Case: Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: referred to
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[:] 1. 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]. 2. 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. 3. 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. 4. 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. 5. The Federal Magistrate made an error by accepting that the Tribunal's finding that the applicant could relocate to any other part of India. 6. 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. 7. The Federal Magistrate failed to see that the appellant had a fear of persecution in his home country and that persecution is well founded. 8. 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. 9. [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. 10. 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. 11. 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. 12. A reading of the Federal Magistrate's reasons shows that the Federal Court had decided to dismiss the case even before completely hearing it. 13. As the matter has been decided by the Tribunal and the Federal Magistrate without considering the real facts and circumstances from jurisdictional error.' 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. 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. 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] HCA 32 ; (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] HCA 1 ; (2000) 168 ALR 407. 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] HCA 33 ; (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] HCA 6 ; (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] HCA 40 ; (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] HCA 17 ; (2001) 205 CLR 507 at 531.