FEDERAL COURT OF AUSTRALIA

Applicant A159 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 473

APPLICANT A159 of 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, J C BLOUNT, MEMBER, REFUGEE REVIEW TRIBUNAL AND THE PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 728 of 2003

MANSFIELD J

7 APRIL 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay to the first respondent costs of the application

3.         There will be no order for costs of the second and third respondents

4.         The order not be sealed for 14 days.

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

REASONS FOR JUDGMENT

1                     This is an application instituted in the High Court on 20 March 2003 for orders for mandamus, prohibition and certiorari in respect of a decision of the Refugee Review Tribunal (the Tribunal) given on 21 November 2002.

2                     The Tribunal affirmed a decision of a delegate of the respondent made on 21 January 2002 not to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act).  To succeed in procuring the orders which the application seeks, it is necessary that the applicant demonstrates jurisdictional error on the part of the Tribunal:  see Plaintiff S157/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 211 CLR 476; [2003] HCA 2.

3                     The matter came on for directions on 25 March 2004.  At that time the applicant appeared in person, having previously filed a notice of acting in person on 9 February 2004.  He sought an adjournment of the hearing date today, which had previously been fixed at a directions hearing on 27 February 2004, at which he had also been present.  I refused the application for the adjournment.

4                     The reason for refusing the adjournment was that it was sought for the purpose of the acquisition of further primary evidentiary material which, the applicant claimed, would demonstrate as a fact that the Tribunal's decision was wrong.  Following his submissions and discussion with him it was clear that the additional material which he was seeking could not, on any view, demonstrate jurisdictional error on the part of the Tribunal.  As is, unfortunately, commonly the case with litigants in person seeking review of Tribunal decisions, the applicant erroneously thought that the Court's powers involved a rehearing of the matter on the merits.  They do not.  That was explained to him and the hearing date today was confirmed.

5                     It is now a little over 20 minutes since the matter was listed for hearing.  The applicant has not appeared.  He has been called, both in the New South Wales and South Australian Registries, outside the Court, to ensure that he is not waiting outside.  I do not know why he has not appeared.  It may be that he decided not to do so following the rejection of his adjournment application, or following his realisation after the last directions hearing of the need to demonstrate jurisdictional error on the part of the Tribunal before the orders sought could be obtained.  There may be other reasons which I cannot presently understand.

6                     To guard against the possibility that he has been delayed for some legitimate reason in attending the Court I propose that the order I make - which will be to dismiss the application - not be sealed for a period of 14 days to give him the opportunity to apply to reinstate the matter in the event that there is some good reason for his non-attendance today.

7                     As the matter was listed for hearing today, and counsel for the first respondent has appeared and sought the matter to proceed, I propose to do so.

8                     The applicant arrived in Australia on a student visa on 4 April 1999.  Some two and a half years later, on 20 September 2001, he applied for a protection visa.  As I have indicated, that application was unsuccessful, both before a delegate of the respondent and before the Tribunal.

9                     The applicant is a citizen of India.  He claims to have a well-founded fear of persecution should he return to India.  It was necessary that the delegate of the respondent and, on review, the Tribunal, be satisfied that he has a well-founded fear of persecution if he were to return to India before he satisfied the criterion for the grant of a protection visa specified in s 36(2) of the Act.  That is because s 36(2), in substance, in the present circumstances, requires the decision-maker to be satisfied that the applicant is a refugee as defined in Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol (the Convention).

10                  The applicant's claims were as follows.  He attended college and was an active member of the student wing of Kul Hindi Majlis Jameere Millat Party, the KHMJM Party. It is a party which supports the rights of Muslims in India.  He claimed that his activities caused him to become a target of the BJP, a Hindu nationalist party.  In his political activities he claimed to have engaged in protests on a regular basis in front of various government offices and, from time to time, to have met with ‘stiff resistance’ from the BJP and from government agencies.

11                  He further claimed that on one occasion he was taking part in a major demonstration when police intervened and started hitting demonstrators.  Some of the demonstrators became violent and damaged nearby shops and vehicles.  A number of protesters were arrested.  The applicant claimed to have been injured in the demonstration, but to have managed to escape.  However he claimed that he was then sought by the authorities and went into hiding.  A warrant was issued for his arrest, with other demonstrators, for ‘anti-state activities’.  He further claimed that militant members of the BJP called at his home when he was not there and threatened his father with harm if he continued to protest and if he continued his activities in the KHMJM Party.

12                  As required by s 425 of the Act, on 28 August 2002, the Tribunal invited the applicant to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review.  The proposed hearing was for 19 November 2002.  The applicant did not respond to the invitation to appear and did not attend at the hearing.  The Tribunal records that the invitation was sent to him both at his residential address and at his mailing address, as indicated in the application for review to the Tribunal.  It was returned to the Tribunal, marked that it had not been delivered.  In the circumstances, where the applicant had not provided any nominated authorised recipient or any other address of a migration adviser in his application to the Tribunal, in my view the Tribunal properly proceeded on the basis that the applicant had, for the purpose of the act, been notified of the invitation to appear and had not appeared.  Consequently, in my view, the Tribunal was entitled to proceed to hear and determine the application in the absence of the applicant in accordance with s 426A of the Act.

13                  The Tribunal in its reasons for decision recorded the applicant's claims in some detail and referred to some independent country information, which it had consulted.  It then proceeded to address the claims which he made.  It dealt with the incident in which he claims to have been involved in a major demonstration in the following terms:

‘The Applicant did not provide details about his role or specific activities within the particular organisation of which he claimed membership.  He did not provide dates (or even years) or other circumstantial details concerning the various incidents alluded to, which might have enabled them to be checked.

The Applicant refers to an incident when (he claims) a major demonstration was broken up by the police, violence erupted, and when police opened fire one person was killed and scores injured, but (notwithstanding the Department’s enquiry) did not provide any further details including when this was said to have occurred.  Although the Applicant claimed to have been the subject of an arrest warrant arising out of this incident, he was nonetheless able to obtain a passport in his own name without difficulty and to depart India (from Hyderabad) openly and legally using that passport.  It was only after this was challenged by the delegate that the applicant claimed that passports could be arranged through bribes (although he still did not specifically claim to have done so).

In these circumstances, it was very difficult for the Tribunal to satisfy itself that the Applicant has a genuine subjective fear of persecution or that he has indeed experienced any particular mistreatment or harm (let alone by whom inflicted or for what reason or whether it amounted to persecution for a Convention reason).  The Tribunal is not satisfied that the Applicant was on the run from the authorities or the subject of an arrest warrant at the time he left India.

Nor does independent country information consulted by the Tribunal appear entirely consistent with the circumstances alleged.’ 

It then proceeded to explain the independent country information to which it was referring in reaching that conclusion.

14                  It then proceeded:

‘Having regard to this material; to the lack of detail in the Applicant’s claims; and the Applicant’s failure to provide further information either at hearing or in response to the material flagged with him by the Department; the Tribunal is not satisfied that the Applicant has experienced, or on return faces a real chance of, persecution by reason of his religion or claimed political or religious activity or opinion.  Nor is the Tribunal satisfied that any individual criminal acts directed against the Applicant (for these or other reasons) would be condoned or ignored by the state authorities on the basis of the Applicant’s religion or claimed affiliation.

With regard to India more generally, the Tribunal does not accept that the Indian government targets and persecutes non-Hindu communities.

The Tribunal then proceeded to explain why it had reached that conclusion.

15                  The Tribunal then said:

‘The Tribunal is not satisfied that the Applicant faces a real chance of persecution for any Convention reason on return to India, or that state protection would be unavailable for a Convention reason.

To the extent that the applicant may face charges on return to India in relation to involvement in violent demonstrations this does not of itself necessarily amount to persecution for a Convention reason.’

The Tribunal then referred to certain independent resources and cases upon which that comment was based.

16                  It then concluded:

‘The Tribunal concludes that the suggestion that the Applicant might be charged with an offence on return to India does not by itself equate to a real chance of persecution for a Convention reason.  Given the Applicant's own evidence, any charges in relation to a past demonstration in which he had participated, where participants were said to have become violent, and out of control and damaged and set fire to shops and vehicles, would not be unreasonable or persecutory.  Nor did the evidence before it persuade the Tribunal that the applicant would be denied justice or due process.’

17                  Consequently, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and so he did not satisfy the criterion specified in s 36(2) of the Act for a protection visa.  Section 65 of the Act in those circumstances required the Tribunal to affirm the decision of the delegate.

18                  The only material indicating the grounds upon which the applicant alleges jurisdictional error before the Tribunal appears in the affidavit in support of the orders sought, first filed in the High Court, and the attached proposed order nisi.  The grounds of complaint are general in terms and appear to be drawn from s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).  That is not an appropriate source to specify grounds of jurisdictional error on the part of the Tribunal.

19                  I have, however, had regard to each of those grounds in an endeavour to discern whether any of them might indicate jurisdictional error or the possibility of jurisdictional error on the part of the Tribunal.  I have considered the Tribunal's reasons to see whether, in relation to any of them, jurisdictional error on its part might be made out.  In my view none of those grounds, having regard to the Tribunal's procedures and its reasons, demonstrate jurisdictional error on the part of the Tribunal.  I will deal with them briefly.

20                  It is alleged that a breach of the rules of natural justice occurred in connection with the making of the decision.  No particulars are given.  There is no affidavit evidence to support that.  The Tribunal has carefully recorded its processes and has sought to comply with the procedures prescribed in the Act for the making of its decision.  It sought to give the applicant the opportunity to attend the hearing.  He did not take it up.  I do not think that that ground is made out.  For the same reasons the ground that ‘the procedures that were required by law to be observed in connection with the making of the decision were not observed’ is also not made out.  Again no particularity of that allegation is made.

21                  It is further alleged that the decision involved an error of law.  I do not think that is made out.  The Tribunal has in its reasons accurately identified the relevant statutory provisions and has referred to decisions of the High Court explaining how they should be applied.  It has applied them.  It is further asserted that the decision was otherwise contrary to law.  That is an unhelpful assertion in the absence of particularity.  Indeed all of the grounds of review specified in the application attract that comment.  For the reasons given, in my judgment the Tribunal's decision was not contrary to law.

22                  There are two further grounds.  One is that the making of the decision was an improper exercise of the power conferred by the Act.  Again no particularity is given.  I see no basis upon which it can be made out.  Finally it is asserted that there was no evidence or other material to justify the making of the decision.  If that be an attempt to enliven the ‘Wednesbury unreasonableness’ ground of review, and so to lead to a conclusion that the Tribunal failed to apprehend or apply the law as it was required to do, or to address the questions which the law required it to address, it should have been particularised.  In any event, understood in that way, in my judgment, it is not made out.  The Tribunal identified those questions which it was required to address and it addressed them in accordance with the law.  It has not failed to apprehend the nature of the applicant's claims or to address them. 

23                  Consequently, in my judgment, no jurisdictional error on the part of the Tribunal is made out.  The application must be dismissed.  I so order.  I order that the applicant pay to the first respondent costs of the application.  There will be no order for costs of the second and third respondents.

Associate:

Dated:              22 April 2004