FEDERAL COURT OF AUSTRALIA

Applicant A227 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 567

MIGRATION – jurisdictional error – no evidence – critical findings of fact not supported by the evidence – conclusion that significant improvements in Punjab by late 1992 indicated applicant was not detained by authorities – only evidence before Tribunal was that improvements did not occur until at least 1993 – well-founded fear of persecution – perception of applicant by Punjab authorities.

Migration Act 1958 (Cth)

Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 cited

APPLICANT A227 OF 2003 v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 776 of 2003

LANDER J

7 MAY 2004

ADELAIDE

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The application is allowed.

2.         The decision of the Refugee Review Tribunal of 28 August 2002 is quashed.

3.         The matter be remitted to the Refugee Review Tribunal for further hearing according to law.

4.         The first respondent to pay the applicant’s costs of the application.

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

1                     On 1 November 2000 the applicant brought proceedings in the High Court of Australia when he joined the Lie class action seeking the issue of constitutional writs in relation to a decision of the Refugee Review Tribunal (RRT) given on 28 August 2002.

2                     It is accepted that the proceedings were brought within the time provided for in the High Court Rules and no extension of time is required.

3                     On 25 November 2002, Gaudron J remitted the application, with a number of other applications, to this Court for hearing.

4                     On 3 November 2003, I ordered the applicant to file and serve:

(a)        A statement of contentions of relevant facts and law setting out:

(i)         if the applicant has previously sought judicial review of the Refugee Review Tribunal decision, the subject of this application, the reasons why the application should not be dismissed;

(ii)        if the applicant requires an extension of time within which to file its application, the reasons why an extension of time should be granted; and

(iii)        particulars of the grounds relied upon for this application for the issue of prerogative writs and orders sought.

(b)        Any affidavits in support of any of the contentions in paragraph 3(a) which the applicant intends to rely on at the hearing on or before 15 December 2003.

5                     I extended time to comply with paragraph 3 of my order on 18 December 2003.  On 16 February 2004, the Court received an amended draft order nisi for filing in the High Court of Australia.  In any event, the draft order sought writs of prohibition, certiorari and mandamus.  The grounds relied on were:

‘The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to, or an inviolable limitation or restraint upon, its power and its jurisdiction necessary for the existence of the satisfaction required by s 65 to grant or refuse the application and its powers to conduct a review under s 414 of the Act.  The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that:

Particulars

(i)         it reached a conclusion that the Applicant was not a person perceived to be one of those militants seeking a separate Sikh State on the basis of a finding that the Applicant had not been detained and mistreated in 1992 by reason of its reliance on country information which did not in fact support that finding and conclusion and/or

(ii)        the material upon which the Tribunal relied was so inadequate that the only inference open is that it applied the wrong test or was not satisfied in respect of the correct test that it was bound to apply.’

6                     On the same day, the applicant also filed his contentions of fact and law.

7                     The applicant is an Indian national who arrived in Australia in February 1999 on a visitor’s visa.  On 17 March 1999, he applied for a protection visa.  On 6 April 1999, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs decided that the applicant was not a refugee as provided for in the Migration Act 1958 (Cth) (the Act) and refused the grant of a protection visa.  On 12 April 1999, the applicant applied for a review of that decision by the RRT and, on 28 August 2000, the RRT affirmed the delegate’s decision not to grant a protection visa.  That decision was handed down on 15 September 2000.

8                     A person is entitled to a protection visa if that person can satisfy the criteria in s 36 of the Act.  A person can satisfy that criteria if the person can establish that he or she is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees (opened for signature 28 July 1951, [1954] ATS 5, entered into force 22 April 1954) and the protocol to it.  Article 1A(2) of the Convention provides that a protection obligation is owed to any person who:

‘… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country.’

9                     The decision which confronted the delegate and the RRT was whether the applicant had a well-founded fear of persecution for any Convention reason.

10                  Section 474 of the Act has no application to these proceedings.  The RRT decision was given prior to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).  That Act commenced on 2 October 2001.  The Act provides for a schedule which contains transitional provisions.  The applicant’s application for judicial review was lodged prior to the enactment of the amending Act and s 474 has no application.

11                  However, the writs which the applicant seeks would only issue if the applicant could establish jurisdictional error.  The question on this application is whether the decision by the RRT is tainted by jurisdictional error.

12                  A wrong finding of fact is not jurisdictional error: Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.  A finding which is a critical step in the Tribunal’s ultimate conclusion which is not supported by any evidence may well constitute jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231:

13                  In the second mentioned case the Full Court of this Court (Mansfield, Selway and Bennett JJ) said at [18]-[20]:

‘… But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.

This argument, if it were made out, would be sufficient to establish that the Tribunal had made a “jurisdictional error” so as to found jurisdiction in this Court to intervene.  If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357.  If the decision of the Tribunal was “Wednesbury” unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error:  see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“S20”) at 62, 67, 76, 90-91.

On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence.  Indeed, unless the relevant fact can be identified as a “jurisdictional fact”, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.  It is for the Tribunal to determine the merit of the claim.  The line between merit review and jurisdictional error may not be a “bright line”, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.’

14                  The applicant was invited to appear before the Tribunal to give whatever oral evidence he wished.  Initially, he indicated that he would appear but, subsequently, two days before the hearing, the RRT was advised that the applicant did not wish to attend.  He relied upon written material before the RRT.

15                  In that written material he said that he had very little involvement in politics although, like all Sikhs, he was a supporter of the move to have an independent Sikh State.  He had two friends who were active in support of the establishment of a separate Sikh State who sought to enlist the applicant in their activities on behalf of the Sikh Independence Movement.

16                  The applicant said that he was taken for questioning by the police some time in 1992.  During the questioning, he was hit with sticks, pushed around, abused, shouted and yelled at, all of which was physically and emotionally upsetting.  He was held by the police for a week.  In the same year, his two friends disappeared.

17                  In early 1993, he was again taken from his house by the police and taken to the police station for questioning.  This time he was held for a month.  The police inflicted the same punishment as before.  He was concerned about his future so he took a job working on the trucks which allowed him to move about and not remain in one place for too long.

18                  In February 1997, after elections in the Punjab, the Badal Government was elected.  The applicant decided it was then safe for him to return home.  He said that in November or December of 1997 his home was raided by the police, who threatened his parents and demanded to know the applicant’s whereabouts.

19                  The applicant said that he went into hiding because he was frightened that if the police did detain him again he would be beaten and maltreated, as he had been in the past.

20                  He discussed his future with his parents and, in the end, they all agreed that he should seek safety in Australia.  He said that he travelled to and entered Australia on a false passport.  He did, however, produce a passport of his own which issued in 1998.

21                  The RRT found:

‘The Tribunal notes that the applicant was not himself actively involved in supporting the establishment of a Sikh State.  In light of country information cited below regarding significant improvements in Punjab by 1992 the Tribunal is not satisfied that the applicant was detained or mistreated by the authorities in late 1992 or at some time in 1993.  It notes that he was never charged with any offence.

In his initial application for a protection visa the applicant gave the same address and occupation from 1989 until early 1999.  A passport issued to him in September 1998 provides the same address.  Accordingly, the Tribunal does not accept that he arranged his affairs after 1997 such that he was effectively in hiding.  In view of his lack of actual involvement with Sikh groups or his overt support of a Sikh State, and bearing in mind the significance of changes in Punjab by 1992 and the lapse of time since he allegedly encountered problems from the authorities or friends disappeared, the Tribunal does not accept that he was sought in 1997 or his parents prevailed upon to present him to the authorities.

While accepting that friends of the applicant have gone missing, the Tribunal is not satisfied on the evidence before it that their disappearance was at the hands of the authorities.  In any event, the applicant remained in India for some seven years after his friends disappeared.  Accordingly, the Tribunal finds that any disappearance of some friends of the applicant does not indicate a real chance of persecution of the applicant himself for any Convention reason.’

22                  Later in its reasons, the Tribunal rejected the applicant’s claim that he had travelled on someone else’s passport.  It found, in the alternative, that even if he did, the applicant still held a passport himself and the holding of that passport was inconsistent with the police pursuing the applicant.

23                  It is the first of the findings above which is complained of by the applicant on this review.

24                  The applicant’s case was put concisely by his counsel, Mr Gibson.  He contended that there were two errors in that paragraph.  First, the applicant did not say that he was detained or mistreated by the authorities in late 1992.  The applicant said he was taken for questioning by the police some time in 1992.  There is no doubt that that criticism is right.  The RRT proceeded upon the mistake that the applicant was first detained in late 1992.  Secondly, and more importantly, the applicant contended that there was no evidence to support the finding:

‘In light of country information cited below regarding significant improvements in Punjab by 1992 the Tribunal is not satisfied that the applicant was detained or mistreated by the authorities in late 1992 or at some time in 1993.’

25                  Mr Gibson contended that that finding, unsupported by the evidence, was critical to the Tribunal’s decision.

26                  He conceded that he would have to show both that the finding was made without evidence and that the finding was critical to the RRT’s ultimate conclusion to succeed on this application.

27                  Ms Bean, who appeared for the respondent, contended that there was sufficient evidence for the RRT to make the finding that it did.  She accepted immediately that the evidence was thin and that another decision maker may not have made the same decision, but she contended that there was some evidence upon which the finding could be made.

28                  Alternatively, she contended, if the finding was unsupported by the evidence, it was not critical to the RRT’s decision.

29                  Both counsel took me to the country information to support their contentions.

30                  The evidence clearly establishes that conditions in the Punjab have improved through the nineties.  The evidence, however, is that ‘significant improvements’ were much later than 1992 and probably later than 1993.

31                  Notwithstanding all of the references to which I was taken by Ms Bean, I am satisfied, as the applicant contends, that there was no evidence to support a finding that there were significant improvements in the Punjab by 1992.  It followed that the RRT could not have made a finding that the applicant was not detained or mistreated by authorities in late 1992, or at some time in 1993, by reason of those significant improvements.  There is no evidence to support that finding.

32                  As I have said, Mr Gibson contended that the RRT’s rejection of the applicant’s claim that he had been interrogated by the police some time in 1992, and again in 1993, in the circumstances mentioned, was critical to the RRT’s decision.

33                  In the second and third paragraphs quoted above, the RRT rejected other aspects of the applicant’s case.  No complaint was made by the applicant of the RRT’s rejection of those parts of his case.

34                  Clearly enough, there was evidence which would have allowed the RRT to reject the applicant’s case in the second paragraph.  The RRT recited the circumstances in which a person was able to obtain a passport, as set out in a Department of Foreign Affairs and Trade document of 6 July 1992.  It noted:

‘A CBI inspector then visits the given address personally and speaks to the applicant to confirm identity and residence.  He also examines the original ration card (which is used in lieu of ID).  He also speaks to the referees.  If the applicant is not there at the time of the inspector’s visit, the applicant is expected to present himself to the CBI office.’

35                  The RRT reasoned that, because the applicant had obtained a passport in September 1998 after undergoing a rigorous examination by the police, he could hardly claim that he needed to avoid the police.

36                  In respect of the third paragraph, the RRT gave no reasons for its conclusion that it was not satisfied, on the evidence before it, that his friends’ disappearance was at the hands of the authorities.  That finding was also open to the RRT.  The evidence supporting the claim that the applicant’s friends disappeared at the hands of the police was, at best, tenuous.

37                  After making those findings, the Tribunal said:

‘The Tribunal is not satisfied on the evidence before it that the applicant travelled to Australia on a passport in a name different from his own.  He has not produced that passport.  He has submitted a passport issued in September 1998 his [sic] own name.  Even if he were to have used a different passport to travel to Australia it is apparent that he satisfied all requirement [sic] for the issue of a passport well after the authorities allegedly pursued him.  In view of the applicant’s capacity to obtain that passport and considering an array of country information indicating that for several years now there has been a substantial change in the political climate and in the treatment of Sikhs in India, the Tribunal finds there is not a real chance of persecution of the applicant now or in the foreseeable future by reason of any links by certain friends with militancy.’

38                  In addressing those matters after referring to the country information, the RRT said:

‘In considering the evidence before it, the Tribunal finds that there has been a substantial change in circumstances in Punjab.  The indiscriminate violence of both the authorities and some Sikhs pursuing their aims has dissipated and been replaced by a situation where the authorities target those people it suspects of being “militants” or who have “some established history of terrorist associations.”  The applicant does not have claims to indicate that he is at any risk of attracting the interest of the authorities and was able to obtain a passport.  Any chance that he would now or in the foreseeable future be of official interest by reason of his race or political opinion is utterly remote in light of available country information and his own circumstances.’

39                  The thrust of the RRT’s reasoning was that the applicant was not a militant and was not a member of any movement for an independent Sikh State.  In those circumstances, and because of the improved conditions and circumstances in the Punjab, he could not have a well-founded fear of persecution.

40                  In my opinion, that finding was open to the RRT.  It was the applicant’s case that he was not a militant or a member of a movement.  There was evidence to support the improved conditions in the Punjab.  It was open to the RRT to reach that conclusion.  In reaching that conclusion, the finding that he was not subject to the intimidation and threats and interrogation in 1992 and 1993 was not critical to the RRT’s reasons.

41                  However, that is not an end to the matter.  The question is not only whether the applicant had a well-founded fear of persecution because of his activities, but also whether he had a well-founded fear of persecution because of the perception of the authorities concerning him.

42                  The RRT concluded:

‘While accepting that some militants seeking a separate Sikh State remain exposed to possible persecution, the Tribunal finds on the basis of all the evidence before it that the applicant in the present case is not such a person or so perceived by the authorities.

In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason.’

43                  The applicant’s case was that he had been subject to police interrogation because of his association with his two friends.  The applicant’s case was that he was perceived by the authorities as being associated with militants and persons involved in the movement for an independent Sikh State.  Whilst that perception was wrongly held, it existed and it manifested itself in the way in which the police treated him in 1992 and 1993.  He, therefore, was a person whom the authorities perceived as a militant and who would likely be subjected to persecution because of a wrongly held perception by the authorities.  In rejecting that argument, in my opinion, the rejection of the applicant’s account of the interrogations in 1992 and 1993 was critical.

44                  I am satisfied that the RRT made a jurisdictional error, in that it made a finding of fact with no evidence to support that finding, which finding was critical to the RRT’s ultimate decision that the applicant did not have a well-founded fear of persecution.

45                  I would allow the application.  I would make an order quashing the decision of the RRT.

46                  The matter should be remitted to the RRT for further hearing according to law.

Associate:

Dated:              7 May 2004