SZBZO v Minister for Immigration

[2005] FMCA 1681

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBZO v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1681

MIGRATION – Refugee – notice requirement – invitation to Tribunal hearing – failure to attend hearing – bias – relevant consideration – integers of claim – irrational or illogical reasoning – failure to take into account all claims.

Migration Act 1958, ss.36(2), 65, 424A, 425A, 425A(3), 426A, 430, 441C(4), 441A(4)
Migration Regulations 1994, Regulation 4.35D

NBBU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 767
SZBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 790
SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026
SZBNS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 458
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal Ex parte H [2001] HCA 28
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Paul vMinister for Immigration and Multicultural Affairs (2001) 113 FCR 369
Appellant A169 2003 vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
VAF vMinister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZBZO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SZ 2557 of 2003

Judgment of: Nicholls FM

Hearing date: 15 November 2005

Date of Last Submission: 8 November 2005

Delivered at: Sydney

Delivered on: 15 November 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. K. Morgan

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs set in the amount of $5000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2557 of 2003

SZBZO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. This is an application filed in this Court on 25 November 2003 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 October 2003 and handed down on 4 November 2003 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent to these proceedings.

2. The applicant is a citizen of India who arrived in Australia on 26 August 2002 and lodged an application for a protection visa on
   20 September 2002. The applicant claimed to fear persecution on the basis that he and his family were constantly harassed by Muslims in retribution for their support of “Shiv Sena”, a militant Hindu group, founded and based in Mumbai. The applicant’s claims are set out in his application to the first respondent’s Department for a protection visa at Court Book (“CB”) 1 to CB 24 and more particularly in a statement at CB 25 to CB 26. Paragraph 3.2 of the respondent’s written submissions filed on 8 November 2005 sets out the claims in detail and I adopt this paragraph for the purposes of this judgement:

   “(a)     He was a Hindu living in Andakkudi, Tamil Nadu.

   (b)    He and some of his relatives supported Shiv Sena.

   (c) He and some of his relatives were wrongly accused for being “part act against Muslim community as we were supported of Shiv Sena”.

   (d) He and some of his relatives were threatened “of being killed by Muslim community” and as a result he found it unsafe where he was living.

   (e)     He left India for his own safety in 1995.

   (f)He was later informed that his cousin was killed in Andakkudi, Tamil Nadu.

   (g) When he returned to India in 2000 he found that “problem still persist” in Andakkudi.

   (h)He went to Malaysia in October 2000 and was “traced” by members of the Muslim community.

   (i)When he returned to India in December 2000 he decided to “find some safe place” in Mumbai. However “those people found my place and started threatening me” and one day he was attacked by unidentified people and they broke his leg. He reported this episode to the police. However, due to pressure from the Muslim community the police fabricated cases against him and his whole family was harassed for “no fault”.

   (j) There is a lot of political pressure from the Muslim community party to arrest and torture him and his family for no apparent reason.

   (k) He experienced mistreatment by the Muslim party and police and his father and family were also attacked.

   (l)He and his family have been threatened for supporting Shiv Sena for several years and he has continuously received threatening letters from different Muslim organisations. He is “scared for his life”.

   (m) If he returns to India he will be arrested under “false cases” by the police under the instructions of the Muslim party.”

3. The application to the Tribunal is reproduced at CB 71 to CB 74, and at CB 73 the applicant repeats his claims, albeit in a far more generalised and briefer fashion. The Tribunal wrote to the applicant by letter dated 12 August 2003 (CB 77 to CB 78) and advised the applicant that it had considered the material before it in relation to his application and was unable to make a decision in his favour on this information alone. The Tribunal invited the applicant to a hearing before it to give oral evidence and present arguments in support of his claims. The Tribunal provided a time and place and gave the date for the hearing as 23 September 2003. Importantly, the Tribunal advised the applicant that if he was unable to attend the hearing he should contact the Tribunal immediately, and that if he did not attend the hearing and the Tribunal did not postpone the hearing it could make a decision on his case without further notice. The Tribunal's letter enclosed a “Response to Hearing Invitation” form and asked that the applicant return the completed form to the Tribunal. The letter was sent to the applicant's migration adviser and a copy was sent to the applicant at his home address. I note that the applicant separately provided in his application form, as his mailing address, the address of his migration adviser. On 7 August 2003 an employee of the Tribunal rang the applicant's adviser to seek confirmation that he was representing the applicant. This was confirmed (CB 97). By facsimile communication on 10 September 2003 the applicant's adviser returned the “Response to Hearing Invitation” form signed by the applicant which indicated that the applicant did want to attend the hearing before the Tribunal (CB 79 to CB 80). On 22 September 2003 the applicant sent, by facsimile communication, a medical certificate to the Tribunal certifying that the applicant was “not fit for work/school” with the word “attend” handwritten next to that certification, for the period 22 September 2003 to 23 September 2003 (CB 82 to CB 83).

4. The Tribunal's decision record, reproduced at CB 90 to CB 96, reveals that the Tribunal treated the sending of the medical certificate as a request by the applicant to reschedule the hearing date. It agreed to this request and subsequently advised the applicant in writing that the hearing would take place on 2 October 2003. The Tribunal's letter is reproduced at CB 84 to CB 85. The letter sent by registered post was sent to the applicant's migration adviser, with a copy sent to the applicant at his home address. The applicant did not attend the hearing, and the Tribunal proceeded to make a decision on what was before it.

5. The Tribunal's “Findings and Reasons” are set out in its decision record at CB 94.4 to CB 95.5. The Tribunal looked at the claims before it and found:

   1)The applicant had claimed to being a “Shiv Sena” supporter in his hometown in Tamil Nadu prior to his departure from India for overseas in 1995, and found that the applicant had not lived in Tamil Nadu since that time, other than a few months during 2000 between trips to Singapore and Malaysia (CB 94.8).

   2)After returning from Malaysia in 2001 the applicant settled in Mumbai and made no claims that he still supported “Shiv Sena” (CB 94.8).

   3)The harassment that he claimed he and his family suffered was instigated by Muslims from his hometown who traced his whereabouts (CB 94.9).

   4)In relation to the assault which he claimed occurred in Mumbai, which left him with a broken leg, that he had been separated from the Muslim community in Tamil Nadu by at least six years and that given the population of the Maharashtra state (close to 100 million) it seemed implausible that he had been actually traced by people “from his past” (at least six years), and from his hometown who wished to harm him (CB 95.2).

   5)The Tribunal noted that the applicant could not identify his assailants and that this suggested that it was “more plausible” that the applicant was the victim of an opportunistic assault rather than from people who tracked him down over a prolonged time and through such a huge population (CB 95.3).

   6)The Tribunal found that the applicant had offered no details at all about the timing of the claimed assault or the threats, or adverse treatment meted out to him or his relatives (CB 95.4).

   7)The applicant had not put forward any reasons why police in Mumbai, (a state where the religious breakdown is Hindu 80%, Christian 5% and Muslim 5%), should not only adopt an adverse view of the applicant, but why they should harass his father and relatives who lived in another state and a different jurisdiction (CB 95.4).

   8)The Tribunal, in summary, described the applicant's claims as “mere assertions” and on the evidence before it was not able to be satisfied that the applicant had a well founded fear of persecution within the meaning of the Convention, and for this reason the Tribunal affirmed the decision under review (CB 95.5). 

6. The applicant’s originating application to the Court contained a number of unparticularised grounds. When this matter first came before me as part of a call over list on 18 January 2005, the first respondent sought summary dismissal of the application on the basis that the applicant had not filed an amended application as required by orders made by consent at the first Court date in this matter on 15 April 2004. The respondent relied on the affidavit of Sharon Hanstein, a solicitor in the employ of the respondent solicitors. I did not agree to summarily dismissing this matter, and subsequently the applicant filed an amended application on 31 January 2005. The grounds in that application are:

   “1.The Tribunal member’s decision was flawed in that it was affected by bias. She expressed disbelief of my fear of persecution for an imputed political reason as a result of my membership of the Shiv Sena party. The Tribunal decision was therefore not the result of a properly conducted hearing and establish procedural unfairness (a jurisdictional error)(Muin v Refugee Review Tribunal)

   2.At the hearing the applicant was denied the full opportunity to explain why it was that he had to relocate himself in Mumbai as a result of the persistent harassment by the persecutors. The requirements of the general law of procedural fairness were therefore not met. (Kiao v West); (Abebe v The Commonwealth (1999)

   3.The Tribunal failed to take a relevant consideration the constant harassment for several years and the failure of state protection constituted persecution. This conforms with the equation of Justice Kirby's formula: Persecution = Serious Harm + The Failure of State Protection)

   Particulars:

   5.The Tribunal misapplied the test or alternatively misinformed the Applicant about the test.

   6.The Tribunal member’s reasoning was of the kind that could be labelled irrational or so illogical as to indicate failure to perform the review function at all. In the eyes of the la (sic: or more) it was not a “decision” as contemplated by law. (Plaintiff 157(2003); Also :Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Applicant S20/2002 [2003] HCA 30.

   7.The Tribunal member failed to give proper and adequate reasons which he was required by the Act to do, and, therefore the Tribunal failed to exercise its jurisdiction.

   8.The RRT erred in failing to consider all claims and issues put forward by the applicant.”

   The applicant filed a further amended application on 2 February 2005. The sole ground of the further amended application is that:

   “The Tribunal failed to exercise its jurisdiction by not observing a procedure which it was required by the Act to observe.”

   By way of particulars the applicant's complaint is that the Tribunal's invitation to the hearing did not meet the requirements of s.425A of the Migration Act 1958 (“the Act”) in that the period of notice provided to the applicant was inadequate.

7. At the hearing before me the applicant was unrepresented and was assisted by an interpreter in the Tamil language who participated through a telephone link. Ms. Morgan appeared for the respondents. The applicant stated that he did not “know what to say”, and said that he had been here in Australia for three years and wanted to be allowed to remain to “sort out all problems”. Clearly, in spite of the applicant having put to me that he was the author (he claimed the only assistance he received was typing) of the three applications made to the Court, he was unable to assist in any way in putting arguments in support of the claims set out in the applications. The applicant was unable to add anything that would go to show jurisdictional error on the part of the Tribunal's decision.

8. The sole ground of the further amended application asserts a breach on the part of the Tribunal of the notice requirements pursuant to s.425A of the Act that relate to the Tribunal's invitation to the applicant to attend a hearing before it. The applicant asserts that the Tribunal’s letter of 23 September 2003 notified the applicant of a hearing to take place on 2 October 2003. The applicant argues that by operation of s.441C(4) of the Act he is taken to have received the letter of 23 September 2003 on 2 October 2003, the date of the hearing, and that in these circumstances there was no period of notice given since the date of deemed receipt was the same day as the rescheduled hearing. The applicant relies on NBBU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 767 (“NBBU”) and submits that I should not follow SZBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 790 (“SZBAZ”) where Barnes FM held that s.425A did not apply to a rescheduled hearing date in circumstances where the applicant requested an adjournment of the hearing date.

9. The relevant facts in the case before me are:

   1)12 August 2003 – the Tribunal sent to the applicant an invitation to a hearing scheduled for 23 September 2003 (CB 77 to CB 78).

   2)22 September 2003 – the applicant provided a medical certificate to the Tribunal stating that he was not fit to “attend” (by inference) on the date of hearing (CB 82 to CB 83).

   3)23 September 2003 – the Tribunal wrote to the applicant and made reference to the applicant’s request of 22 September 2003 that the Tribunal postpone the hearing, and stated that the Tribunal had agreed to this request and rescheduled the hearing for 2 October 2003.

10. In SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 (“SZDQO”), a decision of Conti J., in July 2005, his Honour, in a matter on appeal from the Federal Magistrate's Court, was faced with the situation which in all material respects is greatly similar to the one before me now. In that case:

    1)The notice of the Tribunal hearing was sent to the applicant on 9 January 2004 and the applicant was deemed to have received this notice pursuant to s.441C(4)(a) of the Act after seven working days. The period of 14 days prescribed by s.425A(3) expired on 3 February 2004, well in advance of the hearing date appointed by the Tribunal, in that case – 29 March 2004.

    2)Unlike in the case before me, no formal response to the invitation to hearing was sent by the applicant to the Tribunal (although nothing turns on this issue when applied to the case before me).

    3)The applicant sent to the Tribunal a medical certificate on 26 March 2004 and did not appear on the appointed hearing date of 29 March 2004.

    4)The Tribunal chose to reschedule a further date for the “appellant’s” appearance when the applicant did not appear. This was for 8 April 2004. It notified the applicant by letter on 30 March 2004. The “appellant” did not attend the rescheduled hearing and the Tribunal proceeded to make its decision in his absence.

    5)Clearly the letter advising the applicant of the rescheduling the hearing arrived (on what would have been the deemed date of receipt by the applicant) on the date of the rescheduled hearing. Therefore, there would not have been any capacity for the prescribed period of 14 days notice pursuant to s.425A(3) and Regulation 4.35D of the Migration Regulations 1994 (“the Regulations”) to have run in this circumstance.

11. The issue before his Honour was whether there was a requirement to “re-comply” with the provision of s.425A in rescheduling the hearing, such that the applicant was entitled to the 14 days prescribed period of notice. In considering at this issue his Honour looked at “NBBU” and “SZBAZ”, the cases now put forward by the applicant. His Honour said at [28]:

    “In his submissions in the context of the decision of Barnes FM in SZBNS, counsel for the Minister emphasised in the present appeal her Honour’s statement at [26] ‘[i]ndeed in one sense it could be said that the letter of 4 August 2003 [notifying the applicant of the rescheduling of the hearing to 19 August 2003] was not a fresh invitation but merely a postponement’ as being ‘redolent of the approach her Honour took in SZBAZ, where her Honour distinguished between an initial application [sic, hearing] and a re-scheduling’. In doing so counsel appeared to articulate a ratio decidendi for SZBNS stripped bare of her Honour’s apparent reliance on the approach adopted by the Full Court in NAHV to breaches of s 424A.”

    At [29] His Honour also stated:

    “In my opinion, the Minister’s approach is correct. The circumstances in SZBNS are distinguishable from those of the present appellant. Here the Tribunal rescheduled the hearing as a result of the appellant’s non-attendance at the original hearing at the applicant’s own initiative, albeit with the support of a doctor’s certificate. In my opinion, in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest, explicitly or implicitly, of an applicant, s 425A does not apply in relation to the notice of a rescheduled hearing, at least in so far as concerns the period of the reviewed notice. The sanction on the Tribunal in those circumstances would be the operation of the general law as to natural justice, as Hely J indicated in NAHF, albeit in a different factual context, and subject to the operation of the recently enacted s 422B of the Act. As Barnes FM reasoned in SZBAZ, in my opinion rightly, ‘[w]ere it otherwise, any delay, even of minutes or hours, at the request of the applicant, would give rise to a failure to comply with s 425A’. Other examples of circumstances where the conduct of a review by the Tribunal could be unreasonably thwarted readily come to mind. It is conceivable moreover that an applicant could set in train an indefinite number of re-scheduled hearings in a repetitive context of a requirement for not less than 14 days’ notice. It was I think soundly submitted by the Minister that Scarlett FM’s finding in the present case was correct to the effect that the period of notification given for the rescheduled hearing was reasonable and according to law, albeit involving less than 14 days’ notice. I would dismiss the appeal, which, aside from this controversial issue as to notice, was in any event devoid of any apparency of merit.”

1. As I have stated above the circumstances in the case before Conti J. are greatly similar in relevant respects to the circumstances before me now. It is clear that the Tribunal’s letter of 12 August 2003 inviting the applicant to a hearing on 23 September 2003 complied with the requirements of s.425A of the Act:

   1)The applicant in the letter of 12 August 2003 was given notice of the day of the hearing (23 September 2003), the time, and a place at which the applicant was scheduled to appear. The letter was sent to the applicant's mailing address, which was the address of his migration agent, and to his home address.

   2)The applicant was not in “Immigration Detention” and this notice was sent by registered post, which complied with the requirements of s.441A(4).

   3)The applicant was deemed to have received the notice seven working days after 12 August 2003 pursuant to s.441C(4) of the Act.

   4)In terms of the period of notice required to be given to the applicant this letter was subject to the requirements of Regulation 4.35D of the Regulations, which was 14 days after the day on which the notice was received. Clearly in the circumstances of this case this letter met the requirements in respect of the period of notice.

   5)This letter contained a statement to the “effect of s.426A”, in that it clearly put the applicant on notice that if he was unable to attend, or did not attend the hearing before the Tribunal, the Tribunal could make a decision on the review without taking any further action to allow the applicant to appear before it.

   6)The letter also complied with the requirements of s.426 of the Act in that it contained notification that the applicant could ask the Tribunal to obtain oral evidence from another person or persons.

2. The applicant in the case before me now argues that in relation to the letter of 23 September 2003 the Tribunal did not comply with the requirements to provide the prescribed period of notice and that such a failure amounts to jurisdictional error, and that the Tribunal decision should be quashed on this basis. I am assisted by the opinion of Conti J., in SZDQO who was dealing with a matter on appeal from this Court. It is clear that in the case before me the Tribunal rescheduled the hearing as a result of the applicant's initiative in sending to the Tribunal a doctor’s certificate indicating that the applicant was unable to attend the hearing that had been originally scheduled. This was not a situation where the Tribunal, on its own initiative and for its own reasons, or its own convenience, changed the date or time of the hearing. I note Conti J’s approval of the statement of Barnes FM in SZBNS etc at [26]:

   “[w]ere it otherwise, any delay, even of minutes or hours, at the request of the applicant, would give rise to a failure to comply with s 425A.”

3. In the circumstances, before me where the Tribunal decided to reschedule a contemplated hearing at the behest even implicitly, of an applicant, s.425A does not apply in relation to the notice of a rescheduled hearing, at least insofar as it concerns the period of the reviewed notice. As in “SZDQO” the circumstances in this case in relation to the period of notification given for the rescheduled hearing was the same period. I find that in this case it was a reasonable period within the requirements of the law, notwithstanding that it involved less than 14 days notice. The applicant had known for some time that he was required to attend a hearing before the Tribunal, as the Tribunal had indicated that on the material before it, it could not make a favourable decision in his case. He had been given more than the prescribed period of notice of the hearing within which he could have done all things necessary to prepare for the hearing. The change in the hearing date was as a result of his claimed medical condition, supported by a medical certificate. The rescheduled hearing date of 2 October 2003 was well after the period covered in the medical certificate for which the applicant was said to be unfit, being 22 to 23 September 2003. There is nothing before me to show that the applicant was unwell as on 2 October 2003, nor is there anything before me to show that the applicant made any attempt to explain to the Tribunal his inability or failure to attend the hearing. The Tribunal did not make its decision for some 8 days after the rescheduled hearing date, and in any event did not hand down its decision for a month after the rescheduled hearing date. The applicant who, it must be remembered, was assisted by a migration agent in his application before the Tribunal, did nothing, on the material before me, to notify the Tribunal as to the reason for his failure to attend at the rescheduled hearing date, nor to seek from the Tribunal any further hearing date. This was still open to him after the date of the rescheduled hearing. In all these circumstances, I do not accept that the applicant’s complaint in this regard and find that this ground is not made out. 

4. In any event I also note, and am guided by Conti J., in “SZDQO” at [31]:

   “I would add that there is force in the submission of the appellant in the alternative, in accordance with the notice of contention filed, that if jurisdictional error has been established, contrary to my present view, then to the extent that the Court has a viable discretion in the circumstances of the case, relief should be declined in any event. In that regard, the appellant did not testify that he wanted to attend the hearing secondly scheduled in lieu of the first hearing, but was prevented from doing so by insufficiency of notice. Nor was there any evidence or indication to suggest that the appellant had further evidentiary material he would have put before the Tribunal in that regard. Moreover for what it may further matter, when informed by the Minister that the Tribunal’s decision would be shortly handed down, the appellant did not seek to put further material before the Tribunal, nor seek any further Tribunal hearing antecedently to the handing down of its decision.”

   In the circumstances of the case before me had I found jurisdictional error in how the Tribunal approached the issue of notice relating to the hearing date, I would nonetheless still have declined to exercise the discretion to grant the relief sought for all the reasons set out above. I note in particular the time available to the applicant following the date of the rescheduled hearing to have further approached the Tribunal to explain the failure to attend on the rescheduled hearing date (the applicant does not say he did not receive this letter). There is nothing before me to show that the applicant would have wanted to attend the rescheduled hearing in any event, or that he had any further evidentiary material that he would have wanted to put before the Tribunal. 

1. The applicant's other grounds as set out in his first amended application are that the Tribunal's decision was affected by bias because “she”
   expressed disbelief of the applicant’s fear of persecution for an imputed political reason. In relation to the applicant’s complaint of bias the applicant has put nothing before the Court to establish any of the relevant elements as set out in relevant authorities. For the applicant’s benefit I should say that allegations of bias, whether actual bias or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. An allegation of actual bias carries with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim. Further, allegations of apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]). No particulars of bias or apprehended bias are alleged. I can see no basis for review of the Tribunal’s decision on the basis of actual or apprehended bias. The applicant has brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of the applicant's claims. It is rarely the case that bias can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872). The applicant has put forward no evidence whatsoever to show that the Tribunal came to make the decision with a closed mind, or that a well informed lay observer may apprehend that the Tribunal would not bring an impartial mind to the evaluation of the applicant’s claims.

2. The applicant also complains in “ground one” that the Tribunal decision was not made as a result of a properly conducted hearing, and in “ground two” the applicant appears to complain that he did attend a hearing but that at the hearing he was denied the full opportunity to explain why it was that he had to relocate himself in Mumbai as a result of the persistent harassment by his persecutors. It is clear that the applicant did not attend the rescheduled hearing, and gave no explanation or reason to the Tribunal for his failure to do so. In any event, to the extent that the applicant's complaint is that he should have been allowed to attend the hearing, then to the extent that the complaint relates to the period of notice, I have already dealt with that issue above. The Tribunal was clearly entitled, in light of what I have said above, to proceed to make a decision pursuant to s.426A of the Act. To the extent that the applicant complains now that there was some “procedural unfairness” in how the Tribunal proceeded in this regard, then clearly the applicant was on notice of the need to attend a hearing if he was to achieve a successful outcome of his application. He was clearly advised that the Tribunal would not be able to make a favourable decision and was given an opportunity to attend a hearing, and was then given a second opportunity when he was unable to attend the first hearing date. He gave no explanation, or made any approach, to the Tribunal in the one month available to him following the rescheduled hearing date to explain his failure to do so. I cannot see that the Tribunal was not entitled to proceed to make the decision. I note that in similar circumstances where an applicant failed to appear before the Tribunal in the face of a letter as in the case before me, putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant, a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. Clearly the applicant was put on notice as to the Tribunal's preliminary view, and given the opportunity to provide further material by way of evidence at a hearing before the Tribunal or oral submissions in support of the claims. The applicant, for whatever reason, as is their right, chose not to attend, but in these circumstances there is no error in the Tribunal proceeding to a decision.

3. The applicant also claims that the Tribunal failed to take into account a relevant consideration in his case, which was the “constant harassment” for several years by his opponents, and the failure of the state to protect him. He claimed that this constituted persecution. The Tribunal's “Findings and Reasons”, in its decision record copied at CB 94.4 to CB 95.5, show that the Tribunal did note the applicant's claims as put by the applicant, and relevantly that it noted the applicant's claims that he and his family were constantly harassed by Muslims in retribution for their support of Shiv Sena, a militant Hindu group. Having given the applicant an opportunity to attend a hearing, an opportunity which the applicant ultimately did not take up without explanation at the time or subsequently, the Tribunal proceeded to make a decision on what was before it. The relevant statutory regime requires a decision maker to reach a level of satisfaction before a visa can be granted (s.65 of the Act). In the case of a protection visa one criterion, at least, to be met by an applicant is that contained in s.36(2) of the Act, being the reference to Article 1A(2) of the Refugees Convention. The Tribunal's decision record shows that the Tribunal understood the applicant's claims in this regard, but could not be satisfied, to the requisite level necessary, that the applicant met the relevant statutory requirement. It found his claims to be “mere assertions” (CB 95.5), and that the applicant had offered no details about the timing of the assault that he claimed was committed on him in Mumbai in 2001. The Tribunal's lack of satisfaction on what was before it was clearly evident in the Tribunal’s noting that the constant harassment by Muslims claimed by the applicant to have occurred in his home area in Tamil Nadu prior to his departure from India in 1995. The Tribunal found that other than a few months in 2000 the applicant had not lived in Tamil Nadu since that time. The Tribunal had difficulty in accepting that, and as it said, “it was implausible” (CB 95.2) that he was actually traced by people from his past (six years later), and from his home town, who wished to harm him in 2001 in another state that had a population of close to 100 million people. The Tribunal noted that the applicant could not identify his assailants and that this suggested that it was more plausible that the applicant was the victim of an opportunistic assault, than from people who had tracked him down over such a prolonged time and through such a huge population. The Tribunal clearly took into account the issue of the “harassment over several years” which the applicant claimed had occurred, but found that the one incident put forward by the applicant claimed to have occurred in 2001 was in all the circumstances “implausible”. But in any event, the Tribunal was not satisfied that if it had occurred that it was in circumstances where a Convention nexus could be made out. In relation to the applicant's complaints about what occurred in his home town up to 1996 then the Tribunal's finding that the applicant's claims are “mere assertions” is also sufficient to deal with that part of the applicant's claims. It was open to the Tribunal on what was before it to reach the view that on the evidence before it, it could not be satisfied that the applicant had a well found fear of persecution within the meaning of the Convention. I accept the respondent’s submissions that that finding shows that the integers of the claims put forward by the applicant were considered: Paul vMinister for Immigration and Multicultural Affairs (2001) 113 FCR 369 at [79] and Appellant A169 2003 vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] and [25].

4. In his amended application the applicant also complains that the Tribunal misapplied the “test” or alternatively misinformed the applicant about the “test”. The applicant before me was unable to assist with exactly to what test he was referring. But in any event, if it was the test (and understanding) as to whether the applicant had a real chance of a well founded fear of persecution for a Convention reason if he were to return to India, then the Tribunal's understanding of that test is set out at CB 91 to CB 93. There is nothing before me to show that the Tribunal misapplied that test, or misled, or misinformed the applicant in any way in this regard.

5. The applicant also complains that the Tribunal's reasoning was such that it could be labelled irrational or illogical. While some members of the High Court in Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 expressed some support for illogicality as a ground of review, the utility of illogicality is limited. In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] and [30] the Full Federal Court held there is nothing in the remarks of the High Court in “S20” which would warrant a departure from earlier line of decisions in the Federal Court to the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error. The Court said, at [29] and [30]:

   “[29] In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error.  Nor does the want of logic which has been identified in the present case sound a “warning note” of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.

   [30] Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was a want of logic in one aspect of the reasoning of the RRT.  However, want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional.  There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT’s reasoning.  Moreover, there are several bases upon which that reasoning can, in any event, be supported.  Accordingly, on the present state of the authorities, there is no reviewable error.”

   In S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162 Moore, J held that notwithstanding various observations of members of the High Court about illogical reasoning, he was bound to follow NACB. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [53] to [54] the Court stated that:

   “[53] It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision.  This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act.  If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351 to 352 per McHugh, Gummow and Hayne JJ).  An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact …”

   “[54] Error of law may occur within jurisdiction – S20/2002 at 72 [57] …The observations in the joint judgement in S20/2202 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s. 85(v) or the exercise by this Court of its analogous statutory jurisdiction under s. 39B of the Judiciary Act.  The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error is likely to be quite limited.”

   I note also that there is authority in the Full Federal Court decision of VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 [16]-[19] for the proposition that illogicality would not of itself suffice to show jurisdictional error. In any event, there is nothing before me to show that the Tribunal's decision was so illogical or unreasonable. Clearly the applicant made claims, was given the opportunity to attend a hearing, did not attend the rescheduled hearing and on what was before it the Tribunal could not be satisfied that applicant had a well founded fear of persecution within the meaning of the Convention. There is nothing before me to show any illogicality or “irrationality” in how the Tribunal went about its task.

1. The applicant also complains that the Tribunal failed to give “proper and adequate reasons”, and failed to consider all of the claims and issues put forward by the applicant. Section 430 of the Act requires the Tribunal to set out its findings on those questions of fact which it considers to be material to the decision which it made, and the reasons that it had for reaching that decision: Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323 at [68]. The Tribunal clearly made a finding in the case before me that the applicant’s claims were “mere assertions”, and based on that finding the Tribunal came to the conclusion that it could not be satisfied that the applicant had a well founded fear of persecution for a Convention reason. I cannot see that the Tribunal did not take into account all the claims made by the applicant as I have set out above. Nor does the applicant assert or put forward now what claims and issues that he put forward were not considered by the Tribunal. These complaints are also not made out.

2. Given that I have an unrepresented applicant before me and should therefore proceed with appropriate caution in this regard, I also note that in his originating application the applicant claimed that the “procedures that are required under the Migration Act to be observed in connection with the making of the decision were not observed. The applicant could provide nothing further. It is clear that in this case the Tribunal's decision was based on the Tribunal's doubts as to the plausibility of the applicant's account of events and the lack of detail of the claims that he made, and in a context where there was a lack of oral testimony in support of those claims. The applicant was given an opportunity to come to a hearing before the Tribunal. I have already dealt with this issue. In terms of information relied upon by the Tribunal, the Tribunal did not rely on any independent country information, and what it relied on were its views of the material provided by the applicant. In a context of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, this is not “information” for the purposes of s.424A of the Act, and the Tribunal was not obliged to put prior written evidence of such inadequacy to the applicant: VAF vMinister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. The remainder of the applicant's complaints, as I have already noted, are unparticularised (and the applicant before me was unable to add anything further), and are, subject to what I have said above, an invitation to the Court to conduct impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

3. The Tribunal put the applicant on notice that on what was before it, that it was unable to make a favourable decision and invited the applicant to a hearing. The applicant indicated at first that he would attend the hearing. He then sought, through the provision of a medical certificate, an adjournment. The Tribunal provided a new hearing date to the applicant, and the applicant without explanation, either at the time of the rescheduled hearing, or in the month available to him subsequently up to the Tribunal handing down its decision, made no approach or complaint to the Tribunal. The Tribunal looked at all of the applicant’s claims and made findings which, on the material before it, were open to it, and concluded that it could not be satisfied that the applicant was a person who had a well founded fear of persecution for a Convention reason. For the reasons set out above I can see no jurisdictional error in the Tribunal's decision. This application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Wagma Aziza

Date:  18 November 2005