A v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT FRENCH J: 1 The appellants, who are husband and wife and their two children, are citizens of India. The first appellant is a Hindu Tamil from the state of Tamil Nadu in the south of India. In the period from April 1996 up to April 1997 he visited Australia on five occasions for business reasons. On a sixth trip in May 1997 he arrived in Australia on a temporary business visa and was accompanied by his wife, the second appellant, and their children, the third and fourth appellants. 2 On 13 June 1997, they all applied for protection visas. The first appellant's claim for a protection visa was based on his activities as a lawyer and his membership of the People's War Group which is an offshoot of the Communist Party of India Marxist Leninist ("CPIML"). The People's War Group is the largest group among Naxalites who have been described by a delegate of the Minister as revolutionaries fighting to overturn the Indian caste system. 3 The first appellant also claimed some affiliation with the Liberation Tigers of Tamil Eram, LTTE, and the People's Union for Civil Liberties ("PUCL"). His wife's claim was based on her membership of the All India Women's Association which is also linked to the CPIML. The applications for protection visas were refused by a delegate of the Minister on 20 November 1997. 4 An application was made by the first appellant on his own behalf and that of his family members to the Refugee Review Tribunal on 15 December 1997, seeking review of the delegate's decision. The first and second appellants appeared before the Tribunal and gave oral evidence on 16 September 1999 and 21 October 1999. However, the appointment of the Member then constituting the Tribunal ceased before he delivered a decision on the review and the Tribunal was subsequently reconstituted by a new Member. A further hearing was held before the newly constituted Tribunal on 16 October 2000. On 17 October 2000, following the failure of the second appellant to attend, the first and second appellant were notified that they should attend to give evidence on 10 November 2000. The second appellant withdrew her application but attended the hearing before the Tribunal on 10 November 2000 and indicated then that she wished to make claims in her own right. 5 Ultimately, on 12 December 2000 the Tribunal affirmed the delegate's decision not to grant protection visas to the appellants. Thereafter, the appellants sought review of the Tribunal's decision in this Court and after a hearing before Whitlam J their application was dismissed with costs on 29 August 2001. The appellants have now lodged an appeal to the Full Court from that judgment. The only ground stated in the appeal is that the decision involved an error of law being an error involving an incorrect application of the law to the facts as found by the Tribunal. It relies upon subs 476(1)(e) of the Migration Act 1958 (Cth), as it stood prior to amendments to the Act which do not affect this appeal and which came into operation on 2 October. 6 The appeal is a few days out of time, however, given that the merits of the appeal from the point of view of the appellant have been fully argued, both in writing and orally, nothing turns on that delay. The Court is prepared to extend time to enable the appeal to be dealt with finally. The first appellant has provided extensive written submissions which have been read by members of the Court. In substance the written submissions call into question the approach taken by the Tribunal to the determination of whether the first appellant and his family members have a well-founded fear of persecution if returned to India, by reference to the requirement to assess whether there is a real chance of persecution upon their return. The first appellant also refers to the asserted failure of the Tribunal to have regard to particular matters of fact and makes reference in his submissions to the decision of the High Court in Minister for Immigration and Multicultural Affairsv Yusuf (2001) 180 ALR 1 in which the notion of jurisdictional error incorporating failure to take into account relevant considerations was discussed. 7 In his oral submissions the first appellant has focused on two points; he has referred the Court first to a passage at p 37 of the Tribunal's reasons in which, inter alia, the Tribunal referred to his membership of the CPIML, pointed out that it is not a banned political organisation and, according to the Department of Foreign Affairs and Trade in August 1998, that there was no recent evidence that leftist groups were targeted by authorities in the area from which the appellants came. The Tribunal accepted, in the passages referred to by the first appellant, that if he were to return to India now or in the reasonably foreseeable future he would continue to be a member of the CPIML and an active participant in the PUCL. Having regard however, to evidence that the CPIML is now participating in the parliamentary political process and that leftist groups are not targeted by the authorities in Tamil Nadu, the Tribunal did not consider that there was a real chance that the first appellant would be persecuted by reason of his involvement in either the CPIML or the PUCL. The first appellant complains that the Tribunal, in coming to that conclusion, has failed to have regard to his contention that he and his family members had been subject to persecution not only from government but also as he said: "In connection with the Naxalite and Communist objectives I and My family members had to suffer in the hands of Authorities, Police, politically motivated Rowdy elements." It is the reference to non-governmental, rowdy elements that the first appellant relies upon. Presumably, this is intended to suggest that there was a case being put to the Tribunal of absence of government protection from persecution by non-government elements on a Convention ground. If so, that is not clear from the material relied upon by the first appellant. The Tribunal of course is not required, in the discharge of its duty, to have regard to relevant considerations or to refer to every element of the evidence which is put before it by an applicant for a protection visa. In this case there was a voluminous amount of material submitted to the Tribunal in support of the applications for protection visas. 8 The Tribunal in a lengthy decision, occupying some 41 pages, gave detailed consideration to the salient features of all of that material. The failure to refer to this particular matter of submission by the first appellant on the part of the Tribunal does not constitute an error of law which is reviewable by this Court. What the first appellant really invites us to do is to re-enter the consideration of the merits of the matter, a course from which we are precluded by the limits on our jurisdiction. 9 The second matter referred to by the first appellant was evidence appearing at pp 219 and 220 of the appeal book that being a translation from a newspaper or journal called India Today, dated 8 October 1997 which referred to the murder of a Marxist Communist councillor named Lilawathi, in the 59th Ward of the Madurai Villapuram area. Her husband was said to be an ardent communist volunteer worker. She had become involved in the struggle. She was said to have fought about all kinds of problems that affected people such as drinking-water, atrocities in ration shops and anarchic action by rowdies. The article goes on to say that even that voice has now fallen. Details that emerged during investigations regarding her murder were said in the newspaper report to be true symptoms of extreme anarchy. 10 The murder of a Marxist councillor who was actively involved in the activities of the communist party, or a communist organisation, does not of itself constitute evidence of persecution either by government or non-government sources. The Tribunal, of course, had this before it as a matter of evidence but was not, as a matter of law, required to make findings in relation to that matter and to determine whether or not it bore upon the case before it. 11 In addition, the first appellant referred the Court to material, which was embodied in his submissions, to demonstrate that the Tribunal's prognosis or prediction of the risk he would face if returned to India, was flawed. This was material which was not before the Tribunal at the hearing. It was meant to demonstrate that events which had occurred subsequently were indicative of the risk he would face which had not been anticipated by the Tribunal when it spoke of what he would face in the "foreseeable future". Again, the function of the Court is not to re-open the hearing or to receive new evidence going to the merits. It is concerned with the question of errors of law or procedure as set out in the various grounds of review identified in s 476 of the Migration Act as it stood prior to the amendments. 12 The appellants have, in my opinion, failed to demonstrate any reviewable error. The Tribunal has undertaken a comprehensive review of the evidence. The Tribunal's decision itself has been considered by a judge of this Court, Whitlam J, who was unable to identify any reviewable error. Nor, in my opinion, is any reviewable error demonstrated on appeal from his Honour. I would dismiss the appeal and order that the appellants pay the respondent's costs of the appeal.