Applicant A194 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 292 (12 November 2004)

Applicant A194 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 292

APPLICANT A194 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & DR IRENE O’CONNELL MEMBER REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SAD 93 of 2004

COOPER, MARSHALL & MANSFIELD JJ
12 NOVEMBER 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 93 OF 2004

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

BETWEEN:	APPLICANT A194 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT DR IRENE O'CONNELL MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGES:	COOPER, MARSHALL & MANSFIELD JJ
DATE OF ORDER:	12 NOVEMBER 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant pay to the first respondent her costs of and incidental to the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 93 OF 2004

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

BETWEEN:	APPLICANT A194 OF 2003 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT DR IRENE O'CONNELL MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGES:	COOPER, MARSHALL & MANSFIELD JJ
DATE:	12 NOVEMBER 2004
PLACE:	ADELAIDE

1 This appeal concerns the dismissal of an application for orders by way of prohibition, certiorari, mandamus and/or an injunction in relation to a decision of the Refugee Review Tribunal (the Tribunal) given on 10 February 2003. The Tribunal affirmed the refusal of an application for a protection visa under the Migration Act 1958 (Cth) (the Act). The Tribunal was not satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention), and therefore she did not satisfy the criterion set out in s 36(2) of the Act for the grant of a protection visa.

2 The appellant is a citizen of India. She is now 55 years of age. She is of Punjab Jat ethnicity and of the Sikh religion. She was divorced in 1989, and presently has no contact with her former husband. Her parents still reside in India, as does one of her brothers and her sister. Another brother resides in, and is a citizen of, Australia. She has three children, two daughters and a son, all of whom are either Australian citizens or permanent residents in Australia, and she has two granddaughters and one grandson who are also Australian citizens.

3 The application for prerogative relief was instituted first in the High Court on 9 April 2003. On 11 June 2003 it was remitted to this Court for hearing and determination. The grounds of jurisdictional error asserted initially in the affidavit in support of the application, and then in an amended application for review dated 29 January 2004, were substantially narrowed by the time the matter came to be argued at first instance.

4 The learned judge at first instance described the sole ground pursued on the application for review as being that the Tribunal breached its obligation to accord procedural fairness to the applicant by proceeding with the hearing with a male interpreter.

5 At the commencement of the hearing, counsel for the appellant sought to substitute amended grounds of appeal in the following terms:

‘1. The learned Trial Judge erred in law by not finding that the Refugee Review Tribunal had made a jurisdictional error by failing to accord the Appellant procedural fairness by refusing to grant an adjournment of the hearing to enable a female interpreter to be obtained and in addition to this by refusing to grant an adjournment of the hearing because the Appellant broke down during the course of the hearing and felt that she could not continue.

Counsel for the respondent did not oppose leave being given to so amend the grounds of appeal. Leave to do so is accordingly given.

6 It is appropriate to identify the appellant’s claims. She claims to be a refugee as defined in Art 1A(2) of the Convention, and by virtue of that status a person to whom Australia owes protection obligations under the Convention, because she fears persecution by the Indian authorities if she were to return to India by reason of her son-in-law’s involvement in the Sikh Separatist Movement. The learned judge at first instance recorded two passages in the Tribunal’s reasons identifying that claim. We agree that they reliably identify the nature of the appellant’s claims before the Tribunal. They are as follows:

7 The appellant told the Tribunal that neither she, nor her husband, nor her children had had any involvement in political groups or political activities in the past. She said she had not had any problems with the authorities in India prior to the marriage of her second daughter. That marriage occurred apparently in about late 1997.

8 As the Tribunal noted, the appellant’s evidence was inconsistent with her earlier claims. In her original application for a protection visa made on 3 November 2001, shortly after she arrived in Australia, the appellant asserted that it was known that she and her family were involved in the Sikh Freedom Movement, and that she feared persecution because of her political opinion in support of the Sikh Freedom Movement. She explained in that document that she had come to Australia to be a witness in a court case in Australia.

9 The application was supported by a declaration from Karak Singh Barjwa, the husband of her elder daughter, who confirmed that he arranged for her to come Australia to be a witness in a court case, and that he was present when the appellant was threatened by the defendants in that case, who said they would tell the Punjabi police that she is a terrorist and have her killed because she gave evidence against them. Subsequently, Mr Barjwa submitted a statutory declaration dated 27 January 2003, in which he clarified that he was not present when the threat was made, and that the threat was made to inhibit the appellant from coming to Australia to give evidence. In either event, the threat was made (if it was made) only in about the latter half of 2001 when the appellant proposed to come to Australia to give evidence, or subsequently, and could not account for the conduct which she said had happened to her since about early 1998. Moreover, the appellant later said she did not in fact give evidence in any court case because it was settled.

10 A further inconsistency was noted by the Tribunal. In the application to the Tribunal for review of the delegate’s decision made on 16 April 2002, the appellant focused her complaints on being persecuted because of an imputed political opinion of her ex-husband, together with the way in which the Indian authorities continued to mistreat Sikhs, at least in India.

11 The inconsistencies arose with the appellant’s evidence to the Tribunal on 14 January 2003. As noted, the appellant said that she had had no involvement in politics herself. Nor had any of her children had any involvement in politics. Nor had her husband. She explained her fear as arising from conduct of the police after her second daughter’s marriage in Australia in 1997 to VS. From about 1998, she was given a ‘very hard time’. The police were trying to find out about VS. The appellant agreed the police started to come from about 1997 onwards, and that she subsequently learned that VS had fled India to escape the authorities. She described in a little detail the ill treatment she claimed to have received as a result of the police visits to her after that time. Mr Barjwa came to India to assist her to go to Delhi because of her complaints about the way she was being treated, and subsequently arranged for her to come to Australia. She said there was no other reason, apart from the activities or perceived activities of VS that could lead to the police mistreating her in the way she described. It is not presently necessary to go into detail as to the nature of the mistreatment. It will be necessary to refer to that when addressing the grounds of appeal. The appellant described the mistreatment as starting a year after 1997 when the police found out that her second daughter had been married. In the course of the hearing the migration agent appearing for the appellant explained that VS had apparently been granted a protection visa because of a fear of persecution in India.

12 The Tribunal’s recitation of the claims made by or on behalf of the appellant from time to time were not criticised. It concluded that ‘she is not in genuine fear of persecution nor is there a real chance of persecution on her return to India’. It did not accept that the appellant had been arrested or harassed by the police because she is a Sikh or because of an imputed political opinion. It placed weight upon her inconsistent claims, as noted above, and regarded her explanation of the inconsistency at the hearing as unconvincing. It therefore did not accept the appellant or her family had any longstanding involvement in any Sikh militant groups.

14 The implausibility arose from the inconsistency of the claim with independent information that the Punjab police no longer pursue Sikh militant groups, that the marriage of her daughter to VS in Australia would not be known to the Punjab police, and even if it were the mistreatment of the appellant for that reason was not consistent with independent information. Its conclusion on that topic shows that it rejected the claim that the appellant was harassed by the Punjab police because her daughter in Australia married a person who in the past was involved in a Sikh militant group. The conclusion makes it clear that the word ‘following’ in the passage quoted above means ‘by reason of’ rather than simply a temporal connection.

15 Finally the Tribunal indicated it did not accept the claims (or hypothesis) put forward by the migration agent that the mistreatment of which the appellant complained was due to her being a Sikh, or due to her having been baptised by Sant Jarnail Singh Bhindranwale. He was killed in 1984, and the elapse of time of itself between the baptism and the onset of the mistreatment in 1998 caused the Tribunal not to accept that claim.

16 The learned judge at first instance was presented with only one ground of alleged jurisdictional error, namely the failure to accord the appellant procedural fairness by proceeding with its hearing with a male interpreter.

17 His Honour identified the Tribunal’s reasons for rejecting the appellant’s claims as being internal inconsistencies in her story and the independent country information it relied upon. As his Honour noted, details of what the appellant claimed she had suffered at the hands of the police were not important to the reasons of the Tribunal. His Honour also noted that the Tribunal was sensitive to the issue of what information the appellant was prepared to put before it in the presence of a male interpreter. She was also given the opportunity in the post hearing submission to address the Tribunal’s concerns about inconsistencies which had been raised, and ‘... anything else you would have liked to have told me’.

18 The learned judge at first instance concluded the appellant was not refused a reasonable opportunity to present her case, notwithstanding that there was no female interpreter present, so there was no breach of the rules of natural justice.

19 The appellant’s primary contention on this appeal about the lack of procedural fairness extends to matters beyond that argued at first instance. However, in our view, the several matters relied upon are not made out. That is not because there is any dispute about the nature of the Tribunal’s obligations to accord procedural fairness to the appellant. See e.g. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; Muin v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30.

20 The first reflects the matter argued at first instance, namely the failure to adjourn the hearing to arrange for a female interpreter.

21 The first argument was that, by reason of the absence of a female interpreter, the appellant was therefore inhibited from giving certain evidence.

22 When the appellant on 19 April 2002 applied to the Tribunal to review the delegate’s decision, she indicated she preferred a female interpreter to assist in her communications with the Tribunal. When she responded through her migration agent on 13 January 2003 to indicate she would attend the hearing, she made no such request. At the commencement of the hearing, the appellant indicated there would be certain things she could not explain through or in the presence of the male interpreter. The Tribunal said that a second hearing with a female interpreter could be arranged if the hearing progressed to a point where the appellant was not prepared to give certain evidence, or her daughter could act as interpreter for that part of the evidence. The appellant agreed to that course of action. The hearing proceeded then, without touching on those sensitive topics, until the appellant wanted to describe (but refrained from describing) details of the way she claimed she had been mistreated by the police. The Tribunal reverted to her ‘general story’ without then pursuing those details.

23 Shortly after that point of the hearing, the appellant indicated she did not feel well, and wanted to go home. She was apparently upset about bringing to mind those details. There was a 20 minute break. The appellant’s daughter had apparently left the building and was not readily available. The Tribunal was understanding of the appellant’s distress, and (as suggested by the appellant’s migration agent) indicated further questioning would be on general matters rather than on details of the alleged mistreatment, and that the appellant through her migration agent could then make a subsequent written submission. The appellant agreed. The hearing proceeded on that basis. On one later occasion, the appellant referred in a general way to the mistreatment she had suffered, and the appellant repeated that recalling certain incidents caused her to feel unwell. At one point the appellant mentioned a particular form of mistreatment. She was later asked if she wanted to add further information. She said:

24 The hearing lasted from 9.45 am to 12 noon, including the 20 minute break. In discussion with the appellant’s migration agent towards the end of the hearing, the Tribunal said:

25 Subsequently, the migration agent made a detailed written submission. It dealt, inter alia, with the hearing before the Tribunal. It sought to explain why the appellant then reported no troubles with the authorities prior to 1997, but had earlier reported a problem in 1991. The migration agent assumed (he said) the appellant was too upset by the hearing to think about those details. He also formulated the Convention reason for the mistreatment described as being:

26 The hearing with the male interpreter proceeded with the appellant’s acquiescence. The Tribunal was aware of the sensitivity of the appellant to giving evidence in detail as to how she had been mistreated by the police. The appellant made it clear in general terms that the mistreatment included serious physical abuse including rape. She indicated at the end of the hearing that a further hearing with a female interpreter was not necessary. The Tribunal nevertheless gave the appellant the opportunity to make further submissions in writing. She did so. The appellant could also then have renewed her request to give further evidence orally through a female interpreter had that been necessary. In respect of this aspect of her complaint, we agree with the learned judge at first instance that the appellant was not deprived of a reasonable opportunity to present her case: see WABZ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 687; [2004] FCAFC 30.

27 Counsel for the appellant sought to tie the absence of a female interpreter (or of an adjournment to secure one) to the loss of any or any proper opportunity to give evidence of the detail as to how she had been mistreated, and that the loss of that opportunity meant the Tribunal found she had not been raped or otherwise mistreated as she claimed. However, in our view, the Tribunal did not reject the appellant’s claims that she had been mistreated by the police from about 1998. It proceeded on the basis that those claims were correct. It did not resile from that position in its reasons for decision. We have referred to its approach to that issue at [12] – [14] above. As the Tribunal said in the course of the hearing, its concern was whether that conduct on the part of the police was for a Convention reason. The only hypothesis put forward by the appellant at the hearing was that she was being attributed with some political belief by reason of her daughter’s marriage to VS in Australia in 1997. The Tribunal did not need full details of the nature of the mistreatment to determine whether it was undertaken for a Convention reason. When the supplementary written submission was received, extending somewhat the hypothesis for connecting the appellant’s mistreatment at the hand of the Indian authorities to a Convention reason, the Tribunal addressed those hypotheses. Again, it did not need full details of the mistreatment as it proceeded on the basis that significant mistreatment had occurred.

28 This is not a case where the appellant was mislead by the Tribunal into believing that it accepted a particular fact or facts so that the appellant did not further give evidence or make submissions about that fact or facts, and where the Tribunal then did not accept that fact or those facts: see the judgment of Gummow and Heydon JJ in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [28] – [31], [39]. This is also not a case where the evidence of the link between the persecutory conduct and the Convention was, or could have been, in the detail of the persecutory conduct of which the appellant complained. Counsel for the appellant acknowledged that.

29 Nor can it be maintained that the Tribunal, by indicating to the appellant that she need not fully describe the mistreatment, conveyed to her that it was otherwise accepting her claim that the mistreatment was by reason of any imputed political opinion on her part. The Tribunal clearly indicated that was not the case. The manner in which the Tribunal proceeded in this matter is therefore quite different from that which occurred in NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 135 (NAAG). In that case, the Tribunal was found to have indicated to the visa applicant that everything she said about her mistreatment, including the motivation of the authorities for the mistreatment, was accepted unless it advised to the contrary: see e.g. in NAAG at [50] – [51].

30 The next matters raised by counsel for the appellant claim jurisdictional error occurred because the Tribunal forced the appellant to proceed with the hearing even though she was reluctant to do so, and was distressed and said she was not thinking clearly. The Tribunal was described, inaccurately on our reading of the transcript, as having submitted the appellant to ‘intense interrogation’ about inconsistencies in what she had claimed from time to time. To the contrary, given that it was appropriate for the Tribunal to point out to the appellant that it considered her evidence was inconsistent in significant respects with what she had earlier claimed, the Tribunal appears to have put those matters, and its concerns about the appellant’s claim that her mistreatment was related to the marriage of her daughter to VS, in a fair and courteous way. It gave the appellant the opportunity to respond both at, and subsequent to, the hearing.

31 The transcript of the hearing indicates that the Tribunal was sensitive to the distress of the appellant. It adjourned the hearing for a time at her request. It invited her to include her daughter at the hearing. It gave the opportunity for further submissions, not simply as to its expressed concerns but at large. The fact that, during the hearing, the appellant was distressed from time to time does not of itself indicate jurisdictional error. In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB 207 ALR 12; [2004] HCA 32 Callinan J said at 49 – 50, [126]:

32 In our judgment, the Tribunal is not shown to have failed to give the appellant a reasonable opportunity to present her case, or to deal with the issues which were of concern to it. As Callinan J points out in the passage just referred to, the Tribunal was called upon to make a decision whether to proceed with the hearing as events unfolded during the hearing. The transcript does not suggest its decision involved jurisdictional error on its part. We do not think the statutory declarations of the appellant of 17 March 2004, or the affidavit of the appellant’s migration agent of 6 April 2004 alter that conclusion. Indeed, although those documents were filed in this Court in support of the application at first instance, it is unclear whether they were received in evidence at first instance. In any event, those documents in significant respects make assertive conclusions inconsistent with the transcript of the hearing, and counsel for the appellant did not suggest that the transcript is incomplete or inaccurate; there is also in the migration agent’s affidavit some clearly inadmissible opinion evidence.

33 Finally, a criticism was made of the way the Tribunal regarded the evidence as to why the appellant came to Australia. The timing of the onset of her mistreatment preceded any issue of her giving evidence in a court case in Australia, and ultimately the giving (or potential giving) of evidence was not put forward as related to any Convention reason for her mistreatment. There were inconsistent statements from Mr Barjwa. The appellant’s evidence was capable of being understood as being inconsistent as to whether she actually gave evidence. It was not inappropriate for the Tribunal to raise those matters at the hearing. The subsequent submission from the appellant’s migration agent sought to reconcile or explain that material. The explanation appears to have been accepted, as the Tribunal does not then adversely comment about the issue in the ‘Findings and Reasons’ section of its decision. The Tribunal’s consideration of this aspect of her evidence, even if flawed, would not therefore involve any jurisdictional error on its part. In any event, for the reasons given, the Tribunal did not err in the way it regarded that material.

34 Counsel urged that the several matters referred to above collectively demonstrate a failure to accord procedural fairness to the appellant, even if they were not taken individually to do so. Our consideration of each of those matters has lead to the view that they did not do so. Their accumulation does not lead to any different conclusion.

35 We are, for these reasons, not persuaded that the Tribunal committed jurisdictional error in the ways asserted by counsel. The appeal must be dismissed with costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Cooper, Marshall & Mansfield.

Counsel for the Appellant:	MW Clisby

Solicitor for the Applicant:	Mark Clisby

Counsel for the Respondent:	M Roder

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	2 November 2004

Date of Judgment:	12 November 2004

Federal Court of Australia - Full Court Decisions

Applicant A194 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 292 (12 November 2004)