FEDERAL COURT OF AUSTRALIA

STVB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 857

STVB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

S 30 of 2004

SELWAY J

31 MAY 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         Application dismissed.

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

3.         No order in relation to the costs of the second and third respondent.

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

REASONS FOR JUDGMENT

1                     The applicant applies for prohibition, certiorari, mandamus and/or injunctions arising from the decisions of the Tribunal made on 13 January 2004 affirming the decision not to grant the applicant a protection visa.  The applicant says that that decision is invalid.

2                     The applicant, who is a citizen of India, arrived in Australia on 2 November 2002.  On 16 December 2002 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (‘the Act’).  In order to succeed in that application the applicant had to satisfy the respondent the Minister for Immigration and Multicultural and Indigenous affairs (‘the Minister’) that Australia owed him protection obligations under the Refugees Convention as amended by the Refugees Protocol.

3                     In general terms, the applicant needed to satisfy the Minister that he was a person who:

‘ … owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

4                     On 5 February 2003 a delegate of the Minister refused to grant a protection visa.  On 23 February 2003 the applicant applied for review of that decision.  The applicant’s claim was that he had a well‑founded fear of persecution by reason of his political beliefs, namely his membership of the Congress Party.  That claim was explained by the Tribunal as follows:

‘The applicant claims that he worked for the Congress Party for fifteen years but it was when Congress lost power in 1998 that his difficulties started; he was oppressed and tortured by (his) political opponents on a number of occasions; he claims that his shop was ransacked and attacked and he had to shut his business.  The applicant states that there was a recent parliamentary election in India and he worked for the Congress candidate but the BJP candidate won and that after the election, he states on 20 November 1999, BJP people looted and set fire to his shop and did not let him “live peacefully”.

He claims that before his departure from India, “a false case was filed” against him by a BJP activist and he had to leave the country, and he states that he fears he will be attacked by political opponents if he were to return to India and states that he was once badly injured by them (a metal rod was pushed into his left leg and they broke his left wrist).  Political opponents have threatened that next time he will be killed if he does not leave the Congress Party.’

5                     The applicant was not believed by the Tribunal.  The Tribunal did not believe that the applicant had the important or extensive involvement in Congress Party politics that he claimed.  Central to this finding was the applicant’s lack of knowledge of matters that the Tribunal thought the applicant should have known if his involvement was as he claimed:

‘Central to the applicant’s claim to fear persecution for reason of his political opinion upon return to Punjab is his claim to have been active in the Congress Party.  He claims that he was elected to the village Panchayat and to have had a strong local following so significant as to lead supporters of the opposing parties, Akali Dal (Badal) and the BJP, to pursue him with considerable aggression for a number of years and press him to switch his allegiance.

There were aspects of the applicant’s evidence about the nature and extent of his involvement with the Congress Party which led me to the view that he had either exaggerated or fabricated what he did.  While I accept that the applicant is a supporter of the Congress Party, I consider that had he had the profile he claimed, if he was a Congress person with the local following he claimed and if he was involved in party affairs as he claimed, then he would have readily been able to recall that the Akali DalBJP coalition took power in Punjab from Congress during his term as a Congress member elected to the village Panchayat.  I also found that the applicant’s claim that Akali Dal (Badal) and the BJP are the same reveals an understanding of politics which does not sit easily with the involvement he claimed:  it is true that the parties formed a coalition government but they are certainly not the same, even if they do run on the same ticket as the applicant alleged.  I do not accept that the applicant had the profile he claimed.  In the light of the often confused evidence provided at the hearing, I have considered whether the applicant was in fact ever elected to the village Panchayat, and am in the end prepared to accept that he was and that the role of the Panchayat was as he claimed.  It was a small body in what he said was a small village and three of the five members were, the applicant said, not aligned to a political party.  In this context, it is plausible that a person who was no more than a keen supporter of Congress could be elected to such a position.’

6                     The applicant was not only disbelieved in relation to his political involvement.  The Tribunal did not accept the applicant’s contentions or claims as to the persecution he had suffered:

‘I have accepted that the applicant supported the Congress Party and accept I that he may again support Congress and take part in village affairs if he were to return to his home area in India although I consider that he has inflated the nature and extent of his involvement in the claims made in support of his application for recognition as a refugee.

India is a robust democracy and elections are contested vigorously.  Power changes hands frequently at elections which are regarded as fair.  Independent information confirms that political contests can involve violent encounters between opposing groups during election campaigns and at other times.

In the absence of any creditable evidence that the applicant has experienced any serious harm for reason of his political involvement in support of the Congress Party or on the Panchayat, I do not accept that there is a real chance that he would face such treatment (including having false allegations made against him by Akali Dal or BJP people) if he were to return to his village in Punjab and resume his support for the party or his involvement in local affairs regardless of whether or not Akali Dal and/or the BJP returned to power in Punjab in the future.

7                     In this case the application identifies a ground of alleged jurisdictional error.  The applicant claims that the Tribunal did not offer him procedural fairness because it did not inform him that his credibility was in issue.  He filed an affidavit to that effect.  Paragraphs 5 to 8 of the affidavit filed herein on 18 March 2004 provide:

‘The Tribunal has made a finding that there were aspects of my evidence about the nature and extent of my involvement with the Congress Party, which led the Tribunal member to be of the view that I either exaggerated or fabricated what I did.  During the course of the RRT hearing the Tribunal member did not put to me that I had fabricated my evidence concerning the nature and extent of my involvement with the Congress Party.  However, if it had been put to me that I had fabricated my evidence, I would have asked for an adjournment by the Tribunal to produce the following evidence.  I would have produced a copy of my Congress Party membership card concerning being vice‑president of the local circle I would have organised statutory declarations from office bearers of the local circle of the Congress Party of which I was vice president.  I would also have got a statutory declaration from the Congress Party Punjab state president, and also documents to support this.  I would also have organised statutory declarations/affidavits from local Congress Party members.  I would have also organised statutory declarations and affidavits from the local circle Congress Party president and also the secretary and other office bearers.  I would have presented evidence to establish that the truth was that I was the vice president of the local Congress Party circle with a strong local following in the community.

In relation to me standing as a Congress Party candidate for the body comprising a district grouping of village councils, the evidence I would have produced in relation to this is as follows.

The documentary evidence I would have put before the Tribunal was the candidate nomination form for this election which was filled out and signed by me, and other similar documents.  I would have also organised statutory declarations from local Congress Party supporters and members.  I would have also organised letters and documents and statutory declarations from persons involved in the organisational wing of the Congress Party.

I did have the strong local following that I claimed and I was involved in Congress Party affairs as I claimed.  I would have organised statutory declarations about the local following that I had built up and also about my involvement in Congress Party affairs, from local Congress Party members and supporters.  This evidence would have been in the form of documents, letters, as well as statutory declarations and affidavits.’

8                     Notwithstanding those assertions, none of those documents have been put before me.  It has also been noted, as is clear from the quotations from the Tribunal reasons given above, that in fact there was no finding by the Tribunal that the applicant was not a Congress Party member.  What was doubted was the extent of his involvement with Congress Party affairs.

9                     The question of procedural fairness depends upon the nature of the case as it proceeded.  It is a practical issue.  This was made clear in the Full Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v SGJB [2003] FCAFC 290 at [37]:

‘There is no universal proposition that before the RRT ever makes a finding adverse to the applicant it is necessary for the RRT to put to the applicant the concerns which are inclining the RRT towards making an adverse finding; the procedure is inquisitorial and not adversarial:  Re Refugee Tribunal Ex parte Aala at [76], [172]. The risk of an adverse finding may inhere in the issues to be decided. However, the practical content of procedural fairness in the present case was determined by the conduct of the RRT which led the applicant to an erroneous view …’

10                  Plainly enough, if it should have appeared to the Tribunal that the applicant was truly taken by surprise as the hearing developed, then it may have been necessary for the Tribunal to provide an opportunity to the applicant to call further evidence.  See Sullivan v Department of Transport (1978) 20 ALR 323 at 342 - 343, and see Applicant A27 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 259 at [57]-[60].

11                  In this case, however, the applicant was aware that the delegate had not accepted the applicant’s claims.  As the delegate put it:

‘… In the absence of evidence to the contrary, I accept that the applicant participated in politics with the Congress Party over an extensive period of time.  I also accept that he may have been harmed on occasion by his BJP political opponents.  Indian politics have historically involved intimidation and violence.  Nonetheless, I am of the view that the applicant would be able to avoid harm by reporting his concerns to the Indian authorities in Punjab.  The applicant has not claimed to have reported any of the incidents of harm he faced to the authorities.  I consider that he could have report his concerns to the authorities and receive effective protection.  If the applicant was unable to access a satisfactory level of protection within Punjab, I consider that he would be able to obtain protection within one of the other states of India …’

12                  Although the delegate made no specific credit finding, plainly the delegate rejected the applicant’s claim as it was put.  There is no suggestion that that led the applicant to take any steps further than those he did take.

13                  Secondly, it is plain from the Tribunal process, as revealed in its reasons, that the Tribunal did draw the applicant’s attention to the issues that were of concern to it.  The following exchanges are recorded in the Tribunal’s reasons as having taken place between the Tribunal and the applicant:

‘… I advised the applicant that if this was so then it was somewhat surprising that he was not aware of the change of government in Punjab which occurred in early 1997; he responded by saying that he was not well educated and that there had been a lot of pressure.

…

I advised the applicant that these were two parties; he then said that the person who won was from Akali Dal; he then said that the two parties were the same and explained that he meant that they had a single ticket.

…

I suggested to the applicant that threatening to hurt someone and hitting them was an improbable way for a political party to gain a new recruit to stand for election for the party.  He said that he had a good following and that they wanted his name.

…’

14                  In the result, even accepting the applicant’s affidavit at face value, the applicant could hardly have been in any doubt that his credibility was in issue.  He could hardly have been in any doubt that he had to put whatever material he had before the Tribunal.  The Tribunal had advised him by letter dated 30 October 2003 (prior to its hearing), that he should:

‘… send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator.’

15                  In my view, the duty of procedural fairness did not in this case require the Tribunal to inform the applicant that he was entitled to seek an adjournment to seek further evidence.

16                  In these circumstances, it is unnecessary for me to deal with the effect of section 422B of the Migration Act.  I note that that section had application in this case, in that the application for review was dated 23 February 2003.  Counsel for the applicant was unable to assist me as to the meaning and effect of section 422B.  On its face, that section appears to limit the extent of any duty of procedural fairness to the statutory requirements expressly stated in the relevant division of the Act.  This would seem to be narrower than the requirements that would normally be implied either as a matter of statutory interpretation or by the common law:  see Hill J in Appellant WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 204 ALR 687 at 715 [91]; see also NAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 71 at 5-7 [9]–[16].  The question of the effect of that section can, however, be left for another day.

17                  For these reasons, the application is dismissed.

Associate:

Dated:              2 July 2004