MZXGR v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for leave to appeal against an order of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had decided to affirm a decision of a delegate of the Minister to refuse to grant a protection visa to the applicant. 2 The proceeding before the Federal Magistrates Court was commenced under Div 44.2 of Pt 44 of the Federal Magistrates Court Rules 2001. Accordingly, pursuant to Div 44.4, the application was liable to be dismissed if, at a show cause hearing under r 44.12, the Court was not satisfied that the application had raised an arguable case for the relief claimed: see r 44.12(1)(a) 3 The Federal Magistrate found that, in one respect, an arguable case could definitely be established. His Honour concluded, however, that there was a separate and quite discrete finding by the Tribunal which supported its decision and as to which no arguable case for review could be established. The application for judicial review was therefore dismissed. 4 The arguable case identified by the Federal Magistrate turned on the operation of s 424A of the Migration Act 1958 (Cth). The separate finding concerned the applicant's ability, so the Tribunal found, to relocate within India. The Federal Magistrate considered whether the two issues were truly separate. He concluded that they were and that, accordingly, any error under s 424A had not infected the findings by the Tribunal in relation to relocation. 5 Since the decision of the Federal Magistrate is interlocutory in character, notwithstanding that it is final in its practical effect, leave to appeal is required. The general principle is that this Court will grant leave to appeal from an interlocutory judgment where the decision sought to be appealed is attended by sufficient doubt to warrant its reconsideration, and where substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 6 Both parties were represented by counsel on the application for leave. Counsel for the applicant contended that the Federal Magistrate had erred in his conclusion that the two issues he had identified were truly separate and, therefore, had also erred in finding that any error in relation to s 424A did not infect the decision on relocation. Counsel for the respondent contended to the contrary and argued, in the alternative, that there was, in any event, no arguable case that there had been a failure to comply with the requirements of s 424A. 7 Although a failure to comply with s 424A involves jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162) it does not necessarily follow that a decision in respect of which there has been such a failure is invalid. The Federal Magistrate was correct to proceed on the footing that where there is an independent and unimpeachable basis for the Tribunal's decision, uninfected by any jurisdictional error under s 424A, the decision must stand: VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] (North J); SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [233] (Allsop J). These authorities were not challenged by counsel for the applicant. 8 To determine, in these circumstances, whether or not the Federal Magistrate was indeed in error, it is necessary to consider the facts of the case and the Tribunal's reasoning in a little detail. 9 The applicant, a male citizen of India, arrived in Australia on 20 February 1999. On 17 March 1999 he applied to the Minister for Immigration and Multicultural and Indigenous Affairs for a protection visa. The application was refused by a delegate of the Minister and the delegate's decision was affirmed by the Refugee Review Tribunal on 28 August 2000. The applicant then commenced proceedings in the High Court of Australia on 1 November 2000 when he joined the Lie class action seeking constitutional relief in relation to the decision of the Tribunal. His application, together with other applications, was remitted by Gaudron J to this Court. By order of Lander J on 7 May 2004, the decision of the Tribunal was set aside and the matter remitted to it for reconsideration. In November 2004 the Tribunal, differently constituted, affirmed the decision to refuse a protection visa. It was this decision that the applicant sought to challenge in his application to the Federal Magistrates Court for judicial review. 10 Before the Tribunal, the applicant had claimed that he was a Sikh from the Punjab and a friend of a man who was involved with militants in that region. He claimed that this association caused the police to come looking for him in 1992. Although the Tribunal found that the applicant's evidence about this incident was inconsistent with earlier written statements, it accepted that he may have been arrested in 1992 and detained for a week. It did not accept the applicant's claim that prior to this incident in 1992 the police had, on one or two occasions, come to his home looking for him. The Tribunal reasoned that, if the applicant's allegations were true, it would be expected that he would have mentioned them prior to the hearing. The Tribunal also found the applicant's evidence about these earlier visits to be vague and inconsistent. 11 The Tribunal accepted that the applicant may have been arrested in 1993 and detained. It found that, after he was released, he drove trucks from 1993 to 1997 without experiencing any problems from either the Punjabi police (when he occasionally visited his family) or from any other authorities in India. The applicant had claimed in the hearing that the police had continued to come to his home between 1993 and 1997 looking for him. The Tribunal did not accept this claim and found that the applicant was not of ongoing interest to the police after his arrest in 1993. Here too the Tribunal gave two reasons. The first was that the applicant had not claimed in any of his earlier written statements to the Minister that the police had been inquiring about him during the years he was driving trucks. The second reason was the inconsistent evidence provided by the applicant on a related matter. He had stated in an earlier written statement to the Minister that he had returned to live in the Punjab in 1997 for over eight months. This earlier account contradicted his claim before the Tribunal that, because the police had remained interested in him, he had returned to the Punjab in 1997 for only one day. The Tribunal does not appear to have made a specific finding as to where the applicant actually lived during 1997 but the inconsistency it found in his account, combined with his failure to mention the matter in his earlier written statements, grounded its finding that the police had not been interested in the applicant after 1993. 12 After making findings about other matters, the Tribunal found that, if the applicant did not want to return to the Punjab because he continued to have a subjective fear of living there, it would nevertheless be reasonable for him to relocate elsewhere in India, such as Delhi. The Tribunal noted that the applicant had travelled to many places in India for over five years when he was driving trucks and had not claimed to have experienced any problems from the local authorities. It was therefore satisfied that it would not be unreasonable for him to relocate to another part of India. 13 As noted, counsel for the applicant submitted that the Federal Magistrate should have found that he had an arguable case that the Tribunal's finding about relocation within India was infected by its failure to give him proper notice under s 424A. The Federal Magistrate should therefore have found that there was an arguable case for the relief sought since, if it was so infected, the independent ground could no longer stand decisively against the applicant. Counsel argued that the fact that he had given information to the Minister in an earlier written statement that was different to that provided to the Tribunal was, itself, 'information' which the Tribunal was obliged by s 424 to give to him in written form prior to the hearing. The Tribunal should have warned him, he submitted, that it would rely on discrepancies between his earlier statements and his evidence to the Tribunal in making its findings, and given him prior opportunity to comment on that information. 14 In his written submissions, the applicant pointed to three findings by the Tribunal in respect of which he said this information was not provided: (i) searching by the Indian authorities prior to the applicant's detention in 1992; (ii) the applicant's activities and where he was living, from 1993 to 1997; and (iii) the police searching or inquiring for him or otherwise having a continuing interest in him between 1993 and 1997. Counsel for the applicant submitted that had the applicant been given the opportunity to respond to the discrepancies in his evidence about these matters, '[t]he Tribunal may well have concluded that if the police were searching for [him] then relocation to another part of India would not be a reasonably practicable option for the applicant'. 15 Put at its highest, the applicant's submission is that if the Tribunal had properly discharged its obligations under s 424A, he would have had earlier notice and thus a better opportunity to explain the discrepancies between his evidence before the Tribunal and his earlier written statements. Had he done so, the Tribunal might have taken a more favourable view about his credibility and thus might have concluded that he faced a greater risk of persecution than it was prepared to find and, further, that the suggested greater risk was relevant to the question of relocation. 16 The problem with this argument is that the Tribunal's careful attention to the question of relocation proceeded on the footing that, notwithstanding the Tribunal's assessment of the applicant's objective situation in the Punjab, the applicant might still have retained a subjective fear of persecution there. The Tribunal considered the applicant's skills, his work history (as provided by him) and the independent country information. Having done so, it concluded that, even if the applicant held such a subjective fear, it was reasonably practicable for him to relocate within India. The country information included material about the ability of Sikhs from the Punjab to gain employment elsewhere in India. 17 Even if the applicant had been able to explain the discrepancies in his evidence to the Tribunal's satisfaction and with the consequence that the Tribunal might have accepted his claim to be a refugee at its highest, it does not follow that the relocation finding would have been, or even might have been, any different. Had the applicant claimed that he was a person of such interest or importance that he would have been pursued by the authorities wherever he might afterwards be found in India, and had that claim been rejected as not credible, the point might have had more substance. But that was not how his case was put before the Tribunal. A review of the Tribunal's account of his evidence in its reasons for decision does not support a conclusion that the evidence of the police looking for him at his home in the Punjab, even if accepted fully, could reasonably have had a bearing on the question of relocation elsewhere in India. 18 Accordingly, I am not persuaded that there was any error in the Federal Magistrate's conclusion that the Tribunal's finding about relocation was a separate and discrete finding which supported its decision and as to which no arguable case for judicial review could be established. Despite the arguments of counsel for the applicant, this is not a case in which there is sufficient doubt about the Federal Magistrate's decision as to warrant its reconsideration. 19 There is no need to consider the respondent's submission that, in any case, there was no failure to comply with s 424A by reason of the nature and content of the inconsistent written material submitted by the applicant himself to the Tribunal. 20 For these reasons, the application for leave to appeal must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.