolution: Divorces are increasing’.’

(I will refer to these six documents as ‘the six newspapers’.)

39                  The expression ‘Missing Documents’ is apparently intended to refer to the DFAT document and the six newspapers.

40                  Clearly, the potential issues in relation to the DFAT document and the six newspapers may well differ:  the DFAT document was before the Delegate, whereas the six newspapers were mentioned for the first time in the reasons for decision of the Tribunal.

41                  The evidence of the steps taken on behalf of the applicants to obtain the DFAT document and the six newspapers is not satisfactory.  There is no evidence, for example, of the giving of a notice to produce or service of a subpoena.  Omitting formal parts, Mr Joel’s affidavit of 11 September 2003 is as follows:

2.         On 2^nd April 2003 I received copies of Country Information from the Australian Government Solicitor (AGS).  I immediately examined that material, including Country Information referred to in the decision made by the Second Respondent on 30^th March 1998.  I identified certain material that had not been produced and which was referred to in the decision record [apparently a reference to the DFAT document].

3.         I wrote a letter, conveyed by fax on 3^rd April 2003, to Ms Kristy Alexander of the AGS and requested this material.

            Annexed hereto and marked with the letter ‘A’ is a copy of the letter.

Annexed hereto and marked with the letter ‘A2’ is a copy of the Country Information received and referred to in the decision of the Second Respondent dated 30^th March 1998 [annexure A2 comprised the three Part B country information documents].

Annexed and marked with the letter ‘B’ is a copy of the Country Information provided and referred to in the decision of the First Respondent handed down on 5^th October 2000.

4.         The applicants had provided me with material provided to them from an earlier Freedom of Information (FOI) application regarding RRT Country Information.  Additional Country Information to that which has been presented and which was earlier provided on 2^nd April, was located within the applicants Tribunal file.

Annexed hereto and market with the letter ‘C’ is a copy of that material.’

42                  Neither Mr Joel’s letter of 3 April 2003 nor the text of his affidavit refers to the six newspapers.

43                  I proceed on the basis that the Delegate did refer to the DFAT document which was not forwarded by the Secretary to the Tribunal.

44                  In my opinion, the applicants’ claim of jurisdictional error based on a failure to observe requirements of natural justice, in so far as that claim relates to the ‘missing’ DFAT document and the six newspapers, fails for the reasons which appear below.

45                  The facts proved in this case fall far short of those stated by agreement in Muin and Lie, as a reference to [34] above will immediately demonstrate.

46                  First, I am not satisfied that the applicants, and, in particular, the applicant wife to whom the Tribunal’s letters were addressed and who has testified, believed that the DFAT document was sent to and looked at by the Tribunal in the making of its review on the papers and/or its final decision.  The applicant wife’s affidavit evidence in this respect was set out at [26] above.  The applicant wife could not recall receiving a copy of the Decision Record.  It follows that she could not recall reading the reference in it to the DFAT document.  Similarly, she could not recall receiving any of the three specific letters from the Tribunal.  She can say only what she now believes she ‘would’ have done.  Certainly she did not seek to obtain a copy of the DFAT document at the time, that is, following receipt of the copy of the Decision Record.

47                  I think the applicant wife’s evidence is a reconstruction in the light of her attention having now been drawn to the Decision Record and the three letters from the Tribunal in the context of the issues in this case.

48                  The applicant wife’s testimony on these matters did not improve in cross-examination.  On the contrary, she agreed that if, upon reading the Decision Record, she had believed that the documents referred to in it had been helpful to her, she would have wanted to see them.  Of course, she took no steps to that end at the time.  I am satisfied that at the time, it would in fact have been a matter of no consequence to the applicant wife whether the Secretary had or had not forwarded to the Registrar the documents referred to in the Decision Record, and, in particular, the DFAT document.

49                  Secondly, according to the Decision Record, the DFAT document referred to discrimination against parties to a ‘mixed marriage’ that is, a marriage between persons of different races or religions.  That is not the present case.  Thus, the terms in which the Tribunal referred to the DFAT document would have suggested to the applicant wife that that document was irrelevant her case.  They reinforce my view that it would have been of no interest to her whether the Secretary did or did not transmit the DFAT document to the Registrar.  The terms in which the Decision Record referred to the DFAT document gave no cause for thinking that it may have contained information favourable to the applicants.

50                  Thirdly, a similar observation is applicable to the references to the six newspapers in the Tribunal’s reasons for decision.

51                  Fourthly, in the circumstances to which I have referred in the two immediately preceding paragraphs, and, in the case of the newspapers, the additional circumstance that they appear to be publicly available, the Minister has not become subject to an evidential burden to prove that the DFAT document and the six newspapers did not contain information favourable to the applicants.  To express the matter differently, having regard to all that the evidence reveals about the DFAT document and the newspapers, both the legal and evidential burdens of proving that they contained information favourable to the applicants’ case rests on the applicants as moving parties in the usual way.

‘(b)      A second issue is whether there was material favourable to the applicant in the Part B documents (in particular the DFAT document in paragraph 5.3.1 of the delegate’s decision) which was not in the documents recorded in the RRT decision dated 18 September 2000 (‘the Favourable material issue’)’

52                  This statement is confusing.  The DFAT document was not one of the Part B country information documents.  As noted at [36], the applicants, through their counsel, concede that there is no information in the Part B country information documents favourable to their case.  Accordingly, Muin and Lie is distinguishable on its facts in this respect (see [34] par (3) above), and there is no breach of the rules of natural justice in respect of the Part B documents.  It was not necessary, in order to avoid ‘practical injustice’ to the applicants (cf Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 (‘Lam’) per Gleeson CJ at [37]; and cf McHugh and Gummow JJ at [59], Hayne J at [111], and Callinan J at [145]) that the Secretary forward to the Registrar documents which, so far as the evidence reveals, contained no information favourable to their case.

53                  The applicants’ written submissions in relation to the present issue do no more than emphasise that it is possible that the DFAT document contained such information.  It is true that, in the absence of production of the DFAT document, that possibility has not been absolutely excluded.  For the reasons given in respect of issue (a) above, however, no failure to accord procedural fairness is established in respect of the DFAT document.

‘(c)       A third issue is whether it is necessary for this Court to determine whether the Part B documents (in particular the DFAT document in paragraph 5.3.1 of the delegate’s decision) were forwarded by the Department to the RRT and, if so, whether they were forwarded (‘the Forwarding of documents issue’)’

54                  I infer that the Part B country information documents and the DFAT document were not forwarded by the Secretary to the Registrar (see [36] above).

‘(d)      A fourth issue is whether the applicant wife was misled into thinking that it was unnecessary to draw the Part B documents to the RRT’s attention (‘the Misleading issue’)’

55                  I have concluded at [46] above that I am not satisfied that the applicant wife was misled into believing that the DFAT document, or, for that matter, the Part B country information documents, were forwarded by the Secretary to the Registrar.

‘(e)      A fifth issue is whether, if the RRT denied the applicants procedural fairness, the denial might have affected the outcome of the RRT’s decision (‘the Different result issue’)

56                  The Tribunal found that the applicants could reasonably be expected to relocate within India.  There is not the slightest reason to suppose that the DFAT document might have assisted the applicants on this issue, although, since the document is ‘missing’, the possibility is not absolutely excluded.

57                  The context in which the Delegate referred to the DFAT document makes it quite unrealistic to suppose that the DFAT document might have contained information favourable to the applicants on the issue of relocation.  It will be recalled that the DFAT document spoke of discrimination on account of a ‘mixed marriage’, and stated that a well educated couple would be well placed to relocate should discrimination be levelled against them (see [8] above).  Accordingly, if there was a non-observance of the rules of procedural fairness, this could not have made any difference to the result before the Tribunal because of the Tribunal’s finding on relocation:  cf Stead v State Government Insurance Commission (1986) 161 CLR 141;  Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82;  Lam;  NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52; Ayan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 139 at [20];  WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [56], [57].

58                  There is a further reason why the reasonable availability of relocation within India is fatal to the applicants’ case.  This arises from the Tribunal’s finding on the possibility of relocation and Madgwick J’s dismissal of the applicants’ earlier application for review of the Tribunal’s decision (see [16], [17] above).  His Honour said (at [32]) of the Tribunal’s finding that relocation to a part of India where the majority was not Hindu, was a reasonable alternative available to the applicants:

‘... these findings about relocation appear to me to be decisive of the case and, if there were other errors involving any failure to properly consider whether the applicants may be refugees pursuant to the Convention, they are legally irrelevant if the findings as to relocation are legally unassailable.  In my opinion, such findings are legally unassailable.’

Later, his Honour said (at [33]) of the Tribunal’s conclusion on relocation:

‘The conclusion to which the Tribunal member came, having regard to the various factors to which he quite properly referred, seems to me not only legally unassailable but, if I may say so, factually unavoidable.’

59                  Mr Markus, solicitor, who appears for the Minister, submitted that the principle recognised in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (‘Anshun’) applies to defeat the applicants, since they could have raised before Madgwick J the matters relied on by them in this proceeding as overcoming the Tribunal’s conclusion, and that it is unreasonable for them not to have done so, yet to argue those matters in this proceeding.

60                  Counsel for the applicants seemed to accept the applicability of the Anshun principle and did not submit that it does not operate in relation to administrative decisions and judicial review of them.

61                  The question of the operation of the doctrine of res judicata, issue estoppel and the Anshun principle in the context of refusals of protection visas has been considered in several recent cases:  cf Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677 at [51]–[69];  BC v Minister for Immigration and Multicultural Affairs (2001) 67 ALD 60, and on appeal at [2002] FCAFC 221, esp at [22]–[30];  Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003]FCA 1054 at [32] et seq;  Re Ruddock; Ex parte LX  [2003] FCA 561 at [48]–[50].

62                  Mr Markus expressly disclaimed reliance on res judicata and issue estoppel. 

63                  No discretionary factors militating against the operation of the Anshun principle have been suggested, and in my opinion that principle affords a further ground on which the present application should be dismissed.

‘(f)       A sixth issue is whether the RRT failed to comply with s 418 of the Migration Act (‘the s 418 issue’)’

64                  Mr Zipser accepted that in the light of Muin and Lie, the claim based on the alleged contravention by the Secretary of subs 418(3) is unlikely to succeed.  As was pointed out in Muin and Lie, the Act does not oblige the Tribunal to consider documents forwarded to it by the Secretary, except where the Tribunal is prepared to make the decision on the review that is most favourable to the applicants without taking oral evidence (cf s 424 of the Act), and the subsection does not impose the obligation to consider those documents where the Tribunal proceeds by way of an oral hearing (cf s 425 of the Act):  Muin and Lie at [21] per Gleeson CJ, [56]–[57] per Gaudron J, [173]–[179] per Gummow J, and [251] per Hayne J.  I need not decide whether a contravention of subs 418(3) is established, because, if it is, the contravention does not give rise to any entitlement to relief, for the reason that the Act did not oblige the Tribunal, which was proceeding by way of an oral hearing, to consider any documents forwarded to its Registrar by the Secretary pursuant to that subsection.

‘(g)      A seventh issue is whether the RRT fell into jurisdictional error by failing to consider past events in assessing whether the applicants’ fear of persecution in the future was well-founded (‘the Past events issue’).’

65                  The applicants refer to their claims:

·        that the applicant husband and wife were attacked, firstly by three men, and then by a crowd of approximately twenty people, at the Modeltown Marketplace in Jalandar in December 1995, on their complaint about which, the police refused to act; and

·        that people attacked the applicants’ house in March 1997.

66                  The applicants complain that, while the Tribunal referred to these two incidents when dealing with the claim of persecution on account of political opinion, it did not do so in those parts of its reasons dealing with the claims of persecution on grounds of religion and membership of a particular social group.

67                  Importantly, the Tribunal did refer in general terms to the applicants’ claims of harassment, exposure to danger and discrimination on account of religion, and their claims of ostracism, rejection and economic persecution because they were members of the particular social group of Brahmin Hindus who had breached caste rules.

68                  It was not necessary, in my opinion, for the Tribunal to repeat references to the two particular instances mentioned.  The Tribunal’s reasons for rejecting the claims of fear of future persecution based on religion and membership of a particular social group, are not inconsistent with an acceptance by the Tribunal of the two events having occurred in December 1995 and March 1997 respectively.

69                  The Tribunal concluded that that applicant husband and wife had chosen to forsake the Hindu religion, but, in any event, could practise that religion again in India if they wished to do so.  As well, there is the Tribunal’s finding of the possibility of relocation.

70                  Similarly, in relation to the claim based on membership of a particular social group, the Tribunal found that the applicants had not made contact with family members for some years.  The Member was not persuaded that there is continuing animosity towards the applicants on account of their relationship, their marriage and the birth of their child.

71                  In sum, it was because of developments since the alleged incidents in December 1995 and March 1997 that the Tribunal concluded that the applicants did not have a well-founded fear of persecution for reason of religion or of membership of a particular social group.

‘(h)      An eighth issue is whether the RRT fell into jurisdictional error by failing to make certain enquiries or otherwise in relation to certain documents referred to in paragraph 4 of the affidavit of Adrian Joel filed on 15 September 2003 (‘the Failure to enquire issue’).’

72                  The documents referred to in par 4 of Mr Joel’s affidavit (see [41] above) included further country information documents which were in the Tribunal’s library and which were procured by the applicants pursuant to an application under the Freedom of Information Act 1982 (Cth).  The applicants point to two books, the covers of which are included in Annexure C to Mr Joel’s affidavit.  One is Family and Caste in Urban India – A Case Study by G N Ramu, and the other is Concepts of Person: Kinship, Caste and Marriage in India, a collection of essays edited by Akos Ostor, Lina Fruzzetti and Steve Barnett.  I am asked to infer, as I do, that these books may well have contained some information relevant to the question of marriage between Hindus of the same caste or subcaste, and sharing the same ancestral name.  The applicants have not, however, tendered the two books for the purpose of establishing that they contain information of that kind, and in particular, information of that kind having a different effect from the effect of the country information documents which the Tribunal had in fact before it.

73                  In my opinion, the applicants have not established a non-observance of the requirements of procedural fairness in the present respect.  Counsel for the applicants relies on Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (‘Prasad’) at 169–170;  Luu v Renevier (1989) 91 ALR 39 at 50;  and Rahman v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1277 at [30].  I am not persuaded that the relevant ground of judicial review which those cases recognise as being attracted when a decision-maker does not refer to material which is ‘readily available’ and ‘centrally relevant’ to the decision to be made (Prasad at 170), is attracted in the present case, where the most that can be said is that the two books may well have contained further relevant country information of a general nature, that is to say, information additional to the country information to which the Tribunal referred in its reasons for decision.

CONCLUSION

74                  For the above reasons the proceeding should be dismissed with costs.

Associate:

Dated:                          10 November 2003