SZBQN v Minister for Immigration
[2005] FMCA 1297
•2 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBQN v MINISTER FOR IMMIGRATION | [2005] FMCA 1297 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to take into account relevant consideration – whether bias or lack of good faith. |
| Migration Act 1958, ss.91R, 424A, 424A(1), 424A(3)(b) |
| Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 124 ALR 265 Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 713 SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192 NARE v Ministerfor Immigration & Multicultural & Indigenous Affairs [2003] FCA 554 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 NARD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 27 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCA 41 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 998 |
| Applicant: | SZBQN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2165 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 2 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 2 September 2005 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That the Refugee Review Tribunal be joined as a respondent to the proceedings.
That the application is dismissed.
That the adult applicants pay the first respondent's costs fixed in the amount of $7,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2165 of 2003
| SZBQN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 18 September 2003 affirming a decision of a delegate of the respondent not to grant the applicants protection visas. As only the first applicant made substantive claims I will refer to him for convenience as the applicant.
The applicant is a citizen of India who arrived in Australia in November 2001 and applied for a protection visa together with his wife and child in December 2001. The application was refused and the applicant sought review by the Tribunal. In the application for review lodged on 12 August 2002 when asked his reasons for making the application, the applicant submitted a copy of the letter from the Department with the form and the statement he had given to the Department. The applicant attended two Tribunal hearings that took place over two days. He provided a considerable amount of country information and a number of written submissions to the Tribunal.
The applicant claimed in essence to fear persecution in India because of his religion. He claimed to be a Muslim and to fear harm from the Hindu Shiv Sena organisation, particular in Maharashtra. He made a number of claims about what he said had occurred to him and to his family in the past including that his family home had been attacked by members of the Shiv Sena in 1991 and that his brother and mother were injured although he was not present. He claimed his mother subsequently died, having suffered a heart attack.
He claimed that he was injured when he was in an ambulance which was attacked at the beginning of 1993. He also claimed, among other things, that in 2001 the Shiv Sena told him that they had been paid to harm him by a former work colleague in Yemen. He made a number of claims in relation to the treatment of Muslims in India, particularly in Maharashtra, and he claimed that he could not relocate within India. The Tribunal reasons for decision outline in considerable detail the claims that the applicant made in connection with his protection visa application and at the hearings and issues that the Tribunal raised with the applicant.
The Tribunal accepted that the applicant was a citizen of India. The Tribunal stated that after two hearings it was left with a strong impression that the applicant was generally a reliable witness although he tended to exaggerate the problems of Muslims in Maharashtra. It considered first his claims that he had personally suffered serious harm in a Convention sense. It described his claimed mistreatment of other family members (including a claim that his father had been as Muslim activist who had initially attracted adverse attention in the 1960s) but found that, as the applicant had conceded at the hearing, the only occasion on which he personally had suffered mistreatment was at the beginning of 1993 when caught up in the aftermath of rioting following the destruction of the Babri Mosque. The Tribunal observed that the applicant also relied on sporadic threats and harassment directed at him by Shiv Sena members intermittently between 1993 and 2001, a threat of fabricated charges by the police at the beginning of 1993 and in October 1993 and upon discrimination suffered by him as a Muslim going back to 1982 when he was refused entry into the Indian Air Force.
The Tribunal was not satisfied that what the applicant had personally experienced (in what it found to be sporadic low-level harassment from members of Shiv Sena, discrimination from Indian defence personnel or the one incident in which it accepted he sustained physical injuries in 1993) individually or cumulatively amounted to serious harm and systematic and discriminatory conduct as required by section 91R(1)(c) of the Migration Act 1958. It observed that when this was put to the applicant at the hearing he agreed that this was so.
Nor was the Tribunal satisfied that up to late 1996 the applicant himself had fears of persecution for any Convention reason. It was fortified in this view by the fact that the applicant had failed to claim refugee status when in the United Kingdom and the United States of America between 1994 and 1996. The Tribunal expressing the view that it was confident that had he been in fear of his life or personal safety the applicant would have sought such protection. That he did not do so satisfied it that he did not fear or face serious harm in India at that time.
The Tribunal then addressed the applicant’s claims about what had occurred after 1996. It found that the only problem of any consequence suffered by the applicant was a brush with Shiv Sena in connection with a sports club in August or September 2001 and extortion demands and a threat to kidnap his son. It accepted as plausible that Shiv Sena would demand protection money with respect to the operation of the club but did not accept as plausible the claim that Shiv Sena members made threats and demands for money when they learned that the applicant intended to come to Australia. It did not accept it was plausible that if the applicant had sufficient concerns for the safety of the family to leave India he would make public his plans to leave. He had given no explanation as to how Shiv Sena learned of his plans. The Tribunal rejected this part of the applicant’s claims as an attempt to try to strengthen his case. It also found that on the applicant’s own evidence the problem was solved by relocating elsewhere in Mumbai.
Nor did the Tribunal regard the threats made to the applicant by Shiv Sena allegedly at the behest of the general manger of Lufthansa (Yemen) in July 2000 as other than a personal vendetta. It was satisfied that they were not Convention related and that no harm awaited the applicant and his family in India from that quarter.
The Tribunal also addressed generally what it described as a ‘main plank’ of the applicant's claims being that the Muslim community as a whole was subject to persecution in India at the hands of the majority Hindu population, particularly in the applicant's state of Maharashtra where the Shiv Sena party held power at the state government level. The Tribunal discussed independent country information before it in relation to inter-communal violence between Hindus and Muslims in India, particularly in the State of Gujarat. However it accepted advice from the Department of Foreign Affairs and Trade that such violence was not systematically organised or institutionalised. It accepted that Hindu-Muslim violence was an ongoing problem and that the authorities had not always been successful in containing it, and that some states were particularly prone to such violence. It also accepted that on occasion the authorities were known to have committed human rights violations against Muslims and Hindus involved in or suspected of involvement in communal violence. Despite such shortcomings the Tribunal was satisfied that in general the Indian government had demonstrated a willingness and ability to provide protection to citizens irrespective of religious belief. It was not satisfied that reliable independent information supported the applicant's claim that Muslims in Maharashtra were denied protection or targeted by the state due to religion or that Indian governments at federal or State level had a covert agenda of driving Muslims out of India.
The Tribunal found from the totality of the independent information that (as it put it) while ‘storm clouds’ for more serious conflict between Hindus and Muslims may be low on the horizon, current BJP/RSS inspired Hindu nationalism fell short of persecution in a Convention sense. It had regard to shortcomings in recent government policy and that it had been ineffective in nullifying or alleviating problems, but was not satisfied that the Government had instigated rioting and violence. Nor was it persuaded, despite the substantial quantity of independent evidence submitted by the applicant, that the Indian central government had embarked on policies designed to systematically mistreat the Muslim community in any state in India.
The Tribunal had regard to the particular situation in Gujarat (in relation to which the applicant had produced a significant quantity of information), and concluded that the Indian government had shown determination in bringing the violence to an end, that the situation was calm, order had been restored and effective protection was available.
The Tribunal also considered the issue of relocation, noting that the applicant's experiences and fear of harm appeared to be highly localised, that in the past he had been able to neutralise any threat from the Shiv Sena by moving to a different suburb within Mumbai and found that if he did not want to live in Mumbai it was reasonable to expect him to relocate to some other part of India in order to avoid future incidents of threats and harassment from Shiv Sena. The Tribunal had regard to independent evidence indicating that there were several States where the governments had strong secular and pro-minority views, referring to the principles in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 124 ALR 265 and to the particular circumstances of the applicant including his education, language ability, employability, travel and employment history and travel. Based on these considerations and independent evidence it was satisfied that there were a number of States in India with large Moslem communities where the applicant could safely relocate where the chance of persecution would be remote.
For those reasons then, in particular the absence of past persecution the availability of State protection and the reasonableness of relocation, the Tribunal concluded that there was not a real chance that the applicant faced persecution in the sense required by section 91R of the Migration Act 1958 in the foreseeable future upon his return to India. It was not satisfied that his fear of future persecution in India was well-founded.
The applicant sought review by application filed in this court on 15 October 2003. The application raised a number of general and unparticularised grounds. The applicant filed an amended application on 29 April 2004 which stated that he wished to continue to rely on the grounds in the original application but also raised some other issues. He filed a document headed summary background on 14 July 2005.
This matter was listed for hearing on 19 July 2005 and the hearing commenced on that day. The applicant raised a number of issues about the conduct of the Tribunal hearing and what he said had occurred in the Tribunal hearing. Objection was taken to reliance on what the applicant said had occurred in the Tribunal hearing in the absence of a transcript. The applicant indicated that he was not aware of the need for a transcript as he was acting for himself and he thought it would be sufficient to explain the situation. (No reference was made to the printed form signed by him at the time of the directions referring to the need for a transcript if it was intended to rely on the hearing tape). The hearing was adjourned until 2 September 2005. I ordered that the applicant file and serve a transcript of the Tribunal hearing on or before 19 August 2005.
At that time I explained to the applicant that if he wished to rely on what occurred in the hearing, it would be necessary for him to file and serve a transcript of the whole of the hearing. The applicant did not file a transcript by 19 August 2005. Instead he filed a three page submission with annexures headed ‘Transcript’ in which he set out claims about what had occurred at particular points in the Tribunal hearing. However there is no transcript before the Court despite the applicant having been given the opportunity to file a transcript. In these circumstances the factual basis for those aspects of the applicant’s claims that rely on what occurred in the hearing (in particular the claim of a breach of the rules of natural justice) is not established.
The applicant raised a number of other grounds which I have considered on the evidence before the Court. Dealing first with the grounds raised in the amended application, the first ground is expressed as a contention that the Tribunal failed to take into account a relevant consideration when it assessed whether the delegate of the Minister raised reasonable grounds for not granting a protection visa. However, the Tribunal carried out, as it was obliged to do, a de novo review of the application for a protection visa. It was not obliged to consider whether the delegate of the Minister had raised reasonable grounds for not granting a protection visa. No jurisdictional error is established by this contention.
In relation to the claim that the Tribunal failed to take into account a relevant consideration, the applicant listed four points by way of amendment to the general and unparticularised original application. They are that the Tribunal comments about the information he submitted amounted to bad faith; that he had submitted several paper cuttings with photographs indicating atrocities against Muslims by Hindu militants and that the Tribunal's non-acceptance of those documents amounted to bias; that he had no resources to bring physical evidence to prove his claim except his documents provided to the Department and the Tribunal; and that the Tribunal's gross disregard of all the evidence he had submitted without providing any reason amounted to failing to ‘capably making it neutral power’. It was claimed that the Tribunal did not mention why it disbelieved the letter and documents and did not give any reason for not accepting these documents and letter and that this indicated that the Tribunal was not acting in good faith in making the decision on the review application.
A further two matters are listed as particulars, although in fact it appears that they may be intended to be separate grounds. These are that it was for the Tribunal to consider in assessing the chance of the applicant being arrested and/or persecuted on his return to India based on the fact that he was a Muslim in India, a member of a particular social group in India. This merely re-states, in the applicant's terms, what the Tribunal had to consider and does not in itself raise a ground for review. In so far as it says that the Tribunal did not carry out its task on that basis, it takes issue with the merits of the Tribunal decision and does not establish a jurisdictional error.
The last particular is that the Tribunal’s satisfaction that the applicant was not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief. I will return to this claim.
I have endeavoured to refer first to the more general grounds and then to the particular contentions of the applicant. I have considered his contentions individually and cumulatively. The essence of the applicant's claims as expressed in his amended application raise grounds of bias and a lack of good faith. Actual bias has been described by the High Court in the Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 (see Gleeson CJ and Gummow J at [72]). Their Honours referred to bias in the form of pre-judgment or a state of mind committed to a conclusion already formed so as to be incapable of alteration whatever evidence or arguments may be presented. As their Honours stated, actual bias is not easily proved. It requires proof that the decision-maker was biased and approached his or her function with a closed mind, so firmly closed that, no matter what arguments were put, the pre-determined decision would not vary. It involves an examination of the subjective state of mind of the Tribunal member.
In this instance, as I have stated, there is no transcript of the Tribunal hearings before the court. The Tribunal account of what occurred in the hearing and the Tribunal findings and reasons and the material before the Court do not establish actual bias. It is notable that the Tribunal set out at length the applicant's claims and in fact accepted that the applicant was generally a reliable witness who had impressed as a likeable and intelligent man. There is nothing in its findings and reasons to establish bias in the manner contended for by the applicant.
In effect the applicant relies on the fact that the Tribunal did not accept his claims and took a different view of what the independent country information in relation to the situation in India established. The Tribunal considered the country information before it. The weight to be given to particular items of information was a matter for the Tribunal. Its findings were open to it on the material before it. Such matters do not establish actual bias. As von Doussa J stated in SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 at 38:
…it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision… The mere fact of adverse findings at the end of the matter gives 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.
Indeed, his Honour went on to say:
Even where it is possible to show that 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.
In the alternative I have considered whether the material before the Court is such as to establish apprehended bias in the sense considered by the High Court in Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at [27] – [28]. As their Honours indicated a person conducting inquisitorial proceedings such as a tribunal member necessarily has to test evidence presented, often vigorously, and that the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. The Tribunal account of what occurred in the Tribunal hearings indicated that the Tribunal, quite properly, put matters of concern to the applicant.
I observe again that the only material before the Court as to the conduct of the Tribunal hearings is the Tribunal reasons for decision. The applicant has not, despite the opportunity that was given to him, filed a transcript of the complete Tribunal hearings. The matters that he has raised in the submissions to the Court are not such as to establish that a hypothetical, fair-minded lay person who was properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided.
In relation to bad faith, as was pointed out by Allsop J in NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 713 at [24]:
Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way in meriting personal criticism of the Tribunal member in question.
The complaints that the applicant makes based on the material before the Court are not such as to establish bad faith or apprehended bias or, indeed, a lack of procedural fairness in a broader sense. In particular, insofar as the applicant claims that particular matters were not brought to his attention in the Tribunal hearing, this is not a case in which I consider it appropriate to infer (based on the Tribunal account of what occurred in the Tribunal hearing) that particular matters were not raised with the applicant. See NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241, in particular at paragraphs [19] – [27]. This is not a case on all fours with that considered by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264. The evidentiary basis for this aspect of the claim is not established.
Insofar as it may be contended that the Tribunal was under an obligation to put its thought processes to the applicant, the Tribunal is not under such an obligation either under principles of procedural fairness or, indeed, under section 424A of the Migration Act 1958.
The applicant contended generally that the Tribunal failed to take into account or disregarded the evidence that he submitted. The applicant did put before the Department and the Tribunal a considerable body of information which is reproduced in the bundle of relevant documents before the Court. However the Tribunal referred to that information in a number of places in its reasons for decision in a manner in which makes it clear that no jurisdictional error has been established in the way in which it dealt with such information. It indicated that it had had regard to the substantial quantity of independent information submitted by the applicant as well as what he told it in writing and orally. It also indicated that it had put to the applicant in the course of the hearing that he had submitted a great deal of material about problems between Hindus and Muslims particularly in Gujarat but also raised the Tribunal’s view of independent information about the situation in India for the applicant's comment. According to the Tribunal there was also a discussion of independent information in relation to matters such as relocation. In the findings and reasons part of the Tribunal decision the Tribunal addressed what it described as a ‘main plank’ of the applicant's claims in relation to persecution of the Muslim community as a whole and particularly in his state. It accepted certain aspects of the applicant's claims in this respect but, as indicated above, it considered the totality of the independent information and on that information was not persuaded of the claims made by the applicant about the impact of the situation in India in relation to the well-foundedness of his fear of persecution. It was for the Tribunal to determine the weight to be given to particular items of information.
The Tribunal also addressed specifically his claims in relation to what had occurred in Gujarat. In that respect it is notable that the obligation for the Tribunal was to consider not only the past, as it did, but also the present and the future in determining whether it was satisfied that the applicant’s fears were well-founded.
In essence, the applicant's complaint about the Tribunal treatment of his evidence is that it did not accept his claims and that the findings of fact that it made were not favourable to him on the information that he put before it. As I indicated to the applicant, findings of fact and the assessment of the evidence is a matter for the Tribunal. The Courts do not have a role of reviewing the factual material beyond identifying jurisdictional error. Merits review is not available in this Court. I refer in particular to what Allsop J said in that respect in SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192 and in NARE v Ministerfor Immigration & Multicultural & Indigenous Affairs [2003] FCA 554. It is not the court's task to review the factual findings of the Tribunal unless their quality or lack thereof is such as to betray a failure to undertake properly the required task. The applicant sought to put before the court as an annexure to his latest submission, fresh evidence going to factual matters decided by the Tribunal. It is not open to the court to have regard to such material. It does not demonstrate factual error in the conclusions reached by the Tribunal on the material before it at the time of the Tribunal decision. The new material seeks to reinforce and to re-argue claims that were made before the Tribunal in light of subsequent developments. The submission indicates a misunderstanding of the power that the Court has to interfere with or set aside a decision of the Tribunal. Further, a mere error of fact, if that is what the applicant is contending, does not establish a jurisdictional error on the part of the Tribunal.
Insofar as the applicant's contention is that the Tribunal failed to refer to every item of independent information before it, or to analyse that information (and he made such a claim in the hearing on 19 July 2005 referring in particular to an item of country information relating to the situation of Muslims in India), as the Full Court stated in applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at 46 it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. There is a distinction between the Tribunal failing to advert to evidence which if accepted might have led it to make a different finding of fact and a failure to address a contention which if accepted might establish that the applicant had a well-founded fear of persecution for a Convention reason. I also bear in mind that the Tribunal is not a court and its reasons are not to be scrutinised with an eye keenly attuned to error.
In this instance I am not persuaded that the Tribunal failed to have regard to relevant considerations in the sense of integers or aspects of the applicant's claims in failing to refer to every item of independent country information or every detail of the applicant's submissions. It is not a case in which the inference should be drawn that the Tribunal has failed to consider an issue. The reasons are comprehensive. The Tribunal has identified the issues and integers of the claims raised by the applicant, albeit that the applicant takes issue with its findings in relation to particular matters.
In written submissions he claimed that the Tribunal's findings in relation to his employment history go (along with other factors) to demonstrate a reasonable apprehension of bias. This contention addresses the Tribunal's reference to the applicant's employment in its consideration of impediments to relocation.
The Tribunal found that the applicant was well educated, spoke, read and wrote English, Urdu and Hindu, had shown over many years that he was readily employable and had travelled widely and apart from two relatively short periods of unemployment had enjoyed full employment in both India and overseas until he came to Australia in late 2001. The applicant took issue with the Tribunal's reference to relatively short periods of unemployment. He contended that the evidence was that he was actually unemployed for a total 16 months while in India. Again, this is a disagreement with the Tribunal's reasoning, based on the applicant’s employment history over a considerable period of time. It does not establish a jurisdictional error on the part of the Tribunal. Nor does the fact that the applicant was not necessarily employed in the one place of employment show that the Tribunal erred in considering the applicant's employment history in the manner that it did in considering impediments to or the reasonableness of relocation.
The applicant also took issue with the Tribunal's characterisation of what had occurred to him in the past as low level sporadic violence or low level harassment. The Tribunal's findings in that respect were open to it on the material before it for the reasons that it gave, bearing in mind the context of all the claims made over the entirety of the time when the applicant was living in India and the assessment of what had occurred to him. Such characterisation was a matter for the Tribunal. It has not been established that it erred in the manner in which it dealt with these claims or in its consideration of section 91R of the Migration Act 1958.
In relation to these claims it may also be observed that not only can it not be said that the Tribunal's findings were not open to it, but this is not a situation in which the Tribunal's lack of satisfaction in relation to the effect of this aspect of the applicant's claims (or more generally) constitutes illogical reasoning, particularly of the kind discussed in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 and NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52. The Tribunal findings in this respect were based on probative material. It has not been established that there was no logical basis for the Tribunal's conclusions in this or other respects. Nor has it been established that the Tribunal decision was so unreasonable that no reasonable decision-maker would have reached it (as the amended application contends generally).
The applicant also took issue with the Tribunal assessment of the seriousness of the past violence and discrimination that he had experienced. The Tribunal observed that it put to the applicant its findings in relation to the extent of the personal mistreatment which he had suffered himself in the past and that he agreed with the Tribunal’s understanding of what had occurred and that it did not amount to serious harm and systematic and discriminatory conduct in s.91R . The complaint that the Tribunal did not find that the applicant had experienced serious harm and systematic discrimination in the past takes issue with the merits of the Tribunal decision and does not establish a jurisdictional error.
The applicant repeated aspects of his claims and the impact which he considered that past events had on him. Again, this is a disagreement with the merits of the Tribunal decision and merits review is not available in this Court.
In the submissions filed on 14 July 2005 he addresses aspects of the Tribunal treatment of independent country information and takes issue with its conclusion. As set out above, the weight to be given to particular items of country information is a matter for the Tribunal. It is entitled to prefer evidence from sources other than the applicant. The Tribunal approach in relation to the weight to be given to independent country information and the manner in which it was used was consistent with that described by the Full Court of the Federal Court in NARD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 27 and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10. The Tribunal did evaluate, as far as necessary, the evidence that the applicant put before. Indeed it agreed with some aspects of that country information but found, for the reasons that it gave in relation to the actual claims of conduct experienced by the applicant in the past, the availability of state protection and the reasonableness of relocation, that the applicant did not have a well-founded fear of persecution in the future.
The applicant took issue with fact that the Tribunal did not ‘mention’ why it disbelieved the letters and documents or give reasons for non-acceptance of documents and letters. I note in that respect that the applicant's credibility was largely accepted. The Tribunal did not reject any of his documents as fraudulent. Rather it was a question of the weight to be given to such information and, as I have indicated, insofar as it is contended that critical adverse matters were not put to the applicant the evidentiary basis for such a claim is not established.
The applicant also contended that the Tribunal failed to understand the legal meaning of refugee. In support of that contention he repeated aspects of his claims. This takes issue with the merits of the Tribunal decision. The contentions in relation to the effect of independent country information take issue with the weight given by the Tribunal to such independent country information. The particular compliant about the Tribunal’s assessment of the situation in Gujarat does not establish jurisdictional error. In particular, it has not been established that the Tribunal made a ‘contradictory’ decision. Rather it had regard to what had occurred in the past in Gujarat but, as it was required to do, also had regard to the present. It referred to the almost immediate success of KPS Gill in restoring law and order. It was satisfied on information before it for the reasons that it gave that the government had shown determination to bring violence to an end and that the situation was calm, albeit that there was sporadic violence. It found that effective protection was available. Moreover, the Tribunal went on to state that:
The applicant could, in any event, reasonably relocate to some other part of India with a large Muslim community where the chance of persecution would be remote.
No error has been demonstrated in the manner in which the Tribunal made its findings in relation to relocation. The general claim of lack of procedural fairness is not established on the material before the Court.
The applicant claimed that the Tribunal erred in not referring to a particular item of independent evidence, being a statement issued by the chief co-ordinator of a camp. However it was not necessary for the Tribunal to refer to every individual item of country information. This item of country information referred to communal violence. It did not relate to the applicant personally. It was not such that it was necessary for the Tribunal to refer to it specifically. The fact that the Tribunal gave weight to information other than that provided by the applicant does not establish jurisdictional error.
The applicant was unsuccessful because of the view the Tribunal took of the facts and the independent information and in particular its findings that he had not been persecuted in the past and faced no such fear in the future and, in any event, could relocate. Whether conduct is sufficiently serious to amount to persecution is a factual matter for the Tribunal: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCA 41 at [50] – [53] and no jurisdictional error has been demonstrated.
No jurisdictional error is established on any of the unparticularised and general grounds in the application of 15 October 2003. The claim that there was a failure to observe procedures requires some further mention in light of the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162. Counsel for the respondent quite properly addressed this ground and whether or not it could be said that the Tribunal had breached section 424A of the Migration Act 1958 in relation to its reliance on information in the applicant's protection visa application, particularly in light of Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 in which it was held that an airport interview between the applicant and a Department officer did not fall within the exception to the obligation to put information to the applicant contained in section 424A(3)(b) as it was not information that the applicant gave for the purpose of the application in the sense of the review application.
Critically in this instance in the review application the applicant re-submitted the statement which he had given to the Department. That factor is, I consider, sufficient to establish that, consistent with the approach taken in subsequent decisions, in particular the recent decision of Lindgren J sitting as the Full Court of the Federal Court in SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 998 at [28], the applicant did in fact give the information that he gave to the Department again and quite independently to the Tribunal. In these circumstances such information is within section 424A(3)(b). It has not been established that either in this or in any other respect the Tribunal failed to comply with section 424A(1) of the Migration Act. Nor has it been established that the Tribunal failed to observe any other applicable procedures.
More generally it is not established that the Tribunal ignored the merits of the claims. On the contrary, it considered such merits. It was not under an obligation to make any further inquiry or investigation in this case albeit that it had the power to do so. There is nothing to suggest that it undertook to do so or that this was one of those exceptional cases where it was under an obligation to investigate.
I have already indicated that it has not been established that the Tribunal failed to take into account a relevant consideration. Nor has it been shown that it made an incorrect interpretation of the applicable law or that its decision was unjust or made without taking into account the full gravity of the circumstances and consequences of the review application or not justified by the evidence used in the decision or that the Tribunal ignored its own information as contended generally.
Finally there is nothing in the document filed on 18 August 2005 that establishes jurisdictional error on the part of the Tribunal on the evidence before the Court.
The Tribunal took into account the applicant's claims. The contention that the Tribunal did not address the claims of what happened to the applicant’s family is not borne out by the Tribunal reasons for decision. The Tribunal observed what the applicant's claims were in relation to his family but also took into account the limited past mistreatment that he personally had suffered in the context of considering whether he had a well-founded fear of persecution for the future.
The Tribunal reasons for decision, as I have indicated, do not establish in any of the ways which the applicant contends for, that the Tribunal was actually biased or that there was an apprehension of bias or otherwise a lack of procedural fairness or of good faith. The Tribunal was obliged to use the Convention definition (which it did) and those of the applicant's complaints that rely on what the applicant said occurred in the hearing do not establish any jurisdictional error.
In the course of the hearing today the applicant raised a number of related points taking issue with the merits of the Tribunal decision. The applicant sought to put his version of what occurred in the Tribunal hearing, but his contentions do not establish actual or apprehended bias on the part of the Tribunal. Rather it is apparent that the applicant's claims relate to the weight given by the Tribunal to particular items of country information or to what he said had occurred to him or his family in the past.
His complaints today about the Tribunal treatment of what occurred to his family and his ongoing suffering because of that do not establish that the Tribunal erred in considering whether he had a well-founded fear of persecution for a Convention reason. It was also open to the Tribunal on the applicant's claims as presented to it in the material before the Court to make the findings that it did in relation to the applicant's employment history. The fact that the applicant claims that his employment history shows a variety of employers, which indeed it does, is not such as to establish any jurisdictional error on the part of the Tribunal in its consideration of relocation or more generally.
The applicant also sought to rely on information which post-dated the Tribunal decision. Such information does not establish that the Tribunal fell into error. It takes issue with the merits of the Tribunal decision and seeks that this Court engage in merits review which it is not able to do. The applicant’s other complaints about the Tribunal findings (such as in relation to relocation and about the seriousness and systematic nature of what had occurred to the applicant in the past) also seek merits review.
The applicant told the Court that he had been mistaken about some dates. However there is nothing in the Tribunal reasons for decision to establish that any weight was placed by the Tribunal on such mistakes in its findings about the applicant. While it found that some aspects of his claims were not plausible, it largely, as I have indicated, accepted that the applicant was a credible witness. I accept that this issue concerns the applicant but it is not such as to establish that the Tribunal fell into jurisdictional error in the manner in which it treated his claims.
The Tribunal findings in relation to past Hindu/Muslim violence in the state from which the applicant came and in Gujarat in particular are not such as to show that the Tribunal had a fixed mind in deciding its case or bias against Muslims generally or against the applicant. Rather, they reveal that the Tribunal considered the information before it but on the totality of that information as to whatever had occurred in the past considered that the applicant had not experienced conduct amounting to persecution, that State protection was available, that the applicant could reasonably relocate and that hence he did not have a well founded fear of future persecution.
No error has been established in the manner in which the Tribunal made those findings or in its statement or application of the test of well-founded fear of persecution. It properly understood the nature of a well-founded fear and real chance and indeed, contrary to the applicant’s claims, understood that a person could have a well founded fear of persecution even though the possibility of the persecution occurring was below 50 percent. No error has been established in the manner in which it applied that test.
As no jurisdictional error has been established the Tribunal decision is a privative clause decision within section 474 of the Migration Act and the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the respondent seeks that he meet the costs of these proceedings. The hearing commenced in July and was adjourned to enable the applicant to file a transcript of the Tribunal hearing. The respondent seeks indemnity costs on the basis that today was completely wasted because the applicant did not in fact comply with the order of the Court to file a transcript of the Tribunal hearing.
While the court has power to order indemnity costs, on balance I do not consider that this is an appropriate case for the award of such costs. However the fact that there have been two hearings has meant that the costs incurred by the respondent have been considerably more than they would have been had the matter been dealt with on the first occasion when it was before the Court. The applicant contends that the costs sought are too high as he is the only income earner in his family.
In light of the nature of this and other similar matters and bearing in mind that two hearings were necessary, I consider that the costs should be fixed by the Court pursuant to the Federal Magistrates Court Rules in the sum of $7,000.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 8 September 2005
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