SZDRJ v Minister for Immigration
[2005] FMCA 956
•1 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDRJ v MINISTER FOR IMMIGRATION | [2005] FMCA 956 |
| MIGRATION – Refugee – failure to consider refugee claims – claims put to the Department after delegate’s decision made – bias – procedural fairness – natural justice. |
| Migration Act 1958, s.424A Federal Magistrates Court Rules 2001, Rule 21.02(2)(a) Acts Interpretation Act 1901, s.25C |
| Phanouvoung v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28 |
| Applicant: | SZDRJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1578 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 21 December 2004 |
| Date of Last Submission: | 21 December 2004 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant to pay the respondent’s costs set in the amount of $6000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1578 of 2004
| SZDRJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 26 May 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 September 1998, of which the applicant was notified by letter dated 2 October 1998. This decision affirmed the decision of a delegate of the respondent Minister made on 28 August 1997 to refuse a protection visa to the applicant.
The applicant is a citizen of Nepal. He arrived in Australia on 1 August 1997 and lodged an application for a protection visa with the respondent’s Department on 18 August 1997. On 28 August 1997 a delegate of the respondent Minister refused to grant a protection visa, and on 25 September 1997 the applicant applied for review of that decision. The application to the respondent’s Department is at Court Book CB 1 to CB 24. At CB 39 is a copy of a letter dated 29 August 1997 from the applicant’s migration representatives sent to the respondent’s Department confirming that they act for the applicant and providing an outline of the applicant's refugee claims. The representatives sought that no action be taken on the applicant's application while they were still compiling “complete details” and obtaining information on behalf of the applicant. It appears however that the Minister’s delegate had already made the decision to refuse the applicant on the day before, namely 28 August 1997. The delegate found that the applicant did not meet the relevant criteria for a protection visa as he had made no specific claims to fear harm of mistreatment on return to Nepal. The application was refused on that basis. The application for review to the Tribunal received on 25 September 1997 is at CB 49 to CB 52, and in seeking review states that a complete statement of claims will be provided. The applicant's adviser subsequently provided a submission dated 31 August 1998, with attachments, which detailed the applicant's refugee claims. This is at CB 65 to CB 162.
In his application to the Tribunal, and in particular the correspondence of 31 August 1998, the applicant claimed protection on the ground that he would be at risk of persecution if he returned to Nepal as he was married to his uncle’s daughter, a first cousin, and his marriage was in violation of social, ethnic and religious customs in Nepal, and contrary to the law in that country, carrying a penalty of two years imprisonment.
The Tribunal's decision record is copied at CB 169 to CB 181. As parts of the decision record were not fully reproduced, the respondent filed a Supplementary Court Book (SCB) and the Tribunal's decision is set out at SCB 3 to SCB 15. The Tribunal's findings are summarised at paragraph 7 of the “Respondent’s Outline of Submissions” filed in this matter on 20 December 2004. I adopt this paragraph for the purposes of this judgement with the exception that the references to CB are amended to reflect the SCB:
“The Tribunal affirmed the decision of the delegate on
30 September 1998. In so doing, it made the following findings:a)The Tribunal accepted that the applicant may have married his cousin and that this may be something not condoned by his particular clan or grouping. (SCB 10.3)
b)The Tribunal accepted that a law exists in Nepal that criminalises marriage inter alia to one’s cousin. (SCB 10.3)
c)The Tribunal noted that, despite the fact that the applicant was married in 1993, neither hr [sic: “he”] nor his wife had been questioned or detained by the police in the period since, nor had they been prevented from obtaining passports or entering or leaving Nepal. No report from the US State Department or Human Rights Watch or Amnesty International referred to persecution of the kind claimed by the authorities or sectors of Nepalese society. (SCB 10.5)
d)The Tribunal did not accept that any law against such marriages was enforced and concluded that the applicant did not face a real chance of persecution from the authorities for reasons of his marriage if he were to return to Nepal. (SCB 10.9)
e)The Tribunal did not accept that the applicant’s or his wife’s families would persecute them. It noted that they had not done so in the past, though they had the opportunity to do so. (SCB 11.3)
f)The Tribunal did not accept that the applicant had a real fear from either the authorities or family members. (SCB 11.4)
g)The Tribunal found that even if the Nepalese law were to be enforced the applicant would face prosecution under a law of general application applied in a non-discriminatory fashion and would not be persecuted for a Convention reason. (SCB 11.5 to SCB 12.9)
h)In addition, the Tribunal did not accept that the applicant was a member of a particular social group of the kind he defined. (SCB 13.1)
i)Furthermore, the Tribunal did not consider that the kind of harm that the applicant might suffer (whatever the reason) was serious enough to constitute persecution. (SCB 13.4 to SCB 14.6)”
The grounds set out in the application to the Court are that:
“1. The Tribunal failed to consider my refugee claim in light of the existing socio-political situation in Nepal. They have overlooked many important issues and did not consider the traditional Hindu ritual in Nepal. Moreover the information I had submitted in justification of my claim have not been taken by the tribunal ‘without prejudice’ into consideration.
2. The tribunal has accepted that the applicant has married his own cousin but did not take in consideration of the consequence of such social ‘taboo’ in Nepal. The applicant has undergone a range of difficult experiences in the past because of his anti-ritual marriage and the applicant would face the similar bitter experience in the future again.
3. The tribunal is a neutral body which is in the business of considering any refugee case in light of the authentic information and reliable witnesses and should be unbiased. It is matter of regret that the tribunal was not free from biasness and prejudice while reviewed by the claim. As such I was deprived from the natural justice.
4. The applicant claims that the Tribunal was influenced by any biased and has drew a wrong perception of his persecution and intimidation that he has undergone in the superstitious and fanatic religious society back in Nepal. The applicant claims that he was denied natural justice and procedural fairness when the Tribunal member formed the view about him before the hearing.”
The applicant also filed an Outline of Submissions which appeared to argue the additional following grounds:
“a) That there was a denial of procedural fairness and natural justice in that the Tribunal relied on independent country information, and failed to disclose the “particular construction” it gave to this information.
b)That the applicant was not given an opportunity to provide other information that would rebut the information relied on by the applicant.
c)That the issue of relocation was never raised with the applicant.
d)That the Tribunal did not have jurisdiction in this matter because the applicant has not initially made any Convention based claim to the delegate and that this is reflected in the delegate’s decision record [Test 3 of Part C]. The applicant seeks to rely on Phanouvoung.”
At the hearing before me the applicant was unrepresented and appeared with the assistance of an interpreter in the Nepalese language. The applicant was earlier referred to a panel lawyer under the Court’s Legal Advice Scheme and confirmed at the hearing before me that he had received such advice. In spite of my attempting to assist the applicant in supporting his written claims he was unable to add anything to the matters asserted in his application and his written submissions, which he said were prepared with the assistance of a “friend”.
In addition to written submissions filed in this matter, the respondent also filed a Notice of Objection to Competency. Mr. Lloyd who appeared for the respondent Minister at the hearing before me, submitted that the Minister did not press the Notice of Objection to Competency, but did press the delay in the applicant bringing the application to this Court as a discretionary factor for refusing relief. The Notice of Objection to Competency also contains references to the applicant having brought the same Tribunal decision before me now before the High Court and the Federal Court. Nonetheless, Mr. Lloyd submitted that the Court should look at the merits of the substantive judicial review application, but that the issue of the delay could be something that the Court would consider generally in the exercise of discretion to refuse the relief sought. In any event, and to put the matter beyond any doubt, the hearing was conducted on the basis that the Court would look in a substantive way at the grounds put forward by the applicant.
The applicant argues at the end of his written submissions that the Tribunal lacked jurisdiction to make the decision that it made on the applicant's claims. The applicant makes reference to the case of Phanouvoung v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 (3 November 1999) as authority for the proposition that the applicant had not put forward any claims to the respondent’s delegate and that on this basis the Tribunal did not have jurisdiction to hear the matter, and that the applicant's application to the Tribunal should have resulted in the Tribunal setting aside the delegates decision thus enabling the applicant to make a fresh application to the respondent’s Department.
There has been extensive consideration by the Courts on the question of the Tribunal’s jurisdiction to review a decision of the Department where, for any number of possible reasons, the initial application to the Department has been invalid as a result of failure to comply with the relevant statutory requirements. Having reviewed the relevant authority, the facts of the case before me today are most closely analogous with the Full Federal Court authority of Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906. In that case, as is the case here, the application form of the appellant, at the time it was lodged with the respondent’s Department, indicated “statement to follow”. The promised statement was not supplied prior to the decision by the delegate but was received by the Department subsequently. There, the Full Federal Court [2-1] held that the Tribunal did have jurisdiction. Spender J. acknowledged that an application with a “statement to follow” was inchoate, and not a valid application until that statement had been provided. However, his Honour went on to say that where that statement had been provided to the Department, even after the delegate’s decision had been made at [23]:
“In my opinion, if the delegate of the Minister has the power to entertain an application constituted by an originating document followed by a statement of the grounds on which protection is claimed, as in my opinion the delegate does, so too does the RRT. In this case the RRT, in performing its function, concentrated on the merits of the appellant’s claim to protection under the Refugees Convention.”
The question in this case then, is whether the letter sent by the applicant’s migration representatives dated 29 August 1997, the day after the delegate of the respondent Minister made the decision to refuse the protection visa, was enough to cure the deficiencies in the initial application form and satisfy the requirement for a valid application. In the case of Bal v Minister for Immigration & Multicultural Affairs [2002] FCAFC 189, the Full Federal Court, although holding that the Tribunal had no jurisdiction to review the decision as the additional information was supplied by the applicant to the Tribunal and not the Department, considered what is required for an application to be deemed complete. With reference to the principle of “substantial compliance” to prescribed forms (s.25C of the Acts Interpretation Act 1901) the Court referred and agreed with the approach taken in the cases of Nie v Minister for Immigration & Multicultural Affairs [2000] FCA 347 and Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273. In the case of Nie, Heerey J indicated that a mere reference to the fear of persecution on the ground of political opinion was sufficient to render the application valid. In Shahabuddin, although more detailed claims had been made, Katz J. employed a similar approach to the notion of “substantial compliance”.
In the case before me now, the letter provided to the respondent’s Department by the applicant’s migration representatives clearly outlined the nature and circumstances of the applicant’s claims. It clearly stated that he feared persecution if he returned to Nepal as he was married to his uncle’s daughter who is a first cousin, and their marriage is outlawed in accordance with Nepal’s social, ethnic and religious custom. Accordingly, the doctrine of “substantial compliance” is satisfied and the amalgam of this letter to the Department and the initial application to the Department results in a valid application. Furthermore, despite the fact that the letter was provided to the Department after the delegate’s decision, as it was provided to the Department and not the Tribunal. Following Yilmaz, the Tribunal has jurisdiction to review the decision.
The applicant's first complaint is that the Tribunal failed to consider his refugee claim in light of the existing socio-political situation in Nepal, that it overlooked many important issues and did not consider the traditional Hindu rituals in Nepal. The applicant further contends that information that he had submitted in support of his claim had not been taken into account by the Tribunal.
The Tribunal had before it the claims as put by the applicant's adviser in writing both in the letter to the respondent’s Department and subsequently by letter to the Tribunal supported by documentary material and had the benefit of hearing from the applicant at a hearing before it on 3 September 1998. The Tribunal’s “Findings and Reasons” are set out at SCB 10.3 to SCB 14. It found at SCB 10.9 that there was not a well-founded fear of persecution from the authorities in Nepal in relation to the applicant's claim that he had married his cousin. The Tribunal accepted at SCB 10.3 that the applicant may have married his cousin, and that this may not have been condoned by his particular clan or grouping. The Tribunal made specific reference to information supplied by the applicant, which stated that incest in Nepal may include marriage to a number of close relatives, and was prepared to accept that a law existed in Nepal in relation to incest, and that incest may be punishable by imprisonment of up to two years depending on the relationship. The Tribunal however based its finding that there was not a well-founded fear of persecution by the authorities on:
1)That despite the fact that the marriage took place in 1993 that in the following five years neither the applicant nor his wife had been questioned or detained by the authorities in all the time that they had been in Nepal. (SCB 10.5)
2)Nor had they ever been prevented from obtaining Nepalese passports, or entering or leaving the country by the authorities. (SCB 10.6)
3)That the Tribunal had examined the US State Department Reports, Human Rights Watch and Amnesty International reports and could find no reference to persecution for such matters either by authorities or by particular sectors of society. (SCB 10.7)
4)That had the authorities wished to prosecute the applicant for what is a criminal matter, then there would have been ample opportunity to do so as the applicant was a member of the Gurkha military unit, whose whereabouts and movements could be easily established by police, with the British Army. Yet the applicant was never approached by police. (SCB 10.8)
5)The Tribunal placed little weight on the applicant's claims that his wife had been twice visited by police recently, given that these claims were only made at the hearing before it. (SCB 10.8) This was in circumstances where the applicant had ample previous opportunity to raise this important fact.
Given the above, the Tribunal was of the view that even if such a law proscribing marriage to a first cousin did exist in Nepal, that it was not necessarily enforced in Nepal and on this basis it found there was not a real chance that the applicant would face persecution by the authorities if he were to return to Nepal now or in the foreseeable future.
The Tribunal then went on, at SCB 11.1, to look at that the situation of whether the applicant would be persecuted by his or his wife’s family. The Tribunal said that it had difficulty with this argument in that, despite the applicant's claimed harassment by the family, nothing had happened to either the husband or the wife in all the time that they were in Nepal. The Tribunal said that there was nothing to show that they were directly approached by their families and while the applicant indicated that they were in hiding, the Tribunal had some doubts given the relatively open nature in which he entered and left the country with his military unit and undertook training for two months in barracks before being released from military service. The Tribunal considered that had the family wished to harm the applicant or his wife there would have been ample opportunity to trace the applicant and to do so. (SCB 11.3) This view was reinforced by the fact that the applicant was in Britain, on his own submission, for several months in late 1996 and early 1997 after he had indicated that his family and the authorities were pursuing him. The Tribunal considered that the applicant would have taken steps to apply for refugee status in that country had the fear been real from either the authorities or the family, and it did not accept his explanation that he did not know how to do this given that he was subsequently able to ascertain that Australia or Canada might well be places where he and his wife might be able to go. (SCB 11.4)
The Tribunal went on to consider that even if it was wrong in these findings, and that there were Nepalese laws of incest which were applicable to the applicant and that he would face a jail term of two years, it did not accept that the applicant, even in those circumstances would be a refugee within the meaning of the Convention (SCB 11.5). The Tribunal looked at the applicant's argument that such a law is unjust, and while it accepted that countries provide different levels of freedoms and conditions for all their citizens, it noted that such a matter falls outside the scope of the Refugee's Convention where individuals must of course fear persecution for reasons outlined in the Convention. The Tribunal said that there was nothing in the information about Nepal that it had seen, or in the material submitted by the applicant, which would suggest that the law of incest in Nepal, even if it did apply to the applicant, is one which would be applied differentially to him for a Convention reason, or indeed for any reason at all (SCB 12.2). The Tribunal further noted, that as the applicant's adviser seemed to suggest, it appeared that such a law is a generally applicable criminal law and the punishment would apply to all citizens of Nepal. (SCB 12.3) The Tribunal could not find the necessary Convention nexus between such punishment and the reasons in the Convention for recognition as a refugee. Also in looking at the conditions that might apply to those held in prisons in Nepal, the Tribunal specifically noted at SCB 12.7 the applicant’s submission in relation to the 1997 US State Department Report on “Human Rights Practices” and noted that it had looked at this and other reports but found that any such allegations of police brutality, arbitrary arrest, detention, and torture all related to police operations against Maoist insurgents and were not analogous to the situation of the applicant who had not put forward any political beliefs, or any profile that would place him in this category. The Tribunal then also found that even if the applicant were to be subjected to such treatment it would not be for a Convention reason. (CB 12.9)
At SCB 13.1 the Tribunal also looked at the argument raised by the applicant's adviser that the applicant is a member of the particular social group, that is, members of the same socio-ethnic community who marry in contravention of laws and traditions of that community. The Tribunal applied the principles enunciated by Dawson J in Applicant A & Another v Minister for Immigration and Ethnic Affairs & Another (1997) 190 CLR 225 and found that there was nothing inherent in the group that would distinguish it, apart from the fact of their claimed persecution. The elements and characteristics that distinguish a particular social group for the purposes of the Convention were addressed by the High Court in Applicant A. Essentially a particular social group is a collection of persons recognisable as a group in society because the group shares a certain characteristic or element which unites them. Importantly such persons must not only show some common element, the element must unite them, and that is what would lead to them being seen as recognisable group within their society. Dawson J at 241 in Applicant A said:
“The adjoining of “social” to “group” suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word “particular” in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart form society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.”
Mc Hugh J at 264-265 said:
“The use of [the term “membership”] in conjunction with “particular social group” connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest, or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group. Those immediately killed or robbed by guerrillas, for example, are not a particular social group.”
Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242 after reviewing Applicant A stated at [36]:
“…the determination of whether a group falls within the definition of “particular social group” in Article 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.”
In the same case at [69] McHugh J said:
“To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim, or principal.”
Further, in Applicant A, Gummow J at 285, agreed with the statement in “Ram” [cited as Ram v Minister for Immigration and Ethnic Affairs and Another (1995) 57 FCR 565 at 569]:
“There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group.”
Further, in the case before me the Tribunal specifically found that in relation to harm from his family and any alleged failure of the State to provide protection because he had committed a crime, the Tribunal was not satisfied that any such harm would be other than ostracism and it gave reasons for this.
The Tribunal examined, at SCB 13.5, the applicant’s submission about a similar case before the Tribunal in 1994, where there was a claim that two people who had the same great-grandfather had married, and a notice was produced in that case that indicated that these people had been expelled from their community for acting against their religious traditions. The Tribunal found that this supported other comments seen by the Tribunal about inter-caste and inter-religious marriage which indicated that people may well be ostracised by their clan, caste or group, but it did not indicate that they would be physically harmed by that group. In this regard the Tribunal also referred, at SCB 13.8, to DFAT information relating to inter-caste and inter-religious marriages. The Tribunal did not accept that ostracism in these circumstances amounted to persecution for the purposes of the Refugees Convention.
It is clear that, in relation to the applicant's first ground in his application, the applicant asserts that the Tribunal overlooked many important issues, and did not consider the traditional “Hindu rituals”. In relation to the first part of this assertion, it is unsupported by any specificity or particularity. In relation to the second part, the assertion is factually incorrect. The Tribunal clearly considered the relevant issues arising from the claims as put by the applicant and did look at the social and political context within which these claims were set. Further, the Tribunal clearly took into account the information that the applicant had submitted in support of his claim. The applicant is clearly aggrieved by the finding of the Tribunal but this ground appears to be directed to seeking impermissible merits review. The critical findings by the Tribunal were, firstly, in relation to fear of harm from the authorities, turned for the most part on the issue that there was a five-year period between which the applicant claimed the marriage took place and his departure from Nepal within which no action was taken by authorities against him. Secondly, in relation to the harm feared from private individuals, namely he and his wife’s families, there was nothing before the Tribunal to show that any action had been taken by the family that would amount to persecution. Indeed the Tribunal found that they had never been directly approach by the families. While there does not appear to be any doubts attendant on the Tribunal’s findings, it nevertheless went on to consider the situation in the event that it was wrong. Even in this context the Tribunal found that the Nepalese laws of incest applicable to the applicant would not be an issue that would entitle the applicant to be considered a refugee within the meaning of the Convention. The Tribunal clearly considered the social and political aspects and separately noted, contrary to the applicant’s assertion now, in a number of parts of its decision record that it did consider the applicant’s submissions and information provided by him. The applicant's complaint now in this regard could perhaps also be seen as a complaint that the Tribunal did not place sufficient weight, or did not find such material to be conclusively persuasive, in making the decision sought by the applicant. None of this however assists the applicant. The Tribunal’s findings were open to it on the material before it.
The applicant's second complaint is that the Tribunal accepted that the applicant had married his own cousin, but did not take into consideration the consequences of such a “social taboo” in Nepal, the applicant’s “bitter experiences” and that this meant that he would also face such experiences in the future. It is clear however that the Tribunal did consider the applicant's claims in this respect and found that at most, he and his wife faced some level of ostracism, but that this was not sufficiently serious to constitute persecution.
Grounds 3 and 4 in the application allege bias and prejudice on the part of the Tribunal. This is also argued in the applicant’s written submissions. At the hearing before me I explained to the applicant that allegations of bias, whether bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim. Alleged apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28, [27]-[32]). In asserting bias and prejudice on the part of the Tribunal in his written submissions, the applicant says that the Tribunal was biased, or it could be apprehended that it was biased, because it did not give to the applicant information about the particular construction it placed on independent country information, and did not have “fresh look” at the detail of his claim. There is nothing before me to show that the Tribunal failed to have a “fresh look” at his claims, indeed on his own assertion, the bulk of his claims were put to the Tribunal, and it is clear as I have already said, that the Tribunal did deal with the critical elements of his claims. In relation to the alleged failure to provide the opportunity to comment on adverse “constructions” of independent information, this may go to a denial of procedural fairness, but in the absence of any particularity or anything further, could not in the circumstances of this application, be sufficient to show bias or apprehended bias on the part of the Tribunal.
The applicant’s written submissions also complain of a failure to provide procedural fairness and a denial of natural justice to the applicant. To some extent, as I addressed above, this appears to be linked to the allegation of bias. To the extent however that the applicant claims that the Tribunal failed to disclose to him the particular “construction” it gave to the information from different independent sources, this could be a complaint about the Tribunal's thought processes, and in this regard s.424A deals with information that must be given to the applicant. Section 424A(1) provides that the Tribunal must give to the applicant information that would be the reason, or part of the reason, for affirming the decision under review. But clearly s.424A is concerned with knowledge of a fact or circumstance communicated to, or received, by the Tribunal. It is not concerned with the thought processes of the Tribunal which appears to be the applicant's real complaint before me. In the case of Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 Sackville, J said at [54]:
“It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”
The critical issue at common law is that applicants have a right to know the case against them. The substance of adverse information which is credible, relevant and significant to the decision of the Tribunal should be put to an applicant. The essence of these principles is that the applicant should not be caught unawares about the information that the Tribunal is seeking to rely on. The applicant’s specific complaint in this regard is that the Tribunal did not put the adverse inferences that it drew from the country information to him for comment, and that the adverse information was not put to him until the hearing. Beyond a reference to DFAT information the applicant provides no particularity in his written submissions as to what specific information he is referring to. At page five of his written submissions the applicant says that no such adverse information was put to him until the hearing, and that the Tribunal decided the matter without giving the applicant further opportunity and did not disclose some information that was referred to in the decision. If the applicant is saying that the material was not put to him before the hearing then clearly it is not a denial of procedural fairness in the circumstances of this case to fail to put such adverse country information to an applicant at the hearing. In any event there is nothing before me to show that the applicant did not have the opportunity to comment on any of the adverse material at the hearing before the Tribunal or significantly that he was caught unawares by the substance of the information contained in the material. The independent country information of which the Tribunal said it took note is referred to in its “Findings and Reasons”:
1)At SCB 10.5 the Tribunal makes general reference to US State Department reports, Human Rights Watch and Amnesty International reports and says that it can find no reference to persecution in relation to incest in Nepal which is at the heart of the applicant's claim. In this regard I note that the applicant through his adviser provided a significant amount of material to the Tribunal, and there is nothing before me to show that the Tribunal did not take such material into account. In fact the Tribunal accepted that the applicant and his wife may face ostracism which would be painful and difficult (SCB 13.4). The material also goes to the broader social and political conditions existing in Nepal, and includes US State Department reports and other independent reports on the human rights situation in Nepal, and on the situation in relation to close relatives marrying each other. The Tribunal makes specific reference in its decision record to this material at SCB 5.4. It is clear that the applicant would not have been caught by surprise on these issues as relied on by the Tribunal and obviously had an opportunity to address these issues by way of providing independent country information and by way of submission made by his adviser.
2)The Tribunal at SCB 11.5 did look at the relevant law in Nepal and also at SCB 11.9 made reference to material from Professor James Hathaway in “The Law of Refugee Status” (Butterworth 1991). Again at SCB 12.1 the Tribunal notes that there is nothing in the information that it has about Nepal, and then makes a specific reference to the material submitted by the applicant, that would suggest that the law of incest in Nepal is one which would be applied differentially to him. Again this is clearly an issue of which the applicant would have had notice and an issue in relation to which the applicant had opportunity to provide information that he felt would support his claims, and an issue in relation to which he did provide information.
3)At SCB 12.7 the Tribunal makes specific reference to the 1997 US State Department report on human rights practices relating to allegations of police brutality, arbitrary arrest, detention, and torture and notes that this is country information provided by the applicant himself.
4)At SCB 13.8 the Tribunal makes reference to a DFAT “cable” again referring to inter-caste marriage. Again the applicant has put nothing before me to show that he was not aware of the substance of this information, and clearly the information which the applicant did supply addressed this very issue.
In relation to adverse inferences drawn by the Tribunal on the way to making its decision, the Tribunal is not required to invite comment on its thought processes in the making of its decision. Re Ruddock and Anor; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [54] per Kirby J. at [85]-[86]. The qualification of course to this principle is that a Tribunal is required to put to the applicant an adverse conclusion which would not obviously be open on the material supplied by or known to the applicant. As McHugh J said:
“One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.” (Re RRT; Ex parte Aala (2000) 204 CLR 82 at [101] referring to Mahon v Air NZ Ltd [1984] AC 808 at 82.
While the Tribunal did rely in part on independent country information in making its decision, that information was either supplied by the applicant himself, or the substance of the information was known to the applicant. The applicant has not put forward any evidence to show that there was any independent material on which the Tribunal relied, which was not put to him at the hearing or which contained information, the substance of which was not already known to him to be able to sustain the claim that he was denied procedural fairness.
In written submissions the applicant also argues that the Tribunal failed to look at a relevant piece of information and makes reference to a particular book which the applicant claims is held in the Tribunal's library collection (“Women and Kinship” by Heela Dube). It is quite clear that Tribunal is not obliged to consult every item of source material available in the Tribunal's library. Further there is no evidence before me that indeed this particular book is available in the library or that it is relevant to the applicant’s specific claims. But beyond that the applicant had ample opportunity both on his own behalf or with the assistance of his adviser to have put before the Tribunal any material that he believed was relevant to his claim. Indeed the applicant did put forward a significant amount of material and the Tribunal according to its decision record took some of this into direct account.
The applicant also complains in written submissions that the issue of relocation is an important issue, and that the Tribunal did not deal with it properly, and further that the applicant was not given an opportunity to comment on that issue. He complains specifically that the Tribunal had not discussed with the applicant this issue in detail at the hearing. The applicant has not put forward any evidence to this Court to contradict the Tribunal's account of what may have occurred at the hearing before it. But far more importantly in relation to the issue of relocation, the Tribunal makes reference to this issue at SCB 14 .7 in its decision record where it says that the applicant and his wife could live elsewhere in Nepal and that it would be reasonable for the applicant to relocate to avoid any social ostracism he may face. Critically however, this is not the type of case as contemplated in Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 in the sense that the Tribunal has made no finding that the applicant had a well-founded fear of persecution in any local area of Nepal which would then necessitate an examination of whether the applicant could reasonably and safely relocate to another part of his country. In fact on the issue of ostracism, which is the only context within which the Tribunal looked at relocation, the Tribunal clearly, at SCB 14.5, while accepting that the applicant and his wife may be ostracised, made a clear finding, which was open to it on the material before it, that such behaviour on the part of the applicant's clan and blood relatives would not amount to persecution. The Tribunal also at SCB 13.4 found that while such ostracism may be painful and difficult for the applicant and his wife, it did not accept that this harm was of sufficient gravity to constitute persecution. And, importantly that it would not be visited upon the applicant and his wife for a Convention reason. In that context it was not really necessary for the Tribunal to go on and consider the issue of relocation. If there is no well-founded fear of persecution for whatever reason in any part of the applicant's country, then the necessity to consider relocation to another part obviously does not exist.
The complaints made by the applicant are not made out for the reasons given above. The Tribunal had jurisdiction to review the decision of the delegate of the respondent Minister. I find that there was no reviewable error in the Tribunal’s decision. Accordingly, the application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Sybilla Waring-Lambert
Date: 25 July 2005
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