NANI v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction: 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for writs of certiorari and prohibition quashing a decision of the Refugee Review Tribunal ("the RRT") handed down on 14 March 2003. The RRT affirmed a decision of a delegate of the Minister given on 18 December 2002 refusing to grant the Applicant a protection visa. The Applicant also seeks injunctive relief and a writ of mandamus. 2 The Applicant claimed to have a well-founded fear of persecution on the ground of race or religion. He is a Sunni Muslim from India who said he had a romantic relationship with a Hindu woman from a high caste family. Before his departure from India, the Applicant ran a shop. He claimed that, because of his relationship with his girlfriend, the shop was burned, his family home was vandalised and his family was assaulted. 3 He claimed that his girlfriend's brother was a member of an extremist Hindu group with strong government connections and influence. The Applicant claimed that as a result of this his complaints to the police were not dealt with. 4 The Applicant's claims were rejected by the RRT primarily on credibility grounds. However, the RRT gave other reasons for refusing the claim which included a finding that, even if his claimed fear of persecution was true, the Applicant could be expected to relocate within India. 5 The principal question which arises on this application is whether the RRT committed jurisdictional error in failing to consider documents submitted by the Applicant to the RRT on 14 March 2003, ie on the day on which the decision was handed down. 6 The documents which he submitted were statements from persons who said they witnessed the burning of the shop and certificates of the Applicant's girlfriend's education. 7 The Applicant submits that the Applicant failed to consider the documents either because it considered itself to be functus officio when the documents were received or because it applied RRT policy in refusing to consider the documents and that it did so without considering the merits of the case. 8 The Applicant submits in the alternative that the failure of the RRT to consider the documents amounted to a breach of the provisions of s 425 of the Migration Act 1958 (Cth) ("the Act") or a denial of procedural fairness. 9 The Minister takes issue with each of the bases on which the application is put. However, the Minister contends that even if the claim of jurisdictional error could be made out (which the Minister denies) the result could not possibly have been different. This is because the third ground on which the application was rejected, (i.e. the ability to relocate), is said to be an independent ground which did not turn on the rejection, on credibility grounds, of the Applicant's claimed fear of persecution. Background facts up to the time of delivery of the Applicant's documents on 14 March 2003 10 The Applicant is a citizen of India. He arrived here on a false passport in April 2001 and was admitted entry on a student visa issued in New Delhi about two months earlier. 11 Upon the expiry of the student visa, the Applicant became an unlawful non-citizen. He was detained in November 2002 and placed in immigration detention. 12 On 6 December 2002, the Applicant lodged his application for a protection visa. This application was, as I have already said, refused by a delegate on 18 December 2002. 13 On 19 December 2002, the Applicant lodged an application for review of the delegate's decision and he was released from detention on or shortly after 23 December 2002. 14 By letter dated 24 January 2003, the RRT informed the Applicant that it was unable to make a decision in his favour on the material which he had submitted. He was invited to attend an oral hearing to be held on 17 February 2003 and to "send any new documents" by 11 February 2003. 15 On 10 February 2003 the Applicant phoned the RRT to ask for an adjournment. The RRT made a note of the conversation in the following terms:- "10/2/03 Applicant called to ask for a postponement as he was only informed of his hearing a few days ago and wanted more time to acquire documentation from India. I told the applicant that he could always forward these documents after the hearing if agreeable to the Member and stated that I would inform the relevant case officer who would call him back after she discussed his request with the Tribunal Member". 16 There is a handwritten note at the foot of the document which states that there would be no adjournment and that the Applicant's agent had been advised. The handwritten note is signed by the Tribunal Member who heard the application. 17 On 17 February 2003 the Applicant attended an oral hearing before the RRT. He said that he wanted more time to produce the documents which were on their way from India. The RRT refused to grant an adjournment. 18 The relevant portion of the transcript of the hearing on 17 February 2003 is as follows:- "RRT member: Are they the full extent of your claims? Applicant: There are a few more evidences which I wish to produce and they are on their way from India to the Court and I am to produce those evidence. Applicant: For example, they burnt my shop and I have got statements of the witnesses to this incident and also certificates of my girlfriend of her school.