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[2007] FCA 33
Federal Court of Australia
2007-01-30
Conti J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal against the judgment of Federal Magistrate Barnes given 10 May 2006, whereby her Honour dismissed an application for judicial review of the decision of the Refugee Review Tribunal ('the Tribunal') earlier madeon 14 January 2004 and handed down on 4 February 2004. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 19 August 2003 to refuse the grant of a protection visa to the appellant.
Background 2 The appellant is a citizen of India. Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his activism with the Trinamool Congress Party ('TMC') and its arm known as the 'Youth Congress of the Trinamool Dum Dum Committee'. The appellant claimed to have been involved in various executive positions and election campaigns, culminating in his being appointed as the Youth Secretary of one of the TMC's District Committees in mid-2002. The appellant's claims extended moreover to having been attacked and kidnapped by the Communist Party of India (Marxist) ('the CPIM'), and having sustained false charges laid against him with a view to the destruction of his political career. The appellant arrived in Australia from India on 31 May 2003 and applied for a protection visa on 25 June 2003.
The Tribunal's decision 3 The Tribunal found that the appellant's evidence concerning his employment, financial situation and previous overseas travel was vaguely and hesitantly presented, and involved the highlighting of the appellant's alleged political activities in order to bolster his refugee status. The Tribunal found in particular that his evidence on political matters was expressed in merely general terms and related mostly to the framework of contemporary West Bengal politics. The Tribunal declined to give weight to a certain document submitted by the appellant purportedly from the TMC, and upon which the appellant placed reliance, as it had concerns regarding its provenance. Although the Tribunal was prepared to accept the appellant's assertions regarding his executive positions specifically in the TMC Youth Congress, it was not satisfied that those positions, which were not verified by any documentation, denoted or reflected in reality any political profile or influence on his part. The Tribunal found instead that the appellant's interest and role in West Bengal politics was of at least a low-key nature. 4 The Tribunal gave consideration in the foregoing context to specific events claimed by the appellant in support of his application for refugee status. With respect to the disruptions occasioned to the 2001 elections in India, the Tribunal gave the benefit of the doubt to the appellant's narrative, and hence acknowledged those claims, but found that the alleged attack by the CPIM upon the appellant was inferentially intended to halt the protest and not to target the appellant. 5 The Tribunal gave the appellant the further benefit of the doubt that in the context broadly as testified, he had gone to live in his sister's house, and that in his absence, his family was abused and threats were made against him. However, it found the primary reason for that incident not being reported by the appellant to relevant authorities was because the appellant did not consider it to be serious, and further that the mistrust by the appellant's family concerning the police had been only a secondary consideration. Furthermore the Tribunal observed that there were no such further or similar incidents in 2001 and 2002 in which he claimed involvement. Consequently the incident whereof he complained did not indicate an intention, in the Tribunal's view, to inflict serious harm on him at that time or in the future. The Tribunal did not accept moreover the appellant's claim to abduction in February 2003. 6 The Tribunal addressed the country information regarding politically-motivated violence in West Bengal and the appellant's suggestion that CPIM hoodlums acted with the tacit support of the government in power. However due to a lack of country information and the Tribunal not accepting that CPIM hoodlums generally acted with the support of the CPIM, and due further to what amounted in reality to the appellant's low political profile, the Tribunal concluded that any harm and adverse attention relevantly to the appellant would be remote if he was to return to India. 7 The Tribunal further considered that there existed adequate state protection in India for the appellant in relation to his personal circumstances identified, especially in view of his family's social and economic standing in the community where he lived. The Tribunal did not accept as credible that false charges were laid against the appellant. The Tribunal observed the reality of the appellant's unhurried departure from India and did not accept the appellant had been subject to any persecution in India preceding that departure. 8 The Tribunal did not consider therefore that the appellant had any well-founded fear of persecution in India in the reasonably foreseeable future, and that his low level of political commitment and activity, such as it was, did not mean that it was likely that he would attract adverse attention in the future. The Tribunal also considered that relocation of the appellant elsewhere in India was not unreasonable. The Tribunal affirmed therefore the decision of the Minister's delegate not to grant a protection visa.
Decision of Federal Magistrate 9 Before the Federal Magistrate, the appellant's principal ground for review of the Tribunal's decision, as set out in his application, asserted a denial of procedural fairness, in that the Tribunal did not put its concerns about the authenticity of a certain letter bearing date 14 February 2003 to the appellant for explanation or otherwise. The appellant provided further grounds and arguments in the written submissions which her Honour also addressed. 10 The Federal Magistrate considered the ambit of s 422B of the Migration Act 1958 (Cth) ("the Act") and found, in the light of authority, that she was bound to follow the decision of the Federal Court in SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 148 FCR 302, where Branson J considered the possible operation of principles of procedural fairness beyond the scope of the obligations imposed by s 424A of the Act and concluded there was no scope for any wider obligation to provide particulars of information in relation to the Tribunal's review process. Barnes FM found that the appellant's grounds of complaint in relation to the breach of common law rules of procedural fairness could not succeed since the effect of s 422B was that there was no obligation on the part of the Tribunal to put its concerns about the document to the appellant for explanation. 11 The Federal Magistrate considered moreover that the issue arising in WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 1 (Lee, Hill and Carr JJ) was distinguishable, as the Tribunal did not make here a positive finding of fraud but rather accorded the letter no weight. 12 In relation to grounds of review raised by the appellant below regarding the obligation of the Minister under s 424A(1) of the Act, the Federal Magistrate found no error to have been established. The country information and the Tribunal's comments on the implausibility of the letter transmitted by fax on 29 November 2003 from a Mr Baksi were excepted from any operation adversely to the Minister of s 424A(3) of the Act. Furthermore her Honour considered that the letter did not constitute a matter upon which the Tribunal relied upon as constituting the inconsistencies between the information provided to the delegate and that to the Tribunal, and further took the view moreover that the Tribunal's thought processes were not information falling within the scope of operation of s 424A(1) of the Act in any event. 13 The Federal Magistrate found in addition that there was no evidence to support the appellant's other grounds for review sought to be advanced in his submissions to the Court, and that the purported grounds for review sought by the appellant were in the nature of merits review of the Tribunal's decision. In the result, her Honour found no reviewable error was established and dismissed the application for review.
The appeal 14 On 26 May 2006 the appellant filed a notice of appeal, which purported to challenge the Federal Magistrate's decision on a number of grounds. The notice of appeal included the following grounds: the Tribunal failed to take into account relevant considerations and evidence; the Tribunal denied the appellant procedural fairness by failing to provide the appellant with a reasonable opportunity to respond to country information; the Tribunal failed to investigate the provenance of the letter from the Dum Dum Trinamool Yuba Congress, faxed on the 29 November 2003; the Tribunal made findings which were not open on the evidence; and that the Tribunal erred in finding that the appellant could avoid harm if he ceased to be involved in politics in India. 15 The appellant provided five pages of written submissions in support of the purported grounds of appeal. The Minister responded in detail to those submissions. When the appeal was called on for hearing, the appellant informed the Court to the effect that he had nothing to add beyond the scope and text of his written submissions.
The submissions of the appellant on the appeal and the Minister's responses 16 The submissions of the appellant purportedly addressed the reasons for decision of the Tribunal and did not at least explicitly purport to address the reasons for judgment of the Federal Magistrates Court. This reflects an unfortunate trend in the submissions of unrepresented appellants in migration cases. I will address below those written submissions of the appellant in any event, and by reference to the issue headings as formulated by the Minister.
(i) Failure to take into account relevant considerations and evidence 17 On any fair and reasonable analysis of the reasons for judgment of Barnes FM, her Honour did not fail to take into account relevant considerations or evidence relating to the contention raised by the appellant that he would experience harm whenever he might be returned to India. The appellant was in that regard a member of the TMC, which on the evidence before the Tribunal is a political party that exists in West Bengal, and not the remainder of India. In any event, at the Tribunal hearing the appellant asserted that the reason why relocation was not possible was because of his upper middle class origins, language and ethnicity, which generalities of description were inferentially or inherently addressed in the Tribunal's reasons. In those circumstances, the purported case that the Tribunal failed to take into account a relevant consideration was not made out. 18 In the appellant's written submissions, he also contended that the Tribunal failed to consider whether relocation was reasonable, since the police could still find him anywhere in India in relation to the alleged false charges. However that submission failed to recognise that the Tribunal rejected that claim for reasons which included the circumstance that the appellant had been able to live unhindered with relatives in Mumbai and that his departure to Australia was unhurried despite the receipt of a visitor's visa. 19 The appellant also asserted that the Tribunal failed to consider that the sporadic political violence it was said to have acknowledged as having occurred was a 'threat to life or liberty [or] significant harassment'; however the Tribunal did consider whether the violence, which it accepted occurred, would constitute serious harm within the meaning of s 91R(1)(b) of the Act and rejected the suggestion that it would do so.
(ii) Failure to put adverse information or conclusions 20 The appellant contended that the Tribunal failed to put to the appellant the adverse independent information upon which it relied to find that he was not a refugee; however the Tribunal was not obliged to put any such information to the appellant, by reason of the operation of s 424A(3)(a) of the Act. 21 The appellant also complained that he was not given an opportunity to respond to the Tribunal's concerns about the Dum Dum Trinamool Yuba Congress letter which he tendered; however, as Barnes FM observed, s 422B of the Act, SZBDF, and SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [29] (Edmonds J) constituted an answer to that suggestion. The Minister submitted that even if that were not the case, there was no denial of procedural fairness established, since the Tribunal did not find the letter to have been fabricated and thus there was therefore no error of the kind identified by a Full Federal Court in WACO. I believe it is unnecessary to consider the findings made in WACO in the light of the operation of s 422B. 22 Moreover the appellant complained that he was not given the opportunity to comment upon alleged inconsistencies in his statement and oral evidence, which the Tribunal allegedly relied upon. However the Tribunal's decision was not based on any finding of inconsistencies between his statements made to the Minister and his subsequent evidence given to the Tribunal.
(iii) Failure to investigate 23 The appellant asserted that the Tribunal fell into error by according no weight to the Dum Dum Trinamool Yuba Congress letter without any investigation on its part; however although the Tribunal has of course investigative powers under s 424 of the Act, it is not a condition to the exercise of its statutory power that it does so, and in that regard I was referred by the Minister to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43] (per Gummow and Hayne JJ).
(iv) Findings not open 24 The appellant's next contention was that the following findings were not open on the evidence before the Tribunal: (a) the Tribunal's adverse finding on credibility and the rejection of all of the appellant's claims; and (b) its further finding that the successful campaigns for election candidates did not make him a target for CPIM supporters. 25 In relation to the first matter above, the Tribunal did not make any adverse credibility finding or reject each of the appellant's claims; the Tribunal gave the appellant the benefit of the doubt on a number of matters. Nonetheless, assessments as to credibility are matters essentially for the Tribunal to undertake. In support of that proposition, the Minister referred the Court to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. 26 In relation to the second matter above, the Tribunal based its conclusion on the evidence that the appellant gave and in the course of which he described the activities he undertook under the instructions received from others. I find that the Tribunal's finding that the appellant's 'activities demonstrate that he would not be perceived by his adversaries as having political influence or profile' was open on the evidence.
(v) avoid harm by avoiding politics 27 Contrary to the assertion advanced by the appellant in ground 9 of the notice of appeal, the Tribunal did not find that the appellant could evade harm by not being politically active. Rather, as already outlined, the Tribunal found that he had not previously been subjected to persecution and did not have a profile likely to attract persecution in the future. Moreover the Tribunal established that the violence from the CPIM was sporadic, not state sponsored, and further that there was in place effective state protection. 28 After making the foregoing findings, which were sufficient in scope to dispose of the appellant's claims, the Tribunal made the alternative findings that the appellant would be able to express his political views freely on his return to India, though he might need to exercise some caution in so doing during elections in CPIM strongholds. The Tribunal recognised that such restraints 'are limited in duration and scope, and do not amount to any oppression of his ability to express his political opinions which would give rise to persecution'. That alternative observation of the Tribunal was made in circumstances where the member had found that the inter-party violence in West Bengal was not systematic, and that the appellant was unlikely to be specifically targeted. Accordingly the Tribunal did not outline how the appellant could avoid persecution within the meaning of the Act, but rather whether the reasonable steps he could take to minimise the risk of being the victim of sporadic and election related violence could per se involve or constitute persecution. The Tribunal duly found to the negative of that proposition. 29 I would add that the appellant also claimed that the Tribunal 'ignored its undertaking' to give him the opportunity generally to make written submissions on any controversial issue as to inconsistencies or otherwise in his testimony. That claim was said by the Minister to be without foundation, and I think that is correct, upon the basis that it would appear that the Tribunal did not rely upon any inconsistencies per se, nor was there any suggestion in the Tribunal's reasons for decision or records relating to its decision to suggest that any such undertaking was given. Moreover the Tribunal did accept further evidence from the appellant's migration agent submitted after the hearing, being the letter from the Dum Dum Trinamool Yuba Congress.
Conclusion 30 I accept the Minister's submission in summary on the present appeal to the effect that the appellant has not demonstrated any error of law in the Federal Magistrate's reasons for decision below, or that the Tribunal failed to exercise or exceeded its jurisdiction. 31 Accordingly the appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.
Solicitor for the Respondent: Clayton Utz Lawyers
SZCVB
Minister for Immigration & Multicultural Affairs