FEDERAL COURT OF AUSTRALIA

Applicant S1586 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1536

APPLICANT S1586 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1649 OF 2006 

DOWSETT J

10 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal, to be taxed.

3.                  The name of the first respondent be amended by deleting the words ‘and Indigenous’.

4.                  The words ‘Federal Magistrates Court, Sydney’ be deleted from the title of the proceedings, any party other than the appellant, the first respondent and the second respondent being dismissed from the proceedings.

5.                  The description in the title of the proceedings of the Refugee Review Tribunal as ‘Third Respondent’ be amended to ‘Second Respondent’

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

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of a federal magistrate declining to review a decision of the Refugee Review Tribunal (the “Tribunal”) by which decision the Tribunal declined the appellant’s application for a protection visa.  The history of the matter is curious and appears from the opening paragraphs of the magistrate’s decision as follows:

‘1.        This is an application filed on 13 May 2005 seeking review of a decision of the Refugee Review Tribunal (the Tribunal) made on 2 December 1996 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2.         The applicant arrived in Australia from India in 1985.  In 1992 he applied for refugee status.  By operation of the Migration Reform Act 1992 (Cth) this became an application for a protection visa.  The application was refused by a delegate of the respondent by decision notified to the applicant by letter dated 11 December 1992 (the first delegate’s decision).  The applicant sought review of that decision by the Tribunal.  On 1 March 1995 the Tribunal affirmed the delegate’s decision (the first Tribunal decision).

3.         In 2000 the applicant unsuccessfully sought judicial review of the first Tribunal decision in the High Court (as a member of the Lie class action).  His application was remitted to the Federal Court and dismissed (see Applicant S1174/2002 & Ors v Refugee Review Tribunal [2004] FCA 289).  He then commenced proceedings in relation to the first Tribunal decision in this court [that is the Magistrates Court] and appealed to the Federal Court (see Applicant S1586/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 711 and [2005] FCA 472).  The appeal was dismissed.

4.         Meanwhile, on 10 April 1995 the applicant lodged another application for a protection visa which was refused on 12 March 1996.  The applicant applied to the Tribunal for a review of that decision in April 1996.  The second Tribunal decision of 2 December 1996 is the subject of these proceedings [ie the proceedings before the magistrate and before this court on appeal].’

2                     It is unfortunate that the appellant should have been involved in the migration system for so long.  However at least some of that delay is probably attributable to his own conduct.  If, as he claims, he is a person of good character who has survived using his own resources for the 21 years during which he has been in this country, then it may be unfortunate that he should now be facing deportation.  As I am not aware of all relevant circumstances I can offer no view upon that matter.  I say only that in considering further action in connection with the appellant, it may be that the Minister should take account of his very long period of residence here.  I should say, too, that Mr Shaw QC, who appears for the appellant, has said everything that could be possibly said on his behalf but, as I think he tacitly conceded, it is a very difficult case to advance. 

3                     As I have demonstrated, the matter has been considered by the Tribunal on two occasions.  Section 416 of the Migration Act 1958 (Cth) provides as follows:

‘If a non-citizen who has made:

(a)       an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b)       applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

makes a further application for review of an RRT reviewable decision, the Tribunal, in considering the further application:

(c)        is not required to consider any information considered in the earlier application or an earlier application; and

(d)       may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.’

4                     In its second decision the Tribunal effectively acted upon its earlier decision, after taking into account a small amount of additional information provided by the appellant. 

5                     The appellant claims to have been born in India on 13 August 1951 and to be of Sikh racial origin.  His family was also Sikh by religion, although he is not now of that religion.  He was educated in the Punjab, obtaining qualifications as a welder, and worked there for some years.  He subsequently took employment in Singapore and worked there until about 1984 or thereabouts.  By that time relations in India between Sikh and non-Sikh Indians were very strained, particularly after the assassination of the then Prime Minister, Mrs Gandhi.  The assassination was blamed on Sikh extremists and was followed by retaliation against Sikhs.  At the same time there were increasing calls for an independent Punjab State.   The appellant said:

‘Accordingly, I looked at all my options and thereafter travelled to Australia on 16 June 1985 at Sydney hoping that there would be some prospects of employment at least until conditions in Singapore had improved.’

6                     He has lived in Australia ever since.  Although his wife and children are in Singapore, he says that he is no longer entitled to reside and work there.  He does not want to take his family to India because they have no understanding or experience of living there, and it would place them under great strain.  He claims that the ongoing social and civil problems in India place him in fear of persecution should he return.  He claims that he will suffer social and economic hardship; it will be difficult for him to make his way there.

7                     As I have said, the Tribunal, in deciding the appellant’s second application, treated its earlier decision as being correct and adopted it.  It recognised that the appellant had raised new material, namely the success of pro-Hindu parties in the 1996 elections, and that this had exacerbated his fear of persecution.  The Tribunal took this matter into account and observed at p 11 of its reasons:

‘It is notable that all incidents or religious or political violence which the Applicant referred to at the hearing and in later written material occurred prior to the time of the earlier decision and were dealt with in that decision.  Beyond pointing to proposals to change some city names in India to Hindu names, neither the Applicant nor his adviser had pointed to any evidence of the persecution of Sikhs by pro-Hindu forces in recent times.  It is true, nonetheless, that some of the proposals of the BJP and like-minded parties have increased enmity between Muslims and Hindus … There are no reports, however, which have been prepared by the applicant, or which are available to the Tribunal which refer to similar sentiments being expressed against the Sikh community of India, nor violence or other harms which have been directed at Sikhs on the basis of their beliefs since riots in 1984 and 1988.’

8                     One other matter appears to have been raised for the first time at the second hearing.  The appellant asserted that after the assassination of Mrs Gandhi in 1984, his brother was living in India and wearing his hair long with a beard as outwards signs of association with the Sikhs.  The appellant’s brother told him that he was frightened and that he had his hair and beard cut so that he would not be identifiable as a Sikh.  The barber who performed this operation took all of his money.  Whilst this may have been new information, it seems to have been little more than affirmation of the hostility towards Sikhs which followed the assassination.  The Tribunal appears to have so treated it.  See p 11 of the Tribunal’s reasons where the matter is discussed.

9                     The grounds of appeal are numerous, but they have been addressed effectively and briefly.  It is therefore possible for me to deal with them in the same way.  The first is an assertion that the learned federal magistrate who dealt with this matter at first instance ought to have disqualified herself from doing so by reason of perceived bias. There is no evidence as to the nature of this perception or as to the reason for it, save that the magistrate had heard and determined an earlier application by the present appellant in connection with the first Tribunal decision.  As appears from the summary given above, in 2000 the applicant sought judicial review of that decision.  The application was remitted to the Federal Court and dismissed.  The appellant then commenced further proceedings in relation to that decision in the Magistrates Court, which proceedings were also ultimately unsuccessful.

10                  Nothing has been said about the way in which the magistrate conducted those proceedings or of anything that she may have said.  The appellant has not provided any affidavit evidence as to why he may have perceived bias.  I am unable to conclude that, simply because the magistrate dealt with the earlier application, in a way of which I have no knowledge and in circumstances of which I have no knowledge,  there might be a reasonable perception of bias.  Further, the point was not taken before the magistrate.  That consideration, alone, would usually be fatal to it.

11                  The second point upon which counsel for the appellant placed emphasis was the fact that in the hearing in the Tribunal, the appellant was questioned and responded in English although he had requested the assistance of an interpreter.  I accept that he had made such a request.  His request for a hearing is exhibit 1.  It is annotated with the words ‘Applicant spoke English.  Interpreter not used’.  I understand this to mean that an interpreter was present, but the interview was conducted in English.

12                  I have not examined in detail the transcript which is in the material.  However I have read it quickly.  No particular aspect has been drawn to my attention.  It seems to me that the applicant was able to understand English and respond appropriately.  He has said on at least one occasion that he can read English.  Indeed, he told the Tribunal as much.  He has also said that he has no problems with English.  The transcript seems to confirm this view.  It may have been easier for him in some respects had the interpreter been used, but he does not seem to have asked for assistance at any stage.  Further, one knows from experience that the use of an interpreter can lead to more confusion that it avoids.  I see no reason to infer that the appellant has been in any way prejudiced by the way in which the proceedings were conducted.

13                  The problem, it is submitted, was exacerbated by the fact that at the beginning of the hearing the Tribunal made the following statement:

‘There are really two main reasons for having the Hearing the first is from the material I have already read I have some questions that I would like to ask you.  The second and more important reason is that it is your opportunity to tell the Tribunal everything that you think is important to your refugee application.  So even if I don’t directly ask you things if you think things are important and that you know about then you make sure that you tell me those things.  I will give you various opportunities to do that.  I don’t know if you are nervous but sometimes people who come to the Tribunal are nervous really today is just only a discussion between you and me and I will speak to Mr Hussein later to see if he has any issues that he wishes to address, but really it is just a discussion which is important to your application and the information that I need to be able to make a decision and if so at any time you got questions to ask me then make sure you ask them break at any time, water or anything, just let me know.  Okay.  I can only really say try not to be too nervous because it is only a discussion.  Okay.  I might like to just check with Mr Hussein if there is anything he wants to raise initially.’

14                  Mr Hussein was an immigration agent who was assisting the appellant. 

15                  It is said that to describe the proceedings as a ‘mere discussion’ was significantly to misrepresent their nature.  The word “hearing” had been used at an earlier stage in the passage to which I have referred.  The Tribunal was clearly seeking to put the appellant at ease and to describe the process in a way which a lay person might understand.  There may be circumstances in which, to describe the hearing as a discussion, would be misleading, but I do not think that the present circumstances fall into that category.  I certainly see no reason for inferring that the appellant’s failure to seek the assistance of the interpreter can in any way be attributed to the statement that the proceedings were by way of discussion.

16                  There was nothing wrong with the course adopted by the Tribunal on this occasion.  I compliment it upon its attempts to explain the proceedings and to put the appellant at ease.  However tribunals, in adopting such a process, must make sure that they do not mislead.  As I have said, I am satisfied that there is no reason to believe that the appellant was misled in this case.

17                  It is then said that the appellant was denied procedural fairness because the Tribunal did not, at any time, identify to him documents to which it had reference in deciding the case.  No particular document has been identified as falling into this category. It is really only an assertion that there must have been documents to which the Tribunal referred, which documents the appellant has not seen.  That really is an end of the matter.  However there is another answer to this criticism.  I have identified the fact that the decision was primarily based upon the earlier decision of the Tribunal pursuant to s 416.  The appellant was a party to that earlier decision and had an opportunity to seek review of it.  He did not exercise that right until 2000 and was then unsuccessful.  It is reasonable to infer that he was aware of the documents which went to make up that decision.  In any event, it was the earlier decision upon which the Tribunal relied, not the documents.  In those circumstances it seems to me that there is nothing in the point.

18                  A number of other grounds were formally put and appear from the appellant’s written outline.  Before the magistrate the appellant sought to lead further evidence as to the risk of persecution in India.  The magistrate rejected that evidence.  No proper basis for leading further evidence was identified, either before the magistrate or before me.  The magistrate’s function was to consider the availability of relief for jurisdictional error. The evidence was not evidence of a kind which could be led in connection with such an application.  It went only to the merits of the case.

19                  It is pointed out in the outline that the appellant has had an unblemished record for 21 years.  It is conceded that his record has no real relevance to the function which I must perform. 

20                  It is said that the magistrate was ‘wrongly distracted by supposedly unparticularized propositions in the notice of appeal’.  The only respect in which this could be a ground of appeal would be if the distraction in some way caused the magistrate to fall into error.  The proposition is otherwise irrelevant.

21                  It is said that the appellant was entitled to procedural fairness in the second hearing.  No doubt that is true, but no failure to accord him procedural fairness has been demonstrated.

22                  The other paragraphs of the outline deal, in slightly more detail, with the issues to which I have already referred.  It is not necessary that I deal with them individually.  I am of the view that the appeal must be dismissed.

23                  The first respondent seeks the costs of the appeal.  The appellant resists upon the basis that he is impecunious and on the basis that he had an arguable case.  Such arguments are not uncommon, and they are relevant to the exercise of the general discretion.  Nonetheless, and despite the unfortunate circumstances of this case, it seems to me that it is appropriate that the successful party have the costs of the appeal.  I order that the appellant pay the first respondent’s costs to be taxed. 

24                  I order that the name of the first respondent be amended by deleting the words ‘and Indigenous’.  I also order that the so-called second respondent, the ‘Federal Magistrates Court, Sydney’, be deleted from the title of the action and that any party other than the appellant, the first respondent and the second respondent be dismissed from the proceedings.  I further order that the reference in the title of the proceedings to the Refugee Review Tribunal as ‘Third Respondent’ be amended to ‘Second Respondent’.

Associate:

Dated:         17 November 2006