Applicants A104 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 19 (25 February 2005)

Last Updated: 25 February 2005

FEDERAL COURT OF AUSTRALIA

Applicants A104 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 19

IMMIGRATION – refugees – whether question of jurisdictional error or procedural fairness – pre-condition to the exercise of jurisdiction – discretionary – absence of evidence – telephone, video-link – "known friends of militants"





Constitution s 75(v)


Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 followed
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 followed
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2001) 204 CLR 82 followed
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 followed












APPLICANTS A104 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, MEMBER REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SAD 167 OF 2004




FINN, DOWSETT & SELWAY JJ
25 FEBRUARY 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 167 OF 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	APPLICANTS A104 OF 2003 APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGES:	FINN, DOWSETT & SELWAY JJ
DATE OF ORDER:	25 FEBRUARY 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The applicants pay the respondents’ costs of 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 167 OF 2004

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:	APPLICANTS A104 OF 2003 APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGES:	FINN, DOWSETT & SELWAY JJ
DATE:	25 FEBRUARY 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The applicants are husband, wife and their daughter. All three claimed protection visas, based upon the applicant husband’s fear of persecution for a Convention reason. The claims were rejected by a delegate of the first respondent, and that decision was affirmed by the Refugee Review Tribunal (the "Tribunal"). The applicants applied in the High Court for constitutional writs addressed to the respondents. The matter was remitted to this Court. Lander J refused the application, and this is an appeal from that decision. The facts of the case appear sufficiently at [5] - [10] of his Honour’s reasons as follows:

‘5. The husband applicant is a citizen of India who arrived in Australia on 18 February 2000. On 17 March 2000, he applied for a protection visa but, on 29 March 2000, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa. On 26 April 2000, the husband applicant applied for a review of that decision to the RRT. On 27 August 2002, the RRT affirmed the decision not to grant a protection visa.

6. The husband applicant is from the State of Punjab. He is a Hindu. His case before the RRT was that, whilst he was at university in Nakadar in 1979/1980, he met a person named Deepa. About seven years after he left University, he met Deepa again and learned for the first time that Deepa was a militant Sikh. The husband and wife applicants married in 1992 and the husband applicant told Deepa he was not to return to his house because he was now married and had responsibilities.

7. On the husband applicant’s case, Deepa was killed in an encounter with police in 1993. However, the police were aware of the husband applicant’s previous association with Deepa and demanded money from him. They demanded that he disclose details of Deepa’s friends. His claim was that the police continued to harass him until 1999 by coming to his house demanding to know the names of Deepa’s colleagues and demanding money. He said that if he refused either to name persons or to pay money the police would beat him. He said he was beaten in 1997 and 1999.

8. The husband applicant’s wife gave evidence and corroborated some aspects of his case. She said that Deepa came to their house once after they were married. The police came and demanded money and beat her husband.

9. A witness, Mr Chauhan, a pharmacist from the husband applicant’s residential area in the Punjab, said that he treated the applicant for wounds in 1997 and arranged his admission to hospital. He said the husband applicant told him that he had been beaten by police because of a terrorist.

10. The husband applicant’s brother also gave evidence. He said that he had left India in 1989 and migrated to New Zealand and then came to Australia in 1995. He said that he had heard the husband applicant had "problems with a person named Deepa before 1997".’

2 It seems that the applicant husband claimed to fear persecution by the Punjabi authorities by reason of his membership of a particular social group, namely "known friends of militants". The Tribunal disposed of the claim in the following paragraphs:

‘It is possible that the Applicant was subjected to demands for money by local police because he is a businessman who was perceived to be able to pay. Indeed, he told the Tribunal that was the real reason the police harassed him. The Tribunal does not accept that the Applicant was harassed because he is alleged to be associated with a terrorist who was supposedly killed in 1992 or 1993. It is satisfied that his witnesses have sought to corroborate his claims only because he has provided them with false information. Their evidence is not of sufficient weight to lead to the Tribunal to accept that the Applicant has a history of harassment for reason of his political opinions.

The Tribunal does not accept that the Applicant faces a real chance of persecution because he is alleged to be affiliated with a former Sikh terrorist. Even if it believed that he had been harassed for the reason in the past (which it does not), it is apparent that he had no direct involvement in terrorism and that he had no association with any of the Sikh organizations that were pressing for their own political agenda to be realized. The violence in the Punjab has subsided and the Tribunal is not satisfied that the Hindu Applicant is at a real risk of persecution for his political opinions or for any other Convention reason, should he return to his home province.

If he remains anxious about returning to the Punjab, it is reasonable that he relocates to another area of India where he would not be at any risk of being harmed by the local police. The UK report (above) points out that there are no restrictions on Indians moving from one part of the country to another (par 5.87). While there may be cases where the Punjabi police would have an interest in tracking a person wanted in regard to political opinion (ibid, par 5.88-5.99), the Tribunal is not satisfied that the applicant is wanted for such a reason. He is from the majority Hindu religion, he speaks Hindi, Punjabi and English, he has had experience in living in Australia, in a culture that is more alien that what he could have anticipated in places such as Delhi, Bombay or other centres, and he has experience as a self-employed businessman and as a labourer. The Tribunal is satisfied that he could reasonably and practically relocate to another part of India, in the sense meant by Black CJ (with whom Whitlam J agreed) in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-443. It is satisfied that he would not be at real risk of any harm at the hands of Punjabi officials, either in the Punjab or in another part of India.’

3 In the proceedings before Lander J the applicants alleged absence of procedural fairness on two grounds. The first ground concerned difficulties experienced with the video link and telephone communications used in the Tribunal hearing. His Honour rejected that ground. There is no appeal from that aspect of the decision. The applicant’s second ground was as follows:

‘The Tribunal made the following finding its [sic] findings and reasons section ... ;

"It is satisfied that his [the applicant husband’s] witnesses have sought to corroborate his claims only because he has provided them with false information ...".

At no time during the Tribunal hearing did the Tribunal Member put to the witnesses or to the applicant that the applicant had provided these witnesses with false information. Neither the applicant nor the witnesses were given any opportunity to respond to this very serious allegation. If it had been put to the applicant and the witnesses by the Tribunal member that the applicant had provided the witnesses with false information, then the applicant as well as the witnesses would have wished to have provided further evidence by means of oral evidence as well as documentary evidence, to establish that the applicant had not provided these witnesses with false information. Because the Tribunal Member did not give the applicant as well as the witnesses any opportunity to respond to this very serious finding, the Tribunal Member did not accord the applicant procedural fairness and therefore made a jurisdictional error.’

4 Lander J concluded that the Tribunal had fallen into jurisdictional error in finding that the applicant husband had obtained corroboration of his evidence by providing the witnesses with false information, without having put that matter to him or to the witnesses in question. His Honour seems to have considered that the jurisdictional error lay in making such finding in the absence of evidence. The finding in question was not as to a "precondition to the exercise of jurisdiction" and therefore could not constitute jurisdictional error. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12, per Gummow and Hayne JJ at [38] – [39], Gleeson CJ concurring. However the applicants’ claim was that the finding was made in circumstances which denied them procedural fairness. There may well have been substance in that complaint, and such denial may have amounted to jurisdictional error. See SGLB, per Gummow and Hayne JJ at [49].

5 However the Tribunal also found that it would not be unreasonable to expect the applicant husband to reside in some place in India other than the Punjab in order to avoid feared persecution. That finding was not challenged in the proceedings before Lander J. In the applicants’ notice of appeal they assert as a ground of appeal:

‘The learned Judge made a grave jurisdictional error by concluding that:

"Whilst the husband applicant has demonstrated jurisdictional error in respect to the finding made by the RRT, that error leads to no practical result because, even without that jurisdictional error, inevitably the applicant had to fail." ’

6 Of course it is not necessary that the applicants show jurisdictional error on the part of Lander J in order to be successful on this appeal. The thrust of the written submissions presented on behalf of the applicants was as follows:

-> The Tribunal’s jurisdictional error, as found by Lander J, was "a serious legal error";
-> The fact that the applicants raised no issue before Lander J concerning the finding that the applicant husband could relocate in India ‘cannot stop the Applicant from seeking relief ... for breach of a fundamental natural justice requirement’;
-> Lander J accepted the applicants’ evidence as "credible"; and
-> The applicants should have the opportunity of re-establishing their "refugee claims".

7 Of course, the "finding" in question did not constitute judicial error. However it is appropriate to consider the applicants’ submissions as they would apply to a denial of procedural fairness.

8 Counsel for the first respondent correctly submitted that the decision of the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982, established (at [33] of the reasons) that:

‘... in the case of a breach of the rules of natural justice, relief under s 75(5) of the Constitution is discretionary.’

See also Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2001) 204 CLR 82 per Gleeson CJ at [5], per Gaudron and Gummow JJ at [51] – [52], per Hayne J at [86], per Kirby J at [149] and per Callinan J at [217] and Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.

9 Assuming that the Tribunal fell into jurisdictional error by denying procedural fairness to the applicants, it is a compelling argument against the exercise of the discretion to grant relief that it had, in any event, correctly concluded that they were not persons to whom Australia owed protection obligations because the applicant husband would be able to avoid any feared persecution by moving to some other location within India, a step which the Tribunal considered was reasonable in the circumstances. Although the correctness of this finding was not challenged on appeal, there is one matter which we should mention. In making the finding the Tribunal observed that:

‘While there may be cases where the Punjabi police would have an interest in tracking a person wanted in regard to political opinion ... , the Tribunal is not satisfied that the applicant is wanted for such a reason.’

10 The possibility of the police "tracking" a person wanted in connection with his or her political opinion had apparently emerged from country information available to the Tribunal. It might be thought that the conclusion that the applicant husband was not wanted by the police because of his political opinions would be based to some extent upon the Tribunal’s rejection of his evidence which, in turn, was based upon its apparently unjustified finding concerning his corroborating witnesses. However the applicant’s claim was not that he was being persecuted for his political opinions, but for his membership of a class of persons described as "known friends of militants’. There was no suggestion that the police had persecuted him because of perceptions concerning his political beliefs. Thus the Tribunal’s conclusion was correct and was not dependent upon its views as to the applicant husband’s evidence or the evidence of his corroborating witnesses.

11 Two other general comments should be made concerning the Tribunal’s decision. Firstly, it found that even if it had accepted his evidence of harassment on account of his friendship with a known militant, violence in the Punjab had subsided. For that reason the Tribunal concluded that the applicant husband would not face any real risk of persecution for his political opinions or for any other Convention reason should he return there. In other words, whatever may have been the position in the past, there was no basis for continued apprehension of persecution. As this finding assumed the truth of his account it, too, was a sufficient basis for dismissing the applicants’ claims.

12 Secondly, although the applicant husband’s claim was identified as being in fear of persecution by reason of membership of a particular social group, namely "known friends of militants", the applicant husband conceded in the course of the hearing in the Tribunal that the police officers’ references to his friendship with a known militant were simply pretexts for extorting money from him because it was thought that he could pay. In those circumstances it would have been very difficult for him, in any event, to make out his claim. There was a further difficulty. It seems that there was really no evidence to suggest the existence of any such social group, or at least there is no reference to any such evidence in the reasons of the Tribunal. Perhaps it did not pursue the matter because of its views concerning the other matters to which we have referred.

13 In any event, there can be no doubt that the finding concerning relocation effectively disposed of the applicants’ claims. In light of that finding it was impossible for the Tribunal to conclude that the applicants were persons to whom Australia owed protection obligations. In those circumstances it was inevitable that the relevant visas would be refused.

14 This is not an appropriate case in which to address the question of whether or not leave to appeal was necessary, given the nature of the decision at first instance. It is sufficient that the appeal be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Dowsett & Selway.

Associate:

Dated: 25 February 2005

Solicitor for the Applicant:	Mr C Jayawardena
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	21 February 2005
Date of Judgment:	25 February 2005