Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 1573 | Case summary

REASONS FOR JUDGMENT 5 KATZ J: There is before the Court a motion, the applicants on which are Ms Pooja Prashar, her husband, Mr Vikas Prashar ("Mr Prashar"), and their son, Mr Karan Prashar. The motion appears plainly to have been brought in reliance on O 52, par 38A(2)(a) of the Federal Court Rules (Cth) ("the Rules"). 6 Order 52, subr 38A(1) of the Rules confers on the Court a number of powers in the alternative if a party is absent when an appeal is called on for hearing. Among those powers are: first, if the absent party is an appellant, dismissing the appeal (O 52, par 38A(1)(c) of the Rules); and, secondly, proceeding with the hearing (O 52, par 38A(1)(d) of the Rules). 7 Order 52, par 38A(2)(a) of the Rules provides that, if the hearing proceeds in the absence of the party and an order is made, the Court may, on motion by that party, set aside the order. 8 The Prashars were the appellants on an appeal to a Full Court of this Court from a judgment of a Judge of this Court: see Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 57 (Madgwick J, 7 February 2001, unreported). They were absent when that appeal was called on for hearing in August 2001. In those circumstances, the Full Court decided to dismiss their appeal: see Prashar v Minister for Immigration & Multicultural Affairs [2001] FCA 1119 (Moore, Sackville and Kiefel JJ, 10 August 2001, unreported). In dismissing the Prashars' appeal, the Full Court plainly relied on O 52, par 38A(1)(c) of the Rules: see its reasons for judgment at [7]. 9 In its reasons for judgment, the Full Court stated in obiter at [7] that O 52, par 38A(2)(a) of the Rules "gives an appellant a right to move the Court by notice of motion to set aside the order dismissing the appeal". 10 It is not clear to me beyond doubt that the construction given to O 52, par 38A(2)(a) of the Rules in that obiter statement by the Full Court was correct. I say that because the implied entitlement conferred on the absent party by O 52, par 38A(2)(a) of the Rules to seek the setting aside of an order made on the appeal in the party's absence is expressed to depend on the hearing's having "proceed[ed]" in the party's absence. That implied entitlement may be thought to depend on the Court's having earlier exercised the power conferred on it by O 52, par 38A(1)(d) of the Rules and to be not available when the Court has instead earlier exercised the power conferred on it by O 52, par 38A(1)(c) of the Rules. However, for the purpose of the present motion, I am prepared to act on the basis that the implied entitlement conferred on the absent party by O 52, par 38A(2)(a) of the Rules applies when the Court has earlier exercised the power conferred on it by O 52, par 38A(1)(c) of the Rules, just as much as when it has earlier exercised the power conferred on it by O 52, par 38A(1)(d) of the Rules. 11 Order 52, paragraph 38A(2)(a) of the Rules does not specify any criteria for the exercise by the Court of the power conferred on it by that provision. However, the considerations which, in my view, would be relevant in the exercise of that power would include at least whether the moving party has provided an acceptable explanation for that party's absence when the appeal was called on for hearing and the strength of that party's case on the appeal if the order dismissing the appeal were to be set aside. 12 The motion presently before the Court has been supported by affidavits made by Ms and Mr Prashar respectively, deposing in each case to an explanation why the deponent did not attend on the hearing of the appeal in August 2001. (There has been no equivalent affidavit from the third appellant, Mr Karan Prashar, but that is hardly surprising, since he is a four year old child.) 13 In addition to filing the two supporting affidavits which I have just mentioned, the Prashars have also filed a document described as an "amended notice of appeal". That was a misdescription of the relevant document in at least one sense, since, at the time at which that document was filed, the Prashars had no appeal on foot, but were merely seeking to have set aside the order by which their former appeal had been dismissed. Thus they had no appeal extant whose notice of appeal could be amended. 14 The notice of appeal which the Prashars had filed in the dismissed appeal had merely stated, as the grounds of their appeal, that the primary Judge had been "wrong in law" and "wrong in fact". Further, the Prashars had not complied with the Court's practice note regarding the filing in advance of the hearing of an appeal of a written outline in the appellant's submissions. Thus it is impossible to know the basis on which they would have submitted that the judgment of the primary Judge should be set aside if they had been present when their appeal had been called on for hearing before the Full Court. 15 In circumstances such as those, there appears to me to be much to be said for the view that a moving party's motion under O 52, par 38A(2)(a) of the Rules should fail, simply because that party cannot establish what the strength of that party's case on the appeal would have been if that party had not been absent when that party's appeal had been called on for hearing. To approach the matter otherwise appears to me to invite attempts to abuse the legal process by appellants who or which may find it in their interest for some reason to keep appeals brought by them on foot without being determined. However, in the circumstances of the present motion, I am prepared to consider, by reference to their so-called amended notice of appeal, the strength of the Prashars' case on the appeal if the order dismissing their appeal were to be set aside. 16 As to the Prashars' so-called amended notice of appeal, it is a seven page document, said within it to have annexed to it five annexures (although it appears that a miscellany of other documents was also filed together with the so-called amended notice of appeal). Unlike their notice of appeal, their so-called amended notice of appeal does give some indication of the basis on which the Prashars would submit that the judgment of the primary Judge should be set aside if the order dismissing their appeal were to be set aside. 17 However, before referring to the contents of the Prashars' so-called amended notice of appeal, I should refer both to the background to the primary Judge's judgment and to his Honour's reasons for judgment. 18 The Prashars are Indian nationals, who sought protection visas from the present respondent ("the Minister"), then called the Minister for Immigration & Ethnic Affairs. The application, so far as it concerned Ms and Mr Prashar, was rejected by a delegate of the Minister ("the delegate") on the basis that neither of them had a well-founded fear of being persecuted in India for one of the reasons referred to in the Refugees Convention. The application, so far as it concerned Mr Karan Prashar, was rejected by the delegate because its success had depended on the success of the application, so far as it concerned Ms and Mr Prashar. The delegate's decision was subsequently affirmed by the Refugee Review Tribunal ("the RRT"). The Prashars' application for review of the RRT's decision was then dismissed by the primary Judge. 19 For present purposes, it is sufficient to set out the following extract from the primary Judge's reasons for judgment. His Honour said (at [27]-[36]), "[27] Very importantly, the Tribunal member dealt with the question of relocation. The Tribunal member applied the approach enunciated in Randawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 by Black CJ (with whom Whitlam J agreed) and referred also to remarks of Mansfield J in Singh v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 469 at para 30. The Tribunal member noted that the applicant husband had carried on an established business, had access to financial resources through friends and sponsors and had a quite vast amount of travel experience both in India and other countries. There were therefore 'no logistical barriers to his finding a part of India in which to settle'. [28] The Tribunal member said: 'In this case having regard to a broad range of issues I am satisfied relocation is a real option and the applicants have genuine access to meaningful protection in their country of origin. I must look at the genuineness of the domestic protection, the quality of internal protection to be satisfied that it meets basic norms of civil; political, and socio-economic human rights, which internal safety is not illusory or unpredictable and state accountability for the harm is established.' [29] The Tribunal member noted that both applicants had managed to obtain employment in Australia; that they had the resilience and flexibility to be able to re-settle themselves in a foreign milieu; that they were both well-educated, having university degrees recognised in India, and that the husband had been able to establish a successful and profitable business and sell himself to sponsors before and after marriage. In particular, the Tribunal member noted that India was a country with a population of over a billion people and he accepted a description of India as: 'a democratic country which holds regular elections in which Governments do change and which has independent courts of integrity which strive to fulfil their role as honest arbiters between the citizen and the state.' [30] The Tribunal member also referred to the fact that the applicants speak three languages, would have no difficulty communicating and are young and healthy. The Tribunal member concluded: 'I am satisfied that the practical realities are such that they are able to relocate without difficulty. Their abilities are such that the applicants could relocate to many parts of India far from their former home and not expect to encounter any Convention difficulty. I [recognised] that safety is clearly one of the prime factors. I am satisfied that they will have the same level of protection [as] all other Indians.' [31] The Tribunal member rejected a submission of the applicants that 'relocation has been tried and failed'. He pointed out that the difficulty in Guwahati, if the applicant wife actually had suffered any, was not directly related to the earlier matters. In this regard the Tribunal member said: 'While it is not necessary for me to identify a particular place to which the applicants may relocate looking realistically and sensibly at the possibility [ies] I am satisfied that the south of India where in some parts [the] majority are not Hindu is a reasonable alternative and an area where they are not at risk.' [32] With the exception of one matter to which I will come in a moment, these findings about relocation appear to me to be decisive of the case and, if there were other errors involving any failure to properly consider whether the applicants may be refugees pursuant to the Convention, they are legally irrelevant if the findings as to relocation are legally unassailable. In my opinion, such findings are legally unassailable. [33] It may be that in another country, in other circumstances, if a putative refugee had for Convention reasons suffered serious social insult and assaults in one place and moved to another and suffered similar harm, to insist that the applicant should try a third or a fourth place might indicate legal error in considering the question of reasonableness of relocation. Relocation, it must be remembered, is relevant to the actual Convention test of whether the putative refugee has a 'well-founded fear' of persecution in their country of nationality. However, that is hardly the case here. Although the Tribunal member did not expressly articulate it, it is inherent in the references to the vastness of India's population (and is, I think, notorious) that India is a country of immense social diversity. The conclusion to which the Tribunal member came, having regard to the various factors to which he quite properly referred, seems to me not only legally unassailable but, if I may say so, factually unavoidable. Bias [34] The remaining matter to which I should refer is the question of supposed actual bias on the part of the Tribunal member. In support of this ground it was suggested that the Tribunal member had, in relation to the female applicant's claims of rape, failed to keep the proceedings confidential. Further, the circumstances of the attempted bribery of the applicants indicated that the would-be extortionist knew the Tribunal member's name before the applicants had received notification of the hearing. Neither matter betokens any bias on the part of the Tribunal member, however unfortunate the circumstances otherwise were. [35] The submissions go on to confuse a necessity for justice to be seen to be done with a supposed necessity that the Tribunal member should have disqualified himself from the hearing for the actual bias. At best what might have been involved was apprehended bias, which is not reviewable in this Court. It was finally submitted that the Tribunal member had closed his mind to the issues raised in relation to the bribery matter but in my opinion, with respect, this is a confusion of ideas and there is nothing in it. [36] The written submissions deal with a good many other matters but, in view of my conclusions about the relocation questions, I need not refer to them as they could not overcome that matter." 20 Nothing which the Prashars have submitted before the Court has persuaded me that the primary Judge was wrong to approach the application before him on the basis that, subject to the Prashars' reliance on the ground of actual bias on the part of the RRT, unless they could establish judicially-reviewable error in respect of the RRT's conclusion on the relocation issue, then their application for review of the RRT's decision must fail. I will therefore consider, in the first instance, the question of the strength of the Prashars' case on the appeal on the actual bias and relocation issues if the order dismissing their appeal made in their absence were to be set aside. If that case is seen to be not reasonably arguable, then, in my view, their motion should be dismissed, even if they have provided acceptable explanations for their absence when the hearing of their appeal was called on in August 2001. 21 I have already mentioned above the existence of five annexures referred to in the Prashars' so-called amended notice of appeal. I turn now to those annexures. They consisted of the following: a letter regarding Ms Prashar dated 13 July 1998 from the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors ("STARTTS"), addressed to the RRT; an undated letter regarding the Prashars from the St George Hospital & Community Health Services, addressed to Centrelink; a letter regarding Ms Prashar dated 23 June 1998 from the St George Backstop Family Support Service Inc, addressed to whom it might concern; an item appearing in the Indian Express newspaper on 4 December 1998; and a series of items from the same newspaper from some unknown date in 1999. 22 The last two annexures went neither to the relocation nor to the actual bias issue, but rather to the merits of a factual conclusion expressed by the RRT in its statement of findings and reasons that a particular Indian politician "is not known as a high profile politician to the Australian High Commission". Those annexures can therefore be put to one side immediately for present purposes. The remaining annexures were relied on in relation to the actual bias issue. The matter was put in the following way in the so-called amended notice of appeal: "The case when taken as w hole established that the Tribunal member was not in fresh mind because make known to the member that his name was mentioned as the person who will hear the applicant case, the issue of bribe came up that unless the applicants pay the money, their application would be refused, that the tribunal member had either made up his mind unfavourably early and that can be gleaned at page 8 paragraph 3 (Index of appeal book page 049 paragraph 3). The highly relevant material concerning applicant state of mind and medical condition has been viewed in a bias manner. [The RRT stated:] 'Amongst other things they indicate the applicant has not been diagnosed with acute major depression triggered by her letter of refusal from Immigration and threatening phone calls.' Where as STARTS, St George Backstop Support Service inc, St George Hospital and Community Health service and one other service confirmed that appellant had been diagnosed with acute major Post Traumatic Syndrome depression (P.T.S.D.) and vulnerably as a women of by sexual assaults on her by the police in India. (ANNEXTURE ABC)" 23 (I note that, during her oral submissions today, Ms Prashar, who appeared on the motion on behalf of herself, her husband and her son, acknowledged that, in the passage from the so-called amended notice of appeal which I have just read out, there had been a typographical error and that, in truth, the RRT had stated: "Amongst other things they indicate the applicant has been diagnosed with acute major depression triggered by her letter of refusal from Immigration and threatening phone calls.") 24 Turning now to the so-called amended notice of appeal itself and leaving aside the extract from it which I have just quoted, much of what appears in it appears under the heading of "grounds", but could not be described as setting out proposed grounds of appeal from the primary Judge's judgment. To the extent to which the document does set out such grounds and to the extent to which it challenges the primary Judge's conclusions on the relocation and actual bias issues, I am not persuaded by it that the Prashars would have a reasonably arguable case on appeal that the primary Judge had erred in reaching the conclusions which he did. 25 Dealing first with the actual bias issue, I note that, in Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 (Carr, Lindgren and Katz JJ, 18 May 2001, unreported), a Full Court of this Court referred with approval (at [49]) to the emphasis which had been given by Finkelstein J in Bilgin v Minister for Immigration & Multicultural Affairs (1997) 149 ALR 281 at 282 to the seriousness of the making of such an allegation. The matters relied on by the Prashars in their so-called amended notice of appeal as establishing actual bias on the part of the RRT show that they have paid no regard to the seriousness of making such an allegation against someone. 26 I have already set out above some of the material appearing in the so-called amended notice of appeal relating to the actual bias issue. As to much of that material, it is sufficient to say that I can see no error whatever in the primary Judge's approach to it. 27 I turn now to the allegation, apparently not made before the primary Judge, that actual bias on the part of the RRT was established by its treatment of three of the annexures to the so-called amended notice of appeal to which I have referred above, namely, the letters from STARTTS, the St George Hospital & Community Health Services and the St George Backstop Family Support Service Inc. 28 I am unable to see how what the RRT concluded as a result of those letters would have established actual bias on its part. 29 One further matter said in the so-called amended notice of appeal to establish actual bias on the RRT's part, again apparently not raised before the primary Judge, was its failing to make findings on a particular matter, namely, whether Ms and Mr Prashar had been physically assaulted in India on account of their flouting the mores of their caste. Again, I am quite unable to see how such an omission by the RRT would be evidentiary of actual bias on its part. 30 As to the relocation issue, it is sufficient again to say that I can see no error whatever in the primary Judge's approach to it. In so far as the Prashars criticised his Honour's conclusion on that issue in their so-called amended notice of appeal, they did so by submitting in substance that his Honour, "… should have found that the Tribunal's reasons for its conclusion on the relocation question indicates that it was not really addressing the quality of the protection which may be available to the appellant elsewhere within India[]…." 31 Such a submission was a mere attempt to re-agitate the merits of the RRT's conclusion on the issue. Similar submissions were made orally today by Ms Prashar regarding the RRT's conclusion about the reasonableness of requiring their relocation within India. 32 Having concluded the Prashars' case on the appeal on the actual bias and relocation issues would be not reasonably arguable, assuming the order made in August 2001 dismissing their appeal in their absence were to be set aside, I therefore conclude further that their motion should be dismissed, irrespective of whether they have provided acceptable explanations for their absence when the hearing of their appeal was called on in August 2001. The Prashars should also be ordered to pay the Minister's costs of their motion. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Prashar v Minister for Immigration & Multicultural Affairs

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Cited By (6)