SZDBI v Minister for Immigration
[2005] FMCA 426
•14 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDBI v MINISTER FOR IMMIGRATION | [2005] FMCA 426 |
| MIGRATION – RRT decision – low-caste Hindu from Kerala – claimed persecution by BJP due to relationship with higher caste woman – did not give information requested by Tribunal – no error in Tribunal not inviting to hearing – no failure to deal with claims – no irrationality – application dismissed. |
| Migration Act 1958 (Cth), ss.420, 422B, 424, 424(1), 424(2), 424(3), 424A(1), 424A(3)(a), 424B, 424C, 424C(1), 424C(1)(b), 425(1), 425(2), 425(2)(c), 483A, Part 8 Judiciary Act 1903 (Cth), s.39B |
| VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 |
| Applicant: | SZDBI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 807 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 29 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Turner |
| Solicitors for the Applicant: | Ray Turner |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $5,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 807 of 2004
| SZDBI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act 1958 (Cth) in relation to a decision of the Refugee Review Tribunal dated 12 February 2004 and handed down on 5 March 2004. The Tribunal affirmed a decision of the delegate made on 21 November 2003 which refused an application for a protection visa. The applicant seeks the issue of a writ of certiorari to quash the Tribunal’s decision.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. Relevant to the present matter, that jurisdiction is its general judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑7], and in subsequent cases, the relief sought by the applicant is available only if I am persuaded that the Tribunal’s decision is affected by jurisdictional error.
The applicant’s claims
The applicant arrived in Australia from India on 14 June 2003 on a Class 456 temporary business visa. Assisted by a migration agent, he lodged an application for a protection visa on 11 July 2003. In his application he described his occupation or profession before he came to Australia as “desktop printer”. However, the details of his past employment showed him last occupied as “labourer” from November 2002 to March 2003, and previously from 1995 as “self employed” as “plastic bags manufacturing” and then “photo lamination”.
His claims to receive protection from Australia under the Refugees Convention were contained in a two page “statement of claim” which contained the opening paragraph:
My name is M…, a citizen of India. I left India owing to fear of persecution by BJP members because of my ethnicity and religion. I was born in a village in Kerala, Pazhanji. The name of the place is Jeruselem. Majority of the population here are Hindus with a minority mixture of Christians and Muslims. My ethnicity is Ezhava, which is a sub-cast of Hindu Religion and is considered a lower cast. From my very early childhood itself I have felt discrimination by upper class Hindu people. By constitution India government has given us privileges for education and employment. This is not very much liked by upper class Hindu people. Even though the government is dominant by Upper class Hindu people, they kept these privileges to keep things in harmony. But it has turned out to be a show business. The very purpose of these privilege worked out the opposite result in our society. Hindu upper class people look us with contempt. They treated us with hatred. They complain that we are given undue privileges in education and employment and we are taking their seats in professional education.
He then described how, in the course of his photo lamination business, he became emotionally attached to one of his customers “Sreedevi”. He described her background:
She knew that I am of Ezhava cast. She is from a very wealthy family. Her father’s brother is the retired police superintend, a very influential person. I knew her family would definitely look down upon me. They can never accept me as their daughter’s husband. But we went for our hearts. As an Ezhava man, I am not even allowed to step into their house.
He claimed that, as a result of his enquiring at the marriage registry, Sreedevi’s parents learned that they were contemplating marriage. He said that on his return from work on 3 May 2002 “some people attacked me. They beat me up and left me to die on the railway track”. He was hospitalised for almost six months. During this time, he was visited by five visitors who “told me that they are members of the BJP party. They told me that I was lucky to escape from the first attack. Further attack will follow if I do not leave Sreedevi alone.” He said nothing about whether he made any complaint to the police about these events.
He claimed that he then left Kerala and travelled to Tamil Nadu, leaving his business for his uncle to run. The day after he tried to telephone Sreedvi, his uncle told him that his business “has been burned down” and his uncle “threatened very badly”. He did not claim that a complaint was made to the police, but said that his uncle “approached SNDP (Sree Narayana Dharma Paripalana Sangham), the party that supports the members from the Ezhava cast. … They spoke with the members of the BJP party.” His narrative concluded:
The BJP members said that I loved an upper cast woman. BJP is an upper cast Hindu dominant party that with high power in India. More over she is from a high-class family and how I dared to make love to an upper cast woman! The punishment for such sin is death. My uncle did not reveal my whereabouts despite being pressured and threatened by the members of the BJP to do so. In Tamil Nadu, I approached the police, complained about the people who threatened me and asked for their protection to marry Sreedevi. They laughed at me and gave me a sweet advice; not to love an upper cast girl. I did not dare to go back to my state, Kerala. I got labourer job in Tamil Nadu and started living with my friend.
In December 2002, some people came to where I was living in Tamil Nadu. I was not at home. They told my friend that if I were given shelter in his house he would face grave danger. Also they introduced themselves as members of the BJP and said that I will be killed for the punishment of my relationship with Sreedevi and for campaigning for equal rights and freedom between the various ethnicities. I contacted my uncle and informed him that he should send the message to inform Sreedevi’s family and the BJP members that I have given up my love for the sake of Sreedevi’s safety and mine. I continued to live at the same place in Tamil Nadu.
In February 2003 the same BJP members came to my house. I hide in the kitchen. They pulled me out, beat me up and told me that this is the punishment for loving an upper cast girl. I told them that I have already given up my love. The leader pulled out a knife , shouted at me yelling “even if you give up your love, you did the sin of loving an upper cast girl, take this lesson – this is the lesson for all you low cast bastards”, he was about to stab me. Hearing sounds as my neighbour was approaching he stopped his attempted stabbing on me and ran away with his members.
The government and the police cannot protect me in India. The government is unable to protect people who are being persecuted by the BJP members. I have given up on Sreedevi with great sadness for the sake of both of our lives. Yet, the members of the BJP party are determined to chase me everywhere I go in India because not only of my past relationship with Sreedevi but also because of my campaigning for the recognition and acceptance of the Ezhava people. I talked about my views to different people in my age group. Many of them had similar views. I organised a group of people who supported my belief. I am now campaigning for equal rights between the lower and higher classes of Hindu religion. This made BJP more annoyed. They are after me because of my ethnicity. My life became more risky. I travelled to Singapore and Malaysia in April 2003. However, upon enquiries I noted that these countries could not protect me and give me residence on refugee grounds. So, I went back to New Delhi and applied for an Australian visa. Owing to the fear of being persecuted by the members of the BJP on my return to India, I decided to seek refuge in Australia.
The delegate refused the visa application on 21 November 2003 on the principal ground that “the applicant has not put forward a credible case to support a claim of persecution. His statement of claims is vague, lacking in detail, implausible and they are not supported by the country information.” The delegate set out in his reasons extracts from various sources concerning relevant circumstances in India, including the following passage in a US Department of State 2001 Report under the heading “freedom of religion in India”:
India is a secular state in which all faiths generally enjoy freedom of worship. Central government policy does not favor any religious group; however, governments at state and local levels only partially respect religious freedom, and a number of such governments considered legislation during the period covered by the report that would limit religious freedom. In addition, in May 2001, the central Government banned Deender Anjuman, a Muslim group. The central Government is led by a coalition called the National Democratic Alliance (NDA), which has pledged to respect the country’s traditions of secular government and religious tolerance. However the leading party in the coalition is the Bharatiya Janata Party (BJP), a Hindu nationalist party with links to Hindu extremist groups that have been implicated in violent acts against Christians and Muslims. The BJP also leads state government in Goa, Gujarat, Himachal Pradesh, and Uttar Pradesh. Human rights groups and others have suggested that the authorities in these states have not responded adequately to the links between these groups and the BJP, and have noted that the ineffective investigation and persecution of such incidents may encourage violent actions by extremist groups….
The applicant’s appeal
The applicant lodged an application for review by the Tribunal on
10 December 2003, assisted by the same migration agent. Under the heading “your reasons for making this application” and in response to the question “please tell us why you consider yourself to be a refugee”, there was written:
The authorities in India cannot protect me if I go back to India. My claims are supported by the independent report (US Department of State Report) cited in the decision record. The BJP Party members are known to implicate violence against people either as a result of religious or political reasons. It is also noted that the authorities are ineffective in adequately responding to such violent acts by the BJP members.
Relocation is also unreasonable because I was located through a telephone call trace by the same BJP members. BJP members would be able to infringe any harm on me regardless of where I reside if I am targeted.
My fear of persecution is well founded and convention related because I have been discriminated because of my ethnicity. I have been denied my basic fundamental human right. I should be allowed to choose my partner regardless of my ethnicity.
The application form told the applicant: “with this application you should give us any information, documents or submissions that you want the Tribunal to consider, or send them to us as soon as possible.” He was also advised to do this “immediately” in a letter of acknowledgement sent to him at his home address and to his agent on 12 December 2003. However, no supporting material was forthcoming.
On 15 January 2004, the Tribunal sent to the applicant at his home address and to his agent a letter which said:
The Tribunal requests that you provide the following additional information.
·Your detailed reasons for disagreeing with the decision under review;
·The basis upon which you obtained a business visa to come to Australia, if you were working as a labourer at the time;
·Details (dates, places etc) of your activities in campaigning for the rights of Eshava people
·The cast to which “Sreedevi” belongs;
·Details of all reports you made to police about attacks on you;
·Your passport (the original, not a copy);
·Any evidence you may have with you which would support your claims;
·Any other matters you with the Tribunal to consider.
This information is to be provided in writing and must be received at the Tribunal by 10 February 2004.
If you have difficulty providing this information, please telephone Rebecca Willison on (02) 9951 5841 as soon as possible and before 10 February 2004. If you are calling from outside Sydney phone 1800 814 593. If you don’t speak English, please contact the Translating and Interpreting Service (TIS) on 131 450.
IF YOU DO NOT PROVIDE THE ADDITIONAL INFORMATION BY 10 FEBRUARY 2004 THE TRIBUNAL MAY MAKE A DECISION ON REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.
The Tribunal’s decision
The Tribunal handed down a decision on 5 March 2004. In its reasons for affirming the delegate’s decision, the Tribunal recounts the claims made by the applicant in his visa application, and refers to its letter requesting more details. It explained why it decided to make a decision without inviting the applicant to a hearing:
The Tribunal’s letter was sent by registered post to the applicant at his nominated mailing address (his residential address), and a copy was sent to his “authorised recipient” who is also authorised to act on his behalf in connection with the application for review. The letter of invitation advised the applicant that, if he did not provide the requested information and comments by 10 February 2004, the Tribunal might make a decision on the review of his case without further notice. As at the date of this decision, no response has been received to the Tribunal’s invitation and neither the letter of invitation nor the copy sent to his authorised recipient has been returned unclaimed to the Tribunal.
The Act provides that the tribunal must invite an applicant to appear before it to give evidence and present arguments (s.425(1)). However, this does not apply where an applicant is invited under s.424 to give additional information and does not give that information before the time for giving it has passed. In those circumstances, the applicant is not entitled to appear before the Tribunal (ss.424C(1), 425(2)(c), 425(3)).
Although the Tribunal is not compelled to proceed to a decision without offering an applicant a hearing in all cases where an applicant is invited under s.424 to give additional information and does not do so before the time for giving it has passed, the Tribunal considers that such a course of action is appropriate in this case. The applicant has provided little in the way of detail to support his claims and has failed to respond to a request that he provide additional information, including matters which go to the very heart of his application. The fact that he has failed to supply any of the requested information suggests to the Tribunal that an invitation to a hearing would, in all likelihood, prove fruitless. The matter has therefore been decided on the basis of the information before the Tribunal.
The Tribunal referred to information concerning the outcome of the 2001 elections for the Kerala Legislative Assembly. These were won by a United Democratic Front coalition led by the Congress Party, and the BJP failed to win a seat and obtained only 5.02% of the votes cast.
Under the heading “findings and reasons” the Tribunal did not accept that the applicant had a well-founded fear of persecution for reasons of political opinion. It said he had failed to provide any details of any activities when claiming to have organised a group of people campaigning for the recognition and acceptance of the Ezhava people and equal rights between the lower and higher classes of Hindu religion in general. It said “on the basis of the scant evidence before it, the Tribunal does not accept the applicant’s claim that he has been actively involved as a public advocate of improved rights for Ezhavas or other low-caste Hindus.”
The Tribunal then turned to assess the applicant’s claims arising from his relationship with Sreedevi. It said:
The applicant claims that the genesis of his difficulties was his romantic liaison with a woman of a higher caste. However he has not said to which caste “Sreedevi” allegedly belonged, despite being asked explicitly about this point. If he were genuinely involved in such a relationship, and has experienced the sort of difficulties he described, the Tribunal would have expected him to be able and willing to provide such information. In the absence of this information, the Tribunal is not prepared to accept his assertion that such a relationship existed.
The applicant claims that, after he recovered from the alleged attack by “BJP people” he went to Tamil Nadu and his business was destroyed by fire. He claimed that he thereafter took a labouring job, and was unemployed after March 2003. If his only employment was as a labourer, one would not expect him to have reason to travel to Australia for business purposes. However, given that he was granted a business visa in May 2003, it may be inferred that he was able to provide sufficient evidence to convince Australian officials in the High Commission in New Delhi that he had legitimate business reasons for travelling to Australia. The Tribunal explicitly requested that the applicant provide an explanation for this apparent anomaly, but he has failed to respond. The Tribunal finds that, in early 2003, the applicant was involved in a “business” activity and was not unemployed or working as a labourer. As a consequence, the Tribunal does not accept that the applicant’s business was destroyed in November 2002 as he claims.
Had the applicant genuinely experienced the violence he claims to have experienced in Kerala at the hands of people identifying themselves as members of the BJP, the Tribunal would have expected him to have sought the protection of Kerala police. However, he failed to do so. The only contact he claims to have had was in Tamil Nadu, whom he approached after the burning of his business in Kerala. In those circumstances, it would have been more appropriate for him to report the burning of his premises to Kerala police. Similarly, he made no claim that he reported to Tamil Nadu police the alleged attempt on his life which he said took place in Tamil Nadu in February 2003. Though the applicant stated that the government and the police cannot protect him in India, the government being unable to protect people who are being persecuted by the BJP members, he did not explain why he made this assertion.
As noted in the independent evidence cited above, the Government in Kerala is a coalition led by the Congress party, a rival of the BJP. In the most recent election in Kerala state, the BJP did not wing a single seat, and won barely more than 5% of the vote. Against that background, the Tribunal concludes that the BJP is not a strong political force in Kerala, and it can see no reason why the Kerala government would be reluctant to protect its citizens against violence by the BJP. In these circumstances, the Tribunal infers from the applicant’s failure to seek police protection in Kerala that he was not attacked as claimed.
Finally, the Tribunal considered the implications of the fact that the applicant’s passport showed that he had travelled to Singapore and Malaysia in April 2003 and then returned home, after all the alleged acts of harm against him had taken place. It did not accept that the purpose of this travel was to seek protection. It said: “the Tribunal infers from this that he did not fear to return to India in early 2003. As he has disclosed nothing which has arisen since he returned to India which might give rise to a fear of persecution, the Tribunal finds that he does not have a genuine fear of returning there now or in the foreseeable future.”
The application for judicial review
The applicant filed an application for review in this Court on 19 March 2004, an amended application on 29 September 2004 and written submissions on 23 December 2004. It is unnecessary to consider what is in these documents, since reliance on them was disclaimed by his solicitor, Mr Turner, who appeared at the hearing.
Mr Turner had been instructed very shortly before the hearing, and was given leave to file an amended application and written submission in Court at the commencement of the hearing. The amended application alleged four grounds in bald terms alleging that the Tribunal denied procedural fairness, failed to apply the proper test, failed to take account of relevant considerations, and failed to conduct the review in a bona-fide manner. The particulars for all of these were said to be “as set out in the applicants written submissions.” When these are examined in the light of Mr Turner’s oral submissions various overlapping and re-formulated grounds emerge which, I consider, can be fully addressed under the following headings.
Failure to invite the applicant to a hearing
Mr Turner accepted that the applicant’s complaint in relation to procedural fairness amounted to an argument that the Tribunal was bound to invite the applicant to a hearing pursuant to s.425(1) of the Act. He accepted that, since the present matter was subject to the “exhaustive statement” provision in s.422B, this right must be found in s.425 and cannot be sourced in general common law or normal statutory implication. He also conceded that the right to attend a hearing was excluded under s.425(2) if “subsection 424C(1) or (2) applies to the applicant.”
Section 424C(1) provides:
(1) If a person:
(a) is invited under section 424 to give additional information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the additional information.
Section 424(1) and (2) provide:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
There are formal and procedural requirements attaching to an invitation under s.424(2) which are set out in s.424(3) and 424B and associated regulations. I need not set them out nor consider whether they are mandatory preconditions before s.424C(1) can “apply” for the purposes of excluding the right to hearing, since Mr Turner conceded that in the present case the Tribunal’s letter of 15 January 2004 complied with and was served in accordance with these provisions.
Mr Turner also conceded that, if the applicant had been “invited under s.424 to give additional information” in that letter, then the applicant had “not given the information” in terms of s.424C(1)(b). He also accepted that if these preconditions arose, the applicant could not contend that the Tribunal made any error in its exercise of its discretion to “make a decision on the review without taking any further action to obtain the additional information.” He conceded that the Tribunal did make such a decision, and that its exercise of its discretion not to invite the applicant to a hearing could only be vitiated by establishing that the letter of 15 January was not an invitation which the Tribunal was empowered to make under s.424(2).
His contention was that the terms of the letter showed that it was not an invitation coming within s.424(2) because the requests it contained were not for “additional information” within the meaning of that provision.
He argued that, in effect, the letter was “a request for the applicant to prove his case prior to the hearing rather than a request for the applicant to provide information to the Tribunal, relevant to its review, which the tribunal does not have.” As a matter of construction, s.424 “is not a mechanism for the Tribunal to request ‘further and better’ particulars of claims already made”, nor “a mechanism to test the evidence already before the Tribunal”. These objectives can only be pursued at a hearing.
I do not accept that these restraints should be implied in the language or context of s.424(2). I consider that the word “additional” does not exclude anything other than information which has already been given by the person requested or (possibly) by another person. Indeed, the word suggests, contrary to the applicant’s submissions, that the power is intended to allow the Tribunal to request more details in relation to claims made by applicants in their visa applications. I consider that the word “information” in the context should be given its full and non-technical meaning (c.f. Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [15-23], and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24])
The nature of the power confirms a broad reading of its scope, since it provides an important pre-hearing procedure which may assist the Tribunal to identify, test and assess the claims made by the applicant. As is apparent in many matters reaching this Court, some applicants withhold detailed claims and supporting material and present these at the hearing or after they attend the hearing, thereby significantly reducing the ability of the Tribunal to examine their claims and question the applicant on them. I can see no object in the legislation which would require the s.424(2) power to be confined by implications not arising from the ordinary language of the section.
I do not consider that the argued limitation on the ambit of “additional information” which can be requested is to be made by reason of the provisions of ss.424C and 425(2)(c) which allow the Tribunal to dispense with a hearing if information is not supplied. It is clear that the Tribunal is not required by these provisions not to hold a hearing if information is not given, but has a discretion which must be exercised on proper considerations. These would including considerations of procedural fairness as well as “economical, informal and quick” Tribunal processes (c.f. s.420). It is unlikely that an applicant would be denied a hearing merely because of some insignificant or reasonable omission in a response to a request. However, it is unnecessary for me to explore the ambit of the discretion in the present case, since its exercise in the present case is not challenged.
One of Mr Turner’s submissions was that s.424(2) did not provide a power to “interrogate” for the purpose of avoiding the duty to invite an applicant to a hearing. I am prepared to accept that such a purpose would result in invalidity of a request on the ground of improper purpose. Such a purpose would not be lightly or easily found. Conceivably, an inference of this might arise from the framing of the request itself, for example, if it revealed that requests were made which were manifestly unreasonable or were impossible to be reasonably complied with in the time allowed.
However, in the present case, the applicant could point to no extrinsic evidence suggesting an improper purpose in sending the letter of
15 January 2004. Nor, in my opinion, is there any substance in the suggestion that the letter reveals such a purpose. Rather, I consider that the matters requested in the letter were all clearly relevant to Tribunal’s review and were appropriately sought prior to a hearing. I do not consider that a response to any of the requests was incapable of being easily “given” “before the time for giving them has passed”. No evidence to this effect was led from the applicant or his agent, and, indeed, no explanation for their ignoring the letter can be discerned from the material before me.
As I understood him, Mr Turner accepted that the present Tribunal’s dispensing with a hearing was a valid exercise of power, if I rejected his submissions that s.424(2) did not allow a request for further particulars of a claim made by a refugee in his application, and that the letter improperly sought to interrogate without holding a hearing. If I rejected these submissions, he accepted that many of the “dot” requests were plainly requests for “information” within the ordinary meaning of that word, and that they had not been responded to.
I consider that this reflects a proper appreciation of the effect of
ss.424C(1) and 425(2)(c), in that it is enough that information was not “given” in response to any one of the requests made by a Tribunal. It is not therefore necessary for me to rule upon discussion I had with both counsel as to whether some of the “dot” requests might not be described as an invitation to “give information”: e.g. “your detailed reasons for disagreeing with the decision under review”, and “your passport (the original, not a copy)”, and “any evidence you may have with you which would support your claims”.
Failure to give an opportunity to comment on country information
The Tribunal’s adverse conclusion is almost entirely based upon its assessment of the inherent credibility of the applicant’s narrative in the context of other information in his visa application, without reference to general country information. However, in the final paragraph extracted above, it drew on information concerning the electoral position of the BJP in Kerala when concluding “from the applicant’s failure to seek police protection in Kerala that he was not attacked as he claimed.” Mr Turner submitted that the applicant had not been given an opportunity to respond to this information, and thereby was denied procedural fairness.
In my opinion, the short answer to this submission is that the Tribunal was under no legal obligation to do what is complained of. It is now clear that the effect of ss.422B and 424A(3)(a) is that an applicant’s right to comment on adverse information is a “matter” exhaustively dealt with by s.424A(1), and that s.424A(3)(a) expressly excludes this right in relation to all country information not “specifically about the applicant” (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [68-70], [126] and [138]).
Mr Turner sought to avoid this effect of these provisions by submitting (as I understood him) that, where a request for information under s.424 is made, a legitimate expectation arises that all matters of concern will be raised in that request, and that there will be a breach of an implied requirement of s.424 if the Tribunal relies upon some matter which was not raised in the request. However, I cannot understand how this can be implied from the language or scope of s.424, particularly since the legislature has provided s.424A to deal with the Tribunal’s obligations to put adverse matter to an applicant. Moreover, the applicant has led no evidence to support a claim that he was materially mislead or disadvantaged in relation to this issue by reason of the Tribunal’s letter of 15 January 2004.
Failure to deal with a refugee claim
Several arguments were made by Mr Turner whose effect was that the Tribunal made a jurisdictional error of the nature most recently explained by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263. Their Honours held at [48-51] and [55] that failure by a Tribunal to make a finding on “a substantial, clearly articulated argument relying upon established facts” can amount to jurisdictional error by failure to carry out the review required by s.415. At [63] they said:
It is plain enough, in the light of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.
Their Honours said at [68] that “a judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made. The claim must emerge clearly from the materials before the Tribunal”.
Allsop J has given further guidance in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]:
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
Mr Turner submitted that the Tribunal only considered whether the applicant had a well-founded fear for reasons of political opinions, and did not deal with a claim that he feared persecution in the nature of discrimination on grounds of his ethnicity. He argued that when referring to his “ethnicity” the applicant meant his membership of a “sub-class of Hindu Religion”, and that his fears based on his caste raised Convention “reasons” of “religion” or “membership of a particular social group”. He sought to persuade me that the applicant had claimed fears of discrimination amounting to “persecution” by reason of his caste which were independent of his fears arising from events resulting from his claimed relationship with Sreedevi. He argued that the Tribunal’s rejection of the factual basis for those claimed fears did not answer a more general “caste” basis for fearing persecution. He argued that this general claim was found in the applicant’s “statement of claim” and in the third paragraph of the applicant’s application for review by the Tribunal. I have extracted the relevant parts of these above.
In his statement of claim, the applicant commences his narrative by saying “I left India owing to fear of persecution by BJP members because of my ethnicity and religion”. He also refers to having “felt discrimination by upper class employment” from “my very early child-hood”. At the end of the narrative, he says that BJP is “after me because of my ethnicity”.
I cannot find in these statements a separate claim which was not dealt with by the Tribunal. Certainly, I do not consider that it can be found “clearly articulated” or arising “tolerably clearly” as required by the above authorities. Rather, I consider that the applicant’s references to general caste discrimination could reasonably have been read by the Tribunal as doing no more than introducing the persecutory activities which he claimed had been undertaken as a result of his caste by members of BJP in response to his relationship with Sreedevi. It was these activities which he put forward as explaining his fear of returning to India. It was not any general or unrelated acts of discrimination against members of his caste. In my opinion, the Tribunal clearly examined, and rejected, all the refugee claims made by the applicant in his “statement of claim” which related to his caste membership.
His Tribunal appeal application contains the statement: “my fear of persecution is well founded and convention related because I have been discriminated because of my ethnicity. … I should be allowed to choose my partner regardless of my ethnicity”. However, I do not consider that the Tribunal was obliged to treat this as anything more than a reference back to his visa application claims that his relationship with Sreedevi had caused him to be persecuted on grounds of his caste. As I have found, the Tribunal dealt with all of these claims.
I also accept the submission of counsel for the respondent, that even if the Tribunal erred by failing separately to deal with a claim to have experienced general persecution by reason of caste, this error did not materially vitiate the Tribunal’s decision to affirm the delegate’s decision. This is because the Tribunal also made a clear finding that the applicant had no subjective fear of returning to India “now or in the foreseeable future.”
Failure to consider US country information
Mr Turner, as I understand him, sought to argue that the Tribunal made a jurisdictional error of an NABE type by failing to take account of the paragraph in the US country report concerning the position of the BJP in India which I have extracted above. He argued that, because the applicant had expressly drawn attention to this in his application for review by the Tribunal, it was obliged to assess its relevance to the applicant’s refugee status in its “findings and reasons”, and that it had failed to do so.
I do not accept these submissions. I consider that it is probable that the Tribunal read this paragraph since it was extracted by the delegate, and referred to by the applicant. I also consider that it is probable that the Tribunal considered its relevance to its assessment of the applicant’s claims. In its reasons it expressly notes that the applicant cited this part of the report in his application to the Tribunal. I am not prepared to find that the Tribunal did not give full and sufficient attention to this material. I consider that it was open to the Tribunal to deal with the applicant’s claims on their intrinsic merits without reference to the report. Given this course of its reasoning, I consider that it was reasonable for the Tribunal, when referring to country information, to refer only to the situation of the BJP in the applicant’s own home state of Kerala.
Moreover, if the Tribunal did overlook this material, I consider that this would not give rise to jurisdictional error, but would be an error only of factual assessment of the claims which it dealt with.
Refusal to accept destruction of applicant’s business
Mr Turner’s last submission was that jurisdictional error should be found in the Tribunal’s reasoning leading to its conclusion that it “does not accept that the applicant’s business was destroyed in November 2002 as he claims” (see the second paragraph of the extract above at [15]).
In his written submission, this paragraph was argued to show a failure to take account of relevant considerations and a failure to conduct a review in a bona fide manner. However, in oral submissions, Mr Turner argued that the Tribunal’s error was, in the language of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38] to make a “determination (which) was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”.
He argued that it was irrational for the Tribunal to think that there was an inconsistency between the applicant’s claim in his visa application to have suffered the destruction of his business and as a result to have been occupied as a labourer before coming to Australia, and the claims which he would have made to the High Commission in New Delhi before being granted a business visa.
I do not accept this submission at its most basic level. The criteria for a subclass 456 visa included that the applicant “has personal attributes and business background that are relevant to, and consistent with, the nature of the applicant’s proposed business in Australia”, “demonstrates that there is need for the applicant to be in Australia for business purposes”, and “proposes in the application to remain in Australia for not more than 3 months on any single occasion” (see Migration Regulations, Sch.2 item 456.211). I consider that it was open to the Tribunal to think that “if his only employment was as a labourer, one would not expect him to have reason to travel to Australia for business purposes.” This may not be an inference from the material which a tribunal of fact was bound to make, but in my opinion it cannot be characterised in the language of their Honours in SGLB.
Moreover, the Tribunal’s refusal to accept that the applicant’s business was destroyed drew upon a further element. I consider that it was entitled to find support for an adverse inference from the “apparent anomaly” due to the failure of the applicant to give information on the basis upon which he obtained his business visa when requested by the Tribunal.
In any event, I do not consider that the Tribunal’s conclusion in relation to this one aspect of the applicant’s claims was a “determination” which their Honours in SGLB contemplated would be vitiated by reference to the test they referred to. As I understand them – and this is an area where further elucidation can be expected from the superior courts – they would require this test to be applied to the ultimate or determinative conclusions reached by the Tribunal.
In the present case, the Tribunal’s rejection of the claimed destruction of the business, was but one of a number of very rational reasons given by the Tribunal for rejecting the credibility of the applicant’s claims and for finding that he did not have a well-founded fear of persecution for a Convention reason.
For the above reasons, I am unable to find any jurisdictional error affecting the Tribunal’s decision, and must dismiss the application.
The parties have agreed upon the costs order which should follow the event.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 14 April 2005
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