REASONS FOR JUDGMENT
1 This is an appeal against the whole of the judgment of Federal Magistrate Nicholls delivered on 6 April 2006, whereby his Honour dismissed the appellants' application for review of the decision of the Refugee Review Tribunal made on 16 October 2003 and handed down on 11 November 2003, being a decision which had affirmed the earlier decision of the Minister's delegate made on 13 September 2002 to refuse the grant of protection visas to the appellants. The appellants are a husband (SZCDA) and wife (SZCDB), and claim to be citizens of India who entered Australia on 1 May 2002.
2 The appellants' son (SZEJB) was also refused a protection visa by a delegate of the Minister. That refusal, which occurred on 30 April 2004, was subsequently affirmed by a decision of the Refugee Review Tribunal, made on the 21 July 2004, and by a decision of the Federal Magistrates Court made by Nicholls FM on the 6 April 2006. The notice of appeal to the Federal Court in relation to that proceeding contains a request that the appeal of SZEJB be incorporated with that of SZCDA and SZCDB. Consequently, the proceeding involving SZCDA and SZCDB, being numbered NSD 776 of 2006, has been treated as the precedent vehicle for the implementation of orders in relation to the proceeding involving appellant SZEJB, being numbered NSD 777 of 2006.
3 The appellants raised thirteen grounds of appeal against the decision of Nicholls FM, which are reproduced literally below:
'The Learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal[:]
The appellants state that the Refugee Review Tribunal and the Federal Magistrate[s] Court committed jurisdictional error in reaching the conclusion that the Appellants are not entitled to Protection Visa[s].
The Refugee Review Tribunal and the Federal Magistrate[s] Court failed to note that the appellants satisfy the definition of "Refugee" as defined in Article 1A(2) of the Convention. To go further the Tribunal and the Federal Magistrate failed to see that the appellants satisfy the four key elements that are required to satisfy the Convention definition. The appellants states [sic] that the Tribunal refers to four key elements and since they satisfy them they are entitled to protection visa [sic].
The first element - applicant must be outside his country.
The second element - the applicant must fear persecution. If the applicants returns [sic]to their home country their life would be in danger. They will be chased and killed.
The third element - the persecution that the applicant fears must be for one or more reasons enumerate [sic]in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The applicant fulfils this.
The fourth element - the fear of persecution for a Convention must be a 'well founded' fear. The applicant fulfils all the four elements.
The Federal Magistrate[s] Court and the Tribunal, which has described these in its decision, have failed to take note of this.
The Tribunal had failed to consider the facts in the correct way. If the appellant [sic] return to the country he [sic] will be targeted by the Samara group.
The Tribunal failed to see that Mr Samara was a cabinet Minister and he has links all over the country. The authorities and officials who have to protect the appellant and his family failed in their duty. The Tribunal miserably failed in referring to a so-called independent source in page 7 of its reasons. The Federal Magistrate[s]Court has not considered this also and has merely agreed to the Tribunal's decision.
The Federal Magistrate made an error by accepting that the Tribunal's finding that the applicant could relocate to any other part of India.
The Federal Magistrate made a legal, factual and jurisdictional error in not properly applying the principles laid down by the Full Court of the Federal Court in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437.
The Federal Magistrate failed to see that the appellant had a fear of persecution in his home country and that persecution is well founded.
The Federal Magistrate and the Tribunal should have seen that English is the main language used everywhere in India. Therefore the appellant feels comfortable in an English speaking country like Australia than other states in India which have other languages and culture.
[The] Tribunal before advising the applicant to relocate to other parts of the country should have relied on some independent source to find the truth stated in that point. The Federal Magistrate has not considered this point and made an error.
The Federal Magistrate failed to see that the Tribunal failed in relying on some country information provided by foreign sources. The Federal Magistrate should have seen the Tribunal had not given priority to the real factual situation and should not have relied on unrealistic third party statements.
The Tribunal and the Federal Magistrate have accepted the points that would be helpful to them to dismiss the case. But have conveniently by-passed the real situation.
A reading of the Federal Magistrate's reasons shows that the Federal Court had decided to dismiss the case even before completely hearing it.
As the matter has been decided by the Tribunal and the Federal Magistrate without considering the real facts and circumstances from jurisdictional error.'
4 It will be seen that those so-called grounds of appeal constitute either purported complaints as to factual findings or conclusions, or unspecific complaints in relation to subject matters said not to have been addressed by the Tribunal and the Federal Magistrates Court.
5 Nicholls FM recorded that '[o]nly the applicant husband made specific claims under the Refugees Convention', and that the basis of his claim to refugee status was his influential membership of the Akali Dal Party since 1997; his election as vice-president of the local Karyana Association; and his participation at political rallies. He further testified as to divisions within his Party into two factions: the "Badal" and the "Tohra" factions, and that he supported the Tohra faction. The first appellant also claimed the police started 'to give him trouble' following the loss of the election in 2002, and the swearing in of Mr Samara as 'Cabinet Minister' in the new Government.
6 The following circumstances were also outlined as the basis for the first appellant's claim to refugee status:
(i) he had an argument with a Congress Party parliamentarian, Amarjit Singh Samara, at a meeting in January 1998; Mr Samara reported the appellant husband to the police who went to the appellant husband's home;
(ii) he had to close his shop for two days when Mr Samara's supporters celebrated his re-election and threw stones at his shop;
(iii) in 2002 police came to the appellant's house on his wedding day and accused him of being an anti-government activist and he was told to report to the police station; the appellant husband's father paid them money to stay away from the wedding ceremony;
(iv) on 8 March 2002 he was detained and released the next day;
(v) subsequently the police frequently came to the appellant husband's home to harass him and collect money; the appellant husband visited the local Akali Dal parliamentarian to discuss his troubles but the parliamentarian said he could not help; on the same day the police came to his home and threatened the appellant husband's father and said that the appellant husband and his wife must come to the police station;
(vi) on 23 March 2002 local police wanted the appellants to go to the police station for an inquiry; instead the appellant husband paid them some money and promised to leave the next morning; the appellants went to Maclorganz and the police telephoned the appellants' family and told them that they were in trouble and not to return and that there were two police officers at the home; and
(vii) the appellants went to New Dehli and stayed there until leaving the country; their departure from India was arranged by a friend in New Dehli and required payment of a large sum of money.
7 The Tribunal doubted the male appellant's testimony that he had been a member of the Akali Dal Party from 1997 until leaving for Australia, finding (as Nicholls FM recorded) that what he testified '… about an Akali Dal candidate and the Akali Dal (Tohra) Party's "fortunes" in the 2002 election was "at odds with [the] independent county (sic) information"'.
8 Moreover Nicholls FM summarised the further findings made by the Tribunal adversely to the appellants' case as follows (the references to 'applicant' being of course to the male appellant):
'…
(2) …, it accepted that the applicant was a member of the Akali Dal (Tohra) Party in his home town, was involved in fund raising, was a "cashier" and that he had "attended political rallies and events"…;
(3) It did not accept that he had suffered persecution at the hands of Mr Samara (the local Congress Party parliamentarian) or the police… [t]his was based on the Tribunal's finding that he was not a serious threat to Mr Samara such that he would try to have him "arrested and jailed on false charges"…;
(4) It found that the applicant's evidence about his detention in 2002 was inconsistent, as was his evidence about why he left the Punjab in late 2002…;
(5) In any event it found that even if it accepted that the applicant had been detained as described, it was not satisfied that that treatment amounted to persecution…;
(6) It did not accept as plausible that a verbal altercation between the applicant and Mr Samara would lead to such a 'vendetta' against the applicant…;
(7) It did not accept the applicant's claim that he was becoming more influential and powerful and as such was a threat to Mr Samara. The Tribunal described the applicant as neither impressing as "persuasive or influential", and commented that in any event, any influence or power would have faded significantly in his absence from March 2002 and onwards…;
(8) It found that since leaving India he had not kept himself informed of Party developments or maintained any contacts…;
(9) It found further that the applicant's claims were not supported by independent country information, which the Tribunal accepted, to the effect that "members of legal political parties are free to express their views in accordance with the law", and if abuse of those rights occurs there are avenues of "recourse under the law"…;
(10) In any event, the Tribunal was satisfied that the applicant could reasonably relocate safely elsewhere in India... [t]he Tribunal's finding in this regard was based on the circumstances presented and in particular that the applicant was a 28 year old married man, had lived independently in Australia for over a year, was well educated and trilingual…;
(11) It rejected the applicant's claim that he would be identified anywhere in India as being "a political supporter"…; it found as implausible the applicant's claim that Mr Samara "would search the country for him or could find him through his relatives or if he started a business";… the Tribunal noted India's population of 984 million and commented that "no doubt many millions of them can be regarded as "political supporters"; [i]t also found that these claims were not supported by evidence, and there was nothing before it to suggest that any attempt was made to locate the applicant since he left his local town and went to New Delhi in March 2002... [f]urther, the Tribunal did not accept as plausible that "given the passage of time" (nearly 18 months) Mr Samara would have retained any interest in the applicant since his departure.'
9 Nicholls FM described the appellants' grounds of appeal to the Federal Magistrates Court as 'formulaic in presentation and style and [as] very similar to many others seen in this Court, and [as] devoid of any particularity'. His Honour observed that the allegations of bad faith and bias made by or on behalf of both appellants were unsupported by evidence and as not 'clearly alleged', and as otherwise as not reflective of what occurred in the Tribunal hearing, and pointed out that '[t]he Tribunal's account shows that it clearly discussed the relevant claims with the [first appellant] and put to the [first appellant] its doubts about some of what he was saying'. His Honour emphasised the serious nature of any such allegation and the need for distinct and clear proof of pre-judgment, reference being made by his Honour to High Court authority. His Honour dismissed the existence of any basis for the suggestion that the Tribunal misled the applicant, 'or even that the Tribunal had any understanding that the [first appellant] may have some misapprehension as to the view the Tribunal was taking of his evidence'.
10 Moreover Nicholls FM dismissed the appellants' allegation of denial of natural justice, either in the statutory context or otherwise, his Honour additionally referring in that regard to the operation of s 422B of the Migration Act 1958 (Cth) ('the Act'). His Honour continued in [13] of his reasons as follows:
'... A plain reading of the Tribunal's decision record reveals that it relied on information provided by the applicant at the hearing, and on independent country information available to it. In the statutory context such information was excluded from any obligation to put such information in writing to the applicants by way of s 424A(3)(b) and s 424A(3)(a) respectively… I cannot see that there was any breach of s 424A of the Act, or indeed any other provisions of Division 4, Part 7 of the Act.'
11 Other grounds of appeal were dismissed by his Honour as attempts to propound factual errors and attempts 'to seek review of the Tribunal's decision on the merits', and as being in conflict with the principle that there is no general obligation on a Tribunal to make enquiries, citing thereby Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] (Gummow and Hayne JJ). Moreover his Honour pointed to the absence of any 'exceptional circumstances which would serve to require the Tribunal to make… enquiries… nor [are there] any such circumstances evident on the material before [the Tribunal], referring thereby to the well known observation of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. His Honour emphasised moreover the principle that the Tribunal is not obliged to accept an applicant's claims uncritically, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J). Ultimately of course, a conclusion that an applicant's claims lack credibility is one falling to be made by the Tribunal, his Honour referring generally to the often cited authority of Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
12 Other findings and observations in his Honour's thorough review, undertaken in relation to what comprised in any view what may be fairly described as sweeping and unspecific claims as to absence of establishment of any exceptional circumstances, included the observation that '… the very basis of the Tribunal's decision was the evaluation of the applicant's position in a political party and further the circumstances arising from this situation and the evaluation of whether that participation amounted to a well founded fear of persecution', and that the appellants had 'not put forward anything to say that he was a member of any other social group', and further that there was not 'any other possible social group of which the applicant could have been a member evident on the material before me'.
[2]
The appeal to the Federal Court
13 The appellants did not provide any written submissions to the Court, notwithstanding being of course directed to do so. The first appellant addressed the Court in person on behalf of himself and his wife the second appellant, and also on behalf of their infant son. I will hereafter refer to the submissions articulated by the first appellant as submissions of the appellants. The appellants informed the Court that the grounds of appeal were prepared by a migration agent, whom they did not identify. The appellants' notice of appeal does not raise as a ground of appeal any breach by the Tribunal of s 424A of the Act. However, the Minister raised that particular issue in the Minister's outline of submissions and the proceedings was adjourned for further hearing on 31 August 2006 largely in order to afford the opportunity to the parties for further submissions referrable to recent authority in relation to the operation of that statutory provision.
14 The Minister submitted in summary, by way of reasons for rejection of the grounds of appeal postulated by the appellants and summarised in [3] above, as follows:
(i) the grounds of appeal summarised in [3(1)] and [3(2)] above were meaningless without the particularisation which they lacked;
(ii) the grounds of appeal summarised in [3(3)], [3(4)], [3(5)] and [3(9)] above constituted new grounds of appeal not raised by the appellants before Nicholls FM, and should not be allowed in the context of the appeal in the absence of exceptional circumstances being demonstrated; I was referred in that regard to the well known passage in Coulton v Holcombe (1986) 162 CLR 1 at 7-8 (Gibb CJ, Wilson, Brennan and Dawson JJ), where the following appears inter alia:
'In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards… .'
The Minister emphasised that the appellants had provided no explanation as to why those new grounds were not raised before Nicholls FM, and moreover that it was not in the interests of other litigants, whose appeals require hearing and determination, and of the broad public interest in efficient judicial administration, to allow those new grounds to be argued and determined, reference being made to five decisions of this Court in relation to migration litigation, the most recent being that of NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCR 51 at [162] (Madgwick J);
(iii) the grounds summarised in [3(2)], [3(4)], [3(7)], [3(8)], [3(9)] and [3(10)] above pleaded errors in the Tribunal's consideration of the merits; merits review being impermissible in the context of determining whether the Tribunal's decision was a decision made under the Act; I was referred in that regard to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; moreover the weight that the Tribunal may give to some evidence compared to other evidence was a matter for the Tribunal, and it was not for the Court to determine the appropriate weight to be given thereto; I was referred generally in that regard to the reasons for decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
(iv) as to the grounds summarised in [3(5)], [3(6)] and [3(9)] above, the Tribunal gave proper consideration as to whether, as a practical matter, the appellants could genuinely access domestic protection in India, and whether that protection was meaningful; the Tribunal observed specifically that the appellant husband/father was a well educated young man with the ability to speak three languages, and moreover that country information demonstrated as implausible his claims that he could not relocate safely within India, and found that there was nothing to suggest that any attempt had been made to locate him since he had left his home town; in those circumstances it was submitted that the Tribunal gave proper consideration to the appellants' relocation within the principles enunciated in Randhawa at 270 (per Black CJ with whom Whitlam J agreed);
(v) the grounds summarised in [3(4)], [3(11)], [3(12)] and [3(13)] were essentially claims as to his Honour's bias, whereof there was no evidence; moreover there was no suggestion in the evidence that the appellants were not given an opportunity to present their case or were somehow overborne by the Tribunal or the Federal Magistrates Court; an allegation of actual bias carries of course a heavy onus and must clearly be established - see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 531.
15 For all the foregoing reasons, the Minister submitted that the appeal must fail, subject only to consideration of the s 424A issue raised on the appeal, to which I will shortly return. Nothing was put forward to any material or viable extent by the appellants to the contrary of the foregoing findings. It was in reality a case of the appellants raising virtually every conceivable basis for vitiating the administrative decisions of the Tribunal without any viable basis.
[3]
The section 424A issue arising
16 The Minister submitted that Nicholls FM found that apart from the independent country information that his Honour found to fall within the exception to s 424A(3)(a), the remainder of the information was information provided by the appellant. The Minister made the further submission that the Tribunal member had earlier made reference to the appellants' visa applications in her reasons for affirming the decision under review 'by virtue of that information being "adopted" by the Appellants in the Appellants' application for review and at the Tribunal hearing or "republished" by the Appellants in their application for review'. Thus according to the Ministers contention, the information from the application visa that was adopted by the Tribunal was 'excepted from the obligations in s 424A(1) [of the Act] by virtue of subs (3)(b)'.
17 Section 424A of the Act is as follows (so far as is material):
'424A Applicant must be given certain information
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review; and
(c) invite the applicant to comment on it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.'
18 The Minister pointed to the following 'facts and circumstances' in making the submission that the first appellant 'adopted' or 'republished' the material in his protection visa application during the hearing before the Tribunal:
(i) First, the appellants stated in their application for review that, '[w]e are deeply aggrieved by the decision made by the case officer of the Department of Immigration and Multicultural Affairs';
(ii) Secondly, 'the claims made in the Appellants' application for review are an incomplete summary of the claims in the Appellants' application for protection visa and there are objective similarities between the wording used in the Appellants' application for review and that used in their application for protection visa'.
(iii) Thirdly, at the Tribunal hearing the first appellant 'assured the [Tribunal] that the information and claims in the appellants' application for protection visa were a true and correct statement of his claims'. The Tribunal member stated the following in her reasons for decision:
'At the Tribunal hearing the Applicant assured the Tribunal that the information and claims in the protection visa application were true and a complete statement of his claims for a protection visa.'
The Minister submitted that this finding is supported by the Tribunal transcript, which contains the following discussion between the Tribunal member and the first appellant:
'TM: Okay. Okay…when you applied for a protection visa with the help of your adviser you completed these application forms. You might remember these orangey pink ones.
A: Yes.
TM: It's about your background, where you lived, and what you did. And there's also a statement that you signed.
A: Yes.
TM: About your claims for a protection visa. Now, is all of that information true?
A: Yes.
TM: Okay. All true?
A: Yes.
TM: Okay. Is it a complete statement of your claims for a protection visa?
A: Yes.
TM: Is there anything that's incorrect that you want to fix?
A: No things.
TM: Is there anything that's incorrect that you want to fix?
A: No things.
TM: Is there anything that was left out that you want to add?
A: No.'
19 Jacobson J observed at [37] in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744, that 'information from the protection visa application which an applicant for review expressly adopts and puts forward as part of his or her application for review by the [Tribunal] falls within the exception in s 424A(3)(b)', and in order for such information to fall within that exception 'it must be put forward in chief, the assumption being that by doing so the applicant is aware of the significance of the information'. That dictum of Jacobson J was subsequently followed by a Full Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [20], [157] and [219] (Moore, Weinberg and Allsop JJ respectively).
20 The Minister submitted in respect to the dictum of Jacobson J in NAZY that 'the facts and circumstances of each case should be the determining factor as to whether there has been an adoption or republication by the applicant in their application for review of the contents of their application for a protection visa', and further that the 'facts and circumstances' outlined at [18] 'indicate that the appellants adopted… [the] claims made in their application for protection visa in their application for review'.
21 I do not find force in that submission by the Minister, as the combination of those 'facts and circumstances' relied upon by the Minister do not demonstrate, in accordance with NAZY, that the appellant adopted his protection visa application for the purposes of his application for review. As a consequence it appears the Tribunal did breach s 424A(1) by relying upon information contained in the appellant's protection visa application, and by not providing particulars of that information to the appellant.
22 However, I do find force in the Minister's further case on the appeal that the Tribunal's finding in respect to relocation was a separate and independent basis upon which the Tribunal affirmed the decision under review. The Tribunal member's use of the words 'in any case', prior to her finding on relocation, demonstrates that it was a separate and independent ground. The existence of such an independent ground is sufficient basis for the withholding of relief: see SZEEU at [233] (Allsop J).
23 Accordingly the appeal must be dismissed with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.
[4]
Date of Hearing: 28 July and 31 August 2006
Parties
Applicant/Plaintiff:
SZCDA
Respondent/Defendant:
Minister for Immigration and Multicultural and Indigenous Affairs