SZDTX v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FMCA 1087

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDTX & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS [2005] FMCA 1087

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Bangladesh as a member of the BJP political party and as a Hindu.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.5(1); 62(2); 65(1); 422B; 425; 426A

Muin v Refugee Review Tribunal (2002) 190 ALR 601 

NADR vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293
B41of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30

S58of 2003 v Minister for Immigration and  Multicultural and  Indigenous Affairs [2004] FCAFC 283

Walton v Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs (2001) 115 FCR 342

Abebe v Commonwealth of Australia (1999) 197 CLR 510
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287

Applicants: SZDTX AND & SZDTY

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG1738/ of 2004

Judgment of: Emmettmmett FM

Hearing date: 18 July July 2005

Date of Last Submission: 18 July July 2005

Delivered at: SYDNEYSydney

Delivered on: 5 August 2005

REPRESENTATION

Counsel for the Applicant:The Applicant on behalf of himself

Solicitors for the Respondent: Mrs J. BautistaSnell, Sparke Helmore Lawyers

ORDERS

(1)Orders StyleThe Amended Application filed 7 March 2005 is dismissed with costs.

(a)Orders-abc Style    

(i)Orders-123 Style

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1738 of /2004

SZDTX &AND SZDTY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application

1.This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the delegate”) not to grant a protection visa to the Applicant.

2.The Applicants are husband and wife and are citizens of India who arrived in Australia on 17 November 2003 under a tourist visa. On 15 December 2003 the Applicants applied to the Respondent for a class XA protection visa and on 9 January 2004 that application was refused by the Minister’s delegate (“the delegate”).

3.On 11 May 2004 the Migration Review Tribunal (“the Tribunal”) affirmed the decision of the delegate.

4.On 7 June 2004 the Applicants filed an Application for judicial review byin this Court of the Tribunal’s decision.

5.For the purposes of this hearing the interests of both Applicants rest on the claims of the first named Applicant. For this reason, I shall refer in this judggement to the situation as it affected the first named Applicant.

6.Pursuant to directions made on 3 February 2005 the Applicants filed an Amended Application on 7 March 2005 seeking the following:

“1.    A Writ of Certiorari to quash the RRT decision.

2.A Writ of Mandamus to compel the RRT considers the application according to law, and cost.”

7.The Amended Application asserts the following grounds and particulars:

“That the RRT decision was effected to take into account a relevant consideration whether the delegate of immigration raised reasonable grounds for not granting a protection visa.

Particulars:

The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on my BJP political opinion & the member of particular social group. I am against the Muslim, I am the target of Muslim extremists. Because of my political popularity & Hindu religious believe I was persecuted by the government & the authority. I will be persecuted if I return back to India because of my political opinion. It is a convention base persecution. I did collect documentary evidences to established my persecution. I have nobody to help me collect the documentary evidence.

I was persecuted because of my political popularity. I refer claims CB page 17. It is true I did not collect relevant documentary evidences to prove my prosecution.

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

The Tribunal did not observe Migration Act 1958 properly to making the decision.

The Tribunal fail consider my claims with the proper way which the Migration Act 1958 provided in my claims.

I will provide more details in my written submission to support my judicial review application.

The Tribunal finding that the totality of the country information does not show that BJP politicians are not persecuted in India.

I did not got an opportunity to attend the Tribunal hearing because I did not properly informed by my previous agent. I was misguide regarding the RRT interview. This is my bad luck I did not provide my oral evidence to support my claims. I am represent by Ajay Kumar, Migration Agent.

I do not speak, read & write English. I agree with my lack of knowledge. And I did not provide my oral evidence to support my review application. My request to the honourable Federal Magistrates give me an opportunity to give my oral evidence to establish my claims. Please return my application to the RRT for further consideration.

Without the oral evidence it the tribunal made decision the decision effected by the procedural fairness. I refer High Court Judgement plaintiff S157 v Commonwealth of Australia (4 February 2002.”

8.On 22 June 2005 the Applicant filed a document entitled ‘Applicant’s Written Argument’, which further sought to raise the issue of actual bias. The Applicant submitted that:

“On the evidence as a whole, the findings of the tribunal members as to the following matters demonstrated actual bias”.

The submissions that followed were largely made up of quotes from authorities largely without application of the principles to the facts of this case.

Adjournment application

9.At the outset of the hearing before this Court, the Applicant sought an adjournment to enable him to bring documents over from India.

10.The Applicant was offered an opportunity todayat the hearing before this Court to place before the Court any further oral evidence or documentary evidence in support of the Amended Application. The Applicant declined the offer and stated that any documents that he thought were relevant were still in India.

11.The Applicant offered no explanation as to why those documents had not been obtained prior to the hearing, nor any evidence of any attempt to locate and bring the documents from India, nor any evidence as to the nature of any such documents.

1. It is also apparent, when one has regard to the procedural history of the Applicant’s application for review and Application to this Court, that there have been many opportunities for the Applicant to place before the Court any further material upon which he intended to rely in support of his claim that he is a person to whom Australia owed protection obligations.

2. In these circumstances, the application for an adjournment was refused.

   Legislative framework

   14.Section 65(1) of the Migration Act 1958 (Cth) (“the Act”) provides that the decision maker must not grant a visa unless satisfied that the prescribed criteria have been met.

   15.Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is categorised as a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

   16.Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

   17.       Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

Procedural history

18.On 25 February 2004 the Tribunal wrote to the Applicant informing him that it had considered his application for review of the delegate’s decision as well as the material in support of that application provided by the Applicant and was unable to make a finding in his favour. The Tribunal in that letter invited the Applicant to attend a hearing in person on 25 March 2004 “to give evidence and present arguments in support of your claims”.

19.On 23 March 2004 the Tribunal received a “Response to Hearing Invitation” from the Applicant in which the Applicant had marked the box “No” thereby indicating that he did not want to attend the Tribunal hearing and consenting to the Tribunal proceeding to make a decision on the review without taking any further action to have the Applicant appear in person.

1. Accordingly, pursuant to s.426A of the Act the Tribunal was entitled to proceed to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.

   1.The Applicants allege that the Tribunal erred in  failing to accord them procedural fairness, was biased and acted in bad faith in respect of the review of the decision of the delegate not to grant the Applicants protection visas. The Applicants did not appear at the Tribunal hearing.

   1.The Applicants were unrepresented today and the first named Applicant (“the First Applicant”) appeared on behalf of both Applicants, although the Second Applicant was not before the Court.

   1.At the commencement of the hearing the First Applicant confirmed  that he had met with a panel adviser and  further confirmed that the Applicants had earlier advice from a migration agent

   1.There was an interpreter present throughout the hearing this morning in respect of the language identified by the Applicants, that of Gujarati.

   1.The Applicants did not seek to place any further evidence, either oral or documentary, in support of their Application and made no further submissions beyond those their written argument filed 22 June 2005.

   Adjournment application

   1.At the outset of the hearing the First Applicant sought an adjournment to enable him to bring documents over from India.

   1.The First Applicant was offered an opportunity today to place before the Court any further oral evidence or documentary evidence in support of the Amended Application. The First Applicant declined the offer and stated that any documents that he thought were relevant were still in India.

   1.He offered no explanation as to why those documents had not been obtained prior to the hearing, nor any evidence of any attempt to locate and bring the documents from India, nor any evidence as to the nature of any such documents.

   1.It is also apparent, when one has regard to the procedural history of the Applicants’ application for review and application to this court, that there have been many opportunities for the Applicants to place before the court any further material upon which they intended to rely in support of their claim as refugees.

   In these circumstances, the application for an adjournment was refused.

   The Tribunal proceeding

2. The evidence available to the Tribunal at the review hearing was the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) file, including the protection visa application filed 15 December 2003 and the Applicant’s statement of claim dated 19 November 2003 submitted in support, and the delegate’s decision record of 9 January 2004.
   No other material was provided to the Tribunal by the Applicant in support of his application for review.

3. The Tribunal accurately distilled the Applicant’s statement dated
   19 November 2003 into the following claims:

   “He and his wife left India because they feared death from different political parties and because of their Hindu religion.

   He ran a seed shop in the city of Ahmedabad in Gujurat.

   He was a member of the BJP party and had taken an active part in its activities. He became popular within the party and was elected the Deputy Chairman of the business committee in Ahmedabad. He and his wife left

   His shop was located in a Muslim area and in February 2002Hindu-Muslim riots took place after the “Gujrat Train Tragedy” in which a train was burn by Muslim extremists killing 70 Hindus. During the communal rioting that followed, the Muslim extremists group burn down his shop and beat him so that he required hospitalisation for two weeks. He reported the matter to the police but due to the lack of evidence no action was taken.

   The Muslim extremists group became more aggressive and attacked him again in July 2002 and began sending “life threats” to him and his family. He did not report this to the police because it was more risky to his life. He and his wife decided to leave India because they were consistently receiving “life threats”.

   If they return to India they fear for their lives and persecution at the hands of the Muslim extremists group because of their political party and different religion. His business is closed and his family continues to receive “life threats”.

   “Before coming to Australia 3-4days ago” communal riots happened and one man was burn alive and vehicles set on fire. Their lives in India are not safe and there is no safety in any other part of the country.”

4. The Tribunal then proceeded to consider each of the claims. The Tribunal was prepared to accept that the Applicant is a national of India. However, tThe Tribunal found that the Applicant’s claims lacked detail and clarity and, without the opportunity to test claims at a hearing, the Tribunal ultimately was not satisfied that the Applicant’s “mere assertions” established that he was a person with a well founded fear of persecution within the meaning of the Convention.

5. The Tribunal sought to edidentifiedy particular difficulties it had in accepting certain of the Applicant’s claims. These are dealt with below:

a)     The Applicant failed to disclose when he joined the BJP party, what activities he undertook once having joined the party and failed to disclose what is role or duties were as the Deputy Chairman of the business Committee;

b)     Whilst the Applicant claimed to fear harm from other political parties, he failed to disclose the specificities of these parties or the reasons as to why they would harm him;

c)     The Applicant failed to substantiate his claim that he was beaten and his shop burnt down by a Muslim extremist group. The Applicant did not provide any details about this group so the Tribunal was unable to ascertain whether he was referring to an undefined group of persons or to a structured and known group with an identifiable leader, specific goals and who engaged in planned activities;

d)     The Applicant failed to explain why this Muslim extremist group became more aggressive over time or the nature of the aggression. The Applicant failed to provide information as to how and when threats were made;

e)     The Applicant simply claimed that he did not report threats to the police because it was too risky. However, the Applicant provided no further details to explain that risk;

f)     The Applicant could not explain why the Applicant and his wife were not harmed in the 18 months that the he claimed threats continually occurred. The Applicant was unable to explain why he and his wife left their children in India if their family was being threatened;

g)     The Applicant was unable to identify which members of his family were still currently being threatened, whether any threats had been implemented and why the threats have continued now that the Applicant was no longer in India;

h)     The Applicant claimed that further riots had occurred prior to his departure from India but he failed to pin-point where these riots had occurred or who, if anyone, was targeted for Convention related harm. The Tribunal found that the Applicant, in asserting this claim regarding the riots, was referring to an implied claim that he could not find safety in any part of India.However, the Tribunal found that the Applicant could not explain how this claim was relevant to his particular circumstances or why he claimed that he could not relocate to other areas in India.

1. The Tribunal concluded that it was not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention and therefore was not a person to whom Australia had protection obligations.

   The Applicant’s claim before this Court

   26.The Applicants were unrepresented at the hearing before this Court and the first named Applicant appeared on behalf of both Applicants.

   27.At the commencement of the hearing the Applicant confirmed  that he had met with a panel adviser and  further confirmed that the Applicants had earlier advice from a migration agent.

   28.There was an interpreter present throughout the hearing before this Court in respect of the language identified by the Applicant, that of Gujarati.

   29.The Applicant did not seek to place any further evidence, either oral or documentary, in support of his Amended Application and made no further submissions beyond those in his written argument filed 22 June 2005.

2. I understand the Applicant, in his Amended Application and written argument, to be making the following claims in respect of the decision of the Tribunal:

a)     That theThe Tribunal denied the Applicant procedural fairness on two bases:

1. Analogy of the Applicant’s case with the case of Muin v Refugee Review Tribunal (2002) 190 ALR 601 (“Muin”);

2. The decision of the Tribunal to proceed to make a decision in the absence of the Applicants.

b)     The failure of the Tribunal to properly consider the Applicant’s evidence.

c)     That the Tribunal was biased against the Applicant.

1. These claims are considered below.

   Applicants’ claim (a) -

   The Applicants seek relief in accordance with an Amended Application filed on 7 March 2005 claiming the following:

   “A Writ of Certiorari to quash the RRT decision.

   A Writ of Mandamus to compel the RRT considers the application according to law, and cost”

   The Applicants Amended Application provides the following grounds and particulars:

   “That the RRT decision was effected to take into account a relevant consideration whether the delegate of immigration raised reasonable grounds for not granting a protection visa.

   Particulars:

   The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on my BJP political opinion & the member of particular social group. I am against the Muslim, I am the target of Muslim extremists. Because of my political popularity & Hindu religious believe I was persecuted by the government & the authority. I will be persecuted if I return back to India because of my political opinion. It is a convention base persecution. I did collect documentary evidences to established my persecution. I have nobody to help me collect the documentary evidence.

   I was persecuted because of my political popularity. I refer claims CB page 17. It is true I did not collect relevant documentary evidences to prove my prosecution.

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

   The Tribunal did not observe Migration Act 1958 properly to making the decision.

   The Tribunal fail consider my claims with the proper way which the Migration Act 1958 provided in my claims.

   I will provide more details in my written submission to support my judicial review application.

   The Tribunal finding that the totality of the country information does not show that BJP politicians are not persecuted in India.

   I did not got an opportunity to attend the Tribunal hearing because I did not properly informed by my previous agent. I was misguide regarding the RRT interview. This is my bad luck I did not provide my oral evidence to support my claims. I am represent by Ajay Kumar, Migration Agent.

   I do not speak, read & write English. I agree with my lack of knowledge. And I did not provide my oral evidence to support my review application. My request to the honourable Federal Magistrates give me an opportunity to give my oral evidence to establish my claims. Please return my application to the RRT for further consideration.

   Without the oral evidence it the tribunal made decision the decision effected by the procedural fairness. I refer High Court Judgement plaintiff S157 v Commonwealth of Australia (4 February 2002.”

   On 22 June 2005 the First Applicant filed on behalf of the Applicants a document entitled ‘Applicant’s Written Argument’ which further sought to raise the issue of actual bias. The Applicants submitted that:

   “On the evidence as a whole, the findings of the tribunal members as to the following matters demonstrated actual bias”.

   The submissions that followed were largely made up of quotes from authorities largely without application of the principles to the facts of this case.

   Alleged denial of procedural fairness

   1.Division 5 Part 5 of the Migration Act1958 (Cth) (“the Act”) sets out the conduct of review procedure to be carried out by the Tribunal. Section 422B of the Act states that this subdivision is to be an exhaustive statement of the requirements of the natural justice hearing rule. The Applicants claim that the Tribunal failed to accord them procedural fairness on two bases. The first, based on the case of Muin v Refugee Review Tribunal (2002) 190 ALR 601 (“Muin”). The second, the decision of the Tribunal to proceed with the review in the absence of the Applicants.

   1.Division 5 Part 5 of the Migration Act sets out the conduct of review procedure to be carried out by the Tribunal. Section 422B states that this subdivision is to be an exhaustive statement of the requirements of the natural justice hearing rule.

1. (i)    

   (i)       Analogy of the Applicant’s case with the case of Muin

   Tribunal’s consideration of Part B documents

   33.Muin is authority, inter alia, for the proposition that there is a lack of procedural fairness where an applicant before a Tribunal is misled into thinking that the Tribunal has considered particular relevant information and, as a result did note ensure that such information was placed before it.

   34.In relation to the first part of this claim, the Applicants submitted that there was a lack of procedural fairness in their his case in that the Tribunal did not read all of the Part B materials ‘which might help me make a positive decision to decide applicants claim as a refugee’. The Applicants wentgo on to submit the following:

   “At a factual level the present case differs substantially from Muin but the nature of denial of procedural fairness is very much similar. It is understandable that the letter misled the appellant, or that he would have taken any particular steps had he been told, if it was the case, that the tribunal had not been provided with them’.

   35.The RespondentRespondent referred to the Full court of the Federal Court of Australia, in NADR vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 (“NADR”), in support of her submission that the Applicant’s case differed from that of Muin in that, inter alia, there was no agreed statement of facts in this case as was the case in Muin.Indeed, there is no identification by the Applicant of the documents that the Applicant claims the Tribunal did not consider.

   36.The Respondent Respondent further submitted that NADR made it clear that it is for the Applicants to establish the necessary factual sub-stratum by way of evidence to prove any allegation that the Tribunal did not receive or consider Part B documents.

   37.Further, an applicant must show that he would have taken a particular course had he known that the Tribunal had not been provided with the documents or did not intend to refer to them. It is also necessary to consider whether the particular matters upon which the applicant relies are, in any event, amongst the material identified by the Tribunal (NADR at paragraphs 24-26).

   38.The Respondent referred to the letter dated 25 February 2004 inviting the Applicants to a hearing on 25 March 2004 which stated that:

   “The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.”

   1.There is no evidence otherwise to suggest that this information material considered by the Tribunal did not include the Part B documents. The Tribunal decision states that it had before it the Department’s file that included the protection visa application and the delegate’s decision. Part B of that decision listed documents that the Applicants asserts were not considered by the Tribunal. The Tribunal went on to state that it had had regard to the material in the delegate’s decision.

   1.           The Full Court of the Federal Court in NADR at paragraphs [24] – [26] said the following about the relevance and application of Muin in cases such as the Applicants:

   “Muin does not establish, as the submissions for the appellant implied, that the effect of sending a letter in those terms will amount to a denial of procedural fairness in circumstances where the Tribunal has not referred to the Part B documents in its later decision. Rather it holds there is a want of procedural fairness where an applicant before a Tribunal is misled into thinking that the tribunal has considered particular relevant information and, as result, did not ensure that such information was placed before it. Whether it is necessary to infer that the tribunal was not likely to have considered the material, or whether it is sufficient that it may not have done so, is perhaps moot. It is also of importance that a conclusion that the plaintiff was misled was rendered possible largely because of agreed facts.

   At a factual level the present case differs substantially from Muin. It is not agreed that the documents were not physically provided to the tribunal. It is not agreed that the appellant was misled by the letter, or that he would have taken any particular steps had been told, if it was the case, that the tribunal had not been provided with them. It was submitted that the part B documents can be seen to relate to the appellant’s case. So much can be expected. Beyond that the appellant sought to utilise the findings of fact in Muin to make out his case. Needless to say, that is not a  course which is open. Each case must be considered on its own facts.

   39.It cannot be inferred as a fact in every case involving a letter in these terms, that an applicant was affected in some way by it when they came to provide information to the Tribunal and participate in the hearing. Much of course will depend upon what information was contained in Part b documents and the issues in the applicant’s case. It could not be assumed that the appellant here would have taken any particular course had he know that the tribunal had not been provided with the documents, or did not intend to refer to them. It was not explained to the Court how that might be concluded by reference to the contents of the Part B documents. It would also be necessary to consider whether the particular matters, upon which the appellant would rely were, in any event, amongst the material identified by the Tribunal. Those matters were not identified for Court.”

   40.There is nothing other than the Applicant’s’ bare assertion that the Tribunal did not consider all the material before it. The Court is not obliged to accept bare assertions as fact. In any event, there is the statement of the Tribunal that it “had regard to the material referred to in the delegate’s decision”. In the absence of any evidence to the contrary, I find that there is no material before me to persuade meI am not persuaded that the Tribunal failed to consider the Part B documents in the circumstances contemplated by Muin.

   41.Accordingly, I find there has been no procedural unfairness established by the Applicants in respect of this submission and accordingly, I reject this ground.

   (ii)    Tribunal decision to proceed in absence of parties

   42.The second basis relied on by the Applicants in submitting they he had been denied procedural fairness by the tribunal Tribunal is in respect of the Tribunal’s decision to proceed with the review in their his absence.

   43.Section 425 and 425A of the Act obliges the tTribunal to invite the Aapplicant to appear at a hearing. and provide the information required in any notice of invitation to appear. I note that Tthe tTribunal’s letter of 21 August 2003 complies with those requirements.

   44.Pursuant to section .426A of the Act, relevantly, where the Applicant fails to appear having been invited pursuant to s.425 of the Act the Tribunal may make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.  

   (1) If the applicant:

   is invited under section 425 to appear before the Tribunal; and

   does not appear before the tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

   the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant appear before it.

   This section does not prevent the tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

   45.On 25 February 2004 the Tribunal wrote to the Applicants inviting them him to give oral evidence and present arguments at a hearing on 25 March 2004. This letter was sent to the Applicant at the address identified by the Applicant in his application for review before the Tribunal.

   46.On 23 March 2004 the Applicants sent a response to the Tribunal’s invitation to appear at the hearing. The response was signed by the First Applicant on behalf of both Applicants. In answer to the question on their response ‘Ddo you want to come to a hearing’ the Applicants had ticked the box ‘No’, which included the information that, in the event that the Applicants did not come to a hearing, that the Ttribunal may proceed to make a decision on the review without taking any further action to allow or enable the Applicants to appear before it.

   47.In its decision, the Tribunal referred specifically to the correspondence and the response and concluded that the Applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the Applicants to appear before it. The matter was then determined on the evidence material available to the Tribunal.

   48.In their his Amended Application, the Applicants claims that they he did not attend the Tribunal hearing because they he were was not properly informed by their his previous migration agent and wasere “ ‘misguided involving the RRT interview.’”

   49.The Respondent Respondent referred to the decision of Dowsett J in B41of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 (“B41”) in which his honourHis Honour said that an applicant cannot complain that his actions, taken in reliance upon the advice received from his Immigration adviser, led to his being denied procedural fairness. In that case, the applicant claimed that his migration adviser advised him positively not to attend the Tribunal hearing. The Court still held that actions taken or not taken by an applicant pursuant to advice from a migration agent cannot lead to the applicant being denied procedural fairness.

   50.In the case before this Court, the Applicants claims that their his migration agent “did not properly inform” them him and that they werehe was “misguided regarding the RRT interview.”. The Applicants does not provide evidence beyond those assertions. B41 would suggest that, even if that evidence wereas available available, it would be insufficient to lead to a denial of procedural fairness. Accordingly, I find that the reliance by the Applicants on their his migration agent in the circumstances of this case does did not lead to a denial of procedural fairness.

   51.In their his written argument, the Applicants also claims theyhe did not attend the interview (which I take to be the Tribunal hearing) because they he did ‘not know the conscience of the RRT Hearing’. The Applicant’ss concluding submission in relation to this issue iís that the “‘tribunal member must of known of its the error an did nothing to correct it’” (which I take to mean the decision of the tTribunal member to proceed to a hearingdecide the matter in the absence of the Applicant) and did nothing to correct it. The Applicants submits that this renders the decision one of bad faith on the part of the Tribunal. As referred to above there is no evidence whatsoever before me to suggest that the Tribunal was aware of any of the facts asserted by the Applicants in support of their claim that the hearing should not have proceeded in their absence. Otherwise I do not understand this submission. In any event I am not satisfied that it reveals any denial of procedural fairness.There is no further elaboration or particularisation by the Applicant of this claim. Accordingly, I reject this claim in so far as it refers to “bad faith on the part of the Tribunal”.

   52.The Respondent referred to S58of 2003 v Minister for Immigration &and Multicultural &and Indigenous Affairs [2004] FCAFC 283 at [25] where the Full Court of the Federal Court said the following:

   “In any event, whether an applicant has been accorded procedural fairness is not to be decided on a minute or fragmented examination of each step of the process by which a tribunal has arrived at its decision. In the present case, the appellant was fully aware that the success of his application depended on an affirmative finding that he had a well-founded fear of persecution for a Convention reason if he were returned to Bangladesh. He was given an invitation to attend a hearing before the tribunal which, apparently on advice, he deliberately declined. Having done so, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the tribunal without his having an opportunity to explain or clarify them. Conversely, his conduct left it open to the tribunal to infer that, had he attended a hearing and given oral evidence, the appellant would not, on balance, have improved his case for the grant of a protection visa. In our view, the duty of the tribunal, in the circumstances of this case, was no higher than that identified in these terms by the Full Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 at [33];

   ‘The Tribunal must give the appellant an opportunity to appear before it and give evidence: s425 of the Act. If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them: Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 at 388 (per Merkel J) and see 382 (per Einfeld J) and 383 (per von Doussa J); Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 288 at [29] – [30] per O’Connor, Tamberlin and Mansfield JJ.’

   The Full Court also observed at [46]:

   ‘There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward.’

   In our view, the appellant was offered the opportunity to appear before  the Tribunal and address any concerns it may have had about his claims and to put forward the documents upon which he relied. He cannot complain if his application was rejected because, amongst other reasons, he failed to take up that opportunity.

   53.Similarly, in the case before this Court, that there was ample opportunity provided to the Applicants to present evidence and material to the Tribunal in support of their his application for review of the delegate’s decision to the Tribunal. Further, the Applicant was specifically notified by the Tribunal that the information presently before the Tribunal was not sufficient to make a decision in his favour. No opportunity offered to theThe Applicants failed to avail himself , including appearing at a hearing, was taken up by the Applicants.of the opportunity offered to him to appear at a hearing and to provide oral evidence and make submissions in support of his claims.

   1.Accordingly, I find reject this ground.the Tribunal decision to proceed with its review in the absence of the Applicants was not procedurally unfair in all the circumstances.

2. Applicant’s claim (b) – Alleged failure by Tribunal to properly consider the Applicant’ss’ evidence

   55.In theirhis written argument, the Applicants refers to various authorities, including Walton v Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs (2001) 115 FCR 342 Walton v Phillip Ruddock MIMA[2001] FCA 1839; (2001) 115 FCR 342 and Abebe v Commonwealth of Australia (1999) 197 CLR 510. However, it is not clear how those authorities are to be applied. The Applicants concludes their his written argument by saying:

   “‘tThe tribunal’s ignoring of relevant evidence and its finding in the face of contradicting independent evidence constitute jurisdictional error being a breach of procedural fairness”.’.

   56.The only evidence before the Tribunal in support of the aApplication for review was a document entitled “Statement of Claim” dated 19 November 2003 and signed by the First Applicant (“the Statement of Claim”). The Applicants, otherwise, did not appear attend at thea hearing.

   1.In their Statement of Claim the First Applicant asserts that the Applicants fear death and persecution if they were to return to India due to their membership in the BJP political party and their Hindu faith. He referred to an incident in February 2002 when riots erupted between the Muslim and Hindu populations following what the Applicants refer to as the “Gujrat Train Tragedy” in which 70 Hindus were killed when Muslim extremists burnt a train. In particular, the Applicants claim that during these riots Muslim extremists burnt down the shop of the First Applicant and physically assaulted him resulting in 2 weeks hospitalisation. The Applicants claim that this incident was reported to the police however a lack of evidence prevented action being taken.

   1.Following this attack in February 2002, the Applicants claimed that the Muslim extremist group again attacked the First Applicant and began making threats against the life of his family. The Applicants state that this attack was not reported to the police based on a belief that this would further endanger their lives.

   1.Finally, the Applicants referred to a series of communal riots that occurred “3-4 days” prior to their arrival in Australia where one man was burnt alive and vehicles set on fire.

   1.The Tribunal in affirming the decision of the Respondent made the following findings:

   a)That the Applicants are Indian nationals;

   a)That the Applicants’ claims lacked detail and clarity in certain important respects, particularly in respect of the First Applicants participation in the BJP political party and his claims that he fears persecution from other unidentified political parties;

   a)That the First Applicant failed to provide sufficient details of the Muslim extremist group whom he claimed burnt down his shop and physically assaulted him and furthermore failed to identify the factors that lead to that group becoming increasingly aggressive towards him and his family or the factors that lead him to conclude that reporting to the police would increase the risk of harm to him and his family;

   a) That the Applicants failed to show the Tribunal how, if the threats allegedly made against the First Applicant and his family were genuine, the Applicants managed to avoid harm in the 18 month period between the first threats being made and the Applicants arrival in Australia;

   a)That the Applicants failed to explain why they left their children in India upon their coming to Australia if the threats being made against the family were as genuine;

   a)That the Applicants failed to provide evidence in support of their claim that their remaining family in India have continued to receive threats from the Muslim extremist group;

   a)That the Applicants failed to identify the location and targets for Convention related harm during the riots that allegedly occurred 3-4 days prior to their departure;

   a)That the Applicants failed to provide evidence to support the claim that they could not find safety in any part of India;

   The Tribunal went on to find that, given the lack of detail and clarity in the Applicants’ claims and the lack of opportunity of the Tribunal to test these claims during the hearing, the Tribunal did not accept that:

   i)The First Applicant is or ever was a member of the BJP;

   i)The First Applicant faces harm from any political group in India;

   i)The First Applicant’s shop was burnt down or that he was assaulted during the riots that followed the “Gujarat Train Tragedy”;

   i)The First Applicant received threats or faces harm in India because of his Hindu beliefs.

   57.In response to the Applicants’s submission that the reasons given by the Tribunal showed that the Tribunal ignored the Applicants’s evidence and found in the face of contradicting evidence, the Respondent Respondent referred to the Full Court decision in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 in which their honours Honours said the following:

   “In assessing the adequacy of these reasons, it must be kept in mind that the tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in his possession and invited him to attend to provide additional information. Clearly enough, the tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application”

   58.The only evidence material placed before the tTribunal by the Applicant was the sStatement of Cclaim dated 19 November 2003. It was open to theThe Tribunal considered and rejected each of the claims made. That course was open to the Tribunal. The Tribunal had notified the Applicant that the information provided by the Applicant in support of his application for review, and which included the Applicant’s statement dated 19 November 2003, was not sufficient to satisfy the Tribunal of the Applicant’s claims. Further the Tribunal had invited the Applicant to a hearing to give oral evidence and make submissions in support of his application for review.  For whatever reason, that invitation was declined.not to be satisfied that the statements contained in the statement of claim were not made out or substantiated by the Applicants.

   59.In accordance with its duty, the Tribunal considered each of the claims made by the Applicant. However, bare assertion alone was not sufficient to persuade the Tribunal of their veracity, particularly where the claims were lacking detail and clarity, and in the light of the conduct of the Applicant as referred to in the paragraph above.

   60.The Applicants chose not to avail themselves of that opportunity and both failed to appearchose not  at theto attend a hearing and failed to provide the Tribunal with any further material. Those failures were in the face of the clear notification by the Tribunal to the Applicants that the material they he had presented to date was insufficient. As stated above, the Tribunal was not bound to accept the assertions of the Applicants at face value, even more so when the Tribunal had informed the Applicants that their his assertions were not sufficient. The Tribunal was entitled to have regard to the fact that the Applicants’s claims were untested.

   61.Further, the Applicants complains that the Tribunal’s findings were contradictory of the independent evidence. However, no particulars of the relevant evidence are furnished, nor of the evidence said to be inconsistent with the findings. Further, Iin any event, central to the Tribunal’s the decision was is not based on any independent evidence but on the Tribunal’s conclusion it was not prepared to accept mere assertionsas credible factual claims made by the Applicant.

   1.In those circumstances, I there is nothing before me to persuade me that the Tribunal failed to properly consider that Applicants’ claims. The findings made by the tribunal were available on the evidence before them.

   62.Accordingly, I reject this claim.

   BIASApplicants claim (c) – The Tribunal was biased

1. The Applicants also allege bias in the written argument. However, there is no further submission or evidence beyond thate bare assertion. Accordingly, I find there was no bias on the part of the Tribunal in the conduct of its review. Accordingly, I reject this ground.

   CONCLUSIONConclusion

   1.Accordingly, there is no jurisdictional error and the decision is a privative clause decision pursuant to s 474 of the Migration Act.

   64.The  Amended Application is dismissed with costsIn the circumstances I am satisfied that the Tribunal properly considered the factual claims before it made by the Applicant and the findings made by the Tribunal in respect of those facts were open to the Tribunal. Further, I am satisfied that there is not any other claim plainly arising from the material before the Tribunal that is capable of satisfying the Court that there was any error on the part of the Tribunal.

   65.Accordingly, the Tribunal’s decision is a privative clause decision and pursuant to s.474 of the Act this Court has no jurisdiction to interfere.

2. Accordingly, the Application is dismissed with costs.

   1.Further, it is common ground that the second named Applicant’s Application is dependent on the success of the first named Applicant’s Application and accordingly, the Application in so much as it relates to the second named Applicant is also dismissed..

3. I certify that the preceding sixty-seven () (67) paragraphs are a true copy of the reasons for judgment of Emmett FM

   Associate:  S Riddle

   Date:  3 August 2005