SZCVB v Minister for Immigration

[2006] FMCA 703

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCVB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 703

MIGRATION – Application to review decision of Refugee Review Tribunal – whether lack of procedural fairness – effect of s.422B Migration Act.

Migration Act 1958 (Cth), ss.91R, 422B, 424A, 425, 474

Commissioner of Australian Capital Territories State Revenue v Alphaone (1994) 429 FCR 576
Applicant S154/2002Ex Parte Refugee Review Tribunal & Anor (2003) ALR 437
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Moradian v Ministerfor Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 170
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456
Re Minister for  Immigration & Multicultural & Indigenous Affairs; Ex Parte Palme (2003) 201 ALR 327
SBTC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 260
SZBDF v Ministerfor Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493
SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous [2004] FCA 459
W38901A v Minister for Immigration & Multicultural Affairs [2002] 125 FCA 407
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 1
WAGJ of 2002 v Ministerfor Immigration & Multicultural Affairs [2002] FCA 277
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624
Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 221

Applicant: SZCVB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG511 of 2004

Judgment of: Barnes FM

Hearing date: 10 May 2006

Delivered at: Sydney

Delivered on: 10 May 2006

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr J Potts

Solicitors for the Respondent: Clayton Utz

ORDERS

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

2. That the application is dismissed.

3. The applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG511 of 2004

SZCVB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 4 February 2004 affirming a decision of the delegate of the respondent not to grant the applicant a protection visa.  The applicant arrived in Australia in May 2003 and applied for a protection visa on the basis that he feared persecution on the grounds of political opinion.  His application was refused and he sought review by the Tribunal.  He attended the Tribunal hearing. 

2. The applicant's claims to fear persecution were set out in a statement attached to his protection visa application.  He claimed to have become affiliated with ideas of the Trinamool Congress (the TMC) during his High School years, and to have joined that party in 1997, leading demonstrations against the Communist regime in his State in India. 

3. He claimed that in 1998 he was elected Joint Secretary of the Youth Congress of the Trinamool Dum Dum Committee, that he worked for a successful candidate in the 1999 elections who was a BJP leader whom his party supported.  He claimed that over time he had become one of the leading activists of the TMC and hence that he had been targeted by activists of the Communist Party of India (Marxist) (the CPIM).  He claimed that during the 2001 election campaigns he had worked for a TMC candidate, campaigned door to door and that he was attacked twice by CPIM activists.  He claimed that after the election (in which his candidate won a seat although the CPIM formed the Government) his house was ransacked, one of his brothers beaten by CPIM activists and his parents insulted. 

4. He claimed that over the course of time he became Youth Secretary of the TMC district committee which gave him more opportunity to work against the Communists.  He claimed that during a 2003 election he had worked for a TMC candidate but that serious chaos erupted between his party and the CPIM and during the campaign he was kidnapped by a group of CPIM activists who had held him in a house for three days and beaten him.  He claimed that after three days the police were informed of the matter and the activists had left him on the street, that his father had lodged what he described as a ‘missing case’ against the miscreants but that no-one was arrested.  He claimed that a number of false cases were filed against him to ‘doom’ his political career and that he could not relocate as he did not have much ability in other languages. 

5. The application was rejected by a delegate of the respondent.  The applicant sought review.  In his review application he claimed, without elaboration, that a number of false cases had been filed against him to undermine his political image and that he was subject to systematic persecution. 

6. The Tribunal reasons for decision record that at the hearing the applicant's adviser requested the opportunity to provide a fresh copy of a faxed letter he had received from India which was said to certify the applicant's role.  The Tribunal agreed to receive such a document within a week of the hearing.  It stated that it had confirmed with the applicant that he did not have any further written evidence supporting his claim to have an ongoing interest in West Bengali politics.  A copy of a letter dated 14 February 2003 headed ‘Dum Dum Trinamool Yuba Concress’ (sic) was provided to the Tribunal by the applicant's migration agent on 9 December 2003.  It stated that “several attempt had been worked out in kidnapping you by the opposition party, i.e. C.P.I.(M)” and advised the applicant to adopt necessary security and precautionary measures. 

7. In its reasons for decision the Tribunal detailed at some length the evidence given at the hearing and the applicant's elaboration of his claim that after the statewide success of the CPIM in the 2001 State parliamentary elections and the local success of the TMC candidate he had gone to his sister's house some distance away, concerned that he would be vulnerable in these circumstances.  It set out his claim that while at his sister's house five CPIM youths had called at the house, roughed up his brother, insulted his father and threatened to kill him if he did not give up politics.  The Tribunal also recorded that in later discussion the applicant had indicated that he had not considered this incident so serious, at least compared with what happened in 2003. 

8. The applicant elaborated on his claim that he was abducted and kidnapped on 8 February 2003.  He claimed that his captors had tied his hands, blindfolded him and held him in a house for three days where he had been beaten and denied food.  He claimed his captors identified themselves as local CPIM supporters acting on instructions from CPIM leadership who believed his work for TMC candidates was harming their cause.  The applicant claimed that he escaped some days later when one of the captors deliberately left a door open.  He explained that he later learned that his father had reported the incident to the police and he surmised that the police had informed the CPIM who had asked his captors to release him. 

9. The applicant claimed that following his release his father had filed charges but the police had not made any arrests on the basis of the complaint.  He claimed that his father had discovered at the local police station that charges had been filed against the applicant relating to terrorism and possibly bomb making and that this had been confirmed to the applicant by party colleagues and that the police had followed this up with his family.  The applicant claimed that on his return home around 11 February 2003 he learned of the charges and following advice from his party, departed for Mumbai, stayed with an acquaintance, obtained a visa and ultimately left India for Australia in May 2003.  He claimed to fear the actions of his CPIM opponents and that he would not get a fair hearing if the charges were brought to bear. 

10. The Tribunal accepted that the applicant was a citizen of India from a well to do family.  However it found his information on his employment, financial situation and previous overseas travel to be vague and hesitant and that his reluctance to be drawn on these matters was an attempt to emphasise the role of his political interests in his life and thus strengthen his case.  It had regard to its finding that the applicant’s description of his political opinion was expressed in general terms, mostly within the framework of contemporary West Bengal politics, that his account of his political views and the TMCs political agenda was vague and that with the exception of the letter provided after the hearing he had not substantiated his claims with any documentary or other supporting evidence linking him to the TMC or otherwise demonstrating an interest in political affairs. 

11. The Tribunal considered at some length the letter submitted after the hearing purportedly from the President of the Youth Trinamool Congress (Sultanpur Block).  It noted that this letter had been provided at the applicant's request to support his claims of involvement in the TMC and his concerns about the risks he faced in early 2003.  However while dated 14 February 2003, the letter appeared to have been sent by facsimile from India on 29 November 2003.  The Tribunal found that while it was on letterhead with a logo consistent with that on the TMC website, the absence of any Bengali text, poor alignment and apparent misspelling of ‘Concress’ raised doubts about the genuineness of the letter.  It observed that the submission of the letter impliedly asked the Tribunal to accept that the author of the letter maintained signed copies of correspondence from an earlier time, which the applicant either had not received or not retained.  It also noted that it had not been able to find internet references to the supposed author, although there was a person with a similar name who was President of the TMC Youth.  Further, the Tribunal found it unclear whether the statement in the letter about attempted kidnapping was a reference to the alleged kidnap some six days earlier than the date of the letter or whether this was intended to suggest past or ongoing risks faced by the applicant.  In any event, the Tribunal found it implausible that a party would choose to convey a security warning to an individual member in writing addressed to a party office (as this letter was) at a time when the applicant claimed he had left that place permanently.  In light of these findings the Tribunal accorded this document no weight. 

12. The Tribunal then considered the applicant's claim to have held executive positions in the TMC Youth Congress.  While it accepted these assertions, it was not satisfied that they denoted any political profile or influence, finding that the applicant’s description of his activities suggested his responsibilities were ‘informal and low key’.  It found that his activities demonstrated that he would not be perceived by his adversaries as having a political influence or profile. 

13. However, having regard to the applicant's stated commitment to TMC and his ambitions within the party, the Tribunal also considered whether (in addition to his activities) there were any other indicators of a political opinion or a future political role for the applicant which could form the basis for a fear of persecution.  It found that it did not have before it material supporting such a conclusion and that the low key localised nature of the applicant's political work and his limited contact with TMC supporters after the alleged incident in 2003 suggested that his political commitment and ambition were ‘modest’. 

14. The Tribunal also addressed the applicant's specific claims of past harm to himself and his family. It gave him the benefit of the doubt in accepting that CPIM supporters twice disrupted TMC protest marches in 2001. It accepted that the applicant was present but was not satisfied that it was correct to characterise these disturbances as an attack on the applicant. It concluded that CPIM and its supporters were not targeting the applicant but simply trying to halt the march and that this was a ‘sporadic incident in the heat of an election campaign’ and did not result in serious harm within the meaning of s.91R(1)(b) of the Migration Act 1958 (Cth) (the Act).

15. While sceptical of the applicant's claim about going to his sister's house as a precautionary measure and the abuse of his family and threats, the Tribunal gave the applicant the benefit of the doubt, but noted that the incident was not considered serious at the time or reported.  The Tribunal found the absence of any follow-up or further incidents during the next two years confirmed that the perpetrators were spontaneously venting their frustrations.  It found that the incident did not indicate an intention to inflict serious harm on the applicant at that time or in the future.  

16. The Tribunal did not accept the applicant's account of an alleged abduction in February 2003, finding his account of a premeditated abduction carried out in the presence of local TMC supporters in broad daylight suggested a degree of planning and logistic support not commensurate with the applicant's low political profile.  Nor did it believe the applicant's account of his release after three days at the supposed connivance of CPIM and the police.  These considerations and the absence of any evidence of media coverage, a police report or other independent evidence to support the story led the Tribunal to be unable to be satisfied that the alleged events took place. 

17. The Tribunal also considered an implicit claim that opposition political figures were subject to ongoing risks of politically motivated violence.  It addressed these claims and country information but found, based on country information, that the risks represented no more than a remote risk for individual party supporters who did not have a political profile.  It noted that it had not found any reports of political violence in the applicant's home town and found that there was no more than a remote risk of the applicant being subject to adverse attention from his political opponents given his low political profile. 

18. The Tribunal also considered the suggestion of the applicant and his adviser that CPIM hoodlums acted with the tacit support of the CPIM-led government in West Bengal, insofar as that suggestion implied that the applicant would be subject to a generalised risk of harm and that CPIM actions could be seen as de facto state actions imbued with an ‘official quality’.  The Tribunal did not accept that CPIM hoodlums appeared to have acted with the support of the CPIM and found in relation to the applicant that “his modest profile and the absence of reported incidents in his home area meant that his exposure to the risk of such impropriety would be remote”. 

19. The Tribunal addressed country information in relation to the availability of adequate State protection and the fact that the applicant’s evidence illustrated his view of the availability of state protection.  It was satisfied that the applicant, particularly in view of his and his family's social and economic standing, could avail himself of adequate and effective state protection from harm from the CPIM or others. 

20. The Tribunal did not accept the applicant's claim that he was subject to outstanding charges of terrorism fabricated by his political opponents.  It found that its rejection of the claims about his alleged abduction in February 2003 ruled out a key element of the claim concerning trumped up terrorism charges (the circumstances in which the police communicated knowledge of these charges to the applicant's father).   It found that the applicant's evidence on the charges was ‘sketchy’ despite his claims to have followed it up with colleagues and that the police had visited his family home asking after him.  It had regard to independent evidence about India's terrorism legislation and found that the lack of police follow-up (beyond inquiries at the applicant’s parents home) and the fact that the applicant was willing to stay with relatives in Mumbai for two months after receipt of a visitor’s visa “viewed cumulatively” indicated that there were no such pending charges in relation to the Applicant.  The Tribunal also found the timing of the applicant’s travel from India consistent with a planned, orderly departure rather than a genuine flight from persecution. 

21. The Tribunal found that the applicant had not been subjected to past persecution in India and that he did not have a well founded fear of persecution in the reasonably foreseeable future.  In reaching that final conclusion it found no other additional factors, current or prospective which might form the basis for such a fear of harm.  It found that dispute the applicant’s stated future political ambitions, his:

    “low level of political commitment and activity does not indicate that he will assume a higher profile in the near future, or that he will otherwise be perceived by his opponents in such a manner as to attract their adverse attention.” 

22. The Tribunal also considered the adviser’s claim that relocation would be unreasonable, finding that if the applicant was apprehensive, he could reasonably relocate.  It was satisfied if he returned to India that the applicant would be able to pursue and develop his political interests in West Bengal and to express his political opinions freely and that the caution he would need to exercise during election periods in some electoral areas did not amount to an oppression of his ability to express his political opinions giving rise to persecution. 

23. The applicant sought review of the Tribunal decision by application filed in this court on 22 February 2004.  He relies on an amended application filed on 15 October 2004.  That application raises one ground.  However, in a document headed "outline of applicant's submissions of appeal" filed on 20 April 2006 the applicant raises a number of other grounds.  The applicant was given an opportunity to add to his written submissions.  In the hearing today he had nothing to add.  However each of these grounds was addressed in detail by counsel for the respondent in written and oral submissions. 

24. I have considered all the grounds raised by the applicant in the material before me.  I acknowledge the assistance of the careful, fair and thorough submissions in that respect by counsel for the respondent, despite the lack of elaboration by the applicant.

25. Many of the grounds relied upon, to which I will return in individual detail, assert a denial of procedural fairness. The applicant's application for review was received by the Tribunal on 6 September 2003. Hence this is an application to which s.422B of the Migration Act 1958 applies. That section provides that Division 4 of Part 7 is taken to be an exhaustive statement of requirement of the natural justice hearing rule in relation to matters with which it deals.

26. Counsel for the respondent contended that s.422B was a complete answer to those of the applicant's grounds that relied on common law rules of procedural fairness. Counsel for the respondent addressed the fact that there has been a difference of opinion in decisions of single judges of the Federal Court in relation to the ambit of s.422B(1) and in particular whether the words “in relation to the matters it deals with” are to be confined to the exact text of the procedural fairness requirements to be found in Division 4 or whether they extend to something wider (such as all procedural aspects of the conduct of reviews by the Tribunal) as is summarised in SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 by Edmonds J at [29].

1. As Edmonds J pointed out, the narrower approach to s.422B was taken by French J in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 at [47] – [59] and Gray J in Moradian v Ministerfor Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 170 at [35] – [37], whereas a wider approach to the scope of s.422B was taken by Lindgren J in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 at [50] – [87] and Hely J in Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 221 at [21] – [23].

2. Since that time there have been a number of relevant cases, in two of which single judges of the Federal Court sat as the Full Court on appeal from decisions of Federal Magistrates of this court.  In SZBDF v Ministerfor Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 Branson J considered in some detail the competing approaches to the scope of s.422B of the Migration Act 1958 and the conflicting authorities on that provision and equivalent provisions under the Act.  Her Honour found for the detailed reasons she gave at [15] – [16] that the approach adopted in NAQF and Wu was, for the reasons given in those cases, to be preferred to the approach adopted in Moradian and WAJR. Her Honour considered whether there was room for the operation of principles of procedural fairness outside the scope of the obligations imposed by s.424A of the Act and concluded (at [18]) that as that section dealt with the obligation of the Tribunal to provide particulars of information for an applicant, there was no scope for a wider obligation to provide particulars of information to be implied into the Tribunal's review process.

3. Branson Js approach was approved and adopted by Edmunds J in SZEGT at [29] in relation to an argument that the Tribunal was under an obligation to make inquiries consistent with what was said to be common law requirements of procedural fairness. His Honour found that the correct approach to s.422B(1) was that it extended to all procedural aspects of the conduct of reviews by the Tribunal, so that the failure to make an inquiry provided no basis for a claim of denial of procedural fairness.

4. Similarly, in SBTC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 260, Finn J noted the division of opinion in the Federal Court, agreed with the construction of s.422B(1) adopted by Branson J in SZBDF, and found (at [19]) that he would follow Branson J in any event as a matter of comity. In the face of such authority, I consider that I am bound to follow the approach taken by Branson J in SZBDF and adopted and approved in SZEGT and SBTC. 

5. Accordingly, the grounds that the applicant raises in relation to breach of common law rules of procedural fairness cannot succeed.

6. The ground raised by the applicant in the amended application is that the Tribunal did not accept that the letter submitted by the applicant from the President of the Trinamool Congress dated 14 February 2003 was genuine, that the Tribunal erred in failing to put to the applicant its concerns about the authenticity of the letter and give him an opportunity to comment and that on this basis the Tribunal denied the applicant procedural fairness. 

7. This ground refers to the letter provided by the applicant's adviser to the Tribunal after the Tribunal hearing. There is no suggestion that any concerns of the Tribunal were put to the applicant for comment before the Tribunal made its decision. However, the broad view of section 422B as identified in SZBDF and SZEGT is a complete answer to this ground. 

8. The written outline of submissions provided by the applicant does not elaborate upon this ground which appears to be based on the approach taken in authorities such as WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 1 and WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624, cases which do not involve the interpretation of s.422B of the Act. However I note that in this case the Tribunal did not make a positive finding of fraud, but rather found that it accorded the letter no weight. The approach taken in WACO can be distinguished on this basis. It is not necessary to consider this possibility further because of s.422B.

9. The next ground relied on by the applicant is the first ground in the outline of submissions.  The applicant asserts that the Tribunal failed to consider the persecution he experienced in India for his political affiliation as an active activist of the TMC and failed to consider “the evidences” of his claims.  No particular “evidence” identified. 

10. However, reading the Tribunal decision as a whole, it is clear that it gave detailed consideration to all of the applicant's claims of persecution because of his political affiliation with the TMC and to his associated claims of past events and his future fears and the evidence he put forward.  No error is established on this basis. 

11. The general contention that the Tribunal exceeded its jurisdiction or constructively failed to take into account relevant considerations regarding the applicant's claims does not establish a jurisdictional error.

12. The claim that the Tribunal did not permit the applicant to give his evidence in accordance with s.425 of the Migration Act 1958 is not established on the evidence before the Court.  There is no transcript of the Tribunal hearing before the Court. The only evidence of what occurred in the hearing is the detailed account in the Tribunal reasons for decision of the evidence given at that hearing.  There is nothing in that account to support the claim made by the applicant.

13. Nor is there anything in the material before the Court to support the next complaint of the applicant, that he was not given any further opportunity to make submissions.  On the contrary, the only evidence before the Court is that at the hearing the Tribunal agreed to receive further documents after the hearing.  In particular the applicant's adviser requested and was given the opportunity to provide a fresh copy of a fax (which is the letter dated 14 February 2003 to which I have referred) which the Tribunal took into consideration.   Further, the Tribunal records that it confirmed with the applicant that he did not have any further written evidence to support his claims.  There is nothing in the material before the Court to support the claim that the applicant sought or was not given a further opportunity to make submissions. 

14. In paragraph 4 of the outline of submissions the applicant contends that the Tribunal lacked procedural fairness for failing to give him a reasonable opportunity to answer independent evidence in the possession of the Tribunal suggesting that it was possible to return to India in his circumstances without being a victim of violence. While not expressed in terms of s.424A of the Act it is clear that, insofar as this claim is intended to raise s.424A, the Tribunal was under no obligation to provide an opportunity to the applicant in writing to comment on independent country information which would fall within s.424A(3)(a) of the Act. (See Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572). In light of s.422B of the Act no obligation to put information to the applicant for comment would arise at common law as an incident of procedural fairness as contended by the applicant. (See SZBDF). 

15. The applicant also contended that the Tribunal fell into jurisdictional error by relying on country information from the USA which was said to be biased and influenced by the government in power.  It is contended that in so doing that the Tribunal may be said to have ignored relevant material, relied in part on their relevant material and/or made findings which were erroneous or mistaken.  However the information to be relied upon and the weight to be given to particular items of country information are matters for the Tribunal.  See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. Insofar as the applicant takes issue with the factual findings of the Tribunal no jurisdictional error is established.

16. The applicant claims that the Tribunal did not deal (or not deal in any substantive way) with the key component of his claim, that being the charges he would face in India on his return.  However, as set out above, the Tribunal did deal with the applicant's claim in this respect, finding, for the reasons that it gave, that there were no such pending charges in relation to the applicant.  It cannot be said that it failed to deal with an aspect of the applicant's claims in the manner contended. 

17. The applicant then contended that the Tribunal's comments on the implausibility of the letter that he provided to it and its views in that respect should have been put to him for comment and took issue with the fact that the Tribunal did not accept him as a credible witness. I have already addressed the applicant's claims in relation to his contention that the Tribunal's view of the letter of 14 February 2003 and its finding that it afforded the document no weight should have been put to him for comment. I refer again to the operation of s.422B of the Act. Insofar as there is intended to be a submission that such material should have been put to the applicant under s.424A I note that the letter in issue was given to the Tribunal by the applicant and hence is within the s.424A(3)(b) exception.

18. Further, even if it could be said that there some room for the operation of principles of procedural fairness despite the operation of s.422B, this is not a case in which it has been established that such obligations would arise in relation to the Tribunal's preliminary views and thought processes in relation to the documentation and the applicant's evidence. (See Commissioner of Australian Capital Territories State Revenue v Alphaone (1994) 429 FCR 576 at 591 and 592). The circumstances are not within any of the qualifications to the general principle that a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

19. The next contention in the written submissions is that the document the applicant submitted was not accepted by the Tribunal and that if there was any doubt the Tribunal should have investigated this matter and brought to his attention any adverse information in that regard prior to coming to a decision. Again, insofar as this asserts a denial of procedural fairness, I refer to my discussion of s.422B and the current state of the Federal Court authorities in that regard.

20. In any event the suggestion that the Tribunal was under an obligation to investigate the document in some unexplained manner is not such as to establish a lack of procedural fairness.  There is no suggestion that the Tribunal undertook in any way to carry out such investigation and this is not a case in which it has been established that the Tribunal was under any duty to investigate the applicant's claims or to consider utilising the powers of s.427 of the Act to carry out such an investigation, see VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous [2004] FCA 459 at [27], WAGJ of 2002 v Ministerfor Immigration & Multicultural Affairs [2002] FCA 277 at 21 [24] to [25] and W38901A v Minister for Immigration & Multicultural Affairs [2002] 125 FCA 407. 

21. The applicant then goes on (at page 3 of his written submissions under a paragraph numbered 1) to list a number of asserted jurisdictional errors, denial of procedural fairness and natural justice.  None of these paragraphs establish jurisdictional error.  First, issue is taken with what is said to be the Tribunal's failure to appreciate that its conclusion and impression of the applicant will lead to a decision that affects human lives and that it must apply the criteria in a spirit of justice and understanding.  However, not only is it apparent from the Tribunal's findings and reasons that it set out and understood that it should recognise the particular problems of proof faced by an applicant for refugee status and, unless there are good reasons otherwise, give applicants who are otherwise credible and plausible the benefit of the doubt, but also the Tribunal thoroughly considered the applicant's claims and implications arising from such claims.  Indeed it did in fact give the applicant the benefit of the doubt in relation to aspects of his claims about which it otherwise expressed some scepticism.  No ground for review is established on this basis. 

22. The applicant then contended that the Tribunal had not taken into account his abduction in February 2003 and that the CPIM activists had attacked a demonstration twice.  However it is clear that the Tribunal considered both the alleged abduction in 2003 and the claimed attacks by the CPIM activists on a demonstration.  Insofar as the applicant takes issues with the Tribunal's findings in relation to these events, he seeks merits review which is not available in this Court.

23. It is next contended that the Tribunal failed to appreciate that the applicant may have been apprehensive of authorities in Australia and afraid to speak fully and give a full and accurate account of his case in the first instance or encounter.  First, this is not a case where the Tribunal relied on inconsistencies between accounts given in submissions or information provided to a delegate compared to information provided to the Tribunal.  Moreover there is nothing in the material before the Court to support the applicant's claim that there are any concerns in relation to the manner in which the Tribunal conducted the Tribunal hearing. 

24. Rather, the only evidence of the Tribunal hearing, which is the Tribunal's reasons for decision, suggests that during that hearing the applicant was able to give a full and detailed account of his claims, that he had the assistance of a migration agent and, indeed, when he sought the opportunity to provide further information after the hearing, that opportunity was given to him and he was asked whether he had any other written evidence to support his claims.  No jurisdictional error is established on this basis. 

25. It is then contended generally that the Tribunal failed to make “proper attempts with an open mind” to clarify alleged inconsistencies and resolve contradictions in a further hearing or to grant the applicant an opportunity to give an explanation.  No particular inconsistencies and contradictions are identified in this contention.  There is nothing in the material before me to support a claim that the Tribunal fell into error in a manner constituting jurisdictional error as contended.  Nor can it be said that the Tribunal failed to take into account the applicant's fear of persecution on return to India in the manner contended. 

26. The applicant then complains about the Tribunal's findings of fact, in particular, that it did not accept that his personal campaigning efforts had been such as to attract the more sustained adverse attention of CPIM supporters and its view that there were personal or local factors in relation to clashes in 2001.  In each case these contentions seek merit review. 

27. The applicant next contends that the Tribunal failed to consider his claim that the authorities failed to protect him from harm.  This takes issue with the Tribunal's findings in relation to the availability of adequate and effective state protection.  However no jurisdictional error in the Tribunal's approach to the consideration of state protection is established in the manner contended.  I note in that respect that insofar as this ground takes issue with the Tribunal’s approach to the alleged 2003 abduction, the Tribunal rejected the applicant’s claims in that respect and hence, having rejected the underlying claim, any issue as to the availability of state protection in relation to events which the Tribunal found had not occurred, would not arise.

28. The applicant then contends that while the Tribunal referred to the US State Department's Country Information Report indicating that opponent political activists are victims of persecution, this was not considered at the time of the decision.  However the Tribunal did have regard to an implicit claim that opposition political figures were subject to ongoing risk of politically motivated violence and to country information in that respect as well as to particular evidence of the applicant in relation to his past activities and his involvement in incidents during and in the aftermath of the 2001 elections and the absence of any other harm in the course of his political work.  Its finding that there was no more than a remote risk to the applicant of being subject to the adverse attention of his political opponents given his low political profile was open to it on the material before it.  No jurisdictional error is established as contended. 

29. The applicant also takes issue with the Tribunal's ultimate finding that there was not a real chance that the applicant would be harmed now or in the foreseeable future or that he had a well-founded fear of persecution.  This does not establish jurisdictional error. 

30. The applicant makes submissions about s.474 of the Act and makes a general complaint of denial of procedural fairness and breach of s.425. These grounds have been dealt with and these paragraphs do not establish jurisdictional error.

31. There is then a contention, without detailed elaboration, that the decision was not a bona fide attempt to act in the course of the Tribunal's authority.  Insofar as this is intended to be linked to the following paragraph (which states that the Tribunal ignored its undertaking to give the applicant an opportunity to make written submissions about the inconsistencies in his evidence) there is no evidence of any such undertaking by the Tribunal before the Court.  I have already indicated that the applicant sought and was granted the opportunity to provide a copy of a letter after the Tribunal hearing. 

32. More generally, an allegation of lack of good faith or bona fides is a serious allegation.  In this case there is no proof, let alone clear and convincing proof or evidence, to support such a claim.  In particular that there is no transcript of the Tribunal hearing before the Court.  It is a rare and exceptional case in which a lack of good faith will be established simply on the basis of the Tribunal reasons for decision.  This is not such a case.  Nothing pointed to by the applicant or apparent in the Tribunal reasons for decision supports such a contention. 

33. I have dealt with the claim that the Tribunal ignored its “undertaking”. The next ground is that there was a denial of procedural fairness in relation to the failure of the Tribunal to raise with the applicant its non-acceptance of his claim of outstanding charges of terrorism. It is contended that the Tribunal should have raised its concerns in this respect with the applicant. The Tribunal's thought processes and reasoning are not information within s.424A(1) of the Act. This is not a case where the Tribunal made findings in relation to documents supporting a claim of outstanding charges such as was considered in WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 1 at 42 – 58. I have already referred to the broad view taken of the scope of s.422B by the Federal Court which provides an answer to the claim of lack of procedural fairness. In any event no lack of procedural fairness is established by the Tribunal failing to raise with the applicant its preliminary views in relation to his claims about outstanding charges (see Alphaone which was cited with approval in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 at [22] and Applicant S154/2002;Ex parte Refugee Review Tribunal & Anor (2003) ALR 437 at [48] and [54]).

1. There are then further allegations of denial of procedural fairness. As indicated, s.422B applies, but in any event these general allegations do not establish a denial of procedural fairness. Further, the claim that there was a lack of opportunity to respond to adverse material is not such as to raise the operation of s.424A in light of the s.424A(3)(b) exception. The applicant takes issue with the Tribunal's finding that there was no real chance of him being selected or targeted for persecution for any Convention reason. This is not such as to establish that the Tribunal erred in its application of the law in a manner constituting jurisdictional error. Again the applicant seeks merits review.

2. The general contention that the Tribunal constructively failed to exercise its jurisdiction does not establish a jurisdictional error. Nor does the final contention that the Tribunal exceeded its jurisdiction. As already indicated, there is no evidence before the court to support a claim that the Tribunal did not permit the applicant to give evidence in accordance with s.425 of the Act. It took into account his claims in relation to his fears about threats to his life and/or liberty and the claims that he made to fear persecution in the future should he return to India.

3. The applicant claims the Tribunal failed to take into account the significant discrimination he would face.  It is not apparent that he made or that the material before the Court raised such a claim.  He has not established that the Tribunal failed to consider all of his claims in relation to his fears about the future.

4. The contention that the Tribunal decision was not a bona fide attempt to act in the course of the Tribunal's authority has already been discussed.

5. Despite the considerable number of grounds of review raised by the applicant, none are made out.  No reviewable error has been established.  Accordingly, the application should be dismissed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  30 May 2006