|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
Last Updated: 28 February 2006
FEDERAL COURT OF AUSTRALIA
VSAJ v Minister for Immigration & Multicultural & Indigenous Affairs
MIGRATION – appeal from Federal Magistrates
Court – whether Refugee Review Tribunal considered essential integer of
appellant’s
claim – whether appellant denied procedural fairness by
reason of lack of interpreter – whether Refugee Review Tribunal
biased
VSAJ
v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE
REVIEW TRIBUNAL
VID 1165 of 2004
WEINBERG
J
28 FEBRUARY 2006
MELBOURNE
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
|
BETWEEN:
|
VSAJ
APPELLANT |
|
AND:
|
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
|
THE COURT ORDERS
THAT:
1. The Refugee Review Tribunal
be joined as a respondent to this proceeding.
2. The appeal be
dismissed.
3. The appellant pay the first respondent’s
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
|
AND:
|
REASONS FOR JUDGMENT
1 This is an appeal from a judgment of Phipps FM dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"). By that decision, the Tribunal affirmed a decision of a delegate of the respondent Minister refusing to grant the appellant a protection visa.
2 The appellant is an Ismaili (Shia) Muslim, and a national of India. He formerly lived in Bombay (Mumbai). He arrived in Australia on 13 August 2001 on a visitor visa valid for three months. In his application for that visa he stated that he wanted to visit Australia on a "honeymoon tour". He claimed that he was the proprietor of a business known as "the Shoe Palace", and that he had worked there for some nine years.
3 On 25 September 2001, the appellant lodged an application for a protection visa. On 14 February 2002, that application was rejected by the Minister’s delegate. On 5 March 2002, the appellant applied to the Tribunal for review of the delegate’s decision. In a written statement to the Tribunal he claimed that he had joined the Muslim League in 1996, and that he had been appointed a senior member of his branch in 1998. He had earlier stated at an interview before the delegate that he had joined "the social wing" of the Muslim League as it was supportive of fellow Muslims and provided money for children to attend school and for orphan girls to marry. He had said that the social group "was not involved in politics", and that its members were not involved in demonstrations, disruption of Hindu events, or any violence.
4 The appellant recounted a series of incidents whereby he and other Muslims had been attacked by Hindus. He claimed that after one such incident he had been hospitalised with severe injuries. However, rather than arresting those responsible, the police had taken him into custody, and threatened him with torture if he did not sign a false statement admitting that he had been responsible for attacks upon Hindus. He said that he had spent some time in prison before his parents paid a large bribe to have him released.
5 The appellant claimed he was again arrested after he returned home, this time while staying at his uncle’s house in Surat. On this occasion, the police told him that he was to be charged with "supplying illegal weapons to Muslims". He claimed that the police tortured him, but allowed him to contact his solicitor the following morning. His solicitor then arranged for his release on bail "after paying the police an enormous bribe".
6 The appellant said he then fled to Bangalore. He remained there for some eight or nine months until he was apprehended. He was imprisoned, and a further bribe paid for his release. He was told by the Chief Inspector of the Crime Branch of the New Delhi Branch of the Indian Intelligence Service that this was the last time that he would be released from custody, and warned that he should leave India as soon as possible.
7 The appellant claimed that for the next six months he went to stay with a friend in Pune, near Bombay. In October 2000, he was again intercepted by the Chief Inspector who asked him why he had not left India. The appellant said that he could not afford to do so. The Chief Inspector, who was a Muslim, again warned the appellant that he should leave India. The appellant did so, on 12 August 2001, using a legitimate passport. He claimed that he had bribed relevant officials to enable him to leave the country.
8 On 30 June 2003, the Tribunal affirmed the decision not to grant the appellant a protection visa. In its findings, it concluded that the appellant was an untruthful witness whose evidence had been "inconsistent, rehearsed and far-fetched in significant respects". The Tribunal said that the appellant’s evidence that he feared persecution for religious reasons was inconsistent with authoritative reports that religious groups in Maharashtra (the State in which Mumbai is located) generally have amicable relations, and that the government of that State does not discriminate against Hindus or Muslims.
9 The Tribunal found that the appellant’s account of his movements contained a number of inconsistencies, and that he was confused about certain quite fundamental matters. Yet he appeared to have a precise recollection of the amount of time that he had spent in hospital and in prison. He also had little difficulty recalling exactly how long he had resided in different parts of India. In the Tribunal’s view, there was a striking correlation between what the appellant could recall with precision, and what was contained in his written statement. It was on that basis that the Tribunal found that the appellant’s evidence had been "rehearsed". The Tribunal also regarded it as significant that the appellant could not account for the period of six months immediately preceding his departure from India. Indeed, he had said nothing about that period in his initial interview, or in his written statement to the Tribunal.
10 The Tribunal found that the appellant’s attitude towards obtaining corroborative material to support his claims was "perverse". When first asked about the documents that ostensibly supported his claim to have arranged for bribes to be paid through his lawyer, the appellant said that he could obtain those documents, and that they would "prove" his case. When the matter next came before the Tribunal, at the second hearing of his claim, the appellant stated that his lawyer had "disappeared" from Mumbai, and that the documents were therefore unavailable. The Tribunal rejected his application for a further adjournment, and described his evidence on this point as "thoroughly unconvincing".
11 In summary, the Tribunal found the appellant’s evidence to be far-fetched, and unconvincing in relation to the series of bribes that he claimed to have paid to the Indian authorities, and in relation to his supposed encounters with the Chief Inspector. It therefore did not accept that he had been mistreated by those authorities, or that they had charged him with any criminal offence for religious reasons, or any other Refugees Convention reason, or that he had experienced any persecution by Hindus in India by reason of being a Muslim.
12 Phipps FM dismissed the appellant’s application for judicial review on the basis that no jurisdictional error had been demonstrated. In his Honour’s view, the appellant had simply invited the Federal Magistrates Court to engage in merits review.
13 The appellant was not legally represented in the appeal to this Court. His notice of appeal does not identify any grounds of appeal. His written contentions are difficult to follow, although his oral submissions were somewhat clearer. In substance, his complaints appear to be as follows:
• the Tribunal failed to address an integral aspect of his claim, namely his contention that he was a member of the Muslim League; • he was denied procedural fairness by reason of the Tribunal’s failure to provide him with the services of a competent interpreter; and • the Tribunal was biased, by which the appellant appeared to mean actually, and not merely ostensibly, biased.
14 In addition, the appellant sought to have the appeal to this Court adjourned for two to three weeks in order to enable him to obtain certain documents that he claimed would assist his case. Although he did not spell out the precise nature of those documents, it was intimated that some of them at least would support his contention that he had been hospitalised after an attack by Hindus. It is possible that he had in mind other documents as well.
15 As regards the first of these complaints, it is true that the Tribunal made no finding, in terms, as to whether the appellant was a member of the Muslim League. There is no doubt that it was aware of that claim because it identified it as having been made by the appellant in his written statement to the Tribunal dated 4 March 2002.
16 In my view, the tenor of the Tribunal’s reasons, when read as a whole, makes it clear that it was prepared to proceed on the assumption that the appellant was, indeed, a member of the social wing of the Muslim League. It was not necessary for the Tribunal to make a finding specifically in those terms. It must be remembered that the appellant’s case turned essentially upon a claim of religious persecution, and not really upon a claim of persecution by reason of political opinion, actual or imputed. Indeed, as previously indicated, his position was that the social wing of the Muslim League was simply a charitable body, unconnected with any political stance that may have been taken by the League itself. His case regarding religious persecution was considered on its merits and he was basically found to be untruthful. There is no substance in his contention that an essential integer of his claim was ignored.
17 The appellant’s complaint regarding the failure to provide an interpreter seems to me to be equally without merit. It is true that there was no interpreter at the first hearing on 10 October 2002. However, an interpreter was provided on 12 June 2003, when the hearing resumed. The transcript of that second day of hearing records that the appellant was content to proceed without an interpreter, but the Tribunal, perhaps acting out of an abundance of caution, had arranged for one to be present to assist where required. The Tribunal acknowledged that there had been some problems with communication on the first occasion. Indeed, that was one of the reasons why an opportunity had been afforded to the appellant to have a second hearing.
18 It does not follow from the difficulties that were encountered on the first occasion that the appellant was denied procedural fairness by the Tribunal. A fair reading of the transcript of that first hearing indicates that the difficulties encountered with communication were by no means as great as sometimes occurs, even when an interpreter is present. My impression is that the appellant was able to communicate, not perfectly, but adequately, and that any difficulties that were not resolved could have been resolved on the second occasion.
19 Turning to the second hearing, when the appellant appeared to have some difficulty in understanding, or responding, to a particular question, the interpreter stepped in. That appears to have occurred only once, briefly.
20 There are indications in the transcript of both hearings that occasionally things that were said were difficult to hear or decipher. These are recorded by the transcript operator as "indistinct". Such references are by no means numerous. There is nothing particularly unusual about a transcript containing such references.
21 The complaint of bias appears to be based, in part, upon the Tribunal’s unwillingness to grant the appellant a further adjournment to enable him to seek the documents that he had earlier indicated that he would procure. In addition, there were indications in both transcripts that the Tribunal was growing increasingly impatient with the appellant, and that it plainly regarded him as evasive. By the end of the second hearing, the Tribunal appeared somewhat exasperated with him. It seems that the Tribunal regarded his application for a further adjournment in order to obtain additional documents as little more than procrastination.
22 It may be that some of the Tribunal’s language, when questioning the appellant, could have been couched in more restrained terms. Nonetheless, it was open to the Tribunal, on the evidence before it, to find that the appellant’s claims were untruthful. In essence, it concluded that large parts of his story had simply been fabricated. It did so on the basis of the material before it, having seen and heard the appellant give his account, and having had regard to the country information that bore upon that account.
23 There is nothing in the transcript, or any of the material before this Court, to suggest that the Tribunal had prejudged the appellant’s case such that it could not bring an open and dispassionate mind to the determination of his claims. The Tribunal was under a duty to accord the appellant natural justice. However, it was not under a duty to avoid using language that indicated that it was sceptical of some of his answers to the questions that were put to him. The Tribunal is an administrative body which exercises inquisitorial functions. Though it is required to act judicially, it is perfectly entitled to challenge assertions made by applicants, and to indicate disbelief where that is warranted.
24 I can see no appealable error in the reasons for judgment of Phipps FM. There is no justification for granting the appellant’s application for an adjournment of this appeal so that he can present further evidence to this Court. The appellant has had ample time to obtain such evidence if it exists, and if it would in any way assist his case. No adequate explanation for his failure to present such evidence to the Federal Magistrate has been provided, and apart from some non-specific assertions from the bar table, there is nothing to suggest that such evidence would be of any utility in demonstrating jurisdictional error on the part of the Tribunal.
25 It follows that the appeal must be dismissed, with costs.
Associate:
Dated: 28 February 2006
|
|
Appellant appeared in person
|
|
|
|
|
Counsel for the Respondent:
|
Ms BJ Macdonnell
|
|
|
|
|
Solicitor for the Respondent:
|
Australian Government Solicitor
|
|
|
|
|
Date of Hearing:
|
28 February 2006
|
|
|
|
|
Date of Judgment:
|
28 February 2006
|
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/162.html