SZBSK v Minister for Immigration

[2005] FMCA 1232

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBSK v MINISTER FOR IMMIGRATION [2005] FMCA 1232

MIGRATION – Application to review decision of Refugee Review Tribunal – whether apprehended bias, unreasonableness, lack of procedural fairness or breach of s.424A of the Migration Act 1958.

Migration Act 1958, ss.65, 91R(2), 414, 415, 420(2), 424A, 426A, 427

Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
NARD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 27
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Refugee Review Tribunal; Ex parte H (2001) ALJR 982
Abebe v Commonwealth (1999) 197 CLR 510
SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90
Minister for Immigration & Multicultural & Indigenous Affairsv VSAF of 2003 [2005] FCAFC 73
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 565
WACO v Minister for Immigration & Multicultural Affairs (2003) 131 FCR 511 WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456
Telstra Corporation Limited v Kendall (1995) 55 FCR 221
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559
B41 of 2003 v Refugee Review Tribunal [2005] FCAFC 4
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611
SZDTQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 867
SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 857
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123

Applicant: SZBSK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2241 of 2003

Judgment of: Barnes FM

Hearing date: 18 August 2005

Delivered at: Sydney

Delivered on: 6 September 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Chandra Jayawardeena Solicitor

Counsel for the Respondent: Nil

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the Refugee Review Tribunal be joined as second respondent to the proceedings.

2. That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2241 of 2003

SZBSK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 2 October 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant, a citizen of India, arrived in Australia on 9 October 2002.  He applied for a protection visa. 

2. The applicant claimed in his protection visa application (and these claims were reiterated in a letter to the Department from his migration agent) to fear persecution as a Muslim from the state of Andhra Pradesh in India.  He claimed that his family had run a Madrassa (a religious school) in Andhra Pradesh, that as Muslims he and his family had to face arrests, attacks and all types of persecution at the hands of Hindu society and Hindu authorities and were often labelled Pakistani agents because of their correspondence with Pakistani relatives.  He claimed that in April 2000 he was participating in a procession which was attacked by Hindu activists, that the same night those activists attacked the Madrassa and that he and his brother were injured.  He claimed that the police then arrested him and his brother and others, took them to the police station where they were severely tortured by the police and that the family had to pay a heavy bribe to get them released.  A few days later the applicant’s brother was picked up again by the police and tortured and inquiries were made about the applicant.  The applicant’s brother later joined the Naxalite movement and thereafter the local authorities started harassing the whole family.  The applicant claimed that he left his home town and lived in hiding for some time in Hyderabad.  He claimed he had no choice but to leave India and submitted several press articles on the attitude of militant Hindu nationalists towards those of other religions.  He left India in December 2000, spending two years in New Zealand a student before coming to Australia in December 2002.  He claimed that as a young educated male he was particularly sought after and that the situation deteriorated after the events of September 11, 2001.  He claimed that the Muslims in India were being systematically suppressed by the Hindu community and authorities and that it was not possible for him to live elsewhere in India as Muslims all over India were under constant suppression by the majority community.  He also claimed that any movement of a Muslim to another area was taken very seriously by the local community who immediately labelled the stranger as a Pakistani agent so that it would be highly dangerous for him to start living in some other area in India.  He claimed that if he went back to India he would be labelled as a Pakistani agent and would be killed by the Hindu community. 

3. His adviser claimed that Muslims are the target of Hindu fundamentalists all over India, that the family of the applicant was under extreme pressure as they were running a Madrassa teaching religious scriptures of Islam, that the Muslims in India were second-rate citizens and that anyone who tried to speak about his or her rights was instantly labelled as a terrorist, anti-national or Pakistani agent.  It was submitted in the letter from the migration agent accompanying the protection visa application that it would be incorrect to apply the Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 principle of relocation as it was not sufficient to believe the adverse attention would cease if the applicant simply left the local area as he believed it was more dangerous for Muslims to settle in some new area, as strangers who were Muslims were suspected to be Pakistani agents and were therefore exposed to more risks. Muslims in India were said in general to be under suppression.

4. The protection application was refused and on 2 April 2003 the applicant sought review by the Tribunal.  In the part of the application addressing why he considered himself to be a refugee the applicant stated that anti-Islam sentiment in India was on the rise and that his life was in danger if he went back to India. 

5. The Tribunal wrote to the applicant on 3 April 2003 acknowledging receipt of his application and, among other things, asking him to immediately send any documents, information or other evidence he wanted the Tribunal to consider.  The Tribunal wrote to the applicant again on 31 July 2003 (to both of the addresses provided in the review application) inviting him to a hearing on 3 September 2003.  The letter informed him if he did not attend the hearing and the Tribunal did not postpone it, it could make a decision on his case without further notice.  It also invited the applicant to send any new documents or written arguments he wanted the Tribunal to consider by 18 August 2003.  On 19 August 2003 the applicant completed a response to hearing invitation on which he indicated that he did not want to come to a hearing and he consented to the Tribunal making a decision on the review without taking any further action to allow or enable him to appear before it.  The Tribunal proceeded to determine the matter on the evidence before it. 

6. The Tribunal stated that it had before it the Department’s file including the protection visa application and the delegate’s decision record and that it had had regard to the material referred to in the delegate’s decision and other material available from a range of sources.  It noted the claims made by the applicant and referred to some particular items of country information.  The Tribunal observed:

   Generally, where broad claims are made, the Tribunal hearing is an opportunity for the Tribunal to gather detail about the claims with the applicant.  The applicant was put on notice by the Tribunal that it was unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so.  Nor has he given the Tribunal the opportunity to explore aspects of his claim with him.  A number of relevant questions are therefore left unanswered. 

7. The Tribunal went on to describe the absence of important information relevant to an assessment of the applicant’s claims such as the fact that he had not stated whether the family had sought redress through any available means, whether it continued to run the Madrassa or if not who, if anyone, did.  Nor was there information as to when he left his home town for Hyderabad or why the rest of the family, except his brother, chose to stay in his home town.  The Tribunal concluded that it was therefore unable to satisfy itself as to the precise situation of his family in his home town. 

8. The Tribunal addressed the applicant’s claim that he could not relocate within India because newcomers in an area were suspected of being Pakistani agents.  It had regard to the fact that he had demonstrated a capacity to change location within India and to New Zealand (where he lived for nearly two years from December 2000) and then to Australia.  The Tribunal found that country information, which it accepted, confirmed there were places in India where Muslims could live without fear and that some Muslims do in fact relocate when they find the situation in a particular place intolerable.  It also found that country information did not support the claim that Muslims relocating were always suspected of being Pakistani agents and that this was not the case.  The Tribunal concluded that “in light of independent country information, the applicant’s general claims about the communal situation are very exaggerated and some demonstrably false”. 

9. The Tribunal also had regard to his claim that he had left his home town and gone into hiding in Hyderabad.  He had presented no evidence that anyone was looking for him in Hyderabad.  It continued:

   Country information confirms the existence of a climate in India of occasional inter-communal violence, some of it very serious.  With regard specifically to Hyderabad, however, I note that country information shows that Hyderabad has a large Muslim population with a significant support structure, including a number of Muslim educational institutions.  The Tribunal has no evidence that Muslims or their institutions are subject to persecution in Hyderabad or that inter-communal violence exists in Hyderabad at the level or with the frequency found in some other parts of the country.  Nor is there any evidence before the Tribunal that local or national authorities are unable or unwilling to enforce the law in Hyderabad in the event of violence by one community against another. 

10. The Tribunal concluded that it therefore did not accept the applicant’s claims that he was harassed in Hyderabad because he was a Muslim or because his family ran a Madrassa.  Nor had he provided any evidence of police interest in him.  The Tribunal was therefore unable to be satisfied that the applicant was in hiding in Hyderabad.  It found that return to Hyderabad was a reasonable option for him.  The Tribunal concluded that on the basis of the evidence before it it could not be satisfied that the applicant’s claimed fear of persecution in India for reason of his religion (or for any other Convention reason) was well founded.

11. The applicant sought review by application filed in this Court on 22 October 2003.  He relies on an amended application filed on 14 June 2005.  The amended application raises four grounds.  The solicitor for the applicant filed written submissions which might be seen to raise issues other than the grounds raised in the amended application but confirmed that the grounds relied upon were those in the amended application.  However he told the Court that the applicant did not press any claim of actual bias. 

Apprehended bias issue

1. The first ground is as follows:

   (1)The Tribunal made a serious Jurisdictional Error by making the following conclusion contrary to facts and all the information constructively available on file thus refuting the credibility of the applicant openly and acting biasly:-

   Particulars – Green Book

   Page 80 Para 05

   “As to his claim that he cannot relocate within India, he has demonstrated a capacity to change location within India and New Zealand, then to Australia.  Country information, which I accept, confirm that there are places in India where Muslims may live without fear and that some Muslims do in fact relocate when they find the situation in a place intolerable”.

   Applicant’s Comments

   The Tribunal has made a grave error and misconception about the reasons adduced by the Applicant in his original statement seeking refugee status.  The only country information re-Muslims used by the Tribunal was “The British Home Office Report On Human Rights in India” which says that the only majority Muslim state in India is Jammu-Kashmir which is plagued by the armed conflict between the Indian Army and the Muslim rebels.  Apart from that, the Report clearly relates to how the Muslims were attacked systematically by Hindus in all other states in India in 1990, 1992, 1998, 2002 until the Applicant left India in October 2002 and came to Australia.  Therefore the Tribunal was wrong in saying that the Muslims have been re-locating in other parts of India safely, which is a clear jurisdictional error.

2. The applicant contended that the Tribunal fell into ‘error and misconception’ in making the finding referred to above.  It was submitted first that the only country information in relation to Muslims which was used by the Tribunal was the British Home Office Report on Human Rights in India.  It was suggested that rather than supporting the Tribunal’s conclusions that there were places in India where Muslims could live without fear and that some Muslims do in fact relocate, this report in fact referred to extensive violence against Muslims by Hindus consistent with what the applicant had claimed including an incident (this appears to be a reference to an explosion of a bomb in a mosque in June 2002) in the State from which the applicant came.  It was contended that the Tribunal made a conclusion contrary to facts and all the information ‘constructively available on the file’.  

3. It appears that the applicant contends that because the British Home Office Report on Human Rights in India described religious violence and communal tension, the Tribunal findings relation to the ability of Muslims to relocate safely were not open to it or demonstrated apparent bias.  However the part of this report to which the Tribunal referred is consistent with its acceptance that country information confirmed the existence of a climate of occasional inter-communal violence in India, some of it serious.  Moreover this was not the only country information relied on by the Tribunal.  In addition to the British Home Office Report (and contrary to the amended application and submissions of the applicant) there were a number of other sources of country information quoted in the Tribunal decision, including the United States State Department Report, information from the National Human Rights Commission and recent press reports and an electronic news magazine.  The Tribunal also stated that it had had regard to the material referred to in the delegate’s decision which canvassed the situation for Muslims in India.  In particular, information from the Department of Foreign Affairs and Trade dealt specifically with violence between the BJP and Muslims in Hyderabad and advice from DFAT was to the effect that Hindu/Muslim violence was seen as a northern phenomenon and that generally speaking there were no problems for Muslims relocating intrastate or interstate, although some areas would be better than others, that well-educated and readily-employable applicants could relocate and that on balance harassment on return to the place of origin was unlikely. 

4. In these circumstances the Tribunal findings with which the applicant takes issue were open to it on the material before it for the reasons that it gives.  The weight to be given to particular items of country information is a matter for the Tribunal.  (See NARD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 27). Contrary to the submissions of the applicant it cannot be said that there was no country information before the Tribunal consistent with its conclusions in this respect. As the Full Court stated in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10:

   [11] By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1) in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on “country information”. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to “guidance”, as the appellants submitted. It may be used to assess the credibility of a claim of well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of the accuracy of the “country information” is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review. The Court does not have power to do that.

   [12] The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.

5. In these circumstances the manner in which the Tribunal approached these issues does not establish apprehended bias as contended.  Where, as here, conclusions were open to the Tribunal on the material before it the mere fact of adverse findings and a reliance on country information is not such as to give rise to an apprehension of bias in the sense identified by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) ALJR 982 at [27]-[28].

6. In written submissions the solicitor for the applicant relied on NADHof 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 stating that the Full Court of the Federal Court had held that the manner in which the Tribunal member debated the religious beliefs of the applicant for a protection visa established that apprehended bias was established. However it is notable that in that case criticisms were made not only of how the Tribunal reached a large body of factual findings and the facts found but also of how the Tribunal member conducted himself during the Tribunal hearing. In this case the applicant did not attend a Tribunal hearing. Further, this is not a case in which it can be said, as Allsop J found in NADH of 2001 at [115], that the Tribunal’s fact-finding “has been conducted in a manner which can be described … as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way”.  In other words the considerations that may found a conclusion that a fair-minded observer might or would reasonably apprehend “that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly” (ibid) are not established.  The Tribunal conclusions were open to it on the material before it. 

1. It is the case that the obligation to accord procedural fairness involves a notion that the decision will be made without the reasonable apprehension of bias in the Tribunal (NADH of 2001 at [13] per Allsop J). However in circumstances where the applicant was invited, but declined, to attend a hearing, as the Full Court of the Federal Court pointed out in S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [25]: “Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them”. 

2. While this ground is expressed in terms of apprehended bias, the solicitor for the applicant also raised under this ground a rather different argument to the effect that the Tribunal had failed to go into the details of relocation as required by the decision of the Full Court in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437. He claimed that rather it had simply addressed the issue in one sentence, that being “I find that return to Hyderabad is a reasonable option for him”.

3. There are a number of difficulties with this argument.  First, the Tribunal was not required to make a relocation finding as contended.  It found that in light of country information, the applicant’s general claims about the communal situations were ‘very exaggerated and some demonstrably false’ and that return to Hyderabad (the town in which the applicant had lived prior to leaving India) was a reasonable option for him.  The Tribunal had regard to the fact that the applicant had claimed he had moved to Hyderabad soon after the incident at his family’s Madrassa (which he claimed occurred in April 2000) and that he left India in December 2000.  It noted his claim that he was hiding in Hyderabad but found no evidence that anyone was looking for him and that his claims were at odds with country information to the effect that this area had a large Muslim population with a significant support structure and that there was no evidence that Muslims or their institutions were subject to persecution or that inter-communal violence existed in Hyderabad at the level or with the frequency found in some other parts of the country or that local or national authorities were unable or unwilling to enforce the law in Hyderabad in the event of inter-communal violence.  Earlier in its reasons for decision the Tribunal had cited country information that the four southern states including Andra Pradesh (of which Hyderabad is the capital) had a history of support for religious minorities and had attempted to assuage religious minority fears about religious tension in the rest of the country.  On the material before it, the Tribunal did not accept that the applicant was harassed in Hyderabad, that the police were interested in him or that he was in hiding in Hyderabad.  It was open to the Tribunal, in the absence of further information from the applicant as to any difficulties he may have claimed to have experienced in Hyderabad, to find that return to Hyderabad was reasonable. 

4. Insofar as this is said to involve consideration of relocation (given that the applicant’s original home town was elsewhere in Andhra Pradesh), the Tribunal’s critical finding was that on the evidence before it it could not be satisfied that the applicant’s claimed fear of persecution in India for reason of his religion was well founded based on the absence of important information relevant to an assessment of his claims in particular about the situation of his family in his original home town.  In those circumstances it was not necessary to make a finding about relocation.  The Tribunal did address the applicant’s specific claim that he could not relocate within India, observing that he had demonstrated a capacity to change location within India and to New Zealand and then to Australia.  It accepted country information confirming there were places in India where Muslims may live without fear and that some Muslims do in fact relocate where they find a situation in a particular place intolerable.  In this context it addressed the practical realities and impediments to relocation raised by the applicant as far as possible given his failure to attend a hearing.  The Tribunal found that the country information did not support the applicant’s claim that Muslims relocating were always suspected of being Pakistani agents.  The relevance of these findings is as support for the finding that the applicant’s general claims about the communal situation were very exaggerated and some demonstrably false. 

5. Thus, even if it could be said that the Tribunal did not address whether the applicant could reasonably be expected to relocate and the practical realities in the manner required by Randhawa at 270 per Black CJ, this was not critical given the basis for its ultimate finding.

6. As to the claim that the Tribunal addressed relocation in one sentence, the Tribunal was referring to ‘return’ to Hyderabad not relocation.  In any event, this claim overlooks the fact that, as set out above, the Tribunal considered a number of issues about the situation in Hyderabad before reaching that conclusion.  No apprehended bias is established in the manner the Tribunal dealt with the possibility of return to Hyderabad.  No jurisdictional error is established in the manner in which the Tribunal dealt with this issue. 

7. The applicant also contended that the Tribunal failed to conduct a review under s.415 of the Migration Act 1958 (C’th) in that it failed to undertake a proper inquiry.  Insofar as the applicant contends that the Tribunal was under some obligation to make further inquiries, it is for the applicant “to advance whatever evidence or argument [he] wishes to advance in support of [his] contention that [he] has a well-founded fear of persecution for a Convention reason.  The Tribunal must then decide whether that claim is made out”.  (Abebe v Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ). While the Tribunal must consider all substantive issues raised by the evidence before it, I am satisfied that it did so in this case and that, as the Full Court of the Federal Court recognised in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at [8], it is not the Tribunal’s function to make good a case which the applicant has not articulated only because there is some element of a claim. Moreover as Beaumont J stated in Randhawa the Tribunal is not required to engage in “an uncritical acceptance of any and all allegations” made by an applicant and, importantly, it is not required to accept a claim merely because positive evidence to the contrary is absent.  In this instance the primary basis for the Tribunal conclusion was the absence of sufficient information and the fact that a number of relevant questions about the applicant’s claims had been left unanswered (as well as contrary country information).  As the Full Court of the Federal Court observed in Minister for Immigration & Multicultural & Indigenous Affairsv VSAF of 2003 [2005] FCAFC 73 at [17] s.65 of the Migration Act 1958 requires a visa to be rejected in the absence of a positive finding of satisfaction.  That is the situation in this case.  The Tribunal was unable to be satisfied that the applicant was a person to whom protection obligations were owed.  (Also see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15]).

8. The contention that s.415, or some other provision of the Migration Act, imposed a duty on the Tribunal to make enquiries, is not established. This is not a case in which the Tribunal failed to deal with a clearly articulated case raised by the applicant (cf Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389) and the powers conferred on the Tribunal and its obligations under s.414 to carry out a review do not impose an obligation to make further enquiries in the manner contended. This is not a situation in which a duty to enquire arose consistent with the line of authority following the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155. There was nothing in the circumstances of this case to enliven such a duty either under the Migration Act 1958 or under the common law. Section 427 of the Act does not give rise to a duty to make enquiries of the nature contended for by the applicant.

9. Consistent with Minister for Immigration & Multicultural & Indigenous Affairsv VSAF of 2003 [2005] FCAFC 73 the approach of the Tribunal does not demonstrate that it failed to carry out its review. Indeed the Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims (see VSAF of 2003 at [16]).  Nor is apprehended bias established by this or the other contentions. 

10. No jurisdictional error is established by ground one in the amended application either as it appears in the amended application or as expanded upon in the applicant’s submissions. 

Wednesbury unreasonableness issue

1. Ground two of the amended application is as follows:

   The Tribunal was Wednesbury Unreasonable in holding that the applicant was not able to provide certain information, thus holding against him:

   Particulars – Green Book

   Pages 80 – 02

   In this case the important information relevant to an assessment of his claim is absent.  He does not state whether the family sought redress through any other means available.  He does not say whether his family continue to run the madrassa or if not, who, if anyone, does.  He does not say when he left Jagtial for Hyderabad or why the rest of his family chose to stay in Jagtial.

   Applicant’s Comments

   The Applicant state that it was not mandatory that the Applicant should have attended the hearing when the applicant had submitted all the details of his claim to the respondent’s department in writing. The Tribunal’s responsibility was to ascertain whether the delegate of the Minister of the Onshore Protection Unit had assessed the Applicant’s claims according to the criteria in the 1951 UN Convention on Refugees and the Statutory provisions in the Migration Act 1958. If the Tribunal was in doubt it should have sent all queries to the Applicant in writing for his comments rather than saying that the applicant failed to attend the hearing. Therefore it was the Tribunal’s error for not writing to the Applicant and therefore this too was jurisdictional error because the Tribunal has violated the strict provisions in the Act in the manner of assessment of the Applicant’s claims.

2. The essence of the applicant’s contention is that although the applicant did not attend the Tribunal hearing the Tribunal was under an obligation to write to him to seek clarification of the doubts the Tribunal had formed while assessing his claims. In submissions this obligation was put in terms of a general law obligation and also as an obligation under s.424A of the Act, albeit that the ground in the amended application is expressed in terms of Wednesbury unreasonableness. It was contended that, given that important information relevant to an assessment of the applicant’s claims was absent, the Tribunal was obliged to write to the applicant under s.424A(1) consistent with its obligations under ss.414 and 415 of the Migration Act 1958 to carry out the review.  It was then contended that the Tribunal’s failure to satisfy itself or make the necessary inquiries and comprehensive analysis of the applicant’s case was manifestly unreasonable.  It was submitted that the recent decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 supported this proposition insofar as the majority of the High Court held that there could be no partial compliance with the statutory obligation to accord procedural fairness.

3. In oral submissions the solicitor for the applicant contended that the Tribunal was obliged under s.424A(1) and procedural fairness to write to the applicant about the fact that it would make a decision and the grounds on which it would do so. In other words it was submitted that the applicant must be given notification in writing of the reasons the Tribunal proposed to rely on to make findings.

4. There is no requirement for an applicant to attend a hearing.  However as he was put on notice that the Tribunal could not make a favourable decision based on the information before it in the letter inviting him to a hearing, the consequences referred to in S58 of 2003 followed. There is nothing in the material before me to suggest that the Tribunal in any way failed to comply with its obligations in relation to the hearing invitation. It was open to it to proceed as it did under s.426A of the Migration Act1958.  The applicant was fully aware from his application and his failure before the delegate that the success of his application depended on a finding by the Tribunal that he had a well-founded fear of persecution for a Convention reason if he returned to India.  He was invited to attend the hearing.  He declined to do so.  In S58 of 2003 it was suggested (at [25]) that such an applicant was not only taken to have assumed the risk that he would not have an opportunity to explain unsatisfactory features of his application but also that “conversely, his conduct left it open to the Tribunal to infer that had he attended the hearing and given oral evidence, the appellant would not, on balance, have improved his case for the grant of a protection visa”.  Importantly the Full Court in S58 of 2003 continued that the duty of the Tribunal in such circumstances was no higher than that identified by the Full Court in WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [33] as follows:

   The Tribunal must give the appellant an opportunity to appear before it and to give evidence:  s.425 of the Act.  If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she might have an opportunity of being heard on them …

5. Their Honours referred to the observation in WACO at [46]:

   There would be no unfairness where the person affected knew what he was required to prove to the decision-maker and was given the opportunity to do so.  An appellant then cannot complain if his application is rejected because the decision-maker, without notice to him has rejected what was put forward.

6. In this case, as in S58 of 2003, the applicant “cannot complain if his application is rejected because, amongst other reasons, he failed to take up that opportunity [to attend a hearing]” (S58 of 2003 at [26]). Nor is this a case in which a decision-maker made “arbitrary unreasoned conclusions … without a scintilla of evidence” (see Allsop J in NADJ of 2001 at [12]).  It has not been established that the Tribunal decision was unreasonable.  The Tribunal’s findings based on the absence of information are not so unreasonable that no reasonable person acting within jurisdiction and according to law could have reached them (see Associated Provincial Picture Houses v Wednesbury Corporation [1948] 148 223 at 230).  It cannot be said that the Tribunal came to a result that was “so absurd that no sensible person could do so” (Wednesbury at 230).

7. Moreover, while it is not in dispute that the majority of the High Court in SAAP established that a failure to comply with the mandatory obligation in s.424A constituted a jurisdictional error, in this case it has not been established that s.424A(1) was applicable. Section 424A(1) requires the Tribunal to “provide particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review”.  However there is no duty imposed when the Tribunal is relying, as in this instance, on an absence of information.  In WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266 the Full Court held at [26]:

   In our opinion, the word “information” in s.424A(1) does not encompass a failure to mention a matter to the RRT.  As the Full Court observed in Win at [218] … “information” is used in the same sense in ss.424(1) and 424A(1).  Section 424(1) provides that the RRT “may get any information that it considers relevant”.  It is inappropriate to speak of the RRT “getting information” where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence.  The fact that the appellant failed to refer to a particular matter constitutes nothing more than an aspect of the RRT’s reasoning concerning a deficiency in his evidence.  That observation cannot meaningfully be described as “information”.  Moreover the appellant’s submissions cannot be accepted as a matter of sound policy.  To permit an application for review of a delegate’s decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow a protracted and almost never-ending process of review, a result plainly not intended by the legislature.

8. The applicant’s oral submissions extended to suggest that the Tribunal was under an obligation to put its reasoning (not just queries about insufficient information) to the applicant for comment under s.424A(1). The Tribunal is not under an obligation to put its thought processes to the applicant for comment, either under s.424A(1) (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [24]) or under the principles of procedural fairness or natural justice. Whatever the scope of s.422B of the Act (see WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624, Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 565 and NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456) at common law there is no requirement for a decision-maker such as the Tribunal to indicate that it may have concerns about the evidence provided by the applicant in the manner contended. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 the Full Court said relevantly that the rules of procedural fairness:

   Require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.  The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.  (Also see Telstra Corporation Limited v Kendall (1995) 55 FCR 221 at 230 to 231).

9. In this instance the critical issue was apparent from the nature of the decision before the Tribunal and the provisions of the Migration Act 1958. This is not a case in which the Tribunal arrived at an adverse conclusion which was not obviously open on the known material given the delegate’s decision. Rather, the applicant complains that, after having been advised that the material he supplied was not considered sufficient for the Tribunal to make a favourable decision, the Tribunal was then required to put him on notice that it was considering making adverse findings based on the absence of certain information about which it wanted to question him. This assertion is not supported by the authorities relied upon. I am not persuaded that there has been any breach of the Migration Act, failure to accord procedural fairness or Wednesbury unreasonableness in the manner contended in ground two or as elaborated upon in the applicant’s written and oral submissions.

Procedural unfairness issue

1. Ground three in the amended application is as follows.

   The Tribunal was ‘procedurally unfair’ and failed to comply with sec.424A(1)(a) & (c) of the Migration Act, making a serious jurisdictional error by concluding:

   Particulars – Green Book

   Page 80 – Para 06 & 07

   “Country Information does not support the claim that Muslims re-locating are always being suspected of being Pakistani agents and I find that this is not the case.  I find that in the light of independent country information, the Applicant’s general claims about the communal situation are very exaggerated and some demonstrably fails.”

   Applicant’s Comments –

   The Applicant submit that there was no indication whatsoever that the Tribunal notified to the Applicant of the ‘source of information’ it relied upon by way of a letter or other communication when the assessment has been made on the papers and prior to handing over of the written decision to the Applicant, for the Applicant’s comments on the source of information.  This was vital step the tribunal should have taken in accordance with the section 424A(2) or invited the Applicant to comment under sec.424(b) or it had notified the Applicant in some other way, in compliance of sec.424A(1).  One sided information used by the Tribunal to reject the Applicant’s application for refugee status was definitely a Jurisdictional error committed by the Tribunal in reaching its negative decision.

2. To some extent this ground, as elaborated upon in oral submissions, overlaps with the earlier grounds.  Insofar as it is contended that the country information before the Tribunal did not support the Tribunal conclusions, the comments above are applicable.  The fact that there was some country information which elaborated upon communal riots and religious conflicts in India is not such as to establish that the Tribunal erred in making the findings referred to in this ground.  Nor was it necessary for the Tribunal to refer specifically in the findings and reasons part of its decision to the part of the US State Report relied upon.  Nor is it to the point that, as contended by the solicitor for the applicant, the balance of the US State Report is not supportive of these particular findings of the Tribunal.  As indicated above, other country information referred to in the decision and in the delegate’s decision (to which the Tribunal had regard) is consistent with the findings of the Tribunal.  Given the information before it and that the Tribunal found that country information did not support the applicant’s claim that Muslims relocating were always suspected of being Pakistani agents, it was open to the Tribunal to find that his general claims about the communal situation were very exaggerated and some demonstrably false.  This conclusion was reinforced by the Tribunal’s findings in relation to the situation in Hyderabad based on independent country information. 

3. While the solicitor for the applicant acknowledged that general country information is not normally subject to s.424A(1) (and this is undoubtedly correct, see s.424A(3)(a)) it was contended that if the Tribunal was going to dismiss the application on the ground that it relied on country information, then s.424A did apply because it was mandatory (see SAAP) and because the Tribunal could write to the applicant and put the country information to him and seek his comments on the source of the country information relied upon. 

4. The fact that s.424A is a mandatory provision when it is enlivened is not in point. The Tribunal made the relevant finding based on inferences drawn from general country information available to it. Section 424A(3)(a) specifically relieves the Tribunal of the obligation to notify an applicant of the particulars of such information pursuant to s.424A(1) (also see VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559). Insofar as the Tribunal findings are based on an absence of country information supporting the applicant’s claims about Muslims being suspected of Pakistani agents, an absence of information is not something that has to be put to the applicant pursuant to s.424A(1).

5. Nor do general principles of procedural fairness (putting aside any effect of s.422B) require the Tribunal to put the information on which it relied upon in reaching this conclusion to the applicant for comment as contended.  Given the decision of the delegate, the delegate’s reliance on country information in relation to the situation of Muslims in India and the extent to which the Tribunal’s findings in issue depended on the absence of information, consistent with the approach of the Full Court in B41 of 2003 v Refugee Review Tribunal [2005] FCAFC 4 there was no denial of natural justice in the factual circumstances of this case. The Tribunal was not obliged to seek a means by which the applicant could have been acquainted with country information and asked for comment. The Tribunal conducted a ‘real review’ and there is nothing on the information before the Court, including the delegate’s decision, and the country information relied on referred to in the Tribunal decision, to suggest that the Tribunal’s statement in relation to an absence of particular information was, as Madgwick J considered in B41 of 2003 at [46]: “Too lightly made [or] that any other material suggestive of serious risk for the future was readily available”.

6. In oral submissions in response the solicitor for the applicant contended for the first time that the Tribunal finding that “the applicant’s general claims about the communal situation are very exaggerated and some demonstrably false” was an accusation of fraud about the nature of information provided by the applicant and that the Tribunal could not find that the applicant provided false information unless it was satisfied after an investigation that the material was false and that its failure to do so established apprehended bias.  It was contended that ‘false’ meant fraudulent on the authority of Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. However, the Tribunal did not make a finding that the applicant had provided any fraudulent documents (cf WACO v Minister for Immigration & Multicultural Affairs (2003) 131 FCR 511, WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 and other cases discussed by Tamberlin J in SZAJC v Minister for Immigration & Multicultural Affairs [2004] FCA 1686). Rather it made a finding, in effect, about the credibility of the applicant’s claims. Findings of credibility are matters for the Tribunal par excellence;Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. This finding was open to the Tribunal for the reasons that it gave on the information before it. It was not necessary for the Tribunal to carry out some form of investigation or inquiry in the manner contended. No apprehended bias giving rise to jurisdictional error has been established.

Manifest Unreasonableness Ground

1. Ground four in the amended application is as follows:

   The Tribunal was Manifestly Unreasonable in concluding to the effect:

   Particulars – Green Book

   Page 79/80 – Para 11 & 01

   “The Applicant was put on Notice by the Tribunal that it was unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so.  Nor has he given the Tribunal the opportunity explore aspects of his claims with him. A number of relevant questions are therefore left unanswered”.

   Applicant’s Comments

   This conclusion by the Tribunal is manifestly unreasonable because the Tribunal Admits at the end that a number of relevant questions were left unanswered and therefore the Tribunal had not assessed the Applicant’s claims with substantial justice as required by the statutory provisions in the Migration Act 1958, very specially the section 420(2)(b). Although the applicant asked the Tribunal to make its decision on the papers, the Applicant did not say that he would not provide any information if the Tribunal asked him in writing for clarification of any doubt in the mind of the Tribunal. Therefore, the Tribunal knowingly reaching the decision with questions unanswered was a clear jurisdictional error that was committed.

2. The applicant contended first that the Tribunal erred in stating that the applicant had been given ‘ample opportunity’ to provide further information in support of his claims. He repeated the contention that the Tribunal was required to write to the applicant seeking further information to clarify doubt in its mind under s.424A and also as a requirement of procedural fairness. It was contended that the Tribunal had wide powers including powers of investigation and that its lack of investigation and failure to ask the applicant for more details constituted a lack of procedural fairness. Reliance was placed on s.420(2)(b) and it was contended that the Tribunal did not assess the applicant’s claims according to ‘substantial justice’.

3. The Tribunal notified the applicant that it was unable to make a favourable finding on the material before it and invited him to attend a hearing. This opportunity might well be said to be sufficient in itself as it complied with the requirements of ss.425, 425A and 426 of the Migration Act 1958.  Further, the applicant was given the opportunity in the review application to tell the Tribunal why he considered himself to be a refugee (he provided a three-line statement) and in both the acknowledgement of the application and hearing invitation.  He did not provide further information.  He completed the response to hearing invitation indicating that he did not want to come to the hearing and acknowledged by ticking the relevant box that he consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it.  In those circumstances the Tribunal’s statement that the applicant was given ‘ample opportunity’ to provide further information has not been shown to involve any error let alone jurisdictional error. 

4. As discussed above, given that the applicant declined to attend the Tribunal hearing it was open to the Tribunal to proceed in the manner that it did. There was no obligation on the Tribunal to seek clarification from the applicant (either under s.424A, the principles of procedural fairness or otherwise) of any doubt in the mind of the Tribunal. Section 420 of the Act does not provide a ground of review and does not impose any independent duty on the Tribunal to act in a particular way (see Minister for Immigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611 at [49106]-[49108] and [176]). There was no duty on the Tribunal to advise the applicant of concerns that it had about his case. It is for the applicant to advance his claims and for the Tribunal to consider them and either accept or reject them. There is no foundation for the allegation that the Tribunal acted outside of jurisdiction in determining the matter in the way that it did or that its conclusion was manifestly unreasonable in the manner contended.

5. A number of other issues were canvassed by the solicitor for the applicant.  In written submissions reliance was placed on a number of cases.  In particular, reference was made to SZDTQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 867 in support of the proposition that the Tribunal failed to consider whether there would be a real chance that the applicant could be subjected to persecution if asked to return to India. However in that case the Tribunal had proceeded on the assumption that the claims of the applicant were true. It was then under an obligation to consider whether there was a real chance that particular conduct (harassment) would recur and whether it could constitute persecution. In this instance the Tribunal did not proceed on such an assumption. Because of the absence of sufficient information and the fact that a number of questions were left unanswered the Tribunal was unable to satisfy itself that the applicant’s claimed fear of persecution in India was well-founded. Further it considered but rejected the applicant’s claims about harassment and the situation in Hyderabad. This case does not assist the applicant. Similarly in SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 857 the Tribunal proceeded on the basis that it accepted evidence of certain threats and hence it was necessary to evaluate the extent to which such threat was within s.91R(2)(a) of the Migration Act. This case is not support for the proposition that the Tribunal erred in failing to assess the applicant’s risk to life under s.91R(2)(a). The Tribunal was not satisfied, on the material before it, of the claims of the applicant.

6. As no jurisdictional error has been established the decision is a privative clause decision to which s.474 of the Migration Act 1958 applies and the application must be dismissed. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  6 September 2005