NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 39 (11 March 2003)

Last Updated: 12 March 2003

FEDERAL COURT OF AUSTRALIA

NASF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 39

MIGRATION - appeal - primary judge dismissed application for judicial review of Refugee Review Tribunal´s decision affirming refusal of protection visa application - denial of procedural fairness alleged - allegations of bias against the Tribunal raised for the first time at appeal stage - where bias allegations unsubstantiated.

Migration Act 1958 (Cth)

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 referred to

S157/2002 v Commonwealth [2003] HCA 2 referred to

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 referred to

NASF OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1115 OF 2002

MOORE, TAMBERLIN & HELY JJ

SYDNEY

11 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1115 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NASF OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, TAMBERLIN & HELY JJ
DATE OF ORDER:	11 MARCH 2003
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	N 1115 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NASF OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, TAMBERLIN & HELY JJ
DATE OF ORDER:	11 MARCH 2003
WHERE MADE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1 This is an appeal from a judgment of a judge of this Court given on 4 October 2002. The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") to refuse to grant the appellant, his wife, and his child protection visas under the Migration Act 1958 (Cth) ("the Act").

THE FACTS

2 The appellant is an Indian national who arrived in Australia on 15 March 1999 with his wife and child. They applied to the Department of Immigration and Multicultural Affairs ("the Department") for protection (Class AZ) visas on 13 April 1999. Those applications were refused on 31 May 1999 by a delegate of the Minister. This decision was affirmed by the Tribunal on 28 June 2002, although the decision was not handed down until 23 July 2002. The Tribunal had before it the Department's file, written submissions, and oral evidence given by appellant. The appellant gave evidence on two separate occasions, first on 12 February 2001 and again on 27 April 2001. The appellant's claims raised a range of different issues. The following is a summary of those claims drawn from the Tribunal's reasons.

3 The appellant was born into a low caste family on 22 April 1958, in Tunighata, in West Bengal, India. His father was a teacher, was active in politics and was affiliated to the Congress Party. The appellant completed 14 years of education, culminating with study at the University of Calcutta, where he received an Arts degree in 1980. He and his wife married in 1982, and their son was born in August 1987. While at University, the appellant became involved in politics, and finally joined the Congress Party in 1981 after completing his degree. He belonged to the "Habra unit Congress" and was considered to be an "extreme progressive" of the party. For two years he served the party on a full time basis. After University the appellant successfully undertook competitive examinations to gain a position at the United Bank of India, where he worked for 16 years. During this time he spent 12 years as the regional secretary of the United Bank of India Employees Association, and also held the position of assistant general secretary for the Central committee of the United Bank of India Scheduled Castes/Scheduled Tribes Welfare Organisation. This latter activity was resented by some of his colleagues.

4 In May 1994 a group of men from the CPI(M) (a rival political party) attacked, ransacked and looted the appellant's home. The appellant reported this to the police, however they took no action.

5 In 1997 the appellant joined a breakaway group of the Congress Party, known as the Trinamul Congress ("TC"). This put the appellant in conflict with his own Congress Party, as well as the rival CPI(M). The appellant was active in this group, holding meetings, recruiting members, and holding the position of executive member of the Habra Block TC committee. On 27 December 1997 at Habra Railway station, the appellant was physically assaulted by CPI(M) activists, and was hospitalised for 5 days. This attack was reported to police but was not acted upon. Following an election in February 1998, in which the CPI(M) was successful, the appellant was targeted for his role in the TC's campaign. In late February 1998, he was ambushed by a group of CPI(M) supporters who were armed with weapons. The appellant used his bicycle to escape the attackers.

6 In August 1998 the appellant attended a protest in Calcutta, at which the protesters were attacked by the police. The appellant was injured and hospitalised as a result. In November 1998 the appellant and some friends were travelling home from Habra station, when they were surrounded by CPI(M) members. One of the appellant's friends was killed in this confrontation. The appellant fled the scene and escaped.

7 The appellant also said he experienced difficulties in India as a result of his religion (Christian), to which he and his wife converted in 1999. He and his wife were harassed in many different ways, and in January 1999 they were summoned to a village panchayet and ordered to cease contact with Christian missionaries and the church. The appellant also noted that generally, there had been a history of violence between Hindus and Christians in India in the recent past.

8 In addition to persecution on political and religious grounds, the appellant raised persecution as a result of his caste. The three elements in combination have resulted in a situation where he is hated and targeted by a number of different groups.

THE TRIBUNAL'S DECISION

9 The Tribunal considered the account given by the appellant. It accepted that he was a national of India and that he had joined the Congress Party in 1981, and served in the party on a full time basis for two years. The Tribunal also accepted the appellant's account of his employment history and involvement with various organisations through the United Bank of India.

10 In relation to the appellant's claims of persecution on the grounds of political opinion, the Tribunal accepted a number of matters, including that the appellant joined the breakaway TC faction, and that he was attacked at the railway station in December 1997. The other claims in relation to the appellant's political activities were not accepted. Based on the Tribunal member's impression that the appellant had suffered only one politically motivated attack, he was not satisfied that the appellant was at risk of persecution on account of his political opinion.

11 In relation to the appellant's claims of persecution based on religion, the Tribunal member noted that Christians constitute the second largest minority in India. It did not accept the appellant's claims in relation to persecution by fellow villagers, finding them implausible.

12 Finally, the Tribunal considered the appellant's claims in relation to caste. The Tribunal member noted that this claim was only recently pressed by the appellant. While it accepted the caste system in India still operates to restrict opportunity to some extent for people in lower castes, the Tribunal found the appellant's claims were exaggerated.

13 The Tribunal summarised the matter thus:

...while there may be a kernel of truth in all of the [appellant's] claims...I am satisfied that there is significant exaggeration and embellishment, if not fabrication, in the claims of [the appellant] and I am satisfied that he does not face a real chance of "serious harm" for any of the Convention reasons advanced by him. I confidently conclude that the chances of the [appellant] suffering Convention based persecution upon his return to India are remote and that his fears of Convention based persecution are not well founded. He is not a refugee."

The Tribunal affirmed the decision of the delegate.

ISSUES BEFORE THE PRIMARY JUDGE

14 The application for review of the Tribunal's decision was based on two grounds. The first was that the Tribunal failed to accord the appellant procedural fairness. This was said to be so because first, the Tribunal failed to consider all relevant material including the `totality' of the evidence before it and secondly, the Tribunal considered Indian legislation without advising the applicant which particular piece or pieces of legislation were being considered. The second ground was that the delegate had not complied with his statutory obligations to convey to the Tribunal all the evidence on which his decision was based.

15 At the hearing before the primary judge the appellant was legally represented. At that time, s 474 of the Act, as construed by the Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, precluded consideration of whether there had been a denial of procedural fairness. Since then the High Court has construed s 474 in S157/2002 v Commonwealth [2003] HCA 2, and determined that denial of procedural fairness can constitute a ground of judicial review though, in relevant cases, subject to the effect of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth).

16 At the hearing before the primary judge, the appellant's counsel failed to identify any specific material that the Tribunal had failed to take into account. After considering the reasons of the Tribunal, the primary judge dealt with this ground at para [17]:

No error, let alone a jurisdictional error, is disclosed by the RRT stating that it had carefully considered all the evidence in the matter. There is nothing to indicate that the statement, understood in context, was inaccurate or inappropriate. Nor is it correct to say that the RRT must identify with precision each part of the evidence relied upon. There is nothing in the Migration Act which imposes any such duty on the RRT: cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323.

17 As noted earlier, the appellant made two specific allegations, namely that the Tribunal failed to inform the appellant of the Indian laws it relied on and that the delegate had failed to comply with statutory requirements to provide the Tribunal with all the evidence on which he based his decision. The primary judge found that the first complaint did not amount to a denial of procedural fairness. In relation to the second complaint, the primary judge considered the recent High Court decision of Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. His Honour said, at [26] - [30]:

In Muin, there was an agreed statement of facts. According to the agreed statement, the Part B documents were in the possession and control of the Secretary at all material times and the Secretary considered them to be relevant to the review of the delegate's decision by the RRT (see at 605, per Gleeson CJ). The agreed statement also recorded in detail how and to what extent the electronic documents could be accessed by members of the RRT.

Four members of the High Court considered the issue. Gleeson CJ and McHugh J held that the Secretary had fulfilled the statutory duty by identifying the Part B materials so that they could be accessed by the RRT member through computer databases or libraries: see at 608, per Gleeson CJ; at 629, per McHugh J. Gaudron J said (at 614) that she could see no reason why documents could not be given to the registrar electronically, by means including making them available on the databases to which the registrar has access. In any event, her Honour expressed the view (at 614) that the Secretary's non-compliance with s 418(3) would not, of itself, constitute jurisdictional error on the part of the RRT, since compliance with s 418(3) is not a precondition to the RRT's conduct of review proceedings or to its making of a decision on review. (Gaudron J was considering the legislation, especially ss 424 and 425 of the Migration Act prior to amendments effected by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth).

Kirby J dissented on the s 418(3) issue, taking the view that the word "give" indicated that a physical transfer of documents was required: see at 651.

In the present case, the applicant has adduced no evidence to show that the Part B documents were not sent to the RRT. Nor is there any evidence to show that the Part B documents were not available to the RRT through electronic databases or libraries. The observations made by the RRT in its reasons do not assist the applicant on either of these questions. There is therefore no basis for finding that the Secretary contravened s 418(3) of the Migration Act. It is not necessary to consider whether a breach of s 418(3), considered independently of s 474(1) of the Migration Act, would constitute a jurisdictional error for the purposes of the relief available under s 39B(1) of the Judiciary Act.

If, contrary to my view, the RRT denied procedural fairness to the applicant, s 474(1) of the Migration Act prevents him relying on that denial as a basis for relief under s 39B(1) of the Judiciary Act. So much was decided by a majority of the Full Court in NAAV v Minister (Black CJ, Beaumont and von Doussa JJ; Wilcox and French JJ dissenting): see at [648], per von Doussa J (with whom Black CJ and Beaumont J agreed); NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294, at [17], per curiam.

18 The application was dismissed, with costs.

ISSUES IN THE APPEAL

19 The notice of appeal in this matter was filed on 23 October 2002. It made an irrelevant reference to what used to be s 476(1)(c) though fairly clearly alleged that the Tribunal was biased ("had a close mind") and did not afford the applicant procedural fairness. In written submissions filed in support of his appeal, the appellant set out a series of specific complaints (though mainly in very general terms) about the approach of the Tribunal. Only one complaint appeared to raise a matter of detail, namely that the Tribunal had not had before it a submission prepared by the appellant before the hearing on 12 February 2001. As it turned out, this was ultimately only a complaint (perhaps only an observation) that the submission was not in the appeal book prepared for this appeal. Having regard both to the "green book" that had been before the primary judge and the reasons of the Tribunal, the Tribunal had those submissions and considered them.

20 In other respects, the issues sought to be raised by the appellant are the unparticularised allegation of bias and the allegation that he was denied procedural fairness. No case of bias was sought to be made out before the primary judge when the appellant was legally represented. Counsel for the respondent opposed this issue being raised on the basis that the hearing before the primary judge may have been conducted differently. We agree. It is a serious allegation and a Full Court should, at least ordinarily, allow such an allegation to be raised for the first time in an appeal only if there was some material suggesting the allegation was of substance (and assuming no prejudice would be occasioned by allowing the issue to be raised for the first time in an appeal). In the present case our attention was not drawn to any material which suggests the allegation is of substance. Indeed the allegation is, we apprehend, another way of restating the appellant's contention that on the material he presented, the Tribunal should have reached the opposite conclusion concerning his claim for a protection visa.

21 As to the question of procedural fairness, it was an issue dealt with by the primary judge who gave cogent reasons, with which we agree, as to why the appellant's various contentions should be rejected. The fact that the judgment of the High Court in S157/2002 v Commonwealth (supra) establishes that this ground of review is available, does not assist the appellant. As just noted, it was dealt with by the primary judge even though, at least on one view, it may have been unnecessary for his Honour to have done so.

22 The appellant has not demonstrated any error on the part of the primary judge nor any judicially reviewable error on the part of the Tribunal. The appeal should be dismissed with costs.

I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Tamberlin & Hely.

Associate:

Dated: 11 March 2003

The Appellant appeared in person.
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	19 February 2003
Date of Judgment:	11 March 2003