SZBWF v Minister for Immigration

[2004] FMCA 424

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBWF & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA 424

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal relied on irrelevant considerations or failed to take into account relevant considerations in its treatment of independent country information – whether bias or lack of procedural fairness – wo jurisdictional error. 

Migration Act 1958

SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2004] FMCA 83
The Queen v Australian Stevedore Industry Board;  Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Re Minister for Immigration & Multicultural & Indigenous Affairs;  Ex parte Applicants S134/2002 [2003] HCA 1
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 34
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
Kioa v West(1985) 159 CLR 550
SGJB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1601
Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507
Re; Refugee Review Tribunal, Ex parte H (2001) 179 ALR 425

Applicant: SZBWF and SZBXF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ2420 of 2003

Delivered on: 11 August 2004

Delivered at: Sydney

Hearing date: 6 April 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Mr R Nair

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr JD Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ of 2004

SZBWF & SZBXF

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 29 May 2002 affirming a decision of a delegate of the first respondent made on 16 December 2000 refusing to grant the applicants protection visas.

2. The applicants are brothers and citizens of India born in 1982 and 1987 respectively.  They arrived in Australia on 23 September 2000 then aged 17 and 13 and applied for protection visas on 31 October 2000.  The older brother claimed to fear persecution on the basis that he is a Sikh and would be targeted by the authorities and also by members of the Khalistan Liberation Force (KLF).  It was claimed that the applicant’s father belonged to the KLF and was a terrorist, that by 1994 he wanted to leave the KLF but they would not let him go and that sometime in 1994 both parents of the applicants were killed by members of the KLF.  The younger brother made no independent claims under the Refugees Convention and did not attend the Tribunal hearing.  For convenience I refer to the older brother as the applicant. 

3. The applicant claimed that a few days after his parents were killed he was detained by the police for two or three days and questioned about the militants and that he was further detained and questioned some three or four times between the time of his parents’ death and his departure for Australia (most recently in 2000).  He also claimed that he was warned repeatedly by KLF members that they intended to recruit him when he was an adult.

4. At the hearing the Tribunal member put to the applicant that she had difficulty accepting the claims he had made, in particular that the authorities would continue to question him about terrorists some six years after his father had died given that he was only 12 years old when his father died, that he had not been involved with the group himself and in light of independent information suggesting that the activities of militant separatist groups (such as the KLF) had declined from the early 1990s and was at a low level by 2000.  The Tribunal put to the applicant that in those circumstances it was difficult to believe that the police had any interest in him.  The Tribunal also advised the applicant that it had difficulty in accepting that members of the KLF would continue to visit him to warn him that they intended to recruit him from 1994 until 2000 as independent information suggested that it was not the case that the KLF forced people to become members of the group and that the activities of the group had declined in Punjab to the extent that they were virtually inactive.  The applicant repeated that his claims were true and that he had been 14 when his father died.

5. The Tribunal accepted for the purposes of the application that the applicants were brothers and that their parents were killed in 1994 by members of the KLF because their father wanted to leave the organisation.  However the Tribunal did not accept that the applicants left India because the older brother was being harassed by the Indian police or by members of the KLF.  The Tribunal was not satisfied that the applicant was detained and questioned by the police on several occasions from 1994 until 2000 bearing in mind his age when his father died, the fact that he had never been involved with the KLF, that it was unlikely that he would be seen as a source of information at the time of his father’s death and, even if he was, because it was far-fetched and implausible that he would continue to be questioned until 2000.  The Tribunal referred to relevant independent information about the situation in the Punjab from 1992 to 2001 and concluded that in those circumstances it did not accept that the older brother was of interest to the police in Punjab in 2000 either because of his father’s involvement with the KLF or because the police believed that the applicant himself had information regarding the group.  The Tribunal also found the claim that the KLF continued threatening to forcibly recruit the applicant when he became an adult implausible and contrary to independent information.  There was nothing to suggest that the KLF followed a practice of forcibly recruiting members.  The information indicated that the activities of militant groups lessened considerably throughout the 1990s to the extent where they were virtually non-existent by the end of the decade.  It stated:  “In 2001 South Asian Terrorism Portal described KLF as a group which had offices in Europe, but been wiped out in Punjab, although it ‘made feeble but unsuccessful attempts to revive activities”.  On the evidence before it the Tribunal did not accept that the applicant was of adverse interest to the Indian authorities or to members of the KLF at the time of his departure from India and was not satisfied that he had a well-founded fear of persecution for any of the reasons contained in the Convention. 

6. The applicant commenced proceedings in the High Court in December 2002 which were remitted to the Federal Court.  The applicants failed to file certain material within the time specified in orders of the Federal Court and the application was dismissed on 22 August 2003.  On

   
   

   18 September 2003 the applicants filed a notice seeking an extension of time in which to file and serve a notice of appeal to the Full Court of the Federal Court.  They then filed a notice of discontinuance of the appeal on 5 November 2003.  The applicants filed an application in this Court on 10 November 2003.  The earlier proceedings involving the applicants are detailed in SZBWF v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2004] FMCA 83. In that case I held that the application should not be dismissed as an abuse of process or as not disclosing any reasonable cause of action.

7. The grounds relied on in the amended application filed on 29 January 2004 are as follows:-

   1. It is both a breach of natural justice, procedural fairness and jurisdictional error for the Tribunal member to:-

   a)  Adopt the alleged contents of Country Information IRBDC reinfo advice IND 26376 ex 17 February 1997 – presented at paragraph 2 of page 6 of the Tribunal decision when a more recent authority from the same source also referred to within the same paragraph contradicts the view expressed.  At page 3 of the document entitled IND 34468 ex 12 June 2000 four specific categories of family members are recognised to be at risk.  In summary, those categories are;

   Family members who are

   (i)  in hiding or in other ways assisting terrorists,

   (ii)  are at risk of being interrogated about the whereabouts of wanted persons,

   (iii)  children of wanted persons who are at risk of being beaten by the police in order to obtain information about the whereabouts of the wanted person.  If the police can not get the person the family will be harassed and

   (iv)  Family members of suspected militants risk having problems with the police.  According to Ravi Nair it is a general trend all over India that family members are at risk if the person searched for is not available. 

   b)  The principal applicant has asserted that he faced persecution as a result of being a family member of a past member of a terrorist group and that he had problems with the police and been placed at risk evidencing a consistent pattern of harassment. 

   2.  The Tribunal has:-

   a)  relied upon dated Country Information extracts and not applied or ignored more recent material and/or

   b)  quoted selectively from a number of documents upon which it had relied and/or

   c)  the above categories may support the inference that the Tribunal did not approach its task in good faith.  

8. The applicant’s counsel claimed that the Tribunal ignored relevant material and relied on ‘irrelevant material’.  The irrelevant material was the 1997 IRBDC report referred to in the reasons for decision because it was said to be clearly contradicted by more recent country information.  It was submitted that in so relying on irrelevant material the Tribunal ignored relevant material to the effect that family members of ‘suspected’ militants risk having problems with the police, that children of wanted persons risk being beaten by the police, that close relatives of militants continued to be followed as potential seeds to further rebellion, that the police were still arresting people and accusing them on false grounds, that 90 per cent of the detained people in Punjab are innocent, that the police are raising false cases, that the police have an interest in maintaining an atmosphere of insecurity and that individuals involved in, or sympathisers of, Sikh militant groups may continue to be harassed by the authorities.  It was submitted that while the weight it gives to particular information is a matter for the Tribunal, it cannot rely on irrelevant material or ignore relevant material as to do so is to fall into jurisdictional error consisting of a failure to properly consider the applicant’s case.  It was argued that the assessment of country information was relevant because the view of the Tribunal that the applicant was not being persecuted was weak if the militants had not been eliminated and because the finding that he was not persecuted by the police because their activities had been curtailed would not be sustainable if the views relied on by the Tribunal in relation to the situation in the Punjab were overly optimistic. 

9. Counsel for the applicant cited The Queen v Australian Stevedore Industry Board;  Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 in support of the proposition that while inadequacy of evidence or material to support a conclusion of fact by a Tribunal is not of itself a ground for prohibition “it is a circumstance which may support the inference that the Tribunal is applying the wrong test or is not in reality satisfied of the requisite matters” (at [119] per Dixon CJ, Williams, Webb and Fullagar JJ). Their Honours went on to say “If there are other indications that this is so or that the purpose of the function committed to the Tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact”. It was submitted that in this case the Tribunal’s reliance on irrelevant material and failure to take into account relevant material supported the inference that the Tribunal had not considered the applicant’s claims and had not considered whether the applicants had a well-founded fear of persecution. It was submitted that the inference could be drawn that the Tribunal was not in reality satisfied of the matters of which it was required to be satisfied under s65 of the Migration Act 1958 and that the failure to properly consider the applicant’s case was a constructive failure to exercise jurisdiction (Re Minister for Immigration & Multicultural & Indigenous Affairs;  Ex parte Applicants S134/2002 [2003] HCA 1 at [73] to [76] per Kirby and Gaudron JJ). It was submitted that the circumstances showed that in finding that the applicants had no well-founded fear the inference could be drawn that the Tribunal relied on the earlier country information disregarding all else before it and did not properly consider whether the applicant had a present well-founded fear.

10. It was also contended that the Tribunal failed to properly consider and hear the applicant’s case thus denying the applicants natural justice and falling into jurisdictional error and that the Tribunal reliance on irrelevant material and ignoring of relevant material gave rise to the inference that it had prejudged the applicant’s claims in a manner constituting actual or apprehended bias. 

11. In considering the applicant’s claims it is necessary to have regard to the independent information considered by the Tribunal.  Both counsel addressed this material in detail in their submissions.  In its reasons for decision the Tribunal described the situation in the Punjab based on of the country information before it (consisting of a Canadian Immigration and Review Board Document Centre (IRBDC) report of 1997, a subsequent IRBDC report of June 2000, a DFAT Report of January 2001, an assessment by the South Asia Terrorism Portal of March 2001, and the United Kingdom Home Office Country Assessment: India, October 2001).  It considered the situation in the Punjab in the context of considering the claims of the applicant to the effect that after his parents were killed in 1994 he was detained and questioned by the police on several occasions from 1994 until 2000 and that during that time the KLF continued to threaten to forcibly recruit him when he became an adult.  The Tribunal first considered the applicant’s position at the time of his father’s death, noting his very young age.  There was some uncertainty about his precise age because the applicant came to Australia on an admittedly false passport.  He gave his date of birth as 27 October 1982 in the protection visa application.  On his account he was no older than 14 when his father died in 1994.  The Tribunal found that he was 12 or 13 when his father died.  On any account the Tribunal finding that he was very young at the time is unexceptional.  The Tribunal also had regard to the fact that the applicant had never been involved with the KLF.  In the context of finding it unlikely that the applicant would have been be seen as a source of information at the time of the father’s death and that even if he was, the claim that he continued to be questioned until 2000 was far-fetched and implausible, the Tribunal then considered country information about the situation in the Punjab during that period of time.  It stated:

    By all accounts the level of Sikh militant activity in Punjab lessened from about 1992 onwards and by 1996 DFAT and others were advising that “There has been a wholesale political resolution of the separatist problems in the Punjab, the quantum leap in State officials’ awareness of human rights issues and in their recognition of the need to eliminate practices which breach India’s human rights obligations”.  According to advice provided to the Canadian Immigration and Refugee Board Document Centre in early 1997, Sikh militancy in the Punjab had been virtually eliminated and only high profile militant suspects, such as leaders of a militant organisation (Sikh) and those suspected of involvement of terrorist attacks, continued to be of interest to the authorities.  The advice specifically notes that Sikh with “some slight perceived connection to the militancy – through a family member, for example” would not be of interest to the police (IRBDC Reinfo advice Ind26376.EX 17 February 1997).  A review of Indian media reports and other sources on the Punjab conducted by the Canadian IRBDC in 2000 found that there [were] infrequent reports of militant activities and arrests of suspected militants, but overall, the situation in Punjab was one of relative calm (IND 34468.EX of 12 June 2000).  DFAT Report 142 (dated 23 January 2001 …) states Sikh militancy which was prevalent in the 1980s and early 1990s “have been all but extinguished” due to police action and lack of popular support.  It notes that human rights activists claim that those involved with or sympathetic to militant groups may continue to face harassment, but adds that this is not a blanket problem.  An assessment by the South Asian Terrorism Portal (… cx 51254) notes that despite a few isolated and sporadic incidents of violence, in 2001 Punjab continued to witness peace for the eighth consecutive year after the terrorist-secessionist movement for Khalistan was comprehensively defeated in 1993.  The United Kingdom Home Office Immigration and Nationality Directorate Country Assessment:  India, October 2001, section 5.6, paints a similar picture.  In these circumstances I do not accept that [the applicant] was of interest to the police in Punjab in 2000 because of his father’s involvement with the KLF prior to his death in 1994 or because the police believed that Mr Singh himself had information regarding the group. 

    I also find the claim that the KLF continually threatened to forcibly recruit Mr Singh when he became an adult implausible.  In the first place, there is nothing in any of the sources which I have consulted which suggests that the KLF followed the practice of forcibly recruited members.  Secondly, as discussed above the information before me indicates that the activities of militant groups lessened considerably throughout the 1990s, to the extent where they were virtually non-existent by the end of the decade.  IN 2001 South Asia Terrorism Portal described the KLF as a group which had offices in Europe, but been wiped out in Punjab, although it ‘made feeble but unsuccessful attempts to revive activities’.  In these circumstances it is not plausible that members of the group visited Mr Singh several times a year from 1994 until he left the country in 2000 to remind him that he would have to join the group when he was older.”

12. Hence the Tribunal began with a consideration of the level of Sikh militant activity and awareness of human rights issues on the part of state officials at or about the time at which the applicant first complained of harassment and questioning.  The Tribunal referred to a lessening of militant activity from 1992 to 1996 and then considered subsequent developments.  It referred to the 1997, Canadian IRBDC Report to the effect that Sikh militancy in the Punjab had been “virtually eliminated”.  No issue is taken by the applicant with the accuracy of this statement.  His complaint is that while that might have been the case in 1997, subsequent information suggested that circumstances changed.  The Tribunal also referred to the expert independent advice in 1997 that only high profile militant suspects, such as leaders of militant organisations and those suspected of involvement in terrorist attacks, continued to be of interest to the authorities and that Sikhs with “some slight perceived connection to the militancy – through a family member, for example” would not be of interest to the police.  No issue is taken with the accuracy of this assessment as at that time. 

1. The Tribunal then cited the IRBDC Report of June 2000 to the effect that “there [are] infrequent reports of militant activities and arrests of suspected militants, but overall, the situation in Punjab is one of relative calm”.  This summary is consistent with that report which outlined a number of incidents in the context of a reference to “infrequent reports of militant activities and arrests of suspected militants [continuing] to appear in the Indian media” but went on to state that “overall, however, sources indicate that the situation in Punjab is one of relative calm”.  However the applicant contended that this report contained information contrary to the earlier report, in that it stated that ‘Since April 1999, numerous editorials in South Asian newspapers have discussed the possibility of a revival of militancy in Punjab’.  Yet the report also referred to the surrender of a leading member of the KLF being a ‘major blow to any attempt of revival of militancy in Punjab’.  It described reports that ‘many militants have wearied of the separatist movement but are being pressured by their funders outside India’ as well as information that ‘pro-Khalistan groups were approaching anti-India international circles all over the world as they thought the time was right to re-energise the Khalistan movement’.  These references are not inconsistent with the overall assessment of ‘relative calm’ appearing both in the 2000 IRBDC report and in the Tribunal reasons for decision. 

2. The applicant also relied on a passage in the 2000 IRBDC Report which referred to arrest procedures adopted by the police in the Punjab, and stated that sources informed that the police were still arresting people and accusing them on false grounds and that a prominent lawyer was of the opinion that 90 per cent of the detained persons in Punjab were innocent.  That Report stated that a lawyer had advised that “family members who are hiding or in other ways assisting terrorists may have problems with the police”, that “family members of suspected militants risk having problems with the police” and “family members are at risk if the person searched for is not available”.  This was clarified by the information that “family members of Khalistan supporters will not be at risk of false accusations.  They will, however, risk being interrogated about the whereabouts of the wanted person.  For this reason family members of wanted persons will also be on the list of the police”.  The Report also referred to another source of information to the effect that spouses and children “of wanted persons risk being beaten by the police in order to obtain information about the whereabouts of the wanted person.  If the police cannot get the person, the family will be harassed”.  It was submitted for the applicant that this 2000 material amounted to clear evidence that family members of (suspected) militants risked having problems with the police.  However it is clear from reading the 2000 IRBDC Report as a whole that the report is considering the situation of family members “hiding or in other ways assisting terrorists” or who may be interrogated about the whereabouts of a wanted person.  This was not applicable to the situation of the applicant as his father and mother had both been killed in 1994.  The applicant would not have been at risk of interrogation about the whereabouts of his dead father.  Hence those parts of the 2000 IRBDC Report that relate to the attitudes of the police towards human rights of family members of militants in the Punjab say nothing about the real issue before the Tribunal, namely, whether the first-named applicant would have been questioned so long after his parents’ death on the basis of his father’s former involvement in the KLF. 

3. The Tribunal went on to refer to the 2001 DFAT report to the effect that the once prevalent Sikh militancy had been ‘all but extinguished’ due to police action and lack of popular support.  This report also stated that many Sikh militant groups which were active in the 1980’s and early 1990s lie “virtually dormant now but are by no means extinct”.  The report observed that human rights activists claimed that those involved with or sympathetic to militant groups may continue to face harassment but concluded that this was not a blanket problem.  The Tribunal reference to this report is an accurate reflection of what is stated therein.  There is no suggestion that the applicants were involved in or even sympathisers with Sikh militant groups such as to expose them to the kind of individual harassment by authorities referred to in the DFAT report.  The report detailed arrests and cases against particular militants, described the limited success of claims of wrongful detention and indicated an inability to make blanket statements about mistreatment or harassment of members of the KLF.  It also referred to information from the US Embassy that a number of applications received from asylum seekers alleging police mistreatment had proven baseless.  Read as a whole this report is not inconsistent with the Tribunal findings. 

4. The next relevant item of information referred to by the Tribunal was the India Punjab Assessment of March 2001 by the South Asia Terrorism Portal.  This assessment stated that Punjab “[continued] to witness peace for the eighth consecutive year after the terrorist-secessionist movement for Khalistan was comprehensively defeated in 1993”.  It noted that there were a few isolated and sporadic incidents of violence in 2000.  Again the Tribunal reasons for decision accurately reflect this assessment.  The applicant submits however, that this report confirms a more pessimistic assessment of the situation in its specific references to 18 civilians being killed in acts perpetuated by the “remnants of the terrorist movement of the 1980s and early 1990s”, to injuries to more than 70 people as a result of terrorist violence and to the fact that Khalistan terrorists were showing their presence in States other than Punjab (three having been arrested in Delhi and three in Mumbi who were allegedly plotting the abduction of the former State Chief Minister).  However, as the assessment stated, there were “a few isolated and sporadic incidents of violence in the year 2000”.  These are recorded.  This was acknowledged by the Tribunal.  None of the reported incidents are directly in point in consideration of the particular fears complained of by the applicants.  Furthermore the report referred to terrorist organisations having been wiped out in the Punjab although they had made “feeble but unsuccessful attempts to revive activities”.  Contrary to the submissions of the applicant this is not a more pessimistic assessment indicating that family members of “suspected” militants risk facing problems from militants or the police.  It is consistent with the Tribunal conclusion that given the lessening of the activities of militant groups through the 1990’s to the extent that they were virtually non-existent, it was not plausible that members of the KLF (which had been wiped out in the Punjab) visited the applicant several times a year from 1994 to 2000 to remind him to join the group when he was older. 

5. Finally the Tribunal referred briefly, and correctly, to the October 2001 United Kingdom Home Office Country Assessment: India, section 5.6, as painting a similar picture to the South Asia Terrorism Portal assessment.  It stated that while there was a history of violence, militancy and terrorism in Punjab (including by the KLF): “The Sikh militant movement is no longer active in Punjab.  The hard case militants have either been physically wiped out or are no longer in India.  There were no reports in 1997 and 1998 of Sikh militants forcing the local population to provide them with assistance.  There is no obvious support for the militants and the people of the Punjab want peace.”  The assessment suggested that the security situation in Punjab was ‘now’ under control and the situation considerably improved and former militants who had served their sentences for terrorist activities now lived a normal life in Punjab. 

6. The 2001 assessment cited the 1997 IRBDC report’s broad agreement that Sikh militancy in Punjab had been virtually eliminated.  There is no suggestion of any subsequent change.  The 2001 report is consistent with the 1997 report in relation to Sikh militancy.  The applicant submitted that part of the later report as constituted a more pessimistic assessment, in particular the statement qualifying the general conclusion that Sikhs do not constitute a persecuted group.  The qualification in the 2001 assessment was that there were exceptions “such as people with a local history of abuse at the hands of the police, who may continue a personal vendetta; and militants together with their close relatives and supporters who continue to be followed as potential seeds for further rebellion” (emphasis added).  However, contrary to the submissions of the applicant, this does not indicate that people such as the applicants, whose late parents were previously involved in terrorist activities or members of the KLF, continue to be at risk in the Punjab.  The applicants’ parents are dead – their father is no longer militant.  It is not claimed that the applicant or their family are close relatives or supporters of existing militants. 

7. The conclusions drawn by the Tribunal from the independent information were open to it. The factual basis for the applicants’ claim is not established. It has not been established that the Tribunal had regard to irrelevant considerations or failed to have regard to relevant considerations. In determining whether the applicant had a well-founded fear of persecution it was necessary for the Tribunal to have regard to relevant considerations in the sense of considerations made mandatorily relevant by the Migration Act 1958 in the manner discussed in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 34 at [39] per Mason J and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41] per Gaudron J and at [82] per McHugh, Gummow and Hayne JJ. However this is to be distinguished from what Allsop J described in Htun v MIMA (2001) 194 ALR 244 as errant fact-finding. It cannot be said that the Tribunal failed to deal with all the ingredients or integers of the applicants’ claims or the basis for the claimed fear of persecution (cf Htun at [42]). This is not a case in which the inference should be drawn that the Tribunal was not in reality satisfied of the requisite matters under s65 or that it in any other way fell into jurisdictional error. The Tribunal is not bound to deal specifically with every aspect of the competing evidence before it and the weight to be given to any evidence before it is a matter for the Tribunal itself as part of its fact-finding function. Indeed it is not correct to say that if the Tribunal does not adopt a view expressed in later material (which the applicant considers contrary to earlier material) that it has “ignored relevant considerations” such as to fall within the description of jurisdictional error in Yusuf. 

8. The question of relevant/irrelevant considerations is not, as the applicant suggests, an assessment of whether a factual situation is contradicted by a later factual situation but refers to something required to be considered by the legislation or power given. An irrelevant consideration is something proscribed from being given consideration. In the context of the Migration Act 1958 the particular claims as made by the applicant or raised on the material before the Tribunal were considered by the Tribunal but rejected for reasons which were open to it on the material before it. Evidence, such as country information which merely goes to support or contradict an applicant’s claim, is not a relevant consideration in the Yusuf sense. 

9. Furthermore, the decision in The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 does not assist the applicant as intended. The applicant for prohibition in that case (which sought to restrain the Australian Stevedoring Industry Board from proceeding with a statutory inquiry into the fitness of the Melbourne Stevedoring Company) succeeded because on the evidence before the High Court there was an absence of material supporting a basis for inquiry into whether the company was unfit to continue to be registered as an employer or as to whether it had acted in a manner whereby there had been an interference with the proper performance of stevedoring operations because the evidence relied upon related to complaints as to the level of vigilance of the foreman and supervisors working for the company. In those circumstances the High Court concluded that the Board had misconceived the scope of the relevant legislation as providing for the enforcement of policy. It was in that context that the Court referred to an inadequacy of material being a circumstance which may support an inference that a Tribunal was applying the wrong test. In this case the argument of the applicants is that there was contrary information before the Tribunal or, perhaps, that the Tribunal misunderstood some independent information such that it should be inferred that the Tribunal misunderstood or did not apply the criteria for the grant of a visa in s65 of the Migration Act (see s36 of the Act). It has not been established that there was contrary or misunderstood information as contended. The Tribunal findings were open to it on the material before it. There is no basis for a finding that the Tribunal applied the wrong test or was not in reality satisfied of the requisite matters. It has not been established that the Tribunal failed to ask itself the right question and so constructively failed to exercise jurisdiction.

10. It cannot be said in this instance that the Tribunal’s findings in the face of the country information before it were unreasonable, illogical or irrational or based on findings or inferences of fact not supported by some probative material on logical grounds (Re MIMA;  Ex parte Applicant S20/2002 (2003) 198 ALR 59) or indeed that there was no evidence to support the Tribunal findings (SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231).

11. The applicants also contended that there was a failure by the Tribunal to properly hear the applicant’s case constituting a denial of justice and, specifically, that the reliance on irrelevant material and ignoring by the Tribunal of relevant material indicated that the Tribunal was actually biased in that it prejudged the applicant’s claims without properly considering them and that it brought a closed mind to its task and to the issues in question.  In the alternative it was submitted that at the very least there was a reasonable apprehension of bias.  The ground of lack of procedural fairness or denial of natural justice was not expanded upon other than in relation to bias.  However no lack of procedural fairness is apparent on the material before me.  The Tribunal put to the applicant its concerns, based on its view of the independent material.  The Tribunal met its obligations to raise critical issues with the applicant and to give him an opportunity to comment (Kioa v West(1985) 159 CLR 550).

12. As to the arguments in relation to bias, a finding of bias is a serious matter.  The party alleging bias carries a heavy onus (see SGJB v MIMIA [2002] FCA 1601 at [121]). It will be a rare case in which actual bias can be demonstrated solely upon the published reasons of the Tribunal. In this instance there is nothing in the material before me (the reasons of the Tribunal and the independent information) to warrant a conclusion that there was actual bias arising from prejudgment. There is no basis in the inferences that the Tribunal drew from the country information or in anything else before the Court to suggest that the Tribunal had so prejudged the matter that it was unable or unwilling to change its mind despite the material or evidence put before it or, indeed, that a fair-minded lay observer might reasonably apprehend that that be the case. The independent information was not inconsistent with the conclusions of the Tribunal in relation to the particular circumstances of the applicants. I am not satisfied that there is any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to resolution of the application (MIMA v Jia [2001] HCA 17). I bear in mind that, as Gleeson CJ, Gaudron and Gummow JJ stated in Re RRT; Ex parte H [2001] HCA 28 at [5], the principles of apprehended bias when applied outside the judicial system must take into account the different nature of a Tribunal and the different character of its proceedings. There is no evidence before the Court in relation to the conduct of the hearing except the reasons for decision. These suggest that the Tribunal properly, given its inquisitorial role, put certain critical issues to the applicant for comment. Neither actual or apprehended bias nor any other form of denial of natural justice or jurisdictional error is established. Accordingly the application must be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  11 August 2004