Case: WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 77 ALD 1
Outcome: referred to
The Federal Magistrate considered moreover that the issue arising in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (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. 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. 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. 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. 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.