MZYYW v Minister for Immigration - [2012] FMCA 1256

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYYW & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1256

MIGRATION – Judicial review – whether relevant documents considered – attempt to review the merits – whether the elements of the Convention were met – whether failure to investigate claims – whether Tribunal biased – delay in application is a relevant matter.

Migration Act 1958 (Cth), s.36(2)(a), 474.

Abebe v Commonwealth (1999) 197 CLR 510
Attorney General for the State of NSW v Quin (1990) 170 CLR 1
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682
Dhanoa v Minister for Immigration & Anor [2009] FMCA 383
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162
Minister for Immigration and Citizenship v SZGUR & Anor [2011] HCA 1
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
SZHQG v Minister for Immigration & Anor [2006] FMCA 1275
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR
Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275

First Applicant:

MZYYW

Second Applicant:

MZYYX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 784 of 2012

Judgment of:

Turner FM

Hearing date:

11 December 2012

Date of Last Submission:

11 December 2012

Delivered at:

Melbourne

Delivered on:

11 December 2012

REPRESENTATION

The First and Second Applicant appeared In Person with the assistance of a Gujurati interpreter

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application for judicial review filed on 28 June 2012 is dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 784 of 2012

MZYYW

First Applicant

MZYYX

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore & Revised)

This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), dated 5 June 2012. That decision affirmed the decision of a delegate to the Minister not to grant the applicants Protection (Class XA) visas.
The applicant’s are husband and wife who arrived in Australia on student visa’s on 13 March 2008 (Court Book “CB” p.98 [21]). They applied for Protection visas on 20 April 2011 (CB p.1).
The first named applicant, being the husband, appeared before the Tribunal on 9 May 2012 to give evidence and make submissions (CB p.99.5). The second applicant is a member of the same family unit and her application to the Court is dependent on the outcome of her husband’s application (CB p.99.6).
The applicant’s grounds for judicial review are set out in the application as follows:
(1)The Tribunal constructively failed to exercise its jurisdiction;
Particulars:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.
(2)The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
(3)The RRT has failed to investigate applicant’s claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 5 June 2012 was effected (sic “affected”) by actual bias constituting judicial error.

Ground One

The Court accepts the submission from the first respondent that the only documents, apart from the formal documents, that the applicants submitted to the Tribunal were medical documents in relation to the treatment the husband received in India in 2010.
The Tribunal considered those documents (CB 99 [27]) and accepted that the applicant husband had returned to India for medical treatment in 2010 as he claimed (CB p.103 [59]). He spent 17 days in hospital.
The applicant has not established which documents the applicant alleges the Tribunal gave no weight to (CB p.102 [53]), as the Tribunal accepted that the applicant had returned to India for medical treatment.
Ground one fails on the facts and is dismissed.

Ground Two

Ground two is an attempt to review the merits of the Tribunal’s decision, which is not available on judicial review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.
As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]: “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.
The Court refers to the following decisions:
“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. : Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.
In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:
“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.
As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234)”.
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].
The Court does not make that finding in this case.
As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]:
“Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.
As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.
The Court refers to the following passages in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined”.
The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.
The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said at [16]:
“I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
“A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal”.
Bennett J summarised a number of relevant authorities in SZBCE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 697 at [31]:
“This ground appears to amount to no more than disagreement with the outcome of the review by the Tribunal. The appellant failed to make out a case which satisfied the Tribunal that he was entitled to a protection visa (See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR at 596). The Tribunal is not required to accept without question the allegations made by an appellant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J). The Tribunal may conclude that it is not satisfied of factual matters, even though there is no rebutting evidence as to those matters (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348; Marshood v Minister for Immigration and Multicultural [2000] FCA 1536 at [13]). Further, as was held by Tamberlin J in SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 at [14] ‘the want of logic does not, of itself, suffice to constitute an error of law’. No error is established”.
The Court finds that the Tribunal did consider the documents complained about by the applicant, and dismisses that ground.
The applicants allege that the Tribunal found that the four key elements in the Convention definition were met. That is not correct.
The Tribunal did not accept that the applicants met the definition of a “refugee” because:
·The Tribunal did not accept the applicant husband’s claim to be a member of the Dalit Seva Samaj (“DSS”) or the Congress Party (CB p.104.6) and therefore he would not fear persecution on that basis.
·The Tribunal was not satisfied that the applicant husband was at risk from upper caste members in relation to the dispute which occurred five years ago (CB p.105.1).
The Tribunal set out its reasons for not accepting that the applicant husband joined the DSS or Congress Party (CB p.102.9), and found that there was no real chance that he would be persecuted on return to India on this basis (that is, for reasons of political opinion) from political opponents or others now or in the reasonably foreseeable future (CB p.102.10).
The Tribunal set out its reasons for not accepting that the applicant fears harm from members of the higher castes on return to India because of his intervention in the dispute between them and lower caste members in 2007 (CB p103.2). The Tribunal found that there are not substantial grounds for believing that, as the necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicants will suffer significant harm. The Tribunal found that the applicants do not satisfy the criteria set out in s.36(2)(a) of the Migration Act 1958 (the “Act”), being persons to whom Australia has protection obligations under the Convention.
Ground two is unsoundly based. The Tribunal found that the applicants did not meet the key criteria of the Convention, as set out on pp.2 and 3 of the Tribunal’s decision. It is alleged in ground two, that the Tribunal has not considered this aspect and therefore, committed factual and legal errors. That is not correct. The Tribunal considered the aspect and made its determination. Ground two is an attempt to review the merits and is dismissed.

Ground Three

Ground three alleges that the Tribunal failed to investigate the applicants’ claims.
It is for an applicant to make their case before the Tribunal.
In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17 [40]:
“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened”.
Although “the concept of onus of proof is not appropriate to administrative inquiries and decision making” (Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.
The Court refers to the following decisions:
“The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out”.
A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.

The Court applies the following decision in another matter:
“The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected”.
The Tribunal was not under a duty to enquire.
There is no positive obligation on the Tribunal to obtain further information: see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]. While s.424 of the Act provides that the Tribunal may get any information that it considers relevant in conducting the review, there is no obligation on the Tribunal to do so. The Tribunal has the power to obtain further information, it does not have a duty to investigate the applicant’s claims: SZHQG v Minister for Immigration & Anor [2006] FMCA 1275 at [33].
The applicants allege that the Tribunal “failed to investigate the applicant’s claim, specially the grounds of persecution, in India”. No detail is given as to what further enquiries could have been made by the Tribunal, and therefore it is not obvious that material would be readily available to the Tribunal which would have been centrally relevant. In the circumstances of this case, the Court finds that the Tribunal was under no obligation to investigate the applicant’s claims any further than it did.
In Dhanoa v Minister for Immigration & Anor [2009] FMCA 383 Driver FM stated at [34]:
“In SZIAI Flick J held that there may be circumstances in which a failure on the part of the Tribunal to make enquiries, or further enquiries, on a matter would amount to jurisdictional error. Such circumstances will be rare. At [25]-[26] his Honour said:
‘The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. Wilcox J there observed at 169–70:
... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...
This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:
[214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.
The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be “strictly limited”: Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.
Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration”.
The Court refers to the decision of the Full Court of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] and [26] as follows:
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction [35]. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the Tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer's letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error”.
I will go back and I will quote the actual provision in the decision and then amend it to comply with the situation here. So the quote should read:
“The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result”.
Here I would delete the words “authenticity of the certificates” and insert “applicant’s grounds of fear of persecution in India”.
As has been stated, there was nothing on the record to indicate what further investigation or what material available that the Tribunal could have considered, which could have yielded a useful result:
The Court refers to the decision of the majority in Minister for Immigration and Citizenship v SZGUR & Anor [2011] HCA 1 French CJ, Kiefel, Heydon and Crennan JJ at [1]:
“[1-3] The function of the Refugee Review Tribunal (“the Tribunal”) in reviewing decisions under the Migration Act 1958 (Cth) (“the Migration Act”) has been described as inquisitorial. That designation does not mean that there is any general duty imposed on the Tribunal, as part of its review function, to use, or to consider using its investigative powers to obtain information relevant to the review”.
At [20]:
“Section 427(1)(d) is ancillary to s 424. Those two provisions and s 415, which confers upon the Tribunal all the powers and discretions of the person who made the decision under review, give the Tribunal wide discretionary powers to investigate an applicant's claims. But they do not impose upon the Tribunal a general duty to make such inquiries [16]. Relevantly to the present case, as Gummow and Hayne JJ observed in Minister for Immigration, Multicultural and Indigenous Affairs v SGLB[17]:
“whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so." (footnote omitted)”…
….
At [22]:
“The question whether s 427(1)(d) imposes a legal duty on the Tribunal to consider whether to exercise its inquisitorial power under that provision was answered in the negative by the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs[21]. The Court held that absent any legal obligation imposed on the Tribunal to make an inquiry under s 427(1)(d) “ [b]y a parity of reasoning ... there is no legal obligation to consider whether one should exercise that power”[22]. That view is correct. That is not to say that circumstances may not arise in which the Tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application of s 427(1)(d)”.
At [23] as stated in the plurality judgment in Minister for Immigration and Citizenship v SZIAI& Anor (2009) 259 ALR 429 at 436:
“The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error”. (footnote omitted)
And at [33]:
“The Tribunal’s reasons…disclosed its approach to the agent’s letter (requesting the Tribunal to obtain a medical report)…The absence of a reference to the agents request in this context provides no support for an inference that the agent was available”.
And at [41]:
“Again, SZGUR failed to demonstrate that the Tribunal did not have regard to and consider the agent's request. In any event the Tribunal was under no obligation to obtain an independent medical report. It was under no obligation derived from s 427(1)(d) to consider whether to obtain such a report. It was entitled to decide the case on the material before it and if the material were insufficient to satisfy it that SZGUR was entitled to the grant of a protection visa, it was required to affirm the delegate's decision”.
Ground three then alleges bias.
No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
In order to make out a case of actual bias on a decision-maker’s part, the person alleging bias must establish that, before a conclusion could properly be reached, the decision-maker had made up his or her mind and was incapable of being persuaded differently; see e.g., Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507 (Jia) at 531 per 531 per Gleeson CJ and Gummow J.
A party alleging bias carries a heavy onus. The allegation must be “distinctly made and clearly proved” see Jia 531 per Gleeson J and Gummow J and 546 per Kirby J. A case of actual bias is seldom made out by reference solely to the decision-maker’s reasons for decision.
In Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at 434 at [27], the High Court stated (citing Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”.
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”. Bias has not been established.
The Court refers to the following passage in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]:
“Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion”.
Further, the fact that the RRT did not believe his claims is not evidence of bias. Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872.
The material before to the Court does not show that the Tribunal was biased.
·The Tribunal invited the applicants to attend the hearing and make submissions and give evidence.
·The Tribunal was not satisfied that the applicant husband was a member of the DSS or the Congress Party because of the vague evidence he gave (CB p102 [55]).
·The Tribunal was not satisfied that the applicant’s faced any more than a remote chance of harm from upper caste members in India.
·The Tribunal found that the applicant husband had returned to India in 2010 without incident.
·The Tribunal found that the applicant’s delayed leaving India after the first incident.
·The Tribunal found that the applicant’s delayed seeking Protection visa upon arrival in Australia.
·The Tribunal found that these matters were inconsistent with the applicant’s holding a subjective fear of harm (CB p.103-104 [58-63]).
Those findings of fact were reasonably open to the Tribunal and are not amenable to review.
The applicants arrived in Australia on 13 March 2008 and did not apply for a Protection visa until 20 April 2011 which is just over three years (CB p.1).
As decided by Justice Heerey in Selvadurai (supra):
“The applicant complained of the Tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution…”
The Court adopts the following statement of law. Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanation for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, “Informational Deficiencies Affecting Refugee Status Determinations”). Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility finding in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo’s case at 191, to a requirement for a “positive state of disbelief” was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist.
Ground three is dismissed.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application for judicial review by the husband is dismissed. The wife’s application is dependent on the husband’s, and is therefore dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Turner FM

Date: 29 January 2013