NACP v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellant appeals from a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal, acting on an application for review of a decision of a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), affirmed the delegate's decision not to grant to the appellant a protection visa. 2 The issue which arises on the appeal is unusual. It arises in large part, I suspect, from the fact that the appellant has at no time been represented. 3 The appellant is a national of India. He is a Muslim. He arrived in Australia on 14 March 2001 and the next month applied for a protection (class XA) visa. In his application for a visa he wrote as follows: "After graduation and obtaining diploma in travel and tourism, I went to Mumbai for getting a job and I had worked with three different agencies there. When I was working as personal assistant to MD of M/S Eastwest Travel and Trade Links (P) Ltd he was shot dead by a underworld gang lead by Chota Rajan. As I am personaly conected to our MD, Mr Takitudheen Wahid later on for getting the personal details of our MD and other business secrets, the same gang targetted me to their hitlist and I have three major injuries from them and left Mumbai in 1998 and travelled different parts of India seeking jobs, where also I faced the problem with the gang who were having support from ruling BJP government and Hindu organisations as I am a Muslim. Then I reached in Kerala and joined another organisation. There also I faced problems different times and my family has gone to their village and I came to Australia for getting protected. … I fear that I will lose my life. As the group targetted me is very strong and they need the details of our previous MD, Mr Takitudheen Wahid. In previous attacks from them by lucky only I could save my life." 4 The document continued to say that the ruling party in India, the BJP was giving support to the groups who were targeting him. 5 The appellant, apparently, did not attend the ordinary interview with the delegate of the Minister. The delegate rejected the application and the appellant sought review of that decision from the Tribunal. 6 The appellant lodged, together with his application for review, a letter dated 2 November 2001. The letter contains a five page description of the circumstances the appellant claims had arisen in Mumbai, relating to the death of Mr Wahid and what was said to have happened thereafter. It is unnecessary for present purposes to quote from that letter. It need only be said that the letter mentions that the appellant had become involved with a leading Muslim organisation in Mumbai involved in spiritual and cultural activities to the Muslim community and had become an active member of that organisation. It was his claim that, in part at least, this membership had been the reason why he had become a target for the VHP and Shivasena organisations. 7 It seems that the Tribunal notified the appellant that it was unable to make a decision favourable to the appellant on the papers. He was invited to attend a hearing which was scheduled for 2 September 2002 at 9.30 am. The appellant was asked to complete and return a Response for Hearing form, although it does not appear that the Tribunal received any such form, if indeed it was forwarded. 8 So far as I am able to ascertain from the reasons of the learned Magistrate, the appellant turned up at 9.15 am for the hearing. He was told that no member was available. The hearing however did commence at approximately 10.30 am. There was oral evidence for the appellant about this before the learned Magistrate but the transcript of that evidence was not available with the appeal papers. 9 I have listened to a tape of the proceedings before the Tribunal. The Tribunal member, after some questions concerning the appellant's name, arrival date in Australia etc asked the appellant why he believed he could not return to India. The appellant proceeded to narrate a claim which is summarised in the Tribunal's reasons for decision. It bears no relationship at all to the claim made in the application for the protection visa and repeated in greater detail in the letters to the Tribunal dated 2 November 2002. The claim made orally to the Tribunal is summarised by the Tribunal as follows: "The Applicant states that he became embroiled in a property dispute. He lived in a compound of six properties. Five were held by Muslims and one by a Hindu. The five Muslims wished to put in an access road. The Hindu refused to contribute. The body corporate of which the Applicant was secretary had the road built, but also built a fence to deny the Hindu access to it. The Hindu had the fence pushed over damaging the Applicant's car. The police were called but did not assist. Later a court ordered the wall rebuilt. The Hindu harassed the Applicant and his family. Threats were made. The Applicant's family moved back to the Applicant's wife's family village. They remain there. The Applicant came to Australia. He states that if he returns to India he will be harmed by this Hindu or his communal allies. The Applicant's home is now vacant, there has been so much harassment he has been unable to rent it out. It was put to the Applicant that this problem seemed to be a local one. He was asked if he could not safely relocate within India. The Applicant states that it would be hard to get a job, or to settle at a job, the Hindus with who he as (sic) trouble may seek him out. The Applicant states that he also had trouble with a Hindu at his work. The Applicant is a travel agent. He discovered financial malpractice on the part of on eof his colleagues. This man is a Hindu and told the Applicant that he was paying money for commission. The Applicant discovered that this commission was paid to a BJP official. The co-worker told the Applicant that if he disclosed the payment he would be harmed." 10 The Tribunal considered the appellant's claim as outlined orally. It accepted that the appellant had been involved with disputes with a Hindu co-worker and neighbour and that he had been harassed and threatened. However, the Tribunal, in what may be described as very brief reasons, took the view that the problem the appellant had and which he had referred to in his oral evidence, was purely local and effectively it would go away if he relocated within India. Indeed, the Tribunal member had said as much to the appellant during the oral hearing. No reference was made in the reasons of the Tribunal to the case on which the appellant relied in his visa application as expanded upon in the letter of 2 November 2002. 11 The appellant then sought judicial review of the Tribunal's decision. There were no grounds shown in the application for judicial review. An order was made by this Court referring the application to the Federal Magistrates Court. At the hearing before the Magistrate a solicitor, who had notified his appearance for the appellant, sought and was granted leave to withdraw. The appellant was thus unrepresented before the Magistrate. 12 So far as appears from the reasons for decision of the learned Magistrate, the appellant claimed that the Tribunal had not conducted a review, that it failed to accord to him substantial justice and that it denied him natural justice. The Magistrate in his reasons mentions that the appellant expressed concern at the hearing that the presiding member did not seem to be familiar with his case and did not ask him questions about material that he had presented. I am not convinced that the learned Magistrate quite understood what the appellant's case before him was. This is not surprising given that the appellant was unrepresented. 13 It clear that the appellant was complaining based on the existence of two letters advising of the hearing (one that the hearing was to take place at 9.30 am and the other that it was to take place at 10.30 am) that the Tribunal had in some way or other not properly considered his case. This was a matter which the learned Magistrate correctly rejected. But I think it is likely that the appellant, perhaps in inadequate English (although it must be said his English, although heavily accented, is not so bad as to be incapable of being understood), was seeking to make, before the Magistrate, the case made before me on the appeal. 14 The Magistrate says in his reasons: "It is apparent from reading the decision and reasons of the RRT…that the applicant changed significantly the facts which he claimed as supporting his fear of persecution at the hearing before the RRT. Claims that he made orally before the RRT bore little or no relationship to the claims that he had previously put in writing. In the circumstances, it is understandable that the presiding member may have been bemused and may have been uncertain as to what questions to put to the applicant. The reasons for the decision of the presiding member are certainly brief. However, the presiding member does go through the claims that he says were put him in evidence. I have nothing before me to persuade me that the treatment of those claims by the presiding member was inadequate or incomplete." 15 The Magistrate then proceeded to consider the Tribunal's finding on relocation and concluded, no doubt correctly, that if the Tribunal was satisfied that relocation was reasonably possible then an applicant for a visa was not a person to whom Australia owed protection obligations and that it would be unnecessary for the Tribunal to make ultimate findings on whether the person in question otherwise satisfied the definition of "refugee" in the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951, as affected by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 ("the Convention"). 16 It might be noted that the appellant did not seek to tender in evidence before the Magistrate the tape of the proceeding before the Tribunal member, although he clearly had a copy of the tape. In the interests of justice I gave leave to the appellant to tender the tape on the appeal and listened to it. I did so largely because the appellant had been unrepresented and because it seemed that the case he wished to put to the Magistrate may not have been clearly understood by the learned Magistrate. I did so also for reasons that I will later explain. 17 On the appeal before me the appellant filed a written submission. The substance of the submission, and I think it is the real substance of the case the appellant sought to make before the learned Magistrate but which the learned Magistrate did not perhaps understand, was that the appellant's case before the Tribunal was, or certainly included the case he had put in writing in the letter which accompanied his application to the Tribunal and indeed which had been stated in summary form in the visa application. It may be accepted that the oral evidence the appellant gave before the Tribunal merely related to other additional matters. The complaint is that the Tribunal considered only the oral matters raised by the appellant but had failed to consider at all the case which the appellant had at all times sought to rely upon, a case which claimed persecution on religious grounds, particularly from the underground movement which had the support of the government party and was therefore not impeded from persecuting him. 18 The written submission takes up, as well, the question of the time at which the proceedings in the Tribunal were to be held and the question of whether there was one or more than one letter advising the appellant when the hearing was to be held. With respect to the appellant, these matters are somewhat extraneous to the real issue which is whether the Tribunal failed to consider at all the written case which the appellant had at all times prior to the oral hearing in the Tribunal advanced. 19 Because the appellant had been unrepresented, there was no real attempt to formulate the appellant's grounds of review before the learned Magistrate or the grounds of appeal to this Court from the Magistrate's decision. This is clearly unsatisfactory, not only to the Court but also to counsel for the Minister. To the extent that leave is necessary to amend grounds of review before the Magistrate (and there are no grounds to amend because none are stated), I would give leave to the appellant to raise in the appeal, as a ground of review, that the Tribunal failed or constructively failed to exercise its jurisdiction by not dealing with the case, or a substantial part of the case which the appellant sought to put before it. 20 Likewise, if leave were necessary to amend the grounds of appeal from the Magistrate's decision (and again since no grounds of appeal seem to have been formulated, it is not clear that there is a need to amend anything), I would grant that leave. 21 Ordinarily the question of what the case was that was put before a Tribunal will be clear on its face. That is not the case here. The Tribunal's decision makes no mention at all of the case that, at least until the hearing constituted the appellant's claim that he was a "refugee" to whom Australia owed protection obligations. Strangely the Tribunal makes no reference either to the fact that the case that was dealt with in oral evidence and in the Tribunal's reasons was completely different from the case that had been put by the appellant in writing. It is not difficult to conclude from that omission that the Tribunal, for whatever reason, was unaware of the written claim as it appeared in the application for visa and in the letter accompanying the application for review. With respect to the Magistrate, it is likely that, had the Tribunal been aware of the fact that there were two different claims, it would have made at least some comment about that. Indeed it is not unusual that when an appellant changes the story he or she relies upon the Tribunal concludes, unless there is some explanation, that the appellant should not be believed. In this case, however as I have already noted, the Tribunal made no comment on the matter, either in the course of the oral hearing or in its reasons. I think the inference that should be drawn from this is that the Tribunal was simply unaware of the written case and concentrated exclusively on the claim the appellant made orally to it. 22 As I have already noted, I gave leave to the appellant to tender the tape recording of the proceedings before the Tribunal. I did this because it seemed to me that the only way it could be determined what the issue was that the appellant sought to rely upon before the Tribunal was for the Court to know precisely how the appellant had put his case to the Tribunal. In so doing I recognised that it was an unusual course to take on an appeal to admit evidence that had not been received in the proceedings at first instance. However, in the exercise of my discretion on appeal it was, in my view, in the interests of justice that I accept a tender of the tape and listen to it. I record that counsel for the Minister objected to the tender. 23 The issues which arise on the appeal can now be summarised as follows: