FEDERAL COURT OF AUSTRALIA

Applicant S1586 of 2003 v Minister for Immigration & Multicultural

& Indigenous Affairs [2005] FCA 472

MIGRATION – procedural fairness – where appellant declined invitation to attend Refugee Review Tribunal hearing– where appellant elected that a decision be made ‘on the papers’ – whether the Tribunal erred in not considering generic information considered in other cases of a similar nature – jurisdictional error not established – appeal dismissed

Migration Act 1958 (Cth)

Migration Reform Act 1992 (Cth)

Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289

Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546

Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601

Susaki v Minister for Immigration and Multicultural Affairs [1999] FCA 196

APPLICANT S1586 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD1556 OF 2004

BENNETT J

26 APRIL 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed with costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellant is a national of India who arrived in Australia on 16 June 1985.  On 8 March 1992 he lodged an application for refugee status which, by operation of the Migration Reform Act 1992 (Cth), became an application for a protection visa.  That application was refused by a delegate of the respondent on 20 November 1992, following an interview with the appellant.

2                     The appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision on 31 December 1992.  The Tribunal affirmed the delegate’s decision on 1 March 1995.  The appellant did not appear at the hearing in circumstances that I will describe later.

3                     On 10 April 1995, the appellant lodged another application for a protection visa (‘the second application’).  The second application was refused by a delegate of the respondent on 12 March 1996.  The appellant applied to the Tribunal for review of that decision on 9 April 1996.  The appellant elected to attend a hearing before the Tribunal in relation to the second application on 19 November 1996.  As stated by the Tribunal:

‘The [appellant] was asked what new information he had which he did not believed (sic) had not been taken into account in the earlier decision reached by the Tribunal.  The [appellant] responded that it was all the same.

The [appellant] was asked why in relation to his earlier application to the Tribunal he had decided not to attend a hearing and give oral evidence.  The [appellant] explained that he had discussed the matter with his solicitor at the time and they had decided to let it go through.’

4                     On 2 December 1996 the Tribunal affirmed the refusal of the second application.

5                     On 18 September 2000 the appellant sought judicial review in the High Court of the first Tribunal decision, as a member of the Lie class action.  Pursuant to leave granted by the High Court, the appellant filed an individual application seeking orders nisi in respect of that decision on 29 May 2003.  That application, remitted instanter to this Court, was dismissed by Emmett J on 20 February 2004 (Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289).

6                     The Department’s file relating to the first protection visa application was destroyed on 26 September 2001.

7                     The appellant then applied to the Federal Magistrates Court for judicial review of the delegate’s decision and the Tribunal decision in respect of the first application.  The matter before me is an appeal from that decision, that is, in respect of the first Tribunal decision of 1 March 1995.  The second Tribunal decision of 2 December 1996 is not the subject of these proceedings.

The decision of the Federal Magistrate

8                     The appellant was not represented before the Federal Magistrate, Barnes FM.

9                     The appellant complained generally that he was denied procedural fairness and natural justice.  His contention was that there was a failure to comply with s 418(3) and with s 424(1) of the Migration Act 1958 (Cth) (‘the Act’).  When asked to elaborate, he referred to the fact that he had sought the release of documents from the Department under a freedom of information request and that he had not been given all of the requested documents which, he said, hindered the preparation of his case.  A letter from the Tribunal indicated that the requested documents were library materials that were not documents required to be released, but that the Tribunal was prepared to provide the other documents sought by the appellant and that it did so.

10                  The Federal Magistrate considered the delegate’s decision in the light of the appellant’s complaint that he had been denied procedural fairness and that what he had said had been misinterpreted.  Her Honour found that the appellant’s complaints, including the fact that he was not believed, did not establish jurisdictional error.

11                  Noting that the Tribunal conducted a full merits review and the fact this is an application for review of a 1992 decision of the delegate, her Honour said that, if there were any jurisdictional error in the delegate’s decision, she would not grant relief in respect of that decision as a matter of discretion for the reasons she gave.

12                  Barnes FM recorded at [15] that, when asked specifically what the appellant complained of in relation to the Tribunal decision of 1 March 1995, ‘the [appellant] indicated that he was asked certain things and they were misinterpreted and misunderstood and that on that basis the wrong decision was made’.

13                  The Federal Magistrate then dealt with the fact that the appellant did not attend the hearing before the Tribunal at [16]:

‘The Tribunal reasons for decision record that the [appellant] was offered the opportunity to attend a hearing to give oral evidence in relation to his claims.  However he declined the offer and elected instead to have the decision made on the papers.  The [appellant] takes issue with this and states that whenever he was advised of a hearing by his advisers he attended the hearing.  However there is no material before the Court to support his claim in that respect.  There is no transcript of any hearing.  There are the clear words of the Tribunal reasons for decision to the contrary which, on the material before me, I accept.  It may be that the [appellant] is referring to what he said in his interview with the delegate prior to that Tribunal decision or perhaps in a subsequent proceeding.  His complaint does not establish jurisdictional error.’

14                  The appellant claimed a lack of procedural fairness on the part of the Tribunal but Barnes FM noted that he made no specific claims other than the general claim that his situation was the same as that in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601.  Her Honour held that the factual basis for such a claim was not established; there was nothing before the Court except bare assertions.

15                  Her Honour found nothing in the material before her to suggest any lack of procedural fairness.  Her Honour was satisfied that the appellant had the opportunity to attend a hearing to give oral evidence and address issues of concern to the Tribunal.  The Tribunal did consider the appellant’s claims.  As summarised by the Federal Magistrate at [19]-[20]:

‘19.      …It found that any mistreatment of Sikhs might be by reason of imputed political opinion of a particular applicant, but would not be by reason of race or religion for reasons which it gave.  It then concluded that this particular applicant had no political profile and that the authorities were extremely unlikely to have any Convention-related interest in him.  The Tribunal had regard to a number of factors in leading it to this conclusion, in particular the absence of any profile for the applicant when he was in India, the passage of a decade (as at 1995) since his last visit to India, the then recent improvement in the situation of Sikhs in the Punjab, the applicant's renewal of his passport in 1992 indicating that the authorities had no particular interest in him and independent information about the growing attention to human rights matters in India.

 20.      Further, the Tribunal found that even if the applicant would face problems in the Punjab, it would be reasonable to expect him to relocate within India, having regard to his relative youth (at that time), his knowledge of languages, his education, his work experience and the assistance he could expect from his family in India to facilitate relocation.’

16                  The appellant also raised s 424(1) of the Act but Barnes FM found nothing in the material before her to suggest a failure to comply with that section.

The amended notice of appeal

17                  The grounds relied upon by the appellant are a failure on the part of the Tribunal to accord natural justice and a failure to find that the appellant, as a Sikh, had a well-founded fear of persecution for reasons of religion and political opinion and error by the Federal Magistrate in failing to find that the Tribunal had erred in the consideration of these grounds.  The amended notice of appeal also referred to an alleged error of law by the Tribunal in finding that it would be reasonable to expect the appellant to relocate within India.

18                  In addition, the appellant asserted error of law on the part of the Tribunal and the Federal Magistrate ‘in failing to apply their minds judicially to whether the appellant met the refugee criterion’ and error of law in failing to apply to the appellant’s case the materials that were before the Tribunal in another case, V95/03397 (21 September 1995).

The present proceeding

19                  The appellant was legally represented in the hearing before me.  The matters raised by Mr Knaggs on his behalf travelled beyond the matters raised before the Federal Magistrate and beyond the matters raised in the amended notice of appeal. 

The Tribunal hearing in the absence of the appellant

20                  The appellant claims a denial of procedural fairness in that he did not attend the Tribunal hearing because he was misled by the notice of the hearing sent to him by the Tribunal.

21                  It is clear from the correspondence that the Tribunal informed him by letter of 2 February 1995 that it was unable to make a decision on the basis of the papers alone.  The letter informed the appellant ‘you are therefore entitled to attend a hearing of the Tribunal to give oral evidence’.  He was told that he ‘must now do two things immediately’.  One was to telephone a named person to say whether he wished to have a hearing and to ask any questions.  The other was to complete the enclosed form.  The letter continued to notify the appellant that if he did not do these two things, the hearing would not take place and the Tribunal may make a decision on the evidence it already had.

22                  The letter also said:

‘If you choose to come to a hearing, an adviser, relative or friend may also attend.  Although this person does not have the right to speak at the hearing, permission may be given by the Tribunal in appropriate cases.’

Similarly, he was informed that he may name any person he would like to give evidence about his case.

23                  The appellant completed the form which he signed and dated 10 February 1995 by ticking the option: ‘No, I do not want to give oral evidence at a hearing.  I would like a decision made on the papers’.

24                  The appellant has filed two affidavits in this Court.  In the affidavit sworn 14 March 2005, he says:

‘2.        I was not notified pre-hearing by the respondent unaware until yesterday (when I learned it [from] Mr Knaggs) that I had a right to address the Refugee Review Tribunal either myself or via an assistant.

 3.        If I had known this I would have appeared before the Tribunal on 1 March 1995 for that specific purpose.  (I did not seek to give oral or additional evidence.)  I would have used any opportunity to explain, or have an assistant explain, to the member, Mr Whitlam, that one cannot relocate within India without an introduction or contact.  I would not have had either prerequisite.

 4.        I would also have addressed him on my parlous position as a Sikh re-entering the country after years overseas.’

He also says that he would have raised the fact that he could not relocate in India.

25                  Mr Knaggs emphasises the right to address, rather than the right to give evidence.  I note, however, that the matters the appellant says he would have raised are matters of evidence.

26                  In an affidavit sworn 22 March 2005, the appellant says that he had intended to appear before the Tribunal on 6 March 1995.  He says that he believed that his adviser had arranged for his appearance.

27                  I note the Tribunal’s decision on the second application and the record of the appellant’s statements in respect of the first Tribunal hearing as set out in [3] above.  I also note the completed form in which the appellant said that he did not wish to give evidence but wanted a decision made on the paper.  The evidence in relation to the appellant’s knowledge is, at best, inconsistent.  There is no reason given to me why I should not accept that the appellant declined the invitation to attend a hearing before the Tribunal.  I accept that he did.

28                  The appellant then submits that there was a denial of natural justice in that he was not notified of his right to address the Tribunal, in the sense of his right to make oral submissions either himself or by an assistant.

29                  Section 425 of the Act as it was in force at the time of the Second Tribunal decision provided that, where it was not prepared to make a decision favourable to an applicant, and:

‘(1)      Where section 424 does not apply, the Tribunal:

(a)               must give the applicant an opportunity to appear before it to give evidence; and

            (b)        may obtain such other evidence as it considers necessary.

 (2)      Subject to paragraph (1) (a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.’

Section 426:

‘(1)      Where section 424 does not apply, the Tribunal must notify the applicant:

            (a)        that he or she is entitled to appear before the Tribunal to give evidence; and

(b)               of the effect of subsection (2) of this section.

(2)       The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)       If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.’

30                  Mr Knaggs accepts that the Tribunal complied with its statutory obligations but submits that the statutory provisions ‘needed common law supplementing so that the Tribunal hearings would be fair’.  He also submits that, in complying with s 426(2), the implication is that only an adviser, relative or friend may be given permission to speak at the hearing and not the appellant.  Thus, it is submitted, there has been a denial of natural justice.

31                  Mr Knaggs submits that it was essential for the Tribunal to inform the appellant that he could ask for leave to address the Tribunal himself and that this was in no way conditional on or linked with the right to give evidence.  He relies on Susaki v Minister for Immigration and Multicultural Affairs [1999] FCA 196.  In that case, the Tribunal failed to inform Ms Susaki of the matters of which it was bound to inform her by reason of s 361(1)(a) of the Act.  That section required her to be informed of her right to appear to give evidence and present arguments.  The Tribunal only informed her of her right to give evidence.  The Court held at [19] that the section is mandatory and, therefore, a failure to observe a procedure required by the Act to be observed.  This does not assist the appellant as, in the present case, the Tribunal complied with the statutory obligations set out in s 425(1)(a) and s 426(1)(a).

32                  Mr Knaggs seems to be submitting that the Tribunal was not entitled to cancel the hearing once notification of it had been given. He refers to Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 at [18] (‘Cabal’). However, this case does not assist him. In Cabal it was contended that there had been a denial of procedural fairness. The Full Court said at [14] ‘Section 425 of the Act obliged the RRT to give the applicants an opportunity to appear before it and give evidence.  Section 426 obliged the RRT to notify the applicants of their entitlement to give evidence.  The applicants were so notified.  They were also given an opportunity to appear. The appellant’s submissions on this point are devoid of merit’.  As in Cabal, the appellant in the present case responded to the letter and declined that opportunity and the Tribunal proceeded to determine the matter.

33                  Ms Hanstein, who appears for the respondent, referred me to the matters set out in the second Tribunal decision of 2 December 1996 and recorded at [3] herein.  Specifically, she points out that the appellant chose not to attend a hearing before the Tribunal and relies upon the appellant’s statement to the second Tribunal that there was no additional information that he would have presented to this first Tribunal.

34                  In the circumstances, I am satisfied that the Tribunal did not fail to accord procedural fairness in making its decision.  The Tribunal complied with the statutory requirements in the information that it gave to the appellant.  I am not satisfied that, if the appellant had specifically been told that he had the right to address the Tribunal, it would have made a difference.  The appellant only refers to evidentiary matters that he says he would have raised and he was specifically told that he had the right to attend to give evidence before the Tribunal.  He rejected that invitation.

Other information

35                  Mr Knaggs submits that ‘a reading of cases such as V95/03397 (21 September 1995) show that there was a wealth of other available published or gazetted or telegraphed material that was in the [appellant’s] favour and was before neither the delegate nor the Tribunal’.  The submission seems to be that the Tribunal was obliged to take into account any and all information that may be relevant and favourable to the appellant that was in existence or, alternatively, had been referred to in any other decision of the Tribunal at any time and in any other State.

36                  In support of this submission, Mr Knaggs relies on s 420(2) of the Act which provides that the Tribunal is not bound by technicalities and must act according to substantial justice and the merits of the case.  In my view, it cannot be said that s 420(2) extends to oblige the Tribunal to take account of any and all documentation as identified above.

37                  It is also submitted that those documents should be ‘taken into account in the present appeal’.  I reject that submission.  In any event, it is an invitation to engage in merits review.

38                  Mr Knaggs also submits that the Tribunal was in error as it did not refer to all of the material that was before the delegate.  There is no evidence that the Tribunal failed to consider the material that had been before the delegate.  The Tribunal is not obliged to refer to every piece of evidence in its statement of reasons and the omission of a reference to a document does not support an inference that it was not considered (Minister for Immigration and Multicultural and Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 at [20]-[22].

39                  Mr Knaggs submits that the mere fact that the appellant is a Sikh is sufficient to establish a well founded fear of persecution which could not be avoided by relocation.  He submits that relocation within India ‘may be illusory’ and reference is made to other factual matters: that extortion is part of life in India; that the appellant would be penniless in India and could not achieve relocation; and bias, in that the Indian authorities ‘downplay the problems facing Sikhs’.  The Tribunal addressed the question of relocation.  I refer to the decision of the Federal Magistrate at [19]-[20] as set out at [15] above.  I respectfully agree with her Honour.  Each of these matters is one of fact and does not amount to jurisdictional error.

40                  I have dealt with each of the matters raised on appeal that were not raised before the Federal Magistrate, where the appellant was not legally represented.  However, the appellant has not established jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate.

41                  The appeal should be dismissed with costs.

Associate:

Dated:              26 April 2005