Applicant S1594/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1659 (20 November 2006)

Last Updated: 6 December 2006

FEDERAL COURT OF AUSTRALIA

Applicant S1594/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1659

APPLICANT S1594/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD1124 OF 2006

JESSUP J
20 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1124 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1594/2003 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	20 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1124 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPLICANT S1594/2003 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	JESSUP J
DATE:	20 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 In this matter the appellant appeals from a judgment given by the Federal Magistrates Court on 23 May 2006 dismissing applications for writs of certiorari, mandamus and prohibition in relation to a decision made by the Refugee Review Tribunal on 31 January 1996 in which the Tribunal affirmed a decision of the delegate of the respondent Minister not to grant a protection visa to the appellant as a refugee pursuant to the Migration Act 1958 (Cth) ("the Act").

2 According to the material before the Tribunal, the appellant was, at the time, a 35-year-old male from India. He arrived in Australia in September 1994 on an Indian passport issued in January of that year and travelling on a visitor’s visa. He based his claim for a protection visa upon a number of circumstances, but the ones which remain relevant at this stage were referred to by the Tribunal in the following terms in which it summarised the claims which he had made at the interview with the delegate:

... from 1984, in Delhi the appellant put up posters for the Akali Dal ‘Mann’ Party, though he was not a member of the party; his actions [taking part in demonstrations and putting up posters] were ‘spontaneous’, and done by him as an individual, not as a member of any group; he learnt about demonstrations through speeches at the temple; he was never detained as a result of participating in demonstrations because he got away, but as a result of someone complaining about him putting up posters, and saying slogans at protests, the police started making inquiries about him at his home from mid-1993; the applicant was home only once when the police came to his home, and on that occasion, he hid on the roof...

3 Those aspects of the appellant’s claim were significant in the proceedings before me today because his counsel contended that there was a particular aspect of the decision of the Tribunal which demonstrated jurisdictional error and which had not been correctly addressed by the Federal Magistrate. An important element of the appellant’s claims before the Tribunal was that the police were interested in him. When the Tribunal asked the appellant what he thought would happen if he returned to India, he said that the police would catch hold of him. The Tribunal asked him why he thought this would occur, and he said that the authorities were interested in him because of his prior political activities in India.

4 The case which has been advanced in court today on behalf of the appellant is that the prospect of his apprehension by the police because of his involvement in the erection of posters and his participation in protests and demonstrations was not, as such, dealt with by the Tribunal. It was submitted on his behalf that that aspect of his case was an integer as it was called by the Full Court in Htun v The Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]. The same point was apparently advanced before the Federal Magistrate, and in her reasons she dealt with it as follows (at [42]):

The Tribunal did not err in omitting to make a specific finding as to whether or not the Applicant was of interest to the police because of his participation in demonstrations in support of Sikhs. On a fair reading of the Tribunal decision, it is quite plain that the Tribunal was aware of the Applicant’s assertions of having participated in demonstrations and having put up posters. Indeed, as stated earlier in these reasons, the Tribunal accepted that the applicant participated in demonstrations and it referred specifically to the material in which the Applicant stated he had put up posters. However, it concluded that the Applicant was not of interest to the police. That is a finding of fact that was open to the Tribunal on the material and evidence before it and for which it provided reasons.

5 As I have said, it has been contended today on behalf of the appellant that this was more than a mere finding of fact. It was said that this was a complete failure on the part of the Tribunal to turn its attention to a critical integer within the appellant’s claim to be a refugee as defined in the Convention. It is necessary, therefore, for me to turn to the Tribunal’s reasons to see whether there is any substance in this ground of appeal.

6 The Tribunal commenced by referring to the decision under review and to the legislative framework by which its task was governed. It then set out background material which it drew from the appellant’s protection visa application and from the departmental records including those which related to the interview with the delegate. The Tribunal then summarised the evidence that was given at the hearing by the appellant, and it was in the course of that summary that the Tribunal set out the appellant’s apprehensions as to what would occur if he was obliged to return to India as I have previously indicated.

7 The Tribunal then referred to the law, and specifically to the exposition of the law given by Gray J in Woudneh v Rodney Inder and the Minister for Immigration and Ethnic Affairs [1988] FCA 583. The Tribunal instructed itself as to what constituted a well-founded fear, and considered the concept of persecution within the context of the Convention. The Tribunal then turned to the matter of inconsistencies in evidence. The Tribunal instructed itself that inconsistencies in the evidence might be relevant in its assessment of the claim which it had before it. It then turned to its findings in the actual case, and under the heading "The Applicant’s Claims" the Tribunal said:

The evidence given by the applicant in his application form lodged on 30 December 1994, in the departmental interview held on 14 July 1995 and at the Tribunal hearing of 19 January 1995 was inconsistent in many matters of substance. The Tribunal notes that substantial inconsistencies in evidence make it difficult for the Tribunal to ascertain what is the case that an applicant is seeking to make. Inconsistencies on substantive points do not necessarily lead to rejection of the whole of an Applicant’s evidence for lack of credibility; however, they do make the determination of what is true of the applicant’s evidence, and what is not, harder for the decision-maker.

8 There follows a lengthy paragraph in the Tribunal’s reasons in which the Tribunal referred to many respects in which different aspects of the appellant’s evidence and of his case generally were impossible to reconcile with other aspects. The Tribunal’s conclusion of the matters referred to in that paragraph was that in the light of the inconsistencies to which it referred, the appellant was not generally credible. The Tribunal then set out a paragraph in which counsel who appeared before me today accept it made reference to the matters which it was prepared to accept. In that paragraph, the Tribunal said:

However, after consideration of the whole of the Applicant’s evidence, the Tribunal has determined the Applicant’s case on the following claims, as being the evidence given under oath in person by the Applicant to the Tribunal: The Applicant’s family home in Delhi was partly burnt in the riots of 1984; the family did not suffer personal injury in the riots; the family sought and obtained police protection in the riots in that they were allowed to stay on police property for 10-12 days and then the family returned to the family home in Delhi; the family stayed in the family home while it was being restored; from 1984 until he left India in 1994, the Applicant sometimes went to Punjab and stayed in the family house in Punjab; in Punjab, he sometimes spoke with Akali Dal members at the temple which he attended; the Applicant never experienced any problems with staying in Punjab; the Applicant sometimes changed temples to avoid potential problems if he heard that a government agent was at a current temple; the Applicant participated in some demonstrations in Delhi from time to time, of people seeking compensation for damage incurred in the 1984 Delhi riots; the Applicant used a contact, a friend, in order to facilitate his passport and another to facilitate his exit at the airport; the Applicant’s family (parents, wife and children) remain in the family house in Delhi.

9 The Tribunal then considered the appellant’s claims that he would be persecuted on the basis first of his religion and secondly of his political opinion or race. It is the second aspect which has become relevant at this stage of the proceedings principally, the political opinion which the appellant claims to hold, that is to say one which is associated with the Akali Dal movement and his race which he described as Sikh. Under the heading of political opinion/race, the Tribunal reiterated that it accepted that the appellant took part in some demonstrations in Delhi which sought compensation for victims of the 1984 riots with Akali Dal members. The Tribunal noted that the appellant had said that he had been arrested at a demonstration with 14 others of the Akali Dal (Mann) Group in September 1993, had been detained for two hours, and had been beaten and then released. It noted that he claimed that, from 1992, the police started visiting his home to look for him, and had continued to do so even after his departure from India.

10 Under the heading the Tribunal’s conclusions, the Tribunal accepted that involvement in the Akali Dal party, though a mainstream party, may involve some risk of detention, especially if one were a member of the Akali Dal (Mann) Group. The Tribunal continued:

However, the Tribunal finds that if the Applicant returned to India he would not face a real chance of persecution from his involvement with the Akali Dal, since the Tribunal finds that his participation was marginal.

The Tribunal proceeded to set out the basis of that finding.

11 The Tribunal then made an important and, it seems to me, a fairly uncomplicated finding. It said, ‘The Tribunal rejects the Applicant’s evidence as to the police interest in him.’ The Tribunal provided three reasons for rejecting that evidence. The first was the appellant’s evidence at the hearing as to when, where and why he was arrested. The Tribunal said that that evidence was inconsistent in matters of substance with his previous evidence. It said that it was not possible to reconcile his statement at the hearing that the only time he had been detained by the police was on 29 June 1993 with his statement in the departmental interview, that is to say his interview with the delegate, that he had been arrested while saying slogans outside a temple nor with his statement in his primary application that he had been arrested several times to which he there referred.

12 In the second place, the Tribunal said that the appellant had given completely different answers at different stages of the hearing in respect of matters relevant to his claim that the police were interested in him. This was so to such an extent that the Tribunal was unable to draw any conclusion as to which answer was correct. The Tribunal continued:

The Tribunal asked the Applicant whether anything further adverse had happened to him or the other members, after the alleged detention in June 1993; he answered it had not. However, later he said that the others had been detained again a few months before he left India, and as far as he knew, may still be in prison.

The Tribunal proceeded to give further instances of how the appellant’s inconsistent answers had made it impossible or at least difficult for the Tribunal to assess his claim that the police were interested in him.

13 The third basis upon which the Tribunal rejected that claim was that the appellant was issued with a passport in his own name and left India legally which, according to the Tribunal, indicated that the authorities were not interested in him at the time of his departure.

14 In summary, the Tribunal found that, if the appellant returned to India, he would not face a real chance of persecution from his involvement with the Akali Dal. The appellant’s case before me was that the Tribunal’s consideration of the matter of the police interest in him was confined to a forensic exercise of highlighting the inconsistencies in his statements and evidence given from time to time, and that it had paid no attention to what was alleged to be an integer of his claim, namely that the police interest was based specifically upon the appellant having been involved in the putting up of posters and in participating in demonstrations and protests.

15 On behalf of the Minister it was submitted that this is an unfair and, indeed, an inaccurate reading of the whole of the Tribunal’s reasons. If one reads those reasons broadly and fairly, it is manifest that the Tribunal was conscious of the elements of the appellant’s case and more than conscious of the fact that it was his participation in demonstrations and the like which was claimed to lie behind the police interest in him. It was also submitted on behalf of the Minister that the paragraph to which I have referred above and in which the Tribunal was prepared to make some factual findings in favour of the appellant made no reference to his putting up of posters and that, therefore, the factual circumstance that the appellant was involved in that activity must be taken to have been decided against him by the Tribunal.

16 If I were deciding this matter myself for the first time, it is quite probable that I would have expressed my conclusion in the same terms as par 42 in the reasons of the Federal Magistrate. I do not think there is any substance in the submission that, when it came to consider the matter of the extent of the police interest in the appellant, the Tribunal turned a blind eye to the very matters in which the appellant himself said the police were interested. If one reads those parts of the Tribunal’s decision in which it deals with the inconsistencies in the evidence and claims advanced on behalf of the appellant at various stages, one finds that what might generally be described as his political or quasi-political activities by which I refer to demonstrations, protests, slogans and the like lie at the centre of the inconsistencies with which the Tribunal was concerned.

17 On the matter of putting up posters, I am inclined to think that there is substance in the submission on behalf of the Minister that, in a case in which the Tribunal was otherwise almost at a loss to separate the wheat from the chaff, it did lay down certain factual findings for the purposes of deciding the case, and although it there referred to the appellant’s participation in demonstrations, it is significant that it said nothing about putting up posters.

18 There is also the third basis upon which the Tribunal rejected the appellant’s case that the police were interested in him, namely that he was able to obtain an Indian passport in his own name and to leave legally and apparently quite regularly. The Tribunal found that that indicated that the authorities were not interested in him. Although it was submitted on behalf of the appellant that, at another point in its decision, the Tribunal noted that the appellant had used a friend to facilitate him obtaining a passport and another friend to facilitate his departure from India, at this level I am bound to treat the Tribunal’s finding that the authorities were not interested in him by reason of the ease with which he obtained a passport and left India as a finding of fact which was within jurisdiction.

19 For those reasons, I am not persuaded that there was any error made by the Federal Magistrate in her conclusion that the decision of the Tribunal was not affected by jurisdictional error. The appeal will be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated: 30 November 2006

Counsel for the Appellant:	L J Karp
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 and 20 November 2006
Date of Judgment:	20 November 2006