SZCBB v Minister for Immigration - [2007] FMCA 539

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCBB v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 539

MIGRATION – Finding of fact not open to review – bias apprehended – bias not established.

Migration Act 1958 (Cth), ss.91R, 424, 424A, 430, 439, 440, 476

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265
Selvadurai v MIEA (1994) 34 ALD 347
Chen Xin He v MIEA, Nicholson J, 23 November 1995 (unreported)
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
MIMIA v SGLB [2004] HCA 32
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH v MIMIA (2004) FCAFC 328
Craig v South Australia (1995) 184 CLR 163

Applicant:

SZCBB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3393 of 2006

Judgment of:

Turner FM

Hearing date:

23 March 2007

Date of last submission:

23 March 2007

Delivered at:

Sydney

Delivered on:

23 March 2007

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Ms A. Mitchelmore

Solicitor for the Respondents:

Mr J. Dooley of Sparke Helmore

ORDERS

The application is dismissed.
The name of the first respondent is amended to the Minister for Immigration & Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3393 of 2006

SZCBB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 17 November 2006 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 October 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant has not filed an amended application.
The applicant was born on 10 January 1959 and claims to be from India, of Tamil Muslim ethnicity and Islamic faith (“the Applicant”).
The applicant’s wife and two sons remain in India. There is some confusion in the papers as to whether the applicant has one or two sons. At Court Book (“CB”) 5 the applicant is recorded as having one son, while elsewhere in the papers there are references to two sons. It is not of moment to this decision whether the applicant has one or two sons and that issue does not have to be clarified.
The applicant arrived in Australia on 1 March 2002 on a visitor’s visa and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 27 March 2002. In this application he claimed that his Muslim faith and political activity put him at risk of “serious human rights abuses, torture and persecution” (CB 26) from the Indian police and “politically motivated radical Hindus” (CB 28). The applicant claimed that he had been involved in community and political works “for the well being and equal rights for Muslims” and as such has “acquired a profile as a person opposed to Hindus…and the government’s discriminatory policy” (CB 29). The applicant claimed that his association with prominent Muslim figures would further attract the adverse attention of the Indian authorities (CB 29).
This application was refused by a delegate of the first respondent on

19 September 2002 (CB 81).
On 24 September 2002 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 99).
On 21 October 2003 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa (referred to at CB 163).
On 10 May 2006 the Federal Court quashed the decision and remitted the matter to the Tribunal to be determined according to law.
On 27 September 2006 the applicant attended and gave oral evidence before the Tribunal. On 10 October 2006 the Tribunal, differently constituted, affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa (CB 162). In considering the applicant’s claims, the Tribunal found (CB 174-180) (emphasis added):
I have seen the applicant's Republic of India (India) passport at the Tribunal hearing and accept he is a national of India as claimed.
That said, after asking him a few general questions related to the time of his departure from India and his arrival in Australia; the make up of his immediate family; his and his family's former and current residence in India; and his employment both in India and Australia, the Tribunal asked the applicant to tell it in his own words why he feared returning to India. The questions it then put to the applicant arose (principally if not solely) in that context. However the Tribunal also wishes to state that it found it very difficult to elicit the applicant's relevant claims at the hearing on 27 September 2006. The extent to which this has led the Tribunal to draw adverse conclusions about his claims is set out below.
Finally, in an effort to simplify my further Findings and Reasons, I have set them out under the below sub-headings.
Fear arising from the brother's actions in 2001:
The applicant claimed that in or around late 2001, his brother was involved in an incident of ethnic violence. The Tribunal understands the applicant's brother, along with other Muslims, and possibly in retaliation for some actual or perceived prior incident, inter alia attacked a Hindu occupied house and burnt it down. In or around that house was a women (here-in-after the mother) of a Hindu man. The mother was killed in that fire. The 2001 house burning incident occurred some 500kms away from where the applicant was then living and working with his own wife and two children. There was no evidence the applicant was known in or around the area in which his brother had then lived (ie at the time of the 2001 incident).
The applicant had previously claimed his brother had been detained after this incident and subsequently released in October 2001. This matter had been put to him for comment in the present Tribunal's s424A letter to him dated 21 July 2006. The Tribunal does not understand the applicant responded (meaningfully) to this issue. When repeatedly questioned about this matter at the Tribunal hearing, the applicant claimed to 'not remember' having previously said that his brother had been arrested after the 2001 house burning incident. The Tribunal then asked him if he now remembered if his brother was arrested as a result of this incident. In response the applicant stated he was 'scared' and that he was 'confused.' On more than one occasion the Tribunal advised the applicant that it was important that he focus on answering the questions it put to him. However the applicant then claimed to be 'depressed'. When asked, he claimed he had sought medical assistance for what the Tribunal understood may have been 'depression' and or 'anxiety' but it proved difficult to ascertain much detail about this. All the Tribunal was able to establish was that he had not sought medical assistance for the previous two years (prior to the Tribunal hearing on 27 September 2006), and that he had also sought medical assistance for six months after he had allegedly been beaten in Hindu Muslim violence in Tamil Nadu in 1991. That said, and notwithstanding this claim, the Tribunal was not satisfied that any fear the applicant may have arising from or around the 1991 incident, was well founded for the purposes of the Refugees Convention.
The Tribunal understands that an applicant may be traumatised by past experiences and there may be occasion where it is appropriate to consider whether their capacity to provide evidence and submissions in support of their refugee applicant is impaired. In the present case however, the applicant made no claim (at the hearing) to have been the subject of at least any physical harm, since 1991. Further, given the applicant's ability to provide apparently meaningful responses to many of the oral questions put to him at the hearing (at least after they had been repeated), the Tribunal is not satisfied this constitutes a plausible explanation for the applicant's alleged loss of memory (about whether or not his brother had been arrested after the 2001 house burning incident). The Tribunal also understands that in some cases an applicant may be ‘wary’ of government officials as a result of past adverse experiences. An applicant may also be nervous at a refugee protection hearing (which the present applicant in fact claimed to be). Where it is considered such anxiety has impaired an applicant’s ability to prosecute their case, a decision maker may consider taking further steps to clarify evidence. It may also be assumed that an applicant who was poorly educated (and/or unrepresented), may not always be able to competently prosecute their case. Based on his evidence at the Tribunal hearing, it may be considered the applicant (who had allegedly received 5 years eduction in India), was not well educated. Further, it may be presumed that some confusion in an applicant’s claims may be attributed to faults in translation. However, and though the Tribunal does not speak the language spoken by the interpreter, her apparent ease in interpreting between English and Tamil and the professional manner in which she conducted herself at the hearing gave the Tribunal no reason to doubt she was competent in her work. Be that as it may, the Tribunal is not satisfied the applicant's inability to remember whether or not his brother was ever previously arrested after the 2001 house burning incident was sufficiently explained by any of the above matters. The Tribunal is therefore satisfied that if the applicant's brother was involved in the house burning incident as claimed, he was arrested and subsequently released by the Indian authorities. The Tribunal is therefore satisfied the applicant's claimed inability to remember whether his brother was arrested (for reason of the 2001 house burning incident), was false and put as the applicant believed a truthful response may have prejudiced his claim to be owed refugee protection obligations in Australia. This is the first reason that led the Tribunal to conclude the applicant was not a witness of truth.
The Tribunal also wishes to state that it understands the applicant on one occasion even agreed with it that his brother had been detained by the Indian authorities for reason of his involvement in the 2001 house burning incident. However his evidence relating to this incident changed sufficiently often for the Tribunal not to be satisfied as to what if any weight could be attached to this confirmation. This is a further reason that led the Tribunal to conclude the applicant was not a witness of truth.
The Tribunal is therefore satisfied the applicant's brother was detained for reason of the 2001 house burning incident and released (ie 'he did not escape') in October 2001. Around the time of his brother's release, the applicant was visited by the Indian authorities (the police) and the family (ie the son or persons acting on behalf of the son), of the mother who had died as a result of the 2001 house burning incident. Given the applicant had resided and worked some 500kms from where this incident had taken place, the Tribunal put to him that it may not consider it plausible he would be subject to any harm for reason of the actions of his brother (who lived and worked some 500kms distance from him). It again proved difficult to elicit the applicant's claims. The Tribunal understands the applicant claimed he was suspected of helping his brother and or being involved in the house burning incident (although the applicant claimed not to have been involved or to have assisted his brother). That said, the applicant agreed that he was residing and working at his own home at the time of the 2001 house burning incident. Further, based on his evidence, there does not appear to be any reason the Indian authorities, the family of the deceased mother, or anyone else would suspect the applicant as being involved in the 2001 house burning incident.
With respect to his claim to be suspected of helping his brother, it proved not possible to clarify his relevant evidence substantiating this claim. For instance, when repeatedly asked about this, the applicant's responses included that he 'can't go back to India'; that he wished the Tribunal to assist him and his family; that he was confused and or scared; and that 'someone say [he] was helping [his] brother'. The Tribunal then explained to him that many persons travelled to Australia for varied and compelling reasons, however only those persons who eg came within the terms of the Refugees Convention could invoke refugee protection obligations. The Tribunal is also aware that it need not make an applicant's case for them. That said, in the present case, the Tribunal is not satisfied the applicant was being sought by the Indian authorities or anyone else, for any reason, and particularly for reason of him being suspected of 'assisting his brother'. This should not be understood to mean the Tribunal does not believe it plausible he may have been questioned about the whereabouts of his brother if the Indian authorities were interested in locating him. However, based on the evidence the Tribunal was able to elicit from the applicant, the Tribunal does not accept the authorities or anyone else were continuing to seek his brother, otherwise the Tribunal may have anticipated the brother would not have been released in October 2001 (ie if he was of continuing interest). This is a further reason that led the Tribunal to conclude the applicant was not a witness of truth. That said, even if the authorities were seeking the applicant's brother, the Tribunal is not satisfied that merely being questioned by the Indian authorities (or anyone else) in the course of their investigations would ordinarily (and certainly not in this case), give rise to refugee protection obligations in Australia for the present applicant.
The Tribunal understands the applicant had previously claimed to have been in hiding in the four months between the 2001 incident and his departure from India in March 2002. As it proved to be so difficult to establish his relevant evidence, the Tribunal instead asked the applicant about his family's residence since his departure from India. After repeated questioning, the Tribunal understands the applicant's wife and child resided in a house, the rent for which is paid by the wife's brother, in the same city or area in which the applicant had formerly resided with them in India. The Tribunal understands that they have resided in the same house since shortly after his departure from India in March 2002 up till the time of the Tribunal hearing on 27 September 2006.
The applicant claimed his wife continued to receive threats. These threats apparently relate to the applicant and his whereabouts. The Tribunal did not understand why the applicant's wife would continue to receive threats arising from the actions of the applicant's brother. At any rate these threats to his wife were allegedly constant. However, that the applicant's wife and children continued to reside in the city or village or area where they formerly resided; and that his children continued to attend a public school in that area, has satisfied the Tribunal that whatever harm the applicant's family have suffered or fear they may suffer, it does not constitute a well founded fear of persecution for a Convention reason. The Tribunal is satisfied that if it did, the wife's brother (who was a real estate agent), would have been able to take steps to ensure their safety by removing them from harm. The Tribunal is also satisfied the applicant sought to embellish (if not entirely fabricate) this part of his claim. This is a further reason that led the Tribunal to conclude the applicant was not a witness of truth.
The Tribunal confirmed with the applicant (more than once), the above issue (as set out above), was the only reason he feared returning to India. He agreed this was correct. That said, unless there are reasons to explain why not, the Tribunal would ordinarily anticipate that an applicant would be able to provide it with a level of detail to allow it to be satisfied one way or another whether the applicant had experienced that which they are claiming. In the present case, the Tribunal is not satisfied there are reasonable grounds to explain the lack of much if any detailed evidence provided by the applicant. Accordingly, the Tribunal is not satisfied the applicant has a real chance of being persecuted for reason of his brother's alleged involvement in the 2001 incident, or any reason arising from that incident.
Muslims in India:
Though the Tribunal confirmed with the applicant on more than one occasion (and he agreed), that the only reason he feared returning to India was for reason of the 2001 house burning incident, when the Tribunal prompted him by asking whether he feared being persecuted in India for reason of his Muslim faith, the applicant agreed this was correct. The Tribunal then put to him that based on the country information considered, it may not accept this was plausible, particularly in Tamil Nadu. When asked to comment, the applicant repeated his claims about the 2001 house burning incident. He also confirmed that unlike his previous written claims he had no involvement in Muslim or other groups or organisations (how-so-ever described); and had not been arrested or tortured by the police or anyone else (with the exception of the 1991 incident at which time I understand the applicant had been caught up in communal violence).
In the present Tribunal's s424A letter to him and as noted by the previous Tribunal, the US State Department recognised that there are problems at the state and local levels of government. However as was put to the applicant, the US State Department has said that the degree to which eg the BJP’s nationalist Hindu agenda has affected the country with respect to religious minorities varies depending on the region. It has said that State governments continue to attach a high priority to maintaining law and order and monitoring intercommunity relations at the district level. It has said that the four southern states, including Tamil Nadu, are ruled by political parties with strong secular and pro-minority views and that each of these parties has a history of support for religious minorities and has attempted to assuage religious minority fears about religious tension in the rest of the country (US State Department, International Religious Freedom Report 2002 in relation to India). As was put to the applicant, this suggests that Tamil Nadu is not a state where Muslims would ordinarily have a real chance of being persecuted by the Government. It suggests that the Government of Tamil Nadu would be concerned to control communal violence. There is no suggestion that it would side with the Hindus against the Muslims. The applicant is recorded as agreeing to this. He said that this information was correct. The previous Tribunal did not accept, therefore, that if the applicant returned to his home in Tamil Nadu now or in the reasonably foreseeable future, there was a real chance that he would be persecuted because of his religion (Muslim) or any political opinion attributed to him by reason of his religion.
The present Tribunal advised the applicant in its s424A letter, it had considered more recent country information to that which was cited herein. That said, none of the country information considered had satisfied it that the information set out above, was no longer materially accurate. Further, and for similar reasons, the present Tribunal may also not accept the applicant would have a real chance of persecution for reasons arising from, or related to, his religious beliefs. In response the applicant principally repeated those claims that have been discussed above.
The present Tribunal is not satisfied the applicant has a real chance of being persecuted merely for reason of his Muslim faith in India (or any related reason); either considered individually or cumulatively with his other claims. Further, that the applicant only made this claim after he had been prompted by the Tribunal, has satisfied it this claim was submitted for the sole purpose of enhancing his claim to invoke refugee protection obligations in Australia. This is a further reason the Tribunal was satisfied the applicant was not a witness of truth.
The applicant's previous travel outside India:
At the Tribunal hearing on 27 September 2006, the Tribunal asked the applicant if he had ever previously travelled outside India. He claimed not to remember. The Tribunal then put to him that it may not accept it was plausible that he could not remember whether or not he had previously travelled outside India. The Tribunal then put to him that it had been recorded that he had previously travelled to inter alia England (referred to in the s424A letter to him). The applicant repeated that he could not remember. The Tribunal then asked him whether he could not remember having previously made this claim or not remember whether he had in fact travelled to England. The applicant provided no meaningful response and the Tribunal decided not to press the question.
Credibility:
The Tribunal acknowledges the difficulties of proof that may be faced by some applicants for refugee protection in Australia. However, issues of credibility can still be relevant when determining an application for refugee protection. Further, while it understands it may on occasion be appropriate to extend the benefit of the doubt to an applicant for refugee protection, a decision-maker is not required to accept uncritically any and all allegations made by that applicant (Randhawa v MIEA (1994) 124 ALR 265, Beaumont J at 278). Nor is it essential that a decision maker necessarily have rebutting evidence available to them before they can find that a particular factual assertion by an applicant has not been made out (Selvadurai v MIEA (1994) 34 ALD 347 p.348; see also Chen Xin He v MIEA, Nicholson J, 23 November 1995 (unreported), p.11; Kopalapillai v MIMA (1998) 86 FCR 547). The mere fact an applicant claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason/s claimed (MIEA v Guo & Anor (1997) 191 CLR 559 p.596).Furthermore, a decision-maker is not required to make the applicant’s case for them (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45).
The present Tribunal has carefully considered the applicant's evidence and submissions including those put on his behalf. For instance, it was claimed the applicant 'was a person traumatised over his experiences and the agony of his [named] brother…who was detained and tortured by the police in India’; that he feared being detained under eg the Indian security laws; that he was suffering from PTSD; that the Tribunal should take into account what had allegedly happened to his brother; that the applicant belonged to ‘a socially and economically marginalised section of society’ as a member of a religious minority in India which continued to be discriminated against by the police, the criminal justice system and unspecified ‘non-state actors’; that the applicant may be imputed as a supporter of extremist Islamic group’; that he was 'associated with [a named] Jihad committee president' who was 'accused of murdering' another named person who was 'the president of Hindu Munani by the police and in retaliation' the Jihad committee president was also murdered; that he 'continued to experience on going physical and psychological effects of all [he] had been through in India [and that he had] much difficulties in sleeping at night because of all the worries and getting panic at times thinking about [his] families (sic) safety whenever [he] hear news about ethnic violence.'
The Tribunal is aware the High Court has stated:
Many persons who appear before administrative tribunals, and many litigants in courts…suffer from psychological disorders or psychiatric illness. That may affect their capacity to do justice to their case. Fairness does not ordinarily require the court or tribunal to undertake a psychiatric or psychological assessment to investigate the extent to which the person in question may be at a disadvantage; and ordinarily it would be impossible to tell…The Tribunal was not…obliged to embark upon an open-ended investigation of the respondent's psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage’ (MIMIA v SGLB [2004] HCA 32 (17 June 2004) Gleeson CJ, Gummow, Kirby, Hayne & Callinan JJ, per Gleeson CJ [19]).
His Honour also stated:
…as the written submissions for the appellant in this Court point out, the Tribunal originally gave the respondent a postponement of the hearing when it was requested to do so. It then held a hearing quickly when it was requested to do so. It gave the respondent's advisers an opportunity to comment on its concerns after the hearing. One of those concerns was raised by the psychologist's report. The Tribunal accepted at face value the response that was given to that concern…[17], and the ‘Tribunal Member, in her reasons, said that, being willing to assume that the inconsistencies referred to in [a] letter of 27 June 2002 [containing submissions] were the result of [post traumatic stress disorder], she would proceed on the basis of the oral evidence given by the respondent at the Tribunal hearing, coupled with the written submissions in [a] letter of 30 July and the accompanying affidavit. She then went on to evaluate the respondent's claims, testing them against the objective facts and her view of the probabilities.’ (MIMIA v SGLB [18])
The point being that the Tribunal is not obliged to make an applicant's case for them but must provide them with, to the extent possible, a fair and reasonable opportunity to put their case. In the present case, and notwithstanding the allegations of eg PTSD, the Tribunal is not satisfied that this constitutes a sufficient explanation for the credibility concerns discussed herein. The Tribunal is satisfied the applicant was willing to embellish and or fabricate his claims in order to enhance his claim to invoke refugee protection obligations in Australia. That is, whatever the applicant's reasons for wishing to remain in Australia, the Tribunal is satisfied they do not invoke refugee protection obligations.
That said, based on the adverse credibility findings herein, the Tribunal is sufficiently satisfied the present applicant is not a witness of truth such that it is satisfied there are reasonable grounds to reject all his material claims. Thus, to the extent it has not expressly rejected his material claims elsewhere, given it is sufficiently satisfied he is not a witness of truth, the Tribunal is satisfied that none of the applicant's material claims to invoke protection obligations in Australia are true.
Accordingly, the Tribunal is not satisfied the applicant has a well founded fear of persecution for a Convention reason in India.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.

The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).

The application

In his application, the applicant set out seven grounds as follows:
1)The Tribunal failed to internalize the circumstantial ground of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents, and such has breached section 424, section 430, section 439, section 440 of the Act.
2)The Tribunal in its decision of 10 October 2006 failed in its written statement that a breach of the rules of natural justice, therefore it rises the ground under section 476 of the Migration Act.
3)The Tribunal made jurisdictional error by not applying the convention definition properly to the applicant’s fear of prosecution. The key element of the convention definition is that the applicant must fear prosecution. Under s.91R(1) of the Act states that persecution must involve ‘serious harm’ to the applicant. In applicant case he not only seriously harm but also systemic and discriminatory conduct at the hand of Indian authorities as explained in s.91R(1)(b) & (c) of the Act. The applicant fear threat to his life, liberty or significant physical harassment or ill treatment if he goes back to India, for no reason, other than his association with Jihad Committee.
4)The second key elements of the convention definition are further explained that persecution implies an element of motivation on the part of those who persecute for the infliction of harm. Further more, that people are persecuted for something perceived about them or attributed to them by their persecutors. The Tribunal failed in its duties not fully understanding the motivation behind the applicant’s persecutors systematic and discriminatory conduct.
5)Tribunal member failed to understand or ignored knowingly that the applicant was an active member of Jihad Committee.
6)Tribunal made jurisdictional error by ignoring relevant evidence, and made decision based on assumption.
7)Despite the severity of the ‘privative clause’, an opportunity for review can lie under section 39B of the Judiciary Act (Cth) 1903, which rely on the original jurisdictional of the Court. However, review under s.39B is gained the decision of the Refugee Review Tribunal dated 10 October 2006 can be reviewed, if the following four factor are observed.
a) The decision maker acted in good faith.
b) The decision is reasonably capable of reference to the power granted to the decision maker – this is unlikely to be an issue given that, to argue to the contrary, it would have to be shown that the decision maker did not have the authority to make the decision concerned, for example, had not had authority delegated to him or her Minister for Immigration and Multicultural Affairs or had not been properly appointed to the Tribunal.
c) The decision relates to the subject matter of the legislation (i.e. the Migration Act) this again is highly to be an issue, given that a major purpose of the Migration Act is the making of visa decisions.
d) Constitutional limit are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely arise.
From the above factors the only one of any real significance is the first, the Tribunal did not act in good faith. My claim that the decision maker acted in bad faith.
The applicant has not filed an amended application.

Findings as to the grounds

Ground 1 alleges a breach of ss.424, 430, 439 and 440 of the Migration Act. Section 424 empowers the Tribunal to obtain any information that it considers necessary, including inviting a person to give additional information. It must then consider that information. Exercising the power to obtain information is entirely at the discretion of the Tribunal as to what it alone considers necessary. Nothing has been put to the Court to establish a breach of s.424.
Section 430 requires the Tribunal to set out its findings on material questions of fact and refer to the evidence on which the findings were based. The reasons show that this has been done. Nothing has been put to establish a breach of s.430. Section 439 deals with disclosure of confidential information. No breach of s.439 has been established. Section 440 relates to restrictions on disclosure. No breach of that section has been established.
Ground 2 alleges a breach of the rules of natural justice and of s.476. This section sets out the original jurisdiction of the Court and no breach of it has been shown. No particulars were given of any breach of natural justice, and none has been established.
Ground 3 alleges that the Tribunal has not applied the key element of the Convention definition that the applicant must fear persecution, because it did not accept his evidence. The applicant alleges that he will suffer persecution because of his association with the “Jihad Committee”. At CB 177 the Tribunal stated that:
The Tribunal confirmed with the applicant (more than once) the above issue (set out above) (which the Court understands to be the alleged burning of a house by his brother in 2001) was the only reason he feared returning to India. He agreed that this was correct.
At CB 177.10 the Tribunal stated that, when prompted, the applicant agreed he feared being persecuted in India because of his Muslim faith. His association with a Jihad Committee does not appear to have been put to the Tribunal in detail. It certainly was not a major part of his claim that was established before the Tribunal. The Tribunal did not find that claim to be established. That was a conclusion properly open to it.
Ground 4 alleges that the Tribunal failed to understand the motivation behind the persecutors conduct. This ground has not been established.
Ground 5 complains that the Tribunal ignored that the applicant was a member of the Jihad Committee. The Tribunal recorded at CB 165.4 that the applicant said “that since 1985 he had been a committee member of the Adirampattinam Jamath Islam in Pudapet”. At CB 166.4 the Tribunal recorded that the applicant said “he had had the opportunity to be associated with the President of the Jihad Committee”. At CB 170.4 the Tribunal recorded that the applicant said “that he had not been involved in Muslim organisations like the Jihad Committee.” At CB 178.1 the Tribunal recorded that the applicant confirmed that “he had no involvement in Muslim or other groups or organisations (how-so-ever described)”. At CB 178.7 the Tribunal found that it “is not satisfied that the applicant has a real chance of being persecuted merely because of his Muslim faith in India (or any related reason).”
At CB 179.6 the Tribunal referred to the applicant’s claim to be associated with a Jihad Committee President. The Tribunal was therefore aware of his claimed involvement in a Jihad Committee but did not find that he had a real chance of being persecuted because of that involvement. The Tribunal did not ignore the claim; it simply did not accept it (CB 180.4). That finding of fact/credibility was properly open to the Tribunal.
Ground 6 complains that the Tribunal ignored relevant evidence and based its decision on assumptions. No particulars were given and this ground has not been established: It is rejected.
Ground 7 alleges that a review is available if:
a)The decision maker [did not] act in good faith;
b)The decision is [not] reasonably capable of reference to the power of the Tribunal;
c)The decision [did not] relate to the subject matter of the Migration Act;
d)Constitutional limits are (not) exceeded.
(The Court has added the words in bold and has deleted the word “not” from (d)). The only ground pursued is that the decision maker did not act in good faith, or was biased (Application page 3.10). There is no evidence from the Tribunal’s reasons to suggest that the Tribunal approached the applicant’s case with a closed mind. The transcript of the hearing was not put before the Court. There is nothing to
show that a “fair-minded lay person who is properly informed as to the nature of the proceedings, the matter in issue and the conduct which is said to give rise to an apprehension of bias,” might reasonably apprehend that the RRT “might not bring an impartial mind to bear to the resolution of the question to be decided”: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[28].
There is nothing on the face of the decision or the material in this case to support an allegation that the Tribunal did not bring an impartial mind to bear on the resolution of the question to be decided. The claim of bias is rejected.
The applicant made the following claims in his written submissions:
1) Apprehended bias.
The Court repeats its reasons for rejecting that allegation earlier in this decision. The applicant referred to the decision in NADA v MIMIA (2004) FCAFC 328 (sic NADH). The fact that apprehended bias was established in that case does not establish it in another case. Nothing has been put to the Court to establish that the facts in NADH are identical to those in this case. No bias has been shown in the present case.
The decision in of Craig v South Australia (1995) 184 CLR 163 is referred to for the proposition that if a Tribunal falls into error which causes it:
·to identify the wrong issue;
·to ask the wrong question;
·to ignore relevant material;
·to rely on irrelevant material;
·and in some circumstances to make erroneous findings or reach mistaken conclusions;
such an error of law is a jurisdictional error.
The applicant alleges that the Tribunal fell into such error by failing to accept that he was involved in a Muslim organisation. The Tribunal concluded at CB 178.1 that “he had no involvement in Muslim or other groups or organisations (how-so-ever described)” and had not been arrested or tortured by the police or anyone else (except re the 1991 incident). In reaching that conclusion, the Tribunal was merely accepting the applicant’s evidence (CB 178.1). It was a finding of fact properly open to the Tribunal and is not subject to review.
The applicant then alleges that the Tribunal did not follow correct procedures. Nothing has been put to establish this and the claim is rejected.
The applicant then claims that the Tribunal relied on country information. The Court holds that the Tribunal did not fall into error by relying on that information.
The applicant then alleges that the Tribunal failed to look at the applicant’s claim of persecution. The decision of the Tribunal shows this claim to be baseless. It is rejected.
The applicant again alleges a denial of natural justice but is not able to substantiate the claim. The decision in Craig (ante) is referred to but the contention that the Tribunal fell into such an error of law has not been substantiated.
Next the applicant alleges a denial of natural justice and bias. Neither of those allegations have been established.
The applicant then alleges a breach of s.424A. Nothing has been provided to establish such a breach. The Tribunal sent a s.424A letter (CB 134) with an attachment setting out extensive detail of the information and its relevance (CB 135-140). No breach of s.424A has been established.
The affidavit of the applicant dated 17 November 2006 raises arguments also. The applicant claims that being a member of a Muslim minority in India means he will face persecution in India. As recorded at CB 178.3, the country information suggest that Tamil Nadu is not a state where Muslims would ordinarily have a real chance of being persecuted by the Government. The applicant agreed that this information was correct. At CB 178.6 the Tribunal recorded that it did not accept that the applicant would have a real chance of persecution for reasons arising from, or related to, his religious beliefs. That finding of fact was open to the Tribunal.
The applicant next alleges that his involvement with a political party means that there is a strong possibility that his political opponents will kill him if he returns to India.
The Tribunal set out the applicant’s claim that he belonged to the AIADMK and other groups (CB 165.5-166), but did not find his claim to fear persecution on that basis to be valid and that he “was willing to embellish and or fabricate his claims in order to enhance his claims to invoke refugee protection obligations in Australia” (CB 180.4).
The next allegation is “over-reliance on country information”. The Court refers to its previous findings as to this allegation and rejects this claim.
The next claim is that the Tribunal did not consider the applicant’s documents and submissions. This ground has not been established and is rejected.
The next allegation is that the Tribunal ignored his claim of a threat from fundamentalists and that he will not get protection from the government. The Tribunal concluded that protection would be available, which was a conclusion properly open to it (CB 178.2 – 178.4).
The next claim is that the country information misled the Tribunal. There is no evidence that this is so. This is a challenge to the merits and is not available.
The next claim (d) restates the applicant’s various allegations of why he fears persecution. These were dealt with in detail by the Tribunal and dismissed. Such conclusions were properly open to the Tribunal.
The next claim is that the police in India cannot be relied on for protection. This is inconsistent with the country information that government protection will be available to him and seeks to contest a finding of fact by the Tribunal. A review of the finding of fact is not available.
The application is dismissed. Reasons have been shown why orders should not be made for the relief claimed.

Conclusion

The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Sarah James

Date: 11 April 2007