NAMB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 These are two applications brought by the applicant husband, NAMC, ("the husband") and his wife, the applicant NAMB, ("the wife") seeking judicial review of two decisions of the Refugee Review Tribunal ("the RRT"). The RRT handed down a single set of reasons on 19 February 2003 affirming decisions of delegates of the Minister refusing to grant a protection visas. The decision of the delegate on the husband's application for a protection visa was given on 17 October 2001. The decision of the delegate on the wife's separate application for a protection visa was given on 24 October 2002. 2 The husband and the wife are citizens of India. The husband is a visual effects artist who appears to have impressive qualifications. He specialises in visual animation for television programs. His claimed fear of persecution arose out of the circumstances in which TV footage showing the arrest of a political leader in Tamil Nadu State, Mr Karunanidhi, was altered. 3 The husband claimed that he had been requested by a television station to alter the footage to make it appear that the police had assaulted Mr Karunanidhi during his arrest. His evidence was that he and two of his professional colleagues participated in the editing of the film footage. The husband's two colleagues also made applications for protection visas in Australia based on the same events as the husband put forward in support of his application. 4 The RRT's reasons placed some emphasis on the way in which the husband claimed that the editing work was carried out. The RRT said that the husband's claim was that he and his colleagues had been asked to, and apparently that they had digitally erased some footage and interpolated additional falsified footage. 5 The RRT dismissed the husband's claims because it was not satisfied that he was involved in the incident at all. The RRT gave four reasons for making this finding. The reasons included inconsistencies which the RRT found to exist between the husband's evidence and that of his colleagues as to the number of digital units, known as AVID, which were used in the work and inconsistencies between his colleagues and his wife as to a number of events which took place before and after the editing work was carried out. 6 The RRT provided information to the husband about inconsistencies between some aspects of his evidence and evidence of his colleagues and it invited him to comment on this. 7 The RRT did so in a letter dated 9 October 2002 which was intended to comply with the provisions of s 424A of the Migration Act 1958 (Cth) ("the Act"). The letter was written the day after the husband gave evidence before the RRT on 8 October 2002. 8 No such letter was sent to the husband containing particulars of any inconsistencies between the husband's evidence and the wife's evidence. The wife gave evidence before the RRT on 23 January 2003. The RRT's reasons record that the husband attended as an observer on that occasion. The RRT said:- "The Applicant husband attended as an observer, but was still presented with an opportunity to provide his perspective as to the consistency of his wife's evidence, and his comments have been considered." 9 The substantial question which arises here is whether the RRT complied with s 424A of the Act by failing to provide particulars of information about inconsistencies between the husband's evidence and that of his wife and his colleagues which the RRT took into account in its reasons and, if so, whether this amounted to jurisdictional error. 10 There is a further question as to whether the RRT's decision can be said to be so illogical as to give rise to jurisdictional error. The Claims 11 Before they came to Australia, the husband and the wife lived in Chennai in the Tamil Nadu State. They claimed some social links to the DMK Political Party which has been the leading opposition party in Tamil Nadu since it was defeated in elections in May 2001. The wife also claimed to be related by marriage to Mr Karunanidhi. 12 There was no suggestion that their support of, or association with, the DMK Party gave rise to any fear of persecution per se. The husband's claim was that he feared persecution from the DMK which did not want him to testify against it as to his involvement in the work and from the AIADMK which was the ruling party. His claimed fear was that the AIADMK would use the police and the courts to get revenge against him for his involvement. The wife's fear was that she would be targeted by the AIADMK because of what her husband did. 13 As I have said above, the applicants' claims turned on the events which flowed from the arrest of Mr Karunanidhi and the alteration of the film footage. Those events occurred on 29-30 June 2001 at the studios of Sun TV which is an independent television station owned by the family of a former DMK Minister, Mr Murasoli Maran ("Mr Maran"). It seems clear from the RRT's decision that the TV footage was edited so as to create a false impression of police violence. The question before the RRT was whether the husband was involved and, if so, whether this gave rise to a Convention related fear. 14 The husband did not work for Sun TV. He claimed that in the early hours of the morning of 30 June 2001, he received a telephone call from Mr Maran's son to come to Sun TV's studios. 15 The husband's written statement described the arrest of Mr Karunanidhi on the evening of 29 June 2001 and also described the capture of the arrest on video by Sun TV's cameras. 16 The husband said in his written statement that Mr Maran's son asked him at 3 am on 30 June 2001 to come to Sun TV's studios "with two of my colleagues" who were named and described as vastly experienced graphic designers. 17 In its narration of the husband's claims, the RRT stated that in his "primary application" the husband claimed that he and his colleagues "were all summoned" at the same time to Sun TV. The RRT contrasted this with his oral evidence that Sun TV contacted him first. The RRT observed that this evidence was not merely inconsistent with the evidence of his colleagues but it was also "internally inconsistent". 18 The inconsistency which the RRT gleaned from the evidence about the contact from Sun TV given in the applications made by the husband's colleagues was not referred to in the s 424A letter. 19 According to the husband's written statement, Mr Maran's son asked him at the TV studio to alter the footage as follows:- "Using your skills, we want you to edit the footage in such a way that it gives the viewer an impression that the police forcibly enters Karunanidhi's bedroom by breaking the door lock and man handling him. We want you to erase the fact that it was the servant who pushed our leader. Instead we want you to help us show that it was the police who assaulted Karunanidhi."(emphasis added) 20 The husband's written statement said that he and his colleagues agreed to do the work, that they started around 4:30 am and completed it "using AVID in just over an hour". AVID is a digital cutting, pasting and dissolving system. The husband's written statement did not specify the number of AVID machines which were used but the RRT's reasons state that the husband claimed that each of his colleagues worked "on one of the station's two AVID editing units". This seems to have been based on the husband's oral evidence when he appeared before the RRT. 21 The RRT referred in its reasons to the fact that the husband's colleagues stated in their applications that they worked together on one AVID machine. This was one of the inconsistencies between the husband's evidence and that of his colleagues to which the RRT drew the husband's attention in the s 424A letter. 22 The RRT referred to the husband's written evidence of the alterations which were made to the film footage. The RRT said that the husband asserted that his colleagues altered it "under his supervision". 23 The husband's written statement did not say that he had supervised his colleagues. It is possible that the RRT believed he gave that evidence orally. However, the husband told me that he had not done so. 24 Counsel for the Minister conceded that the way in which the RRT described the husband's evidence on this question, ie that the work was done under his supervision, appears to be erroneous. Nevertheless, the RRT stated that neither of the husband's colleagues claimed to be working under the husband's supervision. The RRT then said that their evidence was at odds with the husband's claims in this seemingly important aspect. 25 The s 424A letter made no reference to "supervision". It did say that in the husband's evidence before the RRT, "it was the other applicants, ie his colleagues who performed the editing work rather than yourself". However, this is not the same as performing work under the husband's supervision. 26 The husband said in his written statement that after the edited footage was aired there was a public outcry with protests by DMK supporters all over Chennai. 27 The husband also said in his statement that, as at that time, he and his two colleagues were getting ready for a trip to Australia which they had been planning for some time. Indeed, the husband and his colleagues obtained their visas for the trip on 26 June 2001, three days prior to the arrest of Mr Karunanidhi. The husband said that this was purely a coincidence. 28 The husband claimed that, notwithstanding the public outcry over the TV footage, he was unaware that the police were looking for him. However, the husband said in his statement that, on 16 July 2001, he and his colleagues were interrogated by the police, threatened and detained for some hours. They were released according to the statement after the husband's father went to the police station "and demanded that we three should be released immediately". 29 The RRT pointed to evidence given by one of the husband's colleagues in Case N01/40690 that "an influential relative" negotiated the release. This was said by the RRT to be another inconsistency with the husband's evidence but it was not referred to in the s 424A letter. The Section 424A Letter 30 I have referred to this in setting out the husband's claims. I will not quote extensively from it but I will record the substance of it. 31 The RRT commenced by stating that, at the hearing on the previous day, the husband was given information which would, subject to any comments he made, be a reason for deciding that he was not entitled to a protection visa. The RRT then stated that it raised at the hearing that it had heard substantially different accounts of what took place on the night of 29-30 June 2001. 32 The RRT went on to say that the husband had claimed that the videotape was altered digitally with digital erasures and digital interpolation in addition to having extraneous footage added. 33 The RRT pointed out that the husband's colleagues denied in their applications that they performed any kind of erasures "within the frame"; rather their claims were that they were involved in "cutting in" additional extraneous footage and cutting out other footage. 34 The RRT observed that there was inconsistency between the husband 's evidence and that of his colleagues on this issue. 35 As noted above, the RRT stated that the husband claimed that his colleagues performed the editing work. The RRT then referred to the husband's claim that his colleagues used separate AVID units whereas they claimed to have worked on one machine. 36 The RRT then said:- "When the Tribunal put it to you at the hearing that your evidence was different from that of the other applicants, you appeared to change your evidence, saying that the other applicants performed different technical tasks on the different segments on which they worked. The Tribunal is concerned that this is a significant revision of your earlier claim." 37 The husband was invited to comment on 1 November 2002. He did so in a letter dated 30 October 2002. The Decision of the RRT 38 The RRT was critical of many aspects of the evidence of the husband and the wife. It is not necessary to set out these criticisms in detail. It is sufficient to say that they included matters such as inconsistencies between the evidence of the husband, the wife and the husband's colleagues, the reason why Sun TV would have used "outsiders" rather than its own staff and the question of whether the TV broadcast was anything more than a minor incident over a "bit of selective and biased TV reporting". 39 Notwithstanding its criticisms, the RRT expressed a reluctance to "pick over the many credibility problems in the evidence". 40 Initially, the RRT thought it was unnecessary for it to resolve the credibility issues because it characterised the claim made by the husband as a purely criminal matter. It said:- "If the Tribunal were to accept the bulk of the Applicants' claims at face value, it would have to conclude on their testimony that, if at all, the police in TN were only seeking the Applicant husband in relation to a purely criminal matter: the doctoring of evidence against them, and not because he supports or has assisted the DMK. As discussed, this is not something that can attract relief in the present jurisdiction, for it has nothing to do with the Convention category of 'political opinion' and everything to do with the crime of fraud." 41 However, the RRT then "recalled" that the husband made two other claims which were related to the Convention. These claims were first, that the AIADMK would manipulate the police to obtain revenge against the husband and the wife over the alteration of the video footage and, second, that the DMK would harm the husband and wife in order to prevent them being witnesses against the DMK. 42 The RRT dismissed those claims in the following passage:- "However, the Tribunal is not satisfied on the evidence before it that the Applicant was ever involved. His evidence is internally inconsistent, and in many key aspects, as shown earlier, it clashes with the evidence of his wife and of his so-called accomplices (eg., over who was first contacted by Sun TV, the number of AVID units, the identity of the person who got them out of custody, and how the Applicant wife became aware of the affair) His evidence is also implausible in the details (the reason why Sun TV did not use its own staff, and the reason why the DMK thought it could rely on him) In addition, his claims are not supported by the independent reports (which indicate that Sun TV was only accused of selective footage)."