FEDERAL COURT OF AUSTRALIA

Applicant S1603 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 542

APPLICANT S1603 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 54 OF 2006

SUNDBERG J

12 MAY 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     The appellant is a Sikh citizen of India. He arrived in Australia on 24 August 1995 on a one-month visitor’s visa, and in September that year applied for a protection visa. The appellant’s claim was based on an alleged fear of harm in India relating to his Sikh status and association with two Sikh organisations, the Indian Sikh Student Federation and Babbar Khalsa.  The application was refused by a delegate of the first respondent (the Minister) on 20 May 1996 on grounds that the appellant’s fear of persecution was not well-founded and therefore the appellant was not one to whom Australia has protection obligations under the Refugees Convention.

2                     On 28 May 1996 the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of that decision. In a decision on 9 October 1997the Tribunal refused to grant a protection visa to the appellant. This is an appeal from a decision of McInnis FM made on 21 December 2005 dismissing the appellant’s application for judicial review of the Tribunal’s decision.

3                     Before the Tribunal the appellant appeared in person and gave evidence through an interpreter. The Tribunal found inconsistencies in the appellant’s evidence including the dates and number of times that he was detained while in India. The Tribunal requested production of certain original documents which purported to be warrants for the appellant’s arrest in India. The Tribunal found that the appellant’s evidence lacked credibility and this, coupled with independent country information regarding document fraud in India, led it to conclude that the alleged warrants were not genuine.

4                     The Tribunal further found that the appellant’s legal exit from India indicated that the authorities were not interested in him on a State or National basis. Based on independent country information the Tribunal concluded that the situation in the Punjab province had improved and subsequently concluded that the chances of the appellant being detained or targeted were remote. Consequently, the decision of the Minister’s delegate not to grant a protection visa was affirmed.

5                     Before the Federal Magistrates Court the appellant sought judicial review of the Tribunal’s decision on the ground that it breached the rules of procedural fairness and denied him natural justice and, in so doing, made a jurisdictional error. In particular the appellant alleged that the Tribunal did not notify him or invite him to comment on the independent country information regarding documentary fraud, and hence failed to comply with section 424A of the Migration Act 1958 (the Act). Further, the appellant claimed that the Tribunal ignored relevant considerations, in particular the documents submitted by his migration adviser and the genuineness of these documents. 

6                     TheMagistrate held that the there was no breach of procedural fairness or denial of natural justice by the Tribunal. The Tribunal gave the appellant the opportunity to forward the original documents within 14 days. He failed to do so until after the finalisation of the decision. The fact that in those circumstances the Tribunal gave its decision without further ado, did not amount to a denial of natural justice. In addition the Magistrate found that there had been no breach of section 424A, as that section was not operational on the day of the Tribunal’s decision. As a consequence the Magistrate concluded there was no error of law which would justify judicial review and dismissed the application with costs.

7                     Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appellant’s appeal to the Full Court is to be heard by a single judge. A notice of appeal dated 18 January 2006 contains grounds of appeal that are vague in the extreme and are not supported by adequate particulars. However, such particulars as are provided would seem to raise at least the procedural fairness issue pursued before the Magistrate. There is no reference to s 424A of the Act.

Section 424A

8                     The Magistrate’s decision that s 424A was not applicable to the Tribunal cannot be doubted. The application for review was filed on 28 May 1996 and the Tribunal’s decision was delivered on 9 October 1997. Section 424A was inserted into the Act by clause 3 of Schedule 3 of the Migration Legislation Amendment Act (No 1) 1998. Section 2 of that Act provided that Schedule 3 was to commence on a day or days to be fixed by Proclamation. The date fixed was 11 December 1998, which was more than a year after the Tribunal’s determination. Accordingly the section did not apply to the Tribunal during the conduct of the hearing.

Procedural fairness

9                     The Magistrate dealt with the claim that the appellant had been denied procedural fairness in relation to the documents requested by the Tribunal as follows:

“it is noted that from the transcript of the proceedings there are a number of questions raised by the Tribunal in relation to the production of the originals of the documents and specifically the originals of the warrants.

It is noted in the transcript that the Tribunal gave to the Applicant an opportunity to forward originals of the documents within 14 days of the hearing date [ie by 8 October 1997].

…

As I have indicated, it is common ground that the material was not received by the Tribunal until after it had handed down its decision on 9 October 1997 ….

…

It is submitted by the respondent that in this instance there has been no breach of procedural fairness or natural justice based upon the material before the court. In my view the respondent’s submissions are correct. The Tribunal gave the Applicant an adequate opportunity free of any denial of natural justice or procedural fairness to provide the original documents.

The fact that those documents were provided after the expiration of the period of 14 days and after the finalisation of the decision does not of itself amount to a denial of procedural fairness ….

It is clear from the Tribunal’s decision and not disputed that in any event when allowed until 8 October 1997 to submit further supporting documentation to the Tribunal the Applicant did not do so and did not contact the Tribunal within that time period to seek an extension of time.”

10                  The Magistrate went on to say that he had taken into account the appellant’s unsworn explanation for the delay in providing the documents, namely that he was dependent on another person to forward them and that person was either too busy or did not care enough to ensure they were sent. After noting that there was no evidence to this effect, the Magistrate said that, in any event, the explanation did not provide a basis upon which he could conclude that there had been a denial of procedural fairness in the manner in which the Tribunal concluded its hearing and by coming to its decision without the benefit of the original documents.

11                  The manner in which the Tribunal dealt with the procedural fairness issue discloses no error.

12                  The appellant does not appear to have challenged the Tribunal’s conclusion that the copy documents were not genuine. If there were such a challenge, it would fail. As the Magistrate said:

“the Tribunal appears to have properly analysed the claim as made by the Applicant and then in making adverse credibility findings reasonably open to it has drawn attention to what may be described as the inconsistent and unclear evidence of the Applicant. It was entitled to draw conclusions concerning the documents, and in particular the purported warrants which had been sent to the Tribunal before the hearing.”

13                  After referring to the appellant’s inconsistent and unclear evidence, and giving examples of them, the Tribunal said:

“As well, the documents tendered by the Applicant before the hearing were prima facie at odds with his evidence at the hearing. The warrant dated 12 March 1996 [AB81] refers to the offences ‘124, 153, 3/4 TAD Act NSA FIR No 6.6.95’, yet the TAD Act [(TADA)] lapsed in May 1995 … that is, before the date of the alleged charge (6.6.95). The warrant, dated 10 April 1996 [AB82], also refers to the TADA but is for an information (FIR) 157 of 1990; if the Applicant had been charged in 1990 with an offence, it is implausible that he would have been able to live substantial periods of time thereafter in his parents’ home (the address for the arrest of the Applicant on offences ‘307/34 IPC, 25/54/59 ARMS Act, 3/4/5 TADA(P) Act FIR 157 of 1990’) without being approached by the authorities.”

14                  The Tribunal’s conclusion was as follows:

“After considering the Applicant’s evidence, the Tribunal does not accept that the Applicant’s evidence is credible. The Tribunal notes the documents submitted by the Applicants as warrants issued for him in 1996. However, in view of the lack of credibility of his evidence and the country information above as to the ease with which false documents can be obtained in India, as well as the factors noted above (including the warrant dated 12 March 1996 referring to charges under the TADA, after the lapse of the TADA), the Tribunal does not accept those warrants as genuine.”

15                  The Magistrate was well justified in saying that the Tribunal was entitled to draw these conclusions about the authenticity of the warrants. (It may be noted in passing that those conclusions would be applicable to warrants whether viewed as dubious copies or as originals.)

16                  The appeal must be dismissed with costs.

Associate:

Dated:              12 May 2006