Applicant A218 of 2003 v Refugee Review Tribunal

REASONS FOR JUDGMENT 1 These proceedings involve an application for a order nisi seeking the issue of writs of certiorari and mandamus in relation to a decision of the Refugee Review Tribunal ("the RRT") made on 18 August 1995. For the reasons given below, the application for an order nisi is dismissed. 2 The material currently before me is not a complete record of the litigation involving the applicant in his attempts to obtain a protection visa. However, it would seem to be accepted by all parties that the applicant was "registered" as a plaintiff in High Court proceedings numbered S89 of 1999 ("the Muin proceedings"). In joining that action the plaintiff apparently sought the issue of prerogative writs to set aside the decision of the RRT dated 18 August 1995 which affirmed a previous decision of a delegate of the Minister to refuse to accept the applicant's claim for refugee status. On 25 November, 2002, following the success of some of the plaintiffs in those proceedings (see Muin v Refugee Review Tribunal (2002) 190 ALR 601 ("Muin")) leave was granted by the High Court to any of the other "registered" plaintiffs to file on or before 30 May 2003 an application in the High Court seeking an order nisi in relation to the relevant decision of the Tribunal insofar as it affected them. Upon the filing of such an order nisi the relevant proceeding was to be remitted instanter to this Court. 3 On 30 May, 2003 the then solicitor for the applicant filed in the High Court a draft order nisi with supporting affidavit seeking the issue of writs of certiorari and mandamus against the RRT. Consequently, the proceedings were remitted to this Court. 4 The issue that is before me is whether the orders sought in the order nisi should be granted. The order nisi and supporting affidavit give little indication of what the grounds of the claim actually are. However, as has been made clear in the Notice of Contentions filed by the applicant and by the oral submissions made to the Court, the applicant claims that the decision of the RRT was invalid by reason of the failure of the RRT to afford him procedural fairness. In particular, the applicant claims that the RRT took into account certain "country information" without giving him an opportunity to comment on that information. The claim is similar to that made in Muin. 5 The applicant is an Indian citizen. He is a Sikh from the State of Punjab. He arrived in Australia with his family on 17 June, 1991. On 1 August, 1991 the applicant made an application for a visa based upon his claim to be a refugee. It is not disputed that for relevant purposes that application should be treated as an application for a "protection" visa. In order to obtain such a visa the Minister for Immigration and Ethnic Affairs (as the relevant Ministerial office was then described) had to be satisfied that Australia owed "protection obligations" to the applicant pursuant to the Refugee Convention as varied: see s 36(2) of the Migration Act, 1958 (Cth) ("the Act"). In general terms the Minister had to be satisfied that the claimant was a 'refugee' as defined in the Convention being a person who: '… owing to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.' 6 The claimant argued that he had a well-founded fear of persecution by reason of his political beliefs, his ethnicity and his religious beliefs. He claimed that he had been active in the Sikh separatist movement and that, as a result, he had been subject to persecution by the Indian authorities and that he had a well founded fear of persecution if he was returned to India. He also claimed that his involvement in Sikh separatist politics since he came to Australia provided the basis for a well founded fear of persecution if he returned to India. 7 This claim was not accepted by a delegate of the Minister who dismissed the applicant's claim for refugee status. In making that decision the delegate said: 'In arriving at the findings, I had regard to the following material: Application for refugee status lodged on 8 August 1991; Advice from the Department of Foreign Affairs & Trade,. Advice from Australian overseas posts Amnesty International reports Reports in the public domain, such as press features and articles' Elsewhere in the decision the delegate does refer to some specific "country information". 8 The applicant sought a review of that decision by the Refugee Review Tribunal. By letter dated 15 June 1994 the RRT informed the applicant that it had requested the Department to "forward a copy of its documents about your case". It informed the applicant that he should provide to the RRT any material that he wished the RRT to consider. The applicant provided various reports to the RRT which dealt with the situation in the Punjab and with the alleged risks that he and his family faced if he returned. He gave evidence before the Tribunal. 9 The RRT delivered its decision on 18 August, 1995. It treated the decision of the delegate as a refusal to grant a protection visa and affirmed that decision. The proceedings currently before me seek to challenge the validity of that decision. 10 The RRT accepted that the applicant had a subjective fear of persecution. It treated that fear as being based upon a general concern about lawlessness and human rights abuses that were occurring within the Punjab: 'I accept that the Applicant is reluctant to return to India, and the Punjab in particular, because of the climate of violence and civil unrest which has given rise to his claims of a fear of harm. The risk that he fears, which is based, in part, on his political views is inextricably linked with his religion as a Sikh. Like many other Sikhs in India, he fears that he may also be a victim of the general lawlessness which has prevailed in the past and, in particular, the abuses of police who have taken advantage of this situation.' 11 However, after reference to independent "country information" and to comments by Professor Jeffrey of Latrobe University and to evidence given in another matter before the RRT by an expert witness, Dr Roger Ballard, the RRT concluded that the violence in the Punjab had dramatically improved following the arrest of the last of the leading separatists in November, 1993: 'The sources referred to above support the conclusion that the level of violence and killings in the Punjab has fallen dramatically since the Applicants left the Punjab in 1991 and, in particular, that abusive behaviour by the Punjabi police is coming under growing and effective scrutiny by government bodies. In view of the vastly improved situation in the Punjab, and given that the Applicants do not have a level of association with terrorist groups which would bring them to the notice of the police, I find that there is no more than a very remote chance that they will be differentially at risk on return.' 12 Although the RRT accepted that the applicant and his wife had been detained and mistreated by the police on a number of occasions, the RRT found that these were random events related to the general security situation. The RRT rejected the claims by the applicant and his wife that they were prominent in the Sikh separatist movement and that this was the reason for such detention and mistreatment: 'The first question which I am required to ask is whether the Applicant faced or was subjected to serious harm at the time of his departure from India and whether such harm amounted to persecution for a Convention reason. The claims which the Applicant has put forward in this regard relate to detention and mistreatment by the police because of his involvement in a pro­ Khalistan organisation. On this issue, the evidence which has been presented concerning the nature and extent of the Applicant's involvement has not been entirely consistent or comprehensive. The information provided to the Tribunal by the Applicant, his wife and their witness has been expressed in general terms and with a surfeit of detail in respect of the exact political grouping with which the Applicant was associated, its aims and its activities. I have noted that, at the interview with a Departmental officer held on 13 January 1994, the Applicant was initially unable to recall details of previous periods of detention and could only remember having been held by the police on one occasion for two weeks in 1988; he subsequently amended the date to 1990. In his statement to the Tribunal of 14 June 1994, the Applicant has explained that the reason for not having provided specific details at an earlier stage was due to a "lack of courage" and fear that it would be held against him at a later stage. This does not seem a convincing reason for having withheld information providing more detail regarding claims which he has already advanced and does not sit well with his earlier statements concerning his "fearless advocacy of the Sikh cause". I find on the evidence that, at the time that he left India, the Applicant did not have a political profile sufficient to bring him to the notice of the authorities and result in persecutory treatment. There is little on which to found a conclusion that he was actively involved in a Sikh political party. His account at the hearing of his activities "in the so-called "Bindranwale's party" suggests that his level of participation was minimal at best.' 13 The RRT also rejected the applicant's claim that his actions in Australia would have the result that he would be subject to persecution if he returned to India: 'I believe that there is strong evidence reasonably to conclude that the Applicant has exaggerated his involvement in the Federation in order to contrive a claim to refugee status, given that I have reservations regarding the extent of his involvement in pro-Khalistan activities in India; the fact that he is not currently practising the Sikh faith; and that the claim has evolved incrementally since rejection at the primary stage of the process. In any event, I do not consider that there is a real chance that the Applicant's involvement with the Federation in Australia would result in harm amounting to persecution on his return to India. On his own evidence, he is an ordinary member of the organisation without an official position who has never made any public declarations either in writing or in oral statements. His most public activity has been carrying a banner (in the case of the Canberra march, simply proclaiming the group as members of the Riverland Sikh Society of South Australia) at demonstrations against the Indian government in various capital cities. This was as one of a crowd numbering from one hundred to three hundred people. In the absence of any other reasons why he should be of interest to the Indian authorities, I fin that there is no evidence that he would have come to the notice of Indian representatives in Australia and that he would suffer persecution for a Convention ground on return by virtue of his involvement in such activities in Australia.' 14 Finally, the RRT found that the applicant could safely relocate to other areas in India: 'If the Applicant does not wish to return to the Punjab because of his experiences in the past, it is open to him to settle in another part of India where there are concentrations of Sikhs who are not experiencing Convention-related difficulties. I do not believe that relocation is an unreasonable option for him to pursue, given his relative youth and knowledge of Punjabi, Hindi and some English. In the absence of a well-founded fear of persecution, this would be preferable to resettlement in a third country.' 15 In the result the RRT was not satisfied that the applicant and his family faced a real chance of persecution because of their religion or political opinion if they returned to India, and it affirmed the decision not to grant the applicant a protection visa. 16 On 19 September, 1995 the applicant instituted proceedings in this Court seeking a review from this Court of the decision of the RRT (No SG 65 of 1995). Such a review was then possible pursuant to s 475 of the then Act. However, the grounds of review in this Court were limited. They did not include, for example, review on the grounds of a breach of natural justice: see s 476(2)(a) of the then Act. The applicant argued that this Court had jurisdiction to review the decision of the RRT because the RRT assessed the issues before it as at the date on which it gave its decision, rather than the date of the application. The applicant also argued that this Court had jurisdiction to review the decision because the RRT had an obligation under the Act to make further inquiries in relation to various allegations that had been made by the applicant. Ultimately both of these arguments were rejected by the Full Court of this Court by judgment delivered on 7 May, 1997: see Minister for Immigration and Ethnic Affairs & Anor v Singh (1997) 74 FCR 553. 17 It is not altogether clear on the material before me whether the applicant applied for special leave from the High Court to appeal from the Full Court decision or not. What is clear is that any such application was not proceeded with. The further action ultimately taken by the applicant was in joining the High Court action. It is not clear when the applicant joined the Muin proceedings. 18 The first question that needs to be considered is whether the current proceedings should be dismissed as an abuse of the process of this Court: see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 at [36]-[39]; Applicant A87 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 919; Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198. That depends upon whether the applicant could or should have raised these claims in the previous Federal Court proceedings. The applicant says that it was not possible to do so given the limitations upon the jurisdiction of this Court at that time. The respondent accepts that submission. In my view it is correct. There is no issue estoppel or even "Anshun" estoppel applicable in this case. 19 The next issue is whether the proceedings should be dismissed by reason of the delay in instituting them. The issues now raised could have been raised by instituting proceedings in the High Court in 1995: see Re Minister for Immigration & Multicultural & Indigenous Affairs Ex parte Miah (2001) 206 CLR 57 (Miah). Instead proceedings were not instituted in the High Court at least for a further 5 years. The respondents have submitted to me that the time limits imposed by the High Court Rules in relation to certiorari and mandamus are applicable to proceedings remitted to this court. For the reasons given by Finn J in Applicant A219/ 2003 v Refugee Review Tribunal [2004] FCA 1311 at [7]-[8] I am satisfied that those time limits do not apply. Nevertheless, there remains a discretion not to grant relief even in relation to the constitutional writs if the institution of the proceedings has been significantly delayed. The respondents say that there has been such delay in this case. It is clear that the discretion to refuse relief by reason or delay should be exercised taking into account all of the facts of the case, including the time spent by the applicant in unsuccessfully seeking alternative remedies: see Miah at 88, 103, 124-127; Re Minister for Immigration & Multicultural Affairs Ex parte A [2001] HCA 77. Nevertheless, such delay as occurred in this case would usually be sufficient to justify the refusal on discretionary grounds to grant orders nisi: see Re Ruddock Ex parte Reyes (2000) 177 ALR 484 at 489 [28]; Re Commonwealth Ex parte Marks (2000) 177 ALR 491, 495-496 at [15]-[19]. Ultimately the delay that occurred can only be justified on the ground that it did not occur to the applicant or his advisers that the argument that succeeded in Muin was available or applied to him. This would not justify the extensive delay that occurred. 20 Finally there is the question whether the proceedings have any prospects of success in any event. There is no evidence before me to show that the RRT referred to material contrary to the interests of the applicant without giving the applicant an opportunity to comment on that material. The obvious reason for this is that the events occurred over 9 years ago and no‑one now has much recollection of what happened. The applicant cannot now recall what was put to him by the Tribunal. He says that he cannot recall whether the RRT put to him the details set out in the numerous country reports that were referred to in the Tribunal's decision. However, nine years after the event, his inability to recall these details cannot be treated as a positive assertion that those details were not put to him. 21 There is also no evidence before me as to what material the RRT had before it. The respondents conceded in argument that some of the material that was considered by the delegate was not contained in the Departmental file which was before the Tribunal. Consequently there is at least a possibility that some of the material that was before the delegate was not before the Tribunal. On the other hand, there is also some evidence to suggest that the material that was before the delegate was available to the RRT on various information systems to which the RRT had access, whether or not it actually used that access. In the result the information before me is insufficient to satisfy me that the RRT did not have access to material that was before the delegate, although it is at least possible that it was not. 22 Given the lack of any detail in the description by the delegate of what material he referred to (see par 6 above), it is difficult to see how the applicant could have been misled about what information was before the Tribunal. On the other hand, two specific country reports were expressly referred to in the delegate's reasons, namely Cables ND 370 and ND 401. However, even if these cables were not before the RRT (which is not established by any evidence) I do not think they would have assisted the applicant. Cable 370 relates to the situation in India in May 1993. It is consistent with the conclusion reached by the RRT. In any event the Cable concentrates on the situation in Kashmir, not the Punjab. Cable ND401 deals with the situation in Kashmir in June, 1993. Again, there is nothing in that report which is inconsistent with the conclusions reached by the RRT relating, as they do, to the situation in the Punjab. Apart from those cables, the applicant has not been able to point to any of the country material that he says should have been before the RRT but (maybe) was not, which would have assisted his case in light of the conclusions actually reached by the Tribunal. 23 The applicant says that if he had known that the information referred to by the delegate was not before the RRT he would have provided a large volume of material to the Tribunal. However some of the material he says he would have put before the RRT was dated after the date of the RRT decision. The other material referred to would not seem to have been related in any way to the material that the delegate said that he referred to. For example, one is a report in the Washington Times of 17 September 1994 to the effect that persons denied asylum in Germany and required to return to India "are often arrested, tortured and blackmailed". That report appears to refer generally to persons deported to India and not be limited to Sikh militants (although it does refer to a Sikh person as an example). The other is a report from the Tribune newspaper published in New Delhi in October 23, 2003 where a political leader in the Punjab complained about behaviour of the police in the Punjab. I do not thing either of those reports would have affected the conclusions reached by the Tribunal. In any event there is nothing in the applicant's affidavit which suggests in what way he was misled into thinking that it was unnecessary for him to put that material before the Tribunal. 24 As I attempted to explain in Applicant A163 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [3]: 'Muin, of course, simply involves an application of the general principle that the procedures in administrative Tribunals must be fair, as understood in the statutory context. The question in this case is ultimately whether there is anything in the proceedings before the Tribunal which was in any way unfair.' 25 The information before the Court simply fails to establish that the procedure was relevantly unfair or that the applicant was relevantly misled or that some different approach would have been taken by him if he had been aware of what information was before the RRT (whatever that was). 26 Even if all of these issues were capable of being addressed, there does not seem to be any answer to the Tribunal's conclusion that the applicant could relocate away from the Punjab. There is no material before me to suggest that the applicant was somehow misled in relation to that finding by the Tribunal; nor has the applicant pointed to any material or information that he would have put before the RRT in relation to it. 27 In all of the circumstances I do not think on the material before the Court that the applicant has even an arguable case that he has been denied procedural fairness. As this is the only ground upon which the applicant contends that orders nisi should be granted in relation to the decision of the RRT, the application for such orders nisi should be refused. For the reasons given above it is also my view that the applications for orders nisi should be refused on the basis of the delay in the institution of these proceedings in the High Court. 28 For the above reasons the application for the grant of orders nisi is refused. 29 It is unnecessary to consider whether the correct respondents are before the Court. It is sufficient for present purposes to treat the third respondent, the Commonwealth of Australia, as the relevant respondent. The applicant should pay the costs of the third respondent. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.