SZCZG v Minister for Immigration

[2006] FMCA 756

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCZG v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 756

MIGRATION – Refugee – bias – apprehension of bias – Tribunal’s duty to enquire – s.422B and common law natural justice – credibility – findings of fact – failure to take into account a relevant consideration – illogicality – inconsistency in claims – no reviewable error – application dismissed.

Migration Act 1958, ss.425, 51A, 357A, 422B, 65, 36(2), 415, 424A(3)(b)

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
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61
Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57
Minister for Immigration and Ethnic Affairs & Anor v Singh (1997) 114 ALR 284
Minister for Immigration & Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durarajasingham (2000) 168 ALR 407
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
Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZDXC vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
MZWPK vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Applicant: SZCZG

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 698 of 2004

Judgment of: Nicholls FM

Hearing date: 18 May 2006

Date of Last Submission: 11 May 2006

Delivered at: Sydney

Delivered on: 26 May 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. A. Markus

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,750.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 698 of 2004

SZCZG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 12 March 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 January 2004 and handed down on 18 February 2004 seeking review of a decision of a delegate of the respondent Minister made on 29 August 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.

2. The applicant is a national of India who arrived in Australia on 25 July 2003 and sought protection initially on the Convention ground of religion, and then before the Tribunal also sought protection on the grounds of political opinion. The application for a protection visa is reproduced in the Court Book (“CB”) at CB 1 to CB 26. His claims are particularly set out at CB 19 to CB 22. The application for review, filed with the Tribunal on 24 September 2003, is reproduced at CB 51 to CB 54. The applicant also ultimately gave evidence before the Tribunal (the Tribunal agreed to postpone the first scheduled hearing date at the applicant's request) on 21 January 2004. The Tribunal's account of what occurred at the hearing is in its decision record reproduced at CB 73.7 to CB 77.6. The essence of the applicant’s claims were that he was persecuted because of his religious beliefs as part of the “Muslim minority” in India, and that the current BJP government was supported by Hindu fundamentalists who tortured him and attempted to kill him. He claimed that he would be targeted by the Hindu police and placed in custody. The applicant expanded this somewhat at the hearing before the Tribunal and claimed that he had joined the Congress party in 2000 and played an active role as the “propaganda secretary” of the party’s youth wing.

3. The Tribunal's “Findings and Reasons” are set out in its decision record, reproduced at CB 78.6 to CB 83.6. The Tribunal:

   1)Accepted that the applicant was a Muslim and provided some assistance to the Muslim community in his village (CB 79.2).

   2)Accepted independent country information, available to it, that religious freedom was protected in India under the Indian Constitution and that India is a secular state in which the central government does not favour any religious group (CB 79.3).

   3)While it accepted that communal violence did erupt in India from time to time, particularly as it related to religious divisions, it also accepted independent country information available to it (which it put to the applicant at the hearing it conducted with him) that the Indian government was both effectively addressing this issue and taking preventative action to avoid any further “flashpoints and community violence”. Further, that it was cracking down on any outbreaks that did occur (CB 79 .5).

   4)Also accepted independent information available to it that Muslims constitute 12.7% of India's population (CB 79.6).

   5)Noted variously that the applicant did not make any claims to have specific involvement in Indian religious affairs (apart from his support through the “Lyons Club” for the Muslim community). Nor did he make any claim of any particular difficulty because of his religious observance (CB 79.7). Nor did the applicant advance any reason as to why he would be the victim of serious harm directed towards him as a Muslim.

   6)In the context of the sizeable Muslim community in India (120 million people), the Tribunal accepted independent country information over what it saw as “unsubstantiated claims” made by the applicant, and was not satisfied that there was a real chance that he would be targeted or killed by the Indian government, Hindu fundamentalists, police or otherwise experience serious harm because of his religion or support for the Muslim community if he were to return to India (CB 79.9).

   7)Provided, further elaboration in support of this finding. At CB 80 it noted that the applicant did not provide any evidence to support his claimed activities on behalf of the youth wing of the Congress Party, and his subsequent appointment as the “propaganda secretary” in his local area. The Tribunal also noted that the applicant, when asked at the hearing before it on three occasions, about the beliefs and platform of the Congress Party, was not even able to demonstrate a basic knowledge. The Tribunal did not accept the applicant’s claims that he had been the “propaganda secretary” of the Congress party youth wing on the basis that if he was the secretary, as claimed, he would have had a far greater knowledge and understanding of the party, its platform and goals (CB 80.5).

   8)Noted that the applicant did not make any claims to have stood for public office, or to have been politically involved in rallies or to have had any role outside the small role of the local branch in his local village. Based on what had been put to it, the Tribunal gave the applicant the benefit of the doubt and accepted that he was quite possibly a supporter, or even a member of the Congress Party, but it was not able to satisfy itself that he held any formal position or role in the Congress Party, even at the village level, nor that he had any community profile. Therefore, it was not satisfied that there would be any real chance that he would be targeted or subjected to serious harm because of his political opinion or for any other Convention reason by those from whom he claimed to fear harm (CB 80 .8).

   9)Also found that the applicant had embellished his claims with the objective of enhancing his application and found that this went to the question of his credibility (CB 80.9).

   10)Considered some elaboration made by the applicant of his claims (CB 81), and found variously that neither evidence was put forward to support these claims, nor were aspects of these claims properly explained. In relation to these claims the Tribunal found (CB 82.3) that while it was willing to give the applicant the benefit of the doubt and accept that he had been held captive and tied up on the occasion that he claimed, it was not satisfied that the essential and significant reason was Convention related (CB 82.4).

   11)Found that even if these claims had been accepted, it would nonetheless be reasonable for the applicant to safely relocate away from his local area to Madras, or somewhere else in India. The Tribunal set out its reasons for this finding (CB 82.4 to CB 83.4).

   In all therefore, the Tribunal could not be satisfied that the applicant had a well founded fear of serious harm amounting to persecution for a Convention reason if he were to return to India (CB 83.5).

4. The applicant’s originating application to this Court, filed 12 March 2004, is formulaic and un-particularised as is often seen in this Court. Nonetheless, as a result of orders made at a directions hearing the applicant filed, on 15 October 2004, an amended application. He further filed, on 24 February 2005, another amended application which he describes as containing “additional grounds”.

5. The grounds in the original application are:

   “1. RRT did not require the comment regarding the all of my claims.

   2. The tribunal made his decision in bad faith.

   3. The tribunal deprived me of the natural justice.

   4. The tribunal denied the evidentiary proof of my claim.

   5. The tribunal’s decision did not reflect the material facts of my claim.

   6. The tribunal has given a decision, which was present in the back of it’s mind.

   7. The tribunal mixed up many facts with this decision which affected the decision.

   8. The tribunal concentrated in particular fact, while ignored many other facts in this condition.

   9. The tribunal make up his mind without any inquiry regarding my claim and generalized my claim.

   10. Also he did not believe my genuine convention based refugee     claim.

   11. I will submit amendment of grounds later.” [errors in original]

6. The additional ground filed on 15 October 2005 is:

   “That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds not granting a protection visa.”

   It is particularised as:

   “(a)The tribunal to consider in assessing the chance of my persecution to return to India based on the fact he was a member of a particular social group, Muslim Minority in India and political opinion in India.

   (b)The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.

   Particulars:

   The applicant repeats the particulars to grounds.

   I did not received advice from my pilot scheme barrister.”  [errors in original]

7. A second amended application was filed on 24 February 2005. The applicant complains:

   1. About a number of specific statements in the Tribunal's decision record.

   2. The Tribunal made a factual error in taking into consideration “small factual mistakes.”

   3. The Tribunal should not have relied on these factual mistakes because the applicant was nervous at the time of the interview before it.

   4. The Tribunal was in error in relying on information from a “foreign country”. This appears to be a reference to independent country information from a US report.

   5. The Tribunal failed to “give equal weight to the applicant's statement.”

   6. The Tribunal's findings were one sided and that it did not consider his claims.

   7. The Tribunal “should have seen” that Muslims are treated badly by the Hindu fundamentalists groups in India.

   8. That while the Tribunal accepted third-party information it completely failed to “see the real things.”

   9. The Tribunal was wrong in stating that the applicant embellished his claims and the applicant takes issue with the Tribunal's finding which questions his credibility.

   10. The Tribunal should have seen that was not difficult to get a   passport in India or difficult to leave India.

   11. The Tribunal made a mistake in stating that the applicant could relocate to another place in India.

   12. That in making its relocation finding the Tribunal failed to take into account points in favour of the applicant.

   13. That the Tribunal, having accepted that communal violence does happen from time to time in India, should have accepted the applicant's case.

8. The applicant was unrepresented before me. He appeared with the assistance of an interpreter in the Tamil language. Mr. Markus appeared for the respondents. At the hearing the applicant stated that his problem was that he was “unable to live a good life”, wanted permission to live in Australia and that his life was in danger and “therefore I am finding ways and means by which I can live in this Country”. When I explained to the applicant that to be successful before the Court there would need to be revealed some relevant “legal mistake” by the Tribunal, the applicant (understandably) replied: “I am not in a position to address on the legal matters.” I note relevantly however the applicant did access the Court’s Legal Advice Scheme and was given advice by a lawyer on the panel of that scheme on
   17 February 2005.

9. Grounds two, six and nine of the originating application to this Court and ground six in the further amended application filed on 24 February 2005 can all be seen to assert either bad faith, bias or possibly the apprehension of bias on the part of the Tribunal. This general complaint can also be inferred from some of the applicant’s other “grounds”. For the applicant’s benefit I should at first note that an allegation of bad faith on the part of a Tribunal, or an allegation that the Tribunal acted with bias, or that bias may be apprehended, is an extremely serious matter. Such allegations of bias, whether actual bias, or the apprehension of bias, 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 than just the conclusion reached by the Tribunal to support this claim. Allegations of the 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]).

10. 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).

11. The application also fails the test of establishing bad faith as set out in relevant authorities such as Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, [18]-[20] because the allegations of bad faith are not clearly alleged, no attempt at proof is offered and no personal fault or absence of honesty on the part of the Tribunal has been made out. On the material before me, I cannot see that any such complaint can be made out. These complaints do not succeed.

12. Ground one in the originating application appears without particulars, but if any real complaint can be discerned, it is perhaps that the Tribunal did not provide the applicant an opportunity to comment on all of the matters relevant to his claims. To that extent, ground three1 in the originating application, a complaint that he was “deprived” of natural justice, is linked to it. Both however, are not made out on what is before me. Relevantly, the applicant was invited to a hearing before the Tribunal in compliance with its obligation pursuant to s.425 of the Migration Act 1958 (“the Act”). The applicant attended the hearing. The Tribunal's unchallenged account of what occurred at the hearing is extensive and reveals that the applicant was given the opportunity to put forward comments that he wanted to make about his claims. Further, to the extent that the Tribunal relied on independent country information available to it, such information fell within the exception set out in s.424A(3)(a) of the Act from the requirement to put such information to the applicant pursuant to s.424A(1): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.

13. I also note that a Full Federal Court recently in Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61 (“Lay Lat”) considered the issue of the proper construction and effect of s.51A and s.357A and, relevant to the case before me, s.422B of the Act. For the purposes of the cases before me, their Honours [Heerey, Conti and Jacobson JJ.] found that the intention of the legislature was that the relevant subdivisions to which each of these sections relate were intended to “overcome” the effect of the High Court decision in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 (at [64] of Lay Lat) and that, relevantly, s.422B operates to give effect to the intention that Division 4 of Part 7 of the Act be the comprehensive code which contains detailed provisions for procedural fairness but which excluded the common law natural justice hearing rule [derived from [66] of Lay Lat].

1. There is nothing in the material before me (see further below) to ultimately make a finding for the applicant based on a breach of the “natural justice” requirements as set out in the relevant statutory provision. Nor for that matter, even if the relevant parts of the common law rules are applied, can I discern error to assist the applicant. The applicant would have been put on notice of the relevant issue by way, firstly, of the delegate’s decision record. This was received by the applicant (CB 53) and is reproduced at CB 41 to CB 51. This record reveals the delegate referred to country information, particularly in relation to Hindu Muslim violence (CB 45.7), credibility issues (CB 47.3) and the issue of “internal relocation” (CB 48.4). Secondly, the applicant attended a hearing before the Tribunal. The Tribunal’s extensive account of the hearings shows that relevant issues were discussed with the applicant and he was given the opportunity to comment. I cannot see on what is before me that the applicant was denied the opportunity to present his case, or that the Tribunal’s hearing was relevantly deficient, or that the applicant was not aware of the relevant issues in determining his application.

2. Further, and specifically, if the applicant’s complaint in ground one in the originating application is that the Tribunal did not enquire into, or provide him with the opportunity to comment on, his claims then no particulars have been provided by the applicant. In this regard, I note for the applicant’s benefit that there is no obligation on the Tribunal to make out his case for him. The Tribunal’s obligation is to provide the opportunity for him to present his case and then to properly consider the relevant material before it. The applicant, who also had the benefit of a migration adviser during the conduct of the review by the Tribunal, was put on notice, by way of the Tribunal’s letter to him of

   
   

   26 September 2003 (CB 55 to CB 56), that he should “immediately” send to the Tribunal any documents, information, or evidence that he wanted the Tribunal to consider (CB 56.4). The invitation to the hearing repeated this invitation (CB 57.9) and the hearing itself provided him with the opportunity to present any “comments” regarding his claims. There is no evidence before me that the Tribunal did not provide the opportunity that it was obliged to provide at the hearing. In all therefore, these complaints do not succeed.

3. For the remainder of the complaints in the originating application, the applicant appears to assert:

   1)That the Tribunal failed to make any inquiry regarding his claim (ground nine and possibly ground eight). A five member Full Court in Minister for Immigration and Ethnic Affairs & Anor v Singh (1997) 114 ALR 284 at 291 per Black CJ, Lee, Von Doussa, Sundberg, and Mansfield JJ. stated:

   “The circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will…be rare…”

   The applicant has not been able to say whether such circumstances existed in his case so as to place the Tribunal under any such an obligation. Nor is anything of that nature evident in the material before me. Further, as I have already set out above, relevant opportunities were provided to him to make his case.

   2)That the Tribunal committed factual errors (ground seven) (see also below). It is not open to the applicant to seek merits review of the Tribunal's decision (Minister for Immigration & Multicultural Affairs v Wu Shang Liang (1996) 185 CLR 259 (“Wu Shang Liang”)). If indeed this is what the applicant is intending to complain about, it falls outside the capacity of this Court to assist the applicant in the relief that he seeks in this regard.

   3)The Tribunal failed to believe the applicant’s claims (grounds 4, 5 and 10). The Tribunal is not obliged to accept the applicant’s claims uncritically (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). It is not necessary for the Tribunal to obtain rebutting evidence before it rejects an applicant claims (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348) and of course findings of fact, including the findings on credibility, are matters for the Tribunal par excellance (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durarajasingham (2000) 168 ALR 407 (“Durarajasingham”)).

   4)Grounds 4, 5, 7 and 8 appear to complaint that the Tribunal failed to take into account a relevant consideration or took into account an irrelevant consideration. This also appears to be the complaint in the first part of the grounds put forward in the amended application of 15 October 2004 and is dealt with below.

4. The ground set out in the amended application appears to contain three limbs. The first is that the Tribunal failed to take into account a relevant consideration. This appears to be particularised as a failure by the Tribunal to consider the chance of persecution depended on his membership of a particular social group, that is, the Muslim minority in India and his political opinion in India. A plain reading of the Tribunal's decision record reveals that this was exactly what the Tribunal considered. However, it ultimately did not accept that the applicant would face harm in India for a Convention related reason.

5. The second limb, as Mr. Markus submitted, is that the Tribunal failed to take into account a relevant consideration, being the question as to whether the Minister’s delegate identified or raised reasonable grounds for refusing the application for a protection visa. As Mr. Markus submitted, in my view correctly, this “entirely misstates” the role of the Tribunal and the role of the delegate. A decision maker, whether the delegate or the Tribunal, is relevantly required to achieve a level of satisfaction (s.65 of the Act) that amongst other criteria, the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention (s.36(2)).

6. However, (for the applicant’s benefit in particular) when the Tribunal is asked to “review” the delegate’s decision it is not required to examine the “correctness” of a delegate’s decision in the way that is perhaps suggested by the applicant now. The powers of the Tribunal, as set out in s.415 of the Act, are that in reviewing the decision, the Tribunal may exercise all of the powers and discretions that the Act confers on the original decision maker. In this respect, as Mr. Markus submitted, the Tribunal is free to make its own findings, and is often required to do so because of additional material that is put, or is, before it. The real issue is whether the Tribunal itself can reach the requisite level of satisfaction such that the protection visa must be granted. In this case the Tribunal could not, for the reasons that it gave, reach such a level of satisfaction.

7. The third limb is that the Tribunal’s decision was not based upon reasoning which provided a rational or logical foundation for its conclusion. 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 (“S20”) 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 (“NACB”) 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. But whatever the situation, the applicant has not said how or why the Tribunal’s decision is flawed by illogical or irrational analysis. The material before me reveals that the applicant put his claims, the Tribunal considered them, and for the reason that it gave, which were open to it, could not be satisfied that in effect, the applicant met the definition of Refugee as set out in Article 1A(2) of the Refugees Convention. In all the circumstance, the applicant’s complaint in this regard appears to be a best his subjective explanation for the Tribunal’s unfavourable decision: “the Tribunal did not find for me therefore its thinking must be flawed”. This complaint does not succeed.

8. The applicant also complaints in his amended application of
   15 October 2004 that he had not received advice from the “pilot scheme barrister”. I note relevantly from correspondence on the Court’s file (as already referred to above) that the applicant subsequently did receive such advice on 17 February 2005. 

9. The “additional” grounds in the amended application, filed 24 February 2005, to the extent that they are not fully dealt with above, are as follows:

   1)The applicant makes reference to the Tribunal’s decision record and the reference to the “four key elements” in the “Convention definition” (CB 70 to CB 72). While nothing specific is asserted, this “ground” can be seen as an introduction to what follows. If the applicant means to imply some failure of the Tribunal to consider his claims as against the “key elements” of the Convention definition of refugee, then the Tribunal’s decision record plainly reveals that this complaint would not succeed. If the complaint is, that as against the relevant Convention grounds, the Tribunal made findings with which the applicant does not agree, to the extent that this is a complaint about the Tribunal's factual findings, including its findings on credibility, see Durarajasingham and generally above.

   2)The Tribunal made factual errors in that it took “small factual mistakes” made by the applicant into consideration. The applicant refers to “page 4” and “page 5” of the Tribunal's decision record (reproduced at CB 72 and CB 73). It is clear that the Tribunal, in recounting the applicant’s claims and evidence, indeed recorded the applicant’s description of “religion is Tamil” and that he had mistakenly referred to “August 2003” instead of “July 2003” regarding his arrival in Australia. However, there is nothing in the Tribunal's “Findings and Reasons” to show that the Tribunal relied on these factual errors to refuse the applicant's application. The Tribunal does not appear to have made any use of these “mistakes” other than as a recording and reflection of what the applicant actually put in his written application. I cannot see that the Tribunal relied on these mistakes in making its decision.

   3)The applicant also complains that the Tribunal should have seen that he was “nervous” at the time interview, and should not have relied on “simple factual mistakes.”  The Tribunal did not rely on these “mistakes” in the way asserted by the applicant. The applicant’s assertion that he was nervous at the “interview” is put forward as an explanation for the mistakes. Given that the Tribunal did not rely on these mistakes, the complaint falls away. To the extent that the complaint is in fact broader, and that the applicant was prevented (because he was “nervous”) from putting his claims to the Tribunal, there is no evidence before me that the applicant was nervous, or told the Tribunal that he was nervous, and even if he had, how and in what particular way (beyond “simple mistakes”) this “nervousness” prevented him from putting his case. This complaint also does not succeed.

   4)The Tribunal should not have relied on independent country information from “a foreign country” such as the United States. When assessing a “matter in India”, I took this to be a reference to the various International reports about the situation in India on which the Tribunal relied, and in particular the US State Department’s report referred to in its decision record (CB 77.7 to CB 78.6). It is of course a matter for the Tribunal as to what information it chooses to rely on, and the issue of how much weight it chooses to give to the material that is before it. Ultimately, the Tribunal’s choice of Country information to which it refers and the way it is assessed, is a factual matter for the Tribunal to determine: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] to [14].

   5)The applicant complains that the Tribunal failed to give “equal weight” to this statement. The weight that a Tribunal gives to information before it and the credibility of the evidence is for the Tribunal to determine (Wu Shang Liang at [272] and [291]-[292]).

   6)I took the complaint that the Tribunal’s findings were “one sided” to be a complaint of bias or of bad faith and have already dealt with this above.

   7)The applicant complains that the Tribunal should have seen that “Muslim minorities are treated badly” by Hindu fundamentalists in India. The Tribunal clearly accepted and found that community violence does erupt in India from time to time as between Hindus and Muslims. However, it clearly dealt with this issue both as it derived from independent country information and in the assessment of the applicant’s specific claims in the context of such information. This complaint also does not succeed.

   8)The first part of the complaint under ground eight is an assertion that in relying on third party information the Tribunal failed to see “the real things”. This is another expression of the complaints above and fails for the same reasons. The second, the Tribunal’s “big mistake” in its finding concerning the applicant’s position in the Congress Party and in his village, is an aspect of the complaint made out at 9) below and is dealt with below.

   9)The applicant complains that the Tribunal was wrong in stating that the applicant had “embellished” his claims and assets that questioning the applicant’s credibility is “wrong”.  This finding was made by the Tribunal in its decision record (CB 80.9). It was a finding based on its assessment of the applicant's specific claims relating to his involvement with the Congress Party, and the Tribunal’s finding that the applicant did not display any great knowledge or understanding of the Congress Party and was unable to satisfy the Tribunal that he had a community profile of any sort sought. The finding as to the enhancement of the applicant claims, as an embellishment, was open to the Tribunal on the material that was before it, and was a finding that fell within its role as the decision maker “par excellance” (Durarajasingham ).

   10)The applicant asserts that the Tribunal should have seen that it is not difficult to get a passport in India or not difficult to leave India unnoticed. Without anything further from the applicant it is not clear that this assertion is anything more than the applicant taking issue with a particular finding by the Tribunal. The applicant is most likely referring to the Tribunal’s decision record at CB 81.3:

   “Further, the Tribunal accepts that the Applicant was able to leave India legally on several occasions (most recently on 23 July 2003) on a passport issue in his name, showing his photograph and date of birth, without claiming that he was questioned or detained on any charges by the police or any other Indian authority, or experienced any other difficulties whatsoever.”

   11)When read in context the extract quoted above can be seen to be part of the Tribunal’s assessment of one part of the applicant’s claims that he had been targeted by Hindu fundamentalists and that the government and the authorities would put him in gaol if he were to return. In considering a number of relevant aspects the Tribunal also referred to the applicant’s ability to leave and re enter India on a number of occasions using a passport issued in his name, without being questioned, detained or charged by police or any other authority and that the applicant had experienced no other difficulty “whatsoever”.

   12)On its face this does not reveal error on the part of the Tribunal. It was entitled, as part of the broader consideration of the claim that he would be gaoled by authorities, to consider that on occasions when he could have come to the notice of authorities, nothing adverse happened to him.

   13)However, in the context of the Full Court decision in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (“Al Shamry”), SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”), I did seek submissions from Mr. Markus at the hearing as to whether the Tribunal relied on information, as a part of the reason for its decision (contained in the applicant’s passport) which was not put to the Tribunal for the purposes of the review.

   14)I take the view that, notwithstanding that initially the applicant provided his passport to the first respondent’s Department, on the material before me, this was also provided to the Tribunal, and that any information contained in the passport therefore falls within the exception contained within s.424A(3)(b) from the requirements to put such information to the applicant in writing.

   15)In this regard I note that the applicant was directed to bring his passport to the hearing that the Tribunal had scheduled for him (see letters on invitation to the hearing at CB 57.7 and CB 61.7). The applicant before me made no assertions that he did not do as directed, let alone provide any evidence (for example, by way of the transcript of the hearing with the Tribunal) to show that no passport was produced to the Tribunal.

   16)I accept Mr. Markus’s submission that, on what is before me, the inference would not be drawn that the applicant failed to comply with this direction. I am persuaded to this view by the report of the hearing given by the Tribunal in its decision record under the heading of “Claims made at the hearing” (CB 73.8). The Tribunal reports on its discussion regarding the applicant’s travel into and out of India, and then reports at CB 74.1:

   “As he had provide [sic: provided] different dates for his arrival in Australia, the Applicant was asked when he arrived in Australia and he replied on 25 June 2003 but, when told his passport was stamped 25 July 2003, he confirmed that this was the date he arrived in Australia.”

   17)I also accept Mr. Markus’s submissions that the Tribunal’s decision can be sustained on separate and independent basis that is not affected by the finding relating to the applicant’s travel and passport. In this regard the Tribunal’s decision record from CB 82.4 to CB 83.5 reveals that the Tribunal found that it was reasonable for the applicant to relocate in safety to Madras or somewhere else in India. In this regard I note that VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 where North J. found that where one part of a Tribunal’s decision is infected by jurisdictional error, if another separate and independent basis for sustaining the Tribunal’s decision was evident, then relief sought by an applicant could be refused. At [33] he stated:

   “As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.”

   This was followed and applied by Hely J., in SZDXC vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [12] and [17] and Heerey J., in MZWPK vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [13] and cited with approval by one member of a Full Court in VCAD vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [22]. The critical issue therefore, if the Tribunal had breached the requirement of s.424A (as understood in the context of SAAP) in relation to one basis upon which the decision was made, is whether there is one or more other bases on which the decision was based, which cannot, or are not impeached. Further, in SZEEU Allsop J. relevantly stated at [233]:

   “If it can be shown that there was a basis for the Tribunal’s decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternatives referred to in [58] of Aala to warrant withholding of relief.”

   18)For the sake of completeness I should also note the Tribunal’s reference in its decision record at CB 76.5 to having asked the applicant at the hearing as to why he did not mention in his protection visa application claims he raised at the hearing. To the extent that a finding based on an inconsistency of information provided in the protection visa application with what is subsequently put to the Tribunal was addressed in SZEEU I note Allsop J. at [225]:

   “If the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that may well engage s 424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision.”

   19)While the Tribunal made this reference in its account of what occurred at the hearing, I cannot see (looking at the decision as a whole) that in its “Findings and Reasons” the Tribunal made any such finding, relying on any such inconsistency, such as could be said to be a part of the reason for its decision.

   20)The applicant also complains (grounds 11, 12, 13 in his second amended application) that the Tribunal’s finding that the applicant could relocate elsewhere in India was a mistake in that the Tribunal failed to see that the fundamentalist Hindus are present in all parts of the country. The Tribunal did look at the issue of whether the applicant was able to reasonably relocate, even though it found that it was not satisfied that all of the relevant statutory elements relevant to the applicant being given the protection visa had been met. Nonetheless, in giving the applicant the benefit of the doubt and accepting that certain incidents which he claimed on have occurred had in fact occurred, the Tribunal again found it was not able to satisfy itself that the essential and significant reason for this harm was for a Convention related reason. Further it found at CB 82.4, that even if it had accepted these claims, it was reasonable for him to be able to relocate safety to somewhere elsewhere in Madras or India. Again the Tribunal did look at the issue of the fundamentalists Hindus being able to find the applicant elsewhere, and in particular noted that the applicant had been based in Madras for about seven years without experiencing any claimed difficulties “whatsoever”. This ground also does not succeed. This also applied to ground 12 and 13.

1. The relevant statutory regime requires that the Tribunal reach the requisite level of satisfaction and that the applicant meets the statutory requirements relevant to the visa applied for (s.65 and s.36(2) of the Act): Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596. Clearly, as Mr. Markus has submitted, the merits of an applicant's case, including matters of weight to be given to the evidence and the applicant’s credibility (and indeed any witnesses) are a matter for the Tribunal: Wu Shang Liang and Durarajasingham. On all the material before me, the Tribunal made findings which were open to it on the material before it and for which it gave reasons. The applicant’s complaints in essence are that he disagrees with the Tribunal's findings. However, he has been unable to put before the Court, and nor is it otherwise evident, that the Tribunal's decision was infected with jurisdictional error. The 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: 

Date:  26 May 2006