SZDBS v Minister for Immigration
[2007] FMCA 1820
•7 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDBS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1820 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 422B, 424A, 424C, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 47 Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 |
| Applicant: | SZDBS |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2004 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 9 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Hindi interpreter |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 20 July 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2004 of 2006
| SZDBS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZDBS”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 20 July 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 1 June 2006 and advised to the applicant by letter dated 22 June 2006, affirming a decision of a delegate of the first respondent made on 25 June 1998 refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act. Pursuant to r.44.11(c) of the FederalMagistrates Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for a final hearing.
A Court book (“CB”) prepared by the first respondent's solicitors was filed and served on 30 August 2006. I have marked it Exhibit “A” and it was read into evidence.
The applicant in these proceedings filed an affidavit affirmed on 2 November 2006, attached to which is a copy of the transcript of the Tribunal proceedings heard on 28 April 2006.
Background
The Tribunal decision of A Younes, reference N0653302, provides the following background information:
The applicant, who claims to be a citizen of India, arrived in Australia on 11 May 1998. On 10 June 1998, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 25 June 1998, a delegate of the Minister refused to grant a protection visa and on 22 July 1998, the applicant applied for review of that decision. On 14 November 2000, the Tribunal constituted by another Member affirmed the decision not to grant a protection visa.
Subsequently, the applicant sought Judicial review and by consent, on 3 March 2006, the Court remitted the matter to the RRT for determination according to law.
(CB 98)
The applicant’s claims are briefly summarised in the written submissions prepared by Ms Mitchelmore for the first respondent. I adopt paragraphs 3 and 4 of those submissions:
3. In a statement attached to his visa application (CB 26), the applicant claimed that as a Muslim, he has been harassed since his days at school. After completing his education, the applicant became involved in Muslim league politics, and “eventually became well known”. The applicant claimed that the treatment of Muslims became worse following the demolition of the Babri Mosque in 1992, with a group of Hindu fundamentalists ransacking his house, looting his belongings, and injuring his youngest brother.
4. In the Winter before his departure, the applicant claimed that he housed a group of Muslims from Kashmir, including an individual named Abdur Razzak. Unbeknownst to him, two members of the group belonged to a militant Kashmiri organisation, with the police raiding his house and arresting one of them. The applicant claimed that following this raid, the police were “after” him, believing that he was a member of the militant group and was helping them in their activities. Fearing that if arrested he would be in gaol for five or six years, after hiding out “here and there”, and after the police raided his house “several times” but failed to arrest him, the applicant left the country.
An important sequence of events occurred in respect of the proceedings before the Tribunal, which have been effectively summarised in the first respondent’s written submissions. I adopt paragraphs 5 to 11 of those submissions:
5. On 25 June 1998, a delegate of the Minister refused the applicant’s protection visa application (CB 57). On the evidence before him, the delegate was not satisfied of the credibility of the applicant’s claims (CB 59). Nor did the delegate accept that there was a real chance that the applicant would be persecuted on account of his religion if he returned to India (CB 60).
6. On 22 July 1998, the applicant applied to the Tribunal for review of the delegate’s decision (CB 62). On 14 November 2000, the Tribunal affirmed the decision of the Minister’s delegate. The applicant challenged that decision, and on 3 March 2006, the Court remitted the matter to the Tribunal by consent, to be determined according to law (CB 98; 67).
7. On 29 March 2006, the Tribunal wrote to the applicant’s migration agent, as his authorised recipient, inviting him to attend a hearing on 28 April 2006 (CB 75). The applicant accepted the invitation (CB 78), and the hearing proceeded on that date (CB 80). At the hearing, the applicant provided to the Tribunal a copy of a letter from his migration agent, dated 12 April 2006, confirming that the applicant wished to conduct the Tribunal proceedings on his own and without their services, and that the agent had informed the Tribunal that they no longer represented him in the review proceedings (CB 81).
8. Subsequent to the hearing, the applicant provided a one page document to the Tribunal, titled “Warrant of Arrest” and dated 28 April 2006 (CB 84). The Tribunal referred to this document in the letter it sent to the applicant, dated 8 May 2006. That letter set out a number of matters that the Tribunal considered to be “information that would…be the reason, or part of the reason, for decision that [the applicant was] not entitled to a protection visa” (CB 85). The information to which the Tribunal referred in that letter included:
(i) The statement attached to the applicant’s protection visa application, parts of which were inconsistent with evidence he gave at the hearing; and
(ii) The applicant’s protection visa application form, in which he said that he arrived in Australia on his Indian passport; the Tribunal considered the applicant’s ability to depart India lawfully to be inconsistent with his claims that he was wanted by the Indian authorities.
The Tribunal also drew the applicant’s attention to country information about freedom of religion in India and the improvements in access to justice, the widespread nature of document fraud and the ease with which false documents could be obtained. The Tribunal referred this latter country information to the applicant in the context of raising concerns with him about the authenticity of the arrest warrant that the applicant provided to the Tribunal, and a document he had provided to the previously constituted Tribunal, which was dated 23 November 1992 and purported to be from an “Advocate”, addressing an adjournment of proceedings involving the applicant.
9. The letter noted that if the applicant did not respond in writing by 31 May 2006, the Tribunal could make a decision on its review of his case without further notice (CB 89). The applicant did not provide a response to the letter within that time frame. On 2 June 2006, the Tribunal sent the applicant notice of handing down its decision (CB 90), following which it was contacted by the applicant’s former migration agent. In a facsimile to the Tribunal dated 7 June 2006, the former migration agent indicated that it had not agreed to act for the applicant, and was not his authorised recipient. However, it indicated that the applicant had sought its assistance to draft a reply to the Tribunal’s s424A letter, and that it would shortly send a letter in response “next week”; in the meantime, it requested the Tribunal “not to proceed to drafting its decision until it has had an opportunity to consider that response” (CB 93).
10. A handwritten notation to that letter by the Tribunal member requested that the applicant be contacted and advised that without his clear authority, the Tribunal was not in a position to communicate with his former migration agent, and to confirm that a decision had been finalised. The member further requested that the former migration agent be contacted and notified that without the applicant’s authority, it could not discuss the applicant’s review with him, for reasons of confidentiality. A file note of 9 June 2006 indicates that a staff member of the Tribunal could not contact the applicant, but did speak with the former migration agent.
11. The applicant had no further communication with the Tribunal before it handed down its decision on 22 jJune 2006, affirming the decision of the Minister’s delegate (CB 96). The applicant was present when the decision was handed down (CB 95).
Ms Mitchelmore further summarised the deliberations and findings of the Tribunal and I adopt paragraphs 12 to 15 of her submissions with respect to the Tribunal decision:
12. The Tribunal found that the applicant was not a credible witness (CB 107). In reaching that conclusion, the Tribunal had regard to the following:
(i) inconsistencies between the evidence given by the applicant at the hearing and evidence in his original application as to the identity of on eof the Kashmiri persons he had housed at the end of 1997 (CB 107);
(ii) details that the applicant gave at the hearing about his claims which were not included in his original application, for example that a local person tipped him off about impending raids on his home after he 1997 incident, which enabled him to escape the police (CB 107); and that his father was also a target of the Hindus after the Babri Mosque incident in 1992 (CB 108);
(iii) the arrest warrant provided by the applicant was inconsistent with the negative response he had given in his protection visa application to the question of whether he had been “convicted of a crime or any offence in any country” (CB 108);
(iv) the applicant’s use of his own passport to travel to Australia, in circumstances where he claimed he was wanted by the Indian authorities (CB 108);
(iv) the evidence that the applicant gave in response to questioning from the Tribunal about the document he had provided to the previous Tribunal; the applicant originally alleged the document related to proceedings in which he was charged, in May or June 1992 with “leading Muslim groups” during the Babri Mosque incident, but then changed his evidence when it was pointed out that the Babri Mosque was not destroyed until December 1992 (CB 108); and
(v) the evidence given by the applicant in response to questioning from the Tribunal about his involvement in the Muslim League, which evidence was considered by the Tribunal to be “vague and general details in relation to a significant claim” (CB 109).
13. In light of all of those matters, the Tribunal found that the applicant was not credible, and that he had fabricated a number of his claims in order to support his application for a protection visa (CB 109). In relation to the document the applicant had provided to the Tribunal to support his claims, and the document provided to the previously constituted Tribunal, it expressed the view that “it would not be difficult to obtain such documents and that document fraud is prevalent in India”. In light of the credibility concerns that it had with the applicant, and in consideration of the evidence as a whole, the Tribunal was not satisfied “that the documents contained truthful and/or accurate information, or that the documents are genuine” (CB 109).
14. The Tribunal concluded that “Looking at the evidence cumulatively and given the adverse credibility finding”, it did not accept any of the claims that the applicant made, either in his protection visa application, or in evidence before it. After effectively listing each of those claims (CB 109-110), the Tribunal concluded that it was not satisfied that the applicant “has a well-founded fear of persecution due to his religion, or that if he were to return to India, there is a chance of getting arrested and detained, or that his life would be in grave danger”. The Tribunal stated that it was “not satisfied that the applicant has suffered or would suffer any of the claimed harm” (CB 110).
15. In relation to the applicant’s claim that Muslims in India were badly treated, the Tribunal appreciated that Muslims may be ill-treated. However, in concluding that this was not of itself sufficient to ground a well-founded fear of persecution in the applicant’s case, it also referred to country information to the effect that the Indian Constitution provided for freedom of religion and that the government generally respected this right in practice, with the law prohibiting arbitrary arrest and detention (CB 110).
Application for review of the Tribunal decision
On 20 July 2006 the applicant filed an application for a review under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, the applicant filed an amended application on 2 November 2006. The applicant identifies nine grounds of review with detailed particulars, many of which are basically submissions identifying passages from the transcript, the Court Book and the Tribunal decision. Other particulars contain reference to authorities relied on by the applicant to support each individual claim. The approach I will adopt is to set out each claim together with its particulars together with the submissions filed by Ms Mitchelmore. I will then incorporate relevant oral submissions in respect of each claim.
Submissions and reasons
The applicant is a self-represented litigant who appeared with the assistance of a Hindi interpreter. As indicated above, the amended application filed by the applicant incorporates submissions and I will deal with each ground in turn below. When the applicant was invited to make oral submissions in support of his application, he declined and indicated that he would rely upon his amended application and had no further submissions.
Ground one of the applicant’s amended application states:
1. The decision of the Second Respondent made at Sydney on 1 June 2006 and handed down on 22 June 2006 affirming a decision of a delegate of the First Respondent to reject the Applicants’ application for protection visas (“The Tribunal’s decision”) was not a “private clause decision” within the meaning of s 474 of the Migration Act 1958.
Ms Mitchelmore submits that this is not a ground of review but rather a conclusion that may arise if the applicant were to establish that the Tribunal made a jurisdictional error. This ground clearly misunderstands of the operation of the Migration Act and does not need to be considered further.
Grounds two and three allege apprehended bias and I have dealt with them as the one issue. Some of the particulars detail alleged breaches and then proceed to submissions. The amended application’s complete particulars are set out below, and include elements which are submissions. Grounds two and three respectively state:
2. The Tribunal decision was infected with apprehended bias and this was detrimental to the applicant getting a fair hearing. There are several instances of this bias:
Particulars
i) Firstly, herein are the instances of the Tribunal’s perceived bias during the course of the hearing on 28 April 2006. The examples shown here are taken from the transcript of the hearing which is attached for the record.
ii) The Tribunal on page 21, line 30 of the transcript stated:
“I think there is a clear inconsistency in the evidence that you are giving, which, when I consider everything else could raise some real doubt about you as a credible person, Mr Khan.”
iii) On page 21, line 40 of the transcript the Tribunal used the words ‘blatant inconsistencies’. The Tribunal refused to accept the applicant’s reason at line 25 of page 21 of the transcript and attacked the applicant by using such disparaging remarks to question his credibility.
iv) At line 7, page 22 of the Transcript the applicant stated during the course of the hearing: “At the moment, I’m very confused now, because I have lots of tension…” At line 12 of page 22 of the transcript the Tribunal stated: “But frankly, Mr Khan, you do not appear to be particularly tense to me. Your main concern is about getting back to work…”
The Tribunal in this instance demonstrated its biased opinion regarding the state of mind of the applicant.
v) On line 13 of page 23 of the Transcript the Tribunal stated: “I think you have chosen to stay in Australia to work. I understand that…” This is clearly another example of the Tribunal having a closed mind to the whole proceeding because by stating “you have chosen to say in Australia and work” the Tribunal displayed apprehended bias and nothing the applicant would say would make a difference.
vi) At line 6 on page 26 of the transcript the Tribunal stated: “…I need to also tell you that making significant new claims in the course of the hearing might also indicate to me that you are fabricating claims, names, incidents – whatever comes to your mind.”
The Tribunal again made its feelings known during the course of the hearing without realising that the so-called ‘new claims’ only came about because of the questions posed by the Tribunal. The Tribunal was biased in assuming that the claims of the applicant in response to the questions posed by it were fabricated.
vii) In reference to a document given to the previous member of the Tribunal of the previous RRT file, the present Tribunal stated at line 29, page 29 of the Transcript: “I need to put to you, Mr Khan, that I believe it would not be difficult for you to obtain such a document fraudulently. I would not be difficult for you to go to this person, or to obtain this letter…Just because I have this letter here, it doesn’t mean I believe its contents”
In stating its views the Tribunal displayed its bias without substantiating with evidentiary proof how the document was obtained fraudulently.
viii) Similarly, the Tribunal under the heading “Finding and Reasons” reached a conclusion that it was satisfied of the following:
a) The Tribunal is satisfied that the applicant is not a credible witness – CB 107;
b) the six sub-paragraphs under ‘Findings and Reasons’ the Tribunal reached the same conclusion – ‘…raising doubts about the claim and the applicant’s credibility generally – CB 107 – 109.
The above conclusions showed bias on the Tribunal’s part because the Tribunal had already expressed its doubts as to the applicant’s credibility during the course of the hearing as shown above.
ix) The test of apprehended bias is set out in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 (24 May 2001) 179 ALR 425 (“Ex Parte H”) at [27]-[32]. – Ex parte H was applied in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 (2003) 131 FCR 102 (Kenny J) – vice in that case was that, by the Member’s conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim i.e. that he had fabricated his account – the application of Ex parte H, and the relationship between judicial review on grounds of apprehended bias and irrationality in reasoning, was extensively discussed by Allsop J, with whose reasons Moore and Tamberlin JJ agreed, in NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 (2004) 214 ALR 264 – “Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly”
x) The Tribunal was required to afford the applicant an opportunity “to give evidence and present arguments relating to the issues”, and for that purpose to conduct a hearing which was “real and meaningful” and not to be “a hollow shell or an empty gesture” - (see s.425 and NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30] and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33]) - evidence taken at the hearing was required to “be given a proper, genuine and realistic consideration in the decision to be subsequently made by the RRT” – (see NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77) – conduct in relation to the hearing which might cause the relevant apprehension that the Tribunal did not have a mind prepared to allow the applicant that opportunity, and genuinely to maintain its detachment of judgment until that opportunity was fully afforded, would reveal a jurisdictional failure by the Tribunal – such conduct should be found in the present proceedings.
xi) That the Tribunal’s decision should be quashed due to features of its hearing and reasons which might cause a fair-minded lay observer to reasonably apprehend that the impartial mind to deciding whether the applicant’s refugee claims satisfied the Convention definition of “refugee” as adopted by s.36 – the tests of apprehended bias had been established.
3. Conduct in relation to the hearing which might cause the relevant apprehension that the Tribunal did not have a mind prepared to allow the applicant that opportunity, and genuinely to maintain its detachment of judgment until that opportunity was fully afforded, would reveal a jurisdictional failure by the Tribunal. extensive
Particulars
i) From line 9 on page 39 of the transcript to line 29 of page 44 the Tribunal proceeded to question the applicant about the Muslim League and his association with it.
ii) The Tribunal had prepared for the hearing intending to test the applicant’s knowledge about the history, at a national level, of Muslim League, notwithstanding the absence of anything in the applicant’s claims which would suggest that he claimed to be more than an active party worker or member in the Muslim League.
iii) The Tribunal administered its history test which included questions as to the far distant origins of the Muslim League before either independence or democracy reached India, and without any proper foundation for its expectation that this would be familiar to the applicant.
iv) At the conclusion of its test, the Tribunal told the applicant (line 21 page 44 of transcript); “I have concerns about you apparent lack of knowledge about certain matters relating to Muslim League which I believe is incommensurate with your claim that you were an active member of the Muslim League.”
v) The applicant appeared confused and intimidated by the Tribunal’s conduct into giving incomplete evidence, and discouraged from giving further evidence.
vi) The Tribunal’s conduct similarly created the impression in the mind of the applicant that the Tribunal had decided against the applicant, and that there was no purpose in seeking to change its adverse opinions.
vii) The likelihood that the Tribunal had closed its mind prematurely was confirmed by the Tribunal’s subsequently published reasons, whose foundation was its opinion that the applicant had “provided vague and general details in relation to a significant claim, which raise doubts about the claim and his credibility generally.”
viii) It is apparent from the transcript, the Tribunal’s ultimate reasons, and the transcript of the hearing reveals (line 37 page 42), that the Tribunal member brought to the hearing an article about the Muslim League downloaded from an internet web site: What was really contained in that article was not revealed. A cursory mention of the that the Muslim League was founded in 1906 was all that was shown to the applicant. No research appears to have been performed before or after the hearing to discover the extent to which a person’s involvement with the Muslim League is concerned. Nor did the Tribunal research the method of how a person could become a member of the Muslim League.
ix) For the above reasons, the tests of apprehended bias and jurisdictional error have been established in this case.
The authority in establishing that there was a jurisdictional error and apprehended bias on the part of the Tribunal is the case of: SZHCI v Minister for Immigration & Anor [2006] FMCA 1016 (26 July 2006).
Ms Mitchelmore submits that the test of apprehended bias is set out in Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425. The Court noted that some care must be taken in applying the test of apprehended bias and distinguished between curial proceedings conducted in public to administrative proceedings held in private. The Court also noted at [30] and [31] that where the credibility of an applicant is in issue “the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously”:
…Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
In the matter before this Court, the applicant filed a transcript of the Tribunal hearing held on 28 April 2006. The duration of that hearing was just over two hours and, after reading it in its entirety, I acknowledge that the Tribunal member had to repeat questions in order to obtain responses from the applicant. Furthermore, the transcript on its face does not indicate that the member’s questions were overly vigorous or that she did not provide the applicant with opportunity to respond. The nature of the questioning demonstrates that the Tribunal was not pursuing a pre-determined position but providing the applicant with an opportunity to adequately explain his position. The member took considerable care to recast or rephrase questions to ensure that the applicant provided a response which indicated that he understood the questions. An interpreter was present for the entirety of the hearing, but was not required to interpret each question as the applicant said at the beginning that he understood the Tribunal member. When the applicant did not understand a question, or the member could not understand a reply, the interpreter intervened and provided interpretation.
Ms Mitchelmore submits that although the applicant had already had eight years to provide documentary evidence, the Tribunal allowed him more time to provide further documents.
Ms Mitchelmore submits that in contrast to the transcripts in Ex Parte H and NADH v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264, a hypothetical fair minded lay person properly informed of the nature of the proceedings and the matters in issue in this case, would not reasonably apprehend that the Tribunal did not bring an impartial mind to the resolution of the applicant’s review application.
It is submitted that the applicant also appears to assert that the Tribunal’s reasons support an apprehension of bias (see particular (xi) of ground two, and the quotation from NADH in particular (ix)). However, the applicant does not particularise which parts of the Tribunal decision are unreasoned, or constitute “mere assertion lacking rational or reasoned foundation”: particular (ix) of ground two. An applicant must demonstrate a predisposition of the Tribunal towards a result other than one reached by an evaluation of the material before it in a fair way, with a mind open to persuasion in favour of the applicant.
It is submitted that the Tribunal decision does not display an unreasoned approach to the consideration of the applicant’s claims. The Tribunal carefully set out the applicant’s evidence, including that given at the hearing, its evaluation of that evidence and its conclusions. Its finding that the applicant was not a credible witness was a finding of fact that was open to it, and one which necessarily impacted upon its assessment of his claims and the documents he provided in support. Contrary to the applicant’s submission, the Tribunal’s assessment of the evidence does not “confirm” that it had prematurely brought a closed mind to the matters in issue: particular (vii) of ground three.
A fair reading of the Tribunal hearing transcript, in conjunction with the decision, does not support the applicant’s claim of apprehended bias on the part of the Tribunal member. It is acknowledged that there is limitation in this approach and that a review of the actual hearing tapes in some circumstances may give a different impression. However, the transcript has a clear pattern of clearly stated and formulated questions to which the applicant provided very limited responses. There were no instances where he was interrupted, spoken over or prevented from giving or completing a response. The sequence of questions indicates that the Tribunal was reviewing of the applicant’s claim in a manner appropriate to an inquisitorial review. I am satisfied that grounds two and three cannot be sustained.
Grounds four and seven allege a failure to put information to the applicant and I will also deal with them as one issue. Grounds four and seven respectively state:
4. There was a denial of natural justice on the part of the Tribunal because of a failure to disclose to the applicant the substance of adverse information relied on by the Tribunal in reaching an adverse decision against the applicant. This denial of natural justice amounts to jurisdictional error.
Particulars
i) The decision of the Tribunal is affected by jurisdictional error in that it did not comply with its obligation to put adverse information relied upon as a part of the reason for the decision to the Applicant for comments, in accordance with s424A of the Migration Act 1958 (Cth), having regard to the Full Court of the Federal Court decision in SZEEU v MIMIA [2006] FCAFC 2.
ii) In sub-paragraph 3 of the court book (CB109) the Tribunal relied on information that was contained in the Department’s file. This information related to the applicant’s passport and his departure from India. The Tribunal stated:
“In response to Question 25 of Form C of the AVP, the applicant stated that he had travelled to Australia using his own Indian passport, issued in Calcutta in 1994. In the DIMA file, there are three copies of the applicant’s passport indicating that he departed India using that passport. The Tribunal is of the view that the applicant’s ability to depart India lawfully raises serious doubts about his claims that he was wanted by the Indian authorities and his credibility generally”
iii) In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 – held that the applicant did not give to the Tribunal the date of his Australian visa for the purposes of the review when responding to questions at the hearing – held further that the information formed part of the Tribunal’s reasons for affirming the decision of the delegate – the Tribunal’s in using this information its reasons for rejecting the credibility of the applicant’s essential refugee claims – is breach of s.424A – and thus a jurisdictional error.
7. Another critical question that has to be addressed is whether the conduct of the Tribunal failed to observe the requirement of s.424A of the Act, and therefore, whether the Tribunal purported to make a decision that was not authorised by the Act.
Particulars
i) The Tribunal on page 110 CB relied on independent country information and stated “…the Indian Constitution provides for the free of religion and that the government generally respected this right in practice…”
ii) The Tribunal did not disclose this information to the applicant at any stage in order to allow the applicant to rebut the issue of discrimination and state protection.
iii) The Tribunal was in breach of s.424A and this therefore constitutes a jurisdictional error.
iv) On whether the government was willing and able to protect the applicant from serious harm test as stated in WAHK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 12 at 12, the Tribunal did not address the question of whether there were other parts of India to which the applicant could reasonably relocate which were willing and able to provide protection.
Ms Mitchelmore submits that although ground four pleads a denial of natural justice, the particulars in support allege a breach of s.424A of the Migration Act. The particular states that the Tribunal failed to notify the applicant in writing that his departure from India on a passport issued in his name would be a reason or part of the reason for its decision (particular (ii) of ground four). However, the applicant provided that passport to the Department for the purposes of his original visa application, but not to the Tribunal. This allegation overlooks the terms of the s.424A letter dated 8 May 2006 and sent to the applicant after the hearing. That letter included the following passage:
Furthermore, in response to Question 25 of Form C of the [protection visa application], the applicant stated that he had travelled to Australia using his own Indian passport, issued in Calcutta in 1994. In the DIMA file, there are copies of the applicant’s passport indicating that he departed India using that passport. The Tribunal is of the view that the applicant’s ability to depart India lawfully raises serious doubts about his claims that he was wanted by the Indian authorities, and his credibility generally.
(CB 89)
The Tribunal pointed out that this information was relevant because it raised doubts about the applicant’s credibility and the veracity of his claims. The applicant failed to respond to the Tribunal’s letter within the time period requested, and the Tribunal was entitled to proceed to make its decision, pursuant to s.424C(2) of the Migration Act.
The “Invitation to Comment on Information” letter issued by the Tribunal after its hearing on 28 April 2006 raised issues which arose from the applicant’s oral evidence at that hearing. The letter clearly states that “(t)his information is relevant because as explained above, the Tribunal is of the view that DIMA file and other matters discussed above raise doubts about the applicant’s credibility and the veracity of the claims” (CB 89). The applicant was invited to respond by 31 May 2006. His failure to do so in no way affects the discharge of the Tribunal’s responsibility to draw his attention to issues from the Department file that may be a reason or part of the reason of the Tribunal’s ultimate decision. The passage identified by the applicant in particular (ii) was raised in that letter. The Tribunal fully discharged its obligation when it proceeded to make its decision pursuant to s.424C(2) of the Migration Act and no jurisdictional error arises from this course of action. This ground of review cannot be sustained.
Ms Mitchelmore submits that ground seven alleges a further breach of s.424A of the Migration Act – that the Tribunal failed to put to the applicant country information about freedom of religion in India. Ms Mitchelmore submits that that information, not being specifically about the applicant, falls directly within the exception to s.424A(1) in s.424A(3)(a). The Tribunal did, nonetheless, put this information to the applicant in its letter of 8 May 2006 (CB 87). Section 422B of the Migration Act does not apply to these proceedings, because this application preceded its enactment. Therefore, the Tribunal putting this information to the applicant and providing him with an opportunity to comment on it was consistent with the common law requirements of the natural justice hearing rule.
The last particular of ground seven appears to be unrelated to s.424A but claims a failure of the Tribunal to consider relocation: particular (iv) of ground seven. In circumstances where the Tribunal did not find that the applicant had a well-founded fear of persecution for a Convention reason, the question of relocation simply never arose.
Contrary to the applicant’s argument, the issue of relocation only arises when it is established that the applicant is subject to persecution which may be avoided if he relocates to another part of his country of origin where persecution is unlikely to exist. In this matter, the Tribunal did not find a real chance of the applicant being persecuted in India in the reasonably foreseeable future on the basis of him being Muslim. There is therefore no obligation on the Tribunal to further examine the question of relocation. In the circumstances, I am satisfied that this ground cannot be sustained.
Ground five of the amended application alleges a failure of the Tribunal to consider the applicant’s claims of persecution. Ground five states:
5. The Tribunal failed to consider the applicant’s claims of well-founded fear of persecution. A failure to deal with a particular claim is a failure on the part of the Tribunal to properly exercise its jurisdiction.
Particulars
i) From the last paragraph of CB 109 to the end of the paragraph CB 110, the Tribunal used one long sentence to summarise all the applicant’s claims and just conclude by stating: “In essence and for the stated reasons, the Tribunal is not satisfied that the applicant has suffered or would suffer any of the claimed harm.”
ii) A failure to deal with a particular claim is a constructive failure to exercise jurisdiction: Htun v Minister for Immigration (2001) 194 ALR 244; NABE v Minister for Immigration (No 2) [2004] FCAFC 263.
iii) Where a relevant consideration arises on the face of the material before the Tribunal, that information will constitute a claim of an applicant that must be addressed, even though the applicant does not specifically articulate the claim. In SBBA v Minister for Immigration [2003] FCAFC 90 the Full Court stated at [8] that:
It is well established that all issues raised by the evidence before the Tribunal must be considered even if the applicant does not articulate all such claims.
A similar point was stressed by the Full Court in NABE v Minister for Immigration (No.2) FCAFC 263, wherein the Court made reference to High Court decision of Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [63]:
It is plain enough in the light of Dranichnikov, 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 a dispositive of review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.
The Court also stated at [58]:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J)
iv) The manner in which the applicant’s claims have been summarised and finalised would suggest to an ordinary person that the Tribunal has shut its mind and approached the hearing with a pre-determined notion that the applicant was one lacking credibility and therefore his claims were not credible.
v) For the reasons specified above the Tribunal was in jurisdictional error because the applicant’s claims were not treated as independent claims, rather it was all summarised as one.
Ms Mitchelmore submits that although the authorities cited in support of this ground address the question of failure on the part of the Tribunal to deal with claims raised by an applicant, this applicant appears takes issue with the manner in which this Tribunal summarised its conclusions. The Tribunal did refer in order to every claim made by the applicant (CB 110-111). There was arguably no need for it to do so, as it did not accept that the applicant was a credible witness.
The Tribunal was entitled to reject the applicant’s evidence as to why he feared persecution if he returned to India and why that fear was well-founded. It rejected each of the applicant’s claims because of credibility.
The Tribunal’s adverse credibility findings, and consequent rejection of the applicant’s claims, are a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. I am satisfied that the Tribunal’s finding in this respect was open to it on rational grounds and on the material before it. It discloses no error in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 47. The Tribunal decision indicates the concerns it had about aspects of the applicant’s evidence which were raised with him during the hearing. Subsequent to the hearing, the Tribunal invited the applicant to respond to a number of issues which concerned credit but the applicant failed to accept that invitation. The applicant was unsuccessful because of view the Tribunal took of the facts his credibility. I am satisfied that this ground cannot be sustained.
Ms Mitchelmore submits that ground six alleges a failure to consider the law in relation to State protection, and ground ten alleges a failure to properly consider discrimination amounting to persecution in India. Ms Mitchelmore submits that both grounds run contrary to the Tribunal’s express consideration of the applicant’s claim that Muslims in India were badly treated and its appreciation of this fact.Grounds six and ten respectively state:
6. The Tribunal failed to correctly apply the law in relation to State Protection and did not even consider this aspect in relation to the applicant’s claims.
Particulars
i) S152/2003 v Minister for Immigration [2004] HCA 18 stands for the principle that in deciding the question of effective state protection the Tribunal should consider whether the applicant has provided evidence that the state lacks “the standard of protection required by international standards.”
ii) There was no particular discussion on that issue during the hearing yet the Tribunal reached a decision not having considered state protection. This was a denial of procedural fairness and therefore constitutes a jurisdictional error.
10. The Tribunal failed to properly consider discrimination amounting to persecution in India having applied the wrong test.
Particulars
i) The applicant contend (sic) that the Tribunal failed to properly consider the serious harm that the applicant is likely to face if he returned to the country considered by the Tribunal to be safe to return to.
Ms Mitchelmore submits that ground six alleges a failure to consider the law in relation to State protection. Ground ten alleges that the Tribunal failed to properly consider discrimination amounting to persecution in India, and “applied the wrong test.” Both these allegations run contrary to the Tribunal’s express consideration and appreciation of the applicant’s claim that Muslims in India were badly treated. The Tribunal referred to independent country information about freedom of religion in India and the improved accessibility of the justice system to all citizens. That information was put to the applicant for comment (CB 87, 110). The Tribunal was entitled to take the view that, in light of this information, it could not be satisfied that without more, there was a real chance of the applicant being persecuted in India in the reasonably foreseeable future on the sole basis of being Muslim.
Ground eight of alleges unreasonableness and states:
The decision of the Tribunal was so unreasonable that no reasonable Tribunal could have made the decisions in the manner in which the Tribunal in this matter did.
Ms Mitchelmore submits, and I am satisfied with the submission, that aside from the assertion that the Tribunal’s decision was unreasonable in the Wednesbury sense, no particulars were provided in support: Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223. In the absence of any basis for this claim, and in circumstances where the Tribunal approached its task carefully and thoroughly, this ground cannot be sustained.
Conclusion
The applicant is a self represented litigant assisted by a Hindi interpreter. He has been assisted in the preparation of a detailed amended application with a number of particularised grounds. However, some are simply bland statements alleging error. When invited to make any oral submissions, the applicant declined and said he would rely on his amended application. He also filed a transcript of the Tribunal hearing but did not refer to its contents or raise any issues arising from it. Unfortunately the applicant appeared to have little or no knowledge of the issues raised in the amended application. I am satisfied that none of the grounds of review in the amended application can be sustained. Nor is it apparent from the face of the decision that any other ground of review exists to suggest that the Tribunal made a jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 7 November 2007
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