SZDVC v Minister for Immigration

[2006] FMCA 40

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDVC v MINISTER FOR IMMIGRATION AND ANOR [2006] FMCA 40

MIGRATION – Refugee – Tribunal properly took into account and addressed all the claims made by the applicant – relocation – no irrational or illogical reasoning – Migration Act observed properly – no bias, apprehended bias or bad faith – Tribunal is not required to obtain evidence from a witness at the applicant’s request – s.425 does not apply to Tribunal hearings rescheduled at the “behest” of an applicant – no jurisdictional error – application dismissed.

Migration Act 1958, ss.91R, 91S, 424A, 424A(1), 424A(3)(a), 418, 425, 425A, 425A(3), 426(1), 426(2), 426(3), 441A, 441(c)(4)(a), 430
Migration Regulations 1994, Regulation 4.35D
Federal Magistrates Court Rules 2001, r.21.02(2)(a).

Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59
NACB v Minister for Immigration and Multicultural Affairs [2003] FCAFC 235
S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 431
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162
SZDMC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 763
W352 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 398
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65
SZDQOv Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026

Applicant: SZDVC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1809 of 2004

Judgment of: Nicholls FM

Hearing dates: 9 June & 25 October 2005

Date of Last Submission: 24 June 2005

Delivered at: Sydney

Delivered on: 31 January 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr J. Potts

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $5150.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1809 of 2004

SZDVC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 11 June 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 April 2004 and handed down on 18 May 2004 to affirm the decision of a delegate of the respondent Minister made on 28 November 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent to these proceedings.

2. The applicant is a citizen of India who arrived in Australia on
   27 October 2003. His claims to protection are variously found in his application to the first respondent's Department copied at Court Book 1 (“CB 1”) to CB 27, in particular at CB 20 to CB 23, and his review application to the Tribunal at CB 43 to CB 46, in particular at CB 45. The applicant attended a hearing before the Tribunal on 31 March 2004, and the Tribunal's account of the hearing with the applicant is at CB 79.3 to CB 81.7 in it's decision record.

3. The applicant claimed to be a member of the TMMK (a Muslim group) and feared harm from Hindu fundamentalists, and the BJP government in Tamil Nadu. The Tribunal’s decision record reveals that after reviewing the applicant's claims and relevant independent country information, it saw the applicant's claims as based on the Convention grounds of political opinion and religion. In relation to political opinion the Tribunal said it had significant concerns about the applicants claimed membership of the TMMK. The Tribunal found that the applicant’s evidence regarding the history, leadership and policies of the TMMK largely contradicted independent information before the Tribunal (CB 85.7), found as significant his lack of knowledge about TMMK, and (CB 86.2) found other claims in relation to his political activities as being either “implausible” or “not credible”. The Tribunal found at CB 86.5 that it did not accept that the applicant was a member of TMMK, let alone an office bearer of that organisation. The Tribunal further found, for the reasons that it gave, that it was not prepared to accept that the applicant had held a political, or a religious profile, other than a low, and an insignificant one.

4. The Tribunal gave the applicant the benefit of the doubt in relation to his claims regarding being briefly kidnapped and assaulted as he was leaving a mosque after evening prayers in March 1999, an account of the incident that it nonetheless found “vague” and “unconvincing”. However, the Tribunal found that this was an isolated attack in the extended aftermath of communal violence which had engulfed Tamil Nadu in the preceding two years, and was not part of some systematic targeting of TMMK members and supporters by opposition Hindu fundamentalists and the BJP (CB 86.7). The Tribunal's view that this was random and opportunistic was supported by its noting that the applicant had lived in the same address for the next three years, and worked in the same place of employment for the same period, and did not suffer any similar harm following that one incident. On this basis the Tribunal found that the chance of the applicant suffering similar harm in the reasonably foreseeable future was remote (CB 87.9). While the Tribunal noted the applicant's claims that he had continued to receive “threats” (CB 88.1) it found that the applicant had provided no acceptable reason as to why fundamentalist Hindus had so vigorously persisted in threatening him, and nor did the Tribunal accept that the applicant had departed Tamil Nadu for Hyderabad as a result of these threats. It gave reasons for these findings (CB 88.5). In any event, the Tribunal found that the threats in this case did not amount to serious harm, and did not give rise to any real chance of persecution in the reasonably foreseeable future (CB 88.6). The Tribunal was not satisfied that the applicant had a well founded fear of persecution for reasons of his political opinion or religion (CB 88.7).

5. The Tribunal went on to note (CB 88.7) that in view of the above findings it was not necessary for it to consider the issue of relocation to a different part of India as it related to the applicant. Nonetheless, the Tribunal did go on to look at this issue in light of the applicant’s statement that he was fearful of Hindu fundamentalists in Tamil Nadu. It found, with reasons provided, that it was reasonable for the applicant to relocate to a different part of India. The Tribunal did not accept that the applicant would face problems for reason of his support for the TMMK, or his Islamic faith throughout India. It was satisfied that the applicant could reasonably relocate to a different part of India if he wished to avoid the possibility of further conflict with Hindus in Tamil Nadu (CB 89.4).

6. The applicant asserts a number of grounds in his originating application to this Court. No particulars whatsoever are provided and the grounds are formulaic in content and presentation. In any event the applicant filed, on 16 December 2004, but did not at that time serve on the respondent, an amended application. While the stated ground appears to be that the Tribunal failed to take into account a relevant consideration, it is clear that by way of stated particulars the applicant's complaints are:

   1)The Tribunal failed to properly consider his circumstances in assessing the chance of persecution on return to India, and did not assess him as a member of a particular social group, namely the Muslim minority in India.

   2)The Tribunal decision was not based on reasoning which was rational or logical.

   3)The Tribunal “did not observe Migration Act requirements.”

   The applicant says that he will provide more details in his “outline of submission”.

7. On 7 June 2005 the applicant filed submissions. They do not appear to be directed to or support the complaints raised in the amended application. They in fact purport to raise a number of new grounds. Unhelpfully, large parts of the applicant’s written submissions are identical to written submissions provided in a number of other cases often seen in this Court. Nonetheless the matters raised are:

   1)Actual bias or that the Tribunal did not act in good faith and acted in bad faith.

   2)An (unclear) reference to s.424A of the Migration Act.

   3)A reference to the High Court judgement of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.

   4)A claim that the Tribunal ignored, or failed to consider his claims. No particulars are provided.

   5)An assertion that at the hearing he was sick, he had provided a medical certificate to support this and because he was sick he was not able to properly provide his oral evidence.

1. The applicant has had the opportunity of two lengthy hearings before me to present his claims. At the first hearing on 9 June 2005 the applicant was unrepresented and was assisted by an interpreter in the Tamil language. Mr. Potts appeared for the respondents. At that time I had before me the applicant's originating application of 11 June 2004, his amended application of 16 December 2004 and written submissions filed on 7 June 2005. Mr. Potts was only served with the amended application on the morning of the hearing, but indicated that he was content to continue and was in a position to deal with the amended application. The applicant's written submissions also make reference to a claim that the applicant did not receive advice from the lawyer who had been appointed from the panel on the Court's Legal Advice Scheme to provide advice to unsuccessful protection visa applicants before the Tribunal. The written submissions appeared to seek an adjournment, and the intervention of the Court to enable the applicant to receive the “free barrister” to advise him on his judicial review application. When I sought to confirm with the applicant at the hearing before me what exactly he was seeking he indicated at first that he was prepared to proceed with the hearing. Nonetheless, I specifically sought to clarify this issue with the applicant and pointed out to him that the Court file contained a communication from Justin Smith of Counsel, the lawyer who had been appointed pursuant to the Court's Legal Advice Scheme to provide advice to the applicant, that stated that the applicant had failed to attend a conference which had been scheduled for 4 February 2005, and that in any event written advice was sent to the applicant by way of mail on 1 March 2005. Mr. Potts subsequently sought to tender, and I took and marked as Respondents Exhibits (“RE”) 1, 2 and 3 the following:

1)A letter dated 1 March 2005 from Mr. Justin Smith to the respondent’s solicitors, and also on the same date, another letter in similar terms regarding the advice provided to the Court.

2)A letter dated 25 June 2004 to the applicant sent at his address for service being a letter from the respondent’s solicitors providing advice with details of organisations that may be in a position to assist the applicant by providing him with advice or by referring him to a qualified legal practitioner.

3)A letter of 8 December 2004 to Mr. J. Smith from the respondent’s solicitors which stated that it enclosed for the purpose of his having been appointed to provide advice to the applicant, the Court Book filed in this matter and the hearing tape before the Tribunal dated 31 March 2004.

In the light of this I was satisfied that the applicant had been given the opportunity to access the Court's Legal Advice Scheme and further had his attention directed to other organisations that may be of similar assistance to him. The applicant stated that he did change his address (presumably as explanation as to why he now claimed not to have received the legal advice from the panel lawyer), but did not inform anyone of his new address and said “I do accept that I was at fault”. He did not press the issue further. In all the circumstances I considered it appropriate to continue with the hearing on the basis that the applicant had been provided with an opportunity to obtain legal advice. I should also note in this regard that it was of course open to the applicant to have made his own independent inquiries as to the possibility of arranging his own legal advice in the year since he had filed his application.

1. The applicant confirmed that he sought to rely on the amended application and not the originating application when I pointed out to the applicant that his written submissions appeared to raise new grounds not raised in the amended application. He advised that the submissions were written by “a friend of mine”. When I asked the applicant to tell me exactly what his concerns were regarding the Tribunal's decision his complaints were:

   1)That he was sick during the time of the hearing before the Tribunal and that he had provided a medical certificate in support of this, and that further because he was sick he was unable in detail to explain his answers to the Tribunal's questions.

   2)That before the Tribunal he had referred to a “number of other pieces of evidence” and that that evidence was not taken into consideration.

   3)That he was mistreated by his opponents “the fundamentalist Hindus” because he was engaged, amongst other things, in converting Hindus “into Islam”. He claimed that the Tribunal did not take this into consideration.

1. I sought to draw further detail from the applicant and to clarify these complaints and I note:

   1)

   In relation to the applicant's claim that he was sick during the time of the hearing and that he had given the Tribunal a medical certificate I drew the applicant's attention to the copy of a medical certificate at CB 59 (the copy of the certificate at CB 60 appears to be a partial copy of the same certificate). The applicant confirmed that he had only provided one medical certificate to the Tribunal and that this was the certificate. I pointed out to the applicant that the certificate stated that he was unfit to attend work, school or university from 23 March 2004 to 27 March 2004. It was clear that there was no reference by the medical practitioner to fitness or otherwise in attending a Tribunal hearing. But in any event, and most importantly, while the Tribunal hearing had originally been scheduled for 24 March 2004 which would have put it within the period for which the certificate said that he had been unfit, the Tribunal rescheduled the hearing to

   
   

   31 March 2004 as a result of the applicant's approach to it to reschedule the hearing date due to his illness. In this regard I note the applicant's letter sent by facsimile transmission on

   
   

   23 March 2004 (CB 53). The applicant confirmed this sequence of events and confirmed that he had not provided any other medical certificate to the Tribunal, but explained that while he continued to be sick with “the flu” he did not think it was appropriate to obtain a further adjournment and therefore attended the hearing on the rescheduled date.

   2)The applicant also complained that he had referred the Tribunal to a number of “other pieces of evidence” and that this evidence had not been taken into consideration. When I pressed the applicant for further details he stated that the Tribunal failed to take into account “the beatings that I sustained” and failed to take into account and to consider that he was separated from his family and faced enormous sufferings. It was quite clear that what the applicant meant by the Tribunal “did not consider” in fact was that the Tribunal “disbelieved” what he had said. I specifically put this distinction to the applicant, and he confirmed that it was the latter that was the real complaint that he was making before me.

   3)The applicant’s third complaint was that he had “described all his activities” to the Tribunal including that he feared harm from Hindu fundamentalists because he was dedicated to Islam and that he was an active member of TMMK which included converting Hindus into Islam. The applicant complained that he had put this to the Tribunal at the hearing that the Tribunal conducted with him, but the Tribunal had not considered it. The Tribunal’s account of what occurred at the hearing with the applicant is contained in its decision record and is set out at CB 79.3 to CB 81.7. At CB 80.1 the Tribunal reports:

   “The Tribunal asked him about his activities as a member of the party. He said that he told other students to follow Islamic teaching and principles such as praying five times a day. He had to organise the students to face the problems caused by Hindus for instance by taking the matter up with the UN. He organised meetings where he addressed the participants and made them understand what the problem was.”

   The Tribunal dealt with this in its “Findings and Reasons” at CB 86.4:

“The applicant’s description of his activities as merely telling other students how to follow Islam or at best organising and addressing meetings about problems with Hindus do not reflect the responsibilities that are reasonably expected to be carried out by a highly educated TMMK office bearer over a period of 8 years (1996-2002).”

I understood the applicant now to be saying that the Tribunal had not properly understood his claim in that he was actively involved in converting Hindus to Islam and that this was something more than what was considered by the Tribunal.

1. The applicant had not put before me any evidence to support his claims about what he said had occurred at the hearing with the Tribunal. Nonetheless given the nature of the applicant’s claims before me, namely that he had raised matters particularly in relation to his being sick and to his activities in converting Hindus to Islam, (and I should also note that in his amended application the applicant also claimed that the Tribunal did not properly consider the chance of persecution based on his membership of a particular social group, namely the Muslim minority in India with the implication being that this also had been put to the Tribunal), I gave the applicant the opportunity to tender the tapes of the hearing with the Tribunal which he asked, particularly by way of the written submission, the Court to listen to. In spite of his pressing on this issue, the applicant had not brought copies of the tapes to the hearing before me. But in any event Mr. Potts tendered a copy of the tape of the hearing the applicant attended with the Tribunal on 31 March 2004, and I took this and marked it as RE 4. I adjourned the hearing for the purpose of listening to the tape and gave both parties the opportunity to make further written submissions after having listened to the tape. No further submissions have been received from the applicant. The respondent filed supplementary submissions on 24 June 2005 and the affidavit of Gerard Francis Murphy sworn on 13 October 2005, and filed on the 14 October 2005, which annexed a Transcript of the hearing that the Tribunal conducted with the applicant. This was subsequently read into evidence at the second hearing before me on 25 October 2005.

1. At the second hearing I provided a short adjournment for the interpreter to finish translating for the applicant's benefit the respondent’s supplementary submissions. The applicant indicated that this was an acceptable course of action from his perspective. At the hearing before me on 25 October 2005 the applicant raised for the first time, (after I had put to him a number of issues going to his claim that he was sick before the Tribunal and how I saw this claim in light of what I had heard on the tape) that he had suffered beatings on his head in the past, and suffered from “headaches” and that he suffered from headaches before the Tribunal hearing and that he could not “tell what I want to say” at the Tribunal hearing. He confirmed however that he did not mention any of this to the Tribunal. The applicant also raised another completely new claim that “a friend” of his had listened to the tape and had told him that the interpreter did “not interpret correctly”. I will deal with this issue below. The applicant also insisted that everything that he had said to the Tribunal at the hearing was true and that the Tribunal did not believe him.

1. I will deal first with the applicant’s claims raised originally at the first hearing before me, and take into account that I have listened to the tape of the Tribunal hearing provided, read the Transcript of the hearing also provided, and note the respondent’s supplementary submissions of 24 January 2005. I should note by way of preliminary observation that in my view the transcription of the hearing provided by the respondents is, after listening to the tape, an accurate transcription of the English spoken at the hearing with the Tribunal, subject to minor sections when the tape was clearly not transcribable. I did not see the nature of those parts of the tape that were not transcribable as detracting from the capacity to understand overall what was said at the hearing with the Tribunal.

1. The applicant's first complaint is that during the time of the Tribunal hearing he was sick and was unable to explain his answers in detail and that the presiding member did not understand him very well. It is clear that the applicant did make a reference to being sick at the hearing with the Tribunal, but not in a way that would assist his claim made before me now. Some 20 minutes into the tape and this is transcribed at T4.2 (for ease I will use the numbers printed at the bottom right hand corner of the transcription), the Tribunal asked the applicant whether he brought his passport to the hearing with the Tribunal, and the answer was “no”. The Tribunal then asked the applicant why he had not brought his passport when he had been told to do so and the applicant's answer was:

“Applicant:   I was sick for four days I couldn't remember it.”

The Tribunal then pressed that it needed to see the passport and the applicant promised that he would bring it to the Tribunal the next day. There is no reference on the tape (as confirmed by the transcript) to any other comment by the applicant to being sick. The applicant made no claim that he was sick or that the illness prevented him from being able to fully present his claims. The parts of the tape that were not transcribable or discernible were short in length and a general meaning can be discerned, although for these short periods not an exact meaning. Nonetheless, there is nothing whatsoever on the tape to show that the applicant made any attempt to tell the Tribunal that he was sick and that his illness prevented him from being able to explain his answers in detail, nor for that matter is there anything on the tape (although the applicant did claim that he did not say this to the Tribunal) to indicate in any way that the Tribunal could have known that the applicant suffered from any headaches before the Tribunal, and that this also was a contributing factor to his feeling sick before the Tribunal. I also note that the applicant did have the services of a migration adviser during the course of the processing of his application before the Tribunal. The applicant indicated in his application to the Tribunal (CB 44) that he nominated a migration agent as his authorised recipient for correspondence, and authorised this person to act on his behalf in relation to his case. There is nothing before me to show that the applicant or his adviser made any attempt subsequent to the hearing with the Tribunal to make any complaint to the Tribunal that he had been sick at the hearing and that in some way he had been prevented from properly explaining his case. I note that the hearing before the Tribunal was conducted on 31 March 2004 and that the Tribunal did not hand down its decision till 18 May 2004, a more than reasonable period in which the applicant could have brought forward any complaint in this regard. To the extent that it may be said that that an applicant from a non English-speaking background, unfamiliar with how matters work before Australian Tribunals may not have known how to go about making any such complaint, I note in this regard that the applicant was capable of arranging the services of a migration agent and in any event it was always open to the applicant to complain to his agent (who was not present at the hearing with the Tribunal) and for the agent to have made representations on his behalf to the Tribunal. There is nothing of this nature before me.

1. I have already made reference to the copy of the medical certificate at CB 59/CB 60 to which the applicant had originally referred me. The certificate, dated 27 March 2004, asserts that the applicant attended a medical centre on that date and because of “the flu” was medically unfit to attend “work, school, university” from 23 March 2004 until 27 March 2004 inclusive. The Tribunal had at first scheduled the hearing before it for 24 March 2004 (CB 49). At CB 51 is a copy of the applicant's response to this hearing invitation where he indicated that he wanted to come to this hearing. Reproduced at CB 53 is a letter from the applicant dated 23 March 2004, that is, the date before the first scheduled date of the hearing. The letter asserts that the applicant was not in good physical condition, referred to the hearing date of 24 March 2004, and stated that the applicant required medical rest due to his sickness and was unable to attend the hearing. He sought an adjournment for two weeks. Subsequent Court Book pages show various communications between the applicant’s adviser and the Tribunal with ultimately (at CB 56) the Tribunal seeking a medical certificate outlining the specific reasons for the applicant being unable to attend the hearing on 24 March 2004. The Tribunal postponed the hearing (CB 58), and subsequently on 28 March 2004 received the applicant's medical certificate. The date of the medical certificate postdates the date of the hearing and the applicant's initial request for a postponement of the hearing date. Significantly however, I note that the medical condition was described as “flu” and I particularly note that the doctor’s certification is that the applicant is unfit for work, school and university with no reference to attending a Tribunal hearing. Further, this certification is stated as being current from 23 March 2004 to 27 March 2004.

1. The Tribunal rescheduled the hearing (at the applicant's request) for 31 March 2004. The hearing went ahead on that date. Importantly, 31 March 2004 is clearly well after 27 March 2004, the latest date for which the medical certificate was current. There is nothing before me to show that there was any other medical certificate provided to the Tribunal and the applicant confirmed that this was the only certificate that he had provided. Further, from listening to the tape of the hearing and reading the Transcript there is no mention by the applicant at the hearing before the Tribunal of being unwell on the day of the hearing, let alone unwell to the extent that it affected his capacity to give evidence nor again is there any reference to repeated headaches that may also have incapacitated him. I also note, as referred to in the respondent’s supplementary submission, that at the beginning of the hearing the Tribunal specifically checked with the applicant as to his capacity to understand the interpreter, that he understood the inquisitorial nature of the hearing and that he should tell the Tribunal if he did not understand any question that the Tribunal put to him (T3.1). It is in this regard important to note the following taken from page two to three of the Transcript:

“TM [Tribunal Member]

… you had been allocated a telephone interpreter today, have you had any difficulty so far understanding this interpreter?

Applicant:     No problem.

TM… Okay if at any point you have any difficulties understanding Mr. Interpreter please let me know directly by raising your hand.

Interpreter:    Yes.

TM:The conduct of this hearing is inquisitorial. What this means is that we are going to proceed by way of me asking questions and you providing answers to those questions.

Applicant:      Mmm.

TM:Of course I'll allow you adequate opportunity to providing any additional information that you may wish to add.

Applicant:      Okay.

TM:Okay, now if you do not understand any of my questions please let me know and I will rephrase or restate those questions for you.

Applicant:      Okay.

TM:In reply to my questions I would like to ask you to break your sentences into shorter sentences so it allows Mr. Interpreter to interpret your evidence effectively.

Applicant:      Yes.

TM:Okay if you require a break at any point please let me know and I will adjourn the hearing for a short period of time.

Applicant:      Okay.

TM:This hearing is confidential. Both myself and Mr. Interpreter are under an oath not to disclose any aspects of your evidence outside this room.

Applicant:      Okay.

TM:So I will expect you to provide your evidence in an honest and frank manner.

Applicant:      Okay.”

The applicant's complaint in this regard must fail. There is absolutely nothing in the Transcript, or the tape of the hearing to support the applicant's allegation about any difficulties he had in conveying his evidence due to his being sick, or indeed due to any other reason, or that he was suffering from headaches which incapacitated him in any way. Nor as I said earlier did the applicant, despite opportunity, subsequently put to the Tribunal any difficulties in this regard. I should note that what the tape does reveal is that the Tribunal was greatly concerned that the applicant understood the process that the Tribunal was adopting, and specifically brought to the applicant's attention that if there was any difficulty he should raise it. He did not bring anything relevant to this complaint to the Tribunal’s attention.

1. During the course of the hearing before me on 25 October 2005

   
   

   I did consider whether the applicant's most recent claim regarding the inadequacy of the interpretation service provided before the Tribunal, and whether I should treat this as yet another application for further time by the applicant to file further evidence. I initially refused this request (to the extent that such an application or request could be discerned from what the applicant put to me at the hearing before me). I fully took into account the submissions made by both Mr. Potts and the applicant’s statement. I accepted submissions made by Mr. Potts in particular that the applicant has had more than ample time to progress his case. He clearly has had possession of the tapes since March 2004 (see CB 67) and has had the opportunity to obtain legal advice, including the opportunity to obtain legal advice from Mr. J. Smith who is an experienced and well-respected Counsel in this jurisdiction. I also noted that there did not appear to be any utility in providing the applicant had any further time in bringing forward any evidence to support what after all was a vague complaint about the level of interpretation. The applicant said that he was not sure what had occurred, but that it was only based on what some friend, who was not a qualified interpreter or translator, is alleged to have told him. At the hearing before me when I pressed the applicant as to whether he was seeking more time to provide any evidence to support his claim. The applicant responded:

“At the time of the hearing I was sick and I am not sure whether I failed to describe certain things or whether the interpreter failed to interpret correctly, therefore I think that if there is another hearing I should be able to provide evidence which I will be getting from India and tendering to this Court.”

In any event as it transpired a number of other matters (in particular the issue of converting Hindus to Islam – which I deal with below) did arise subsequent to this issue during the course of the reminder of the hearing before me on 25 October 2005 which necessitated my giving the respondent (and the applicant) a further opportunity to make any written submissions. In this regard I subsequently advised the applicant that he therefore had the opportunity to file any further evidence in relation to the issue of the standard of interpretation at the hearing, that I would look at that, and I gave the applicant, a period of four weeks to bring forward any such evidence. I note that the applicant has subsequently put nothing of this nature before this Court to support the complaint about the level of interpretation. On what is before me this complaint must fail.

1. In relation to the complaint that the Tribunal failed to take into account matters that the applicant raised at the hearing it is clear, as I have set out above, from what the applicant said to me at the hearing before me, that this was a complaint that the Tribunal did not believe him. In any event in listening to the tape of the hearing there is nothing from the tape that reveals any evidence that the applicant gave that the Tribunal failed to consider. I should note in this regard that the summary of the applicant's evidence recorded by the Tribunal in its decision record at CB 79.3 to CB 81.6 is in my view, after the listening to the tape of the hearing before the Tribunal, a comprehensive and accurate account of what occurred at the hearing.

1. In relation to the applicant's specific complaint that he told the Tribunal that he feared harm from Hindu fundamentalists because he had been involved in converting Hindus to Islam, the applicant’s submission to me at the hearing before me in this regard was that he had told the Tribunal of all the activities in which he had been involved in relation to the TMMK and this involved converting Hindus to Islam. The Transcript of the relevant part of the hearing with the Tribunal, where the Tribunal asked the applicant to explain, his activities with the TMMK is at T8.5 to T9.3:

“TM:What does TMMK stand for? What are its policies?

Applicant:As a Muslim there was a danger from the Hindu movement and to get security and safety for Muslims the party was established and that was why I joined it.

TM:Can you just bear with me for a second?

Applicant:Okay.

TM:Were an ordinary member of TMMK?

Applicant:I joined as an ordinary member of the party but after some time was given a key position in the student section of the party.

TM:What was the key position?

Applicant:He was a secretary in charge of the Trichy area.

TM:And what were your responsibilities as the secretary?

Applicant:I was expected to guide the students to follow the Islamic teachings like praying five times a day (blank). It was against our religion so I had to organise the students to fix the problem.

TM:How did you do that?

Applicant:I had to organise them and tell them that you have got to be united and says all this and that he was taking the matter up to the United Nations.

TM:Did you have any other activities?

Applicant:Being Muslim and being treated Muslim and for that reason we had to organise certain activities.

TM:Well that’s what I am asking you, what were these activities?

Applicant: (blank) and usually they are not told position for that matter trying to organise meetings.

TM:Okay, so you organise meetings?

Applicant:I prepared meetings (blank) the (blank) position to (blank) react to the (blank) (inaudible).

TM:Okay I'm just not clear. I just want to get a clearer picture. What did you do? What were your activities? You said you organised meetings and what else did you do?

Applicant:I used to organise meetings and make them understand what the problem was, but I was considered to be a very active Muslim and I had difficulty. The police were in favour of and they were anti-Muslim.”

There is nothing in this part of the hearing to show that the applicant told the Tribunal he was specifically converting Hindus to Islam, nor could I hear in any other part of the tape of the hearing any statement supporting the applicant's claim before me now.

1. The Tribunal's relevant reference in its decision record of what occurred at the hearing is at CB 80.1:

“The Tribunal asked him about his activities as a member of the party. He said that he told the students to follow Islamic teachings in principle such as praying five times a day. He had organised the students to face the problems caused by Hindus for instance by taking the matter up with the UN. He organised meetings where he addressed the participants and made them understand what the problem was.”

After listening to the tape this was an accurate reflection of what was said by the applicant in this regard. The applicant’s references to “organising students” as part of his activities on behalf of the TMMK was clearly set in the context of organising Islamic students to follow Islamic teachings such as praying five times a day. Clearly, the applicant was putting to the Tribunal that there was opposition to the Islamic students and his activities were aimed at uniting them to follow Islamic practice as a way of standing against the unspecified opposition. (At best this was:

“The police … were anti-Muslim.” (T9.3)

In all, I can only agree with Mr. Potts’s supplementary submission that what transpired at the hearing, based on my hearing of the tape, and reading of the transcript, does not advance the applicant's case for judicial review in this regard.

1. In the applicant’s amended application, the applicant complains that the Tribunal did not properly consider the chance of persecution on his return to India in that it failed to consider his claims based on his membership of a particular social group, namely the Muslim minority in India. He claims that he would be persecuted if he returned to India because he is a Muslim, and that this is his “religious belief”. In its decision record at CB 76.7 to CB 78.5 the Tribunal sets out its understanding of the definition of “refugee”, and the concept of “persecution” under the Refugees Convention, as qualified by ss.91R and 91S of the Migration Act 1958 (“the Act”). The Tribunal’s setting out of its understanding appears unexceptional. Relevantly, the Tribunal states at CB 77.8 that the persecution which the applicant fears must be for one or more of the reasons in the Convention definition, and amongst others refers to religion, membership of a particular social group and political opinion. In looking at the Tribunal's decision record, it is clear that it understood and properly considered the applicant's claims as they arose out of his political beliefs, and as they related to the Convention reason of political opinion. However, the applicant does not challenge this aspect of the Tribunal's decision in this particular complaint. The stated complaint is that the Tribunal did not consider his claims based on his membership of a particular social group, namely the Muslim minority in India. In its “Findings and Reasons”, beginning at CB 85.4, the Tribunal characterises the applicant's claims as being based on the Convention grounds of political opinion and religion. However, in the Tribunal's “Findings and Reasons” there is no specific reference to the Convention ground of membership of a particular social group. The issue for the Court therefore is whether the Tribunal properly considered the applicant's claims based on the Convention ground of religion, and whether it was necessary for the Tribunal to make express mention or consideration of the separate Convention ground of membership of a particular social group.

1. It is very clear that the applicant's claims to a great extent focused on the fear of harm arising out of political opinion because of his association with TMMK, and the opposition from Hindu fundamentalists. But he also raised fear of harm because of his religion. Partly, this was entwined with his association with the TMMK and the fear of opposition Hindu fundamentalists and the BJP (opposition political party). But the applicant's claims appear to go beyond an assertion that he feared harm because of his political beliefs, because as a Muslim he was in opposition to other political parties in power. He makes claims which could be seen as going beyond the political context to fear harm because of his religion. In his application to the respondent's Department, copied at CB 20.5 the applicant states:

   "I am a Muslim minority in India."

   He goes on to say at CB 21.1

   "I will kill by Hindu fundamentalists and BJP Government police will arrest me and detain me in custody without any trial."

   At CB 22.4 he says

   "I was tortured and threatened by Hindu fundamentalists who do not like Muslim minority."

2. The Tribunal itself initially recognised that the applicant's claims were based on the Convention grounds of political opinion and religion in its “Findings and Reasons” (CB 85.3). But it is also clear that at first the Tribunal dealt with the aspect of the applicant's claims arising from his religion, as being a part of the claims arising out of his complaints regarding political opinion, political involvement and the action of political opposition who were partly motivated by religious divisions. Having said that one of the Convention grounds was religion, the Tribunal at CB 85.5, then focused on the applicants claimed membership of the TMMK and made the findings that ultimately lead to its not accepting that the applicant was a member of the TMMK, or that he was an office bearer of the association some 350km from his home. But it then goes on to say at CB 86.6:

   "However, based on the evidence before it [the Tribunal] and the reasons outlined above, is not prepared to accept that the applicant had held a political (or a religious) profile other than a low and an insignificant one.”

   The reference to “religion” in brackets in making this critical finding is a graphic and accurate illustration of how the Tribunal, up to this point in its decision record, saw the claims regarding religion. That is, as a subset, albeit an integral part, of the consideration of the political opinion ground. The Tribunal then at CB 86.7 did go on to look at the specific instance of complaint made by the applicant regarding the incident where he says he was briefly kidnapped and assaulted after leaving the mosque. The Tribunal stated at CB 86.8:

   "The Tribunal has already found that as a mere supporter of TMMK the applicant did not have a significant political profile, the Tribunal does not accept that this incident occurred for the reason of the applicant's political opinion."

   There is no specific mention at this point of the decision record of the ground of religion. Nor again where it goes on to say at CB 86.9:

"Moreover, there was no evidence in the sources consulted by the Tribunal to indicate that TMMK members and supporters have been a systematic target of harm by Hindu fundamentalists and/or the BJP."

The Tribunal again is clearly indicating that it is looking at the political aspects, and to the extent that there is a reference to Hindu fundamentalists this is in the context of political violence, and subsequently the communal violence, rather than a specific focus on any separate aspect of the claim that he feared harm as a Muslim in India, beyond the political harm that arose out of the alleged kidnapping and assault incident.

1. But the Tribunal's subsequent analysis at CB 87.2 to CB 88.7 can be read as an examination and consideration of not only the political context, but the broader context of harm to Muslims, and in particular Muslims in the area in which the applicant lived. At CB 87.2 the Tribunal makes a reference to independent evidence confirming extensive communal violence in 1997 and 1998 in Tamil Nadu. The Tribunal found that this communal violence may have touched the applicant at the margins, but that the incident of concern (the “mosque” incident) that is, the harm that he claimed to have suffered either for political or religious reasons or both, was random and opportunistic. The Tribunal found that the chance of the applicant suffering similar harm in the reasonably foreseeable future was remote (CB 87.9). In coming to this finding  the Tribunal set out at CB 88.7:

   "The Tribunal therefore finds that the threats in this case did not amount to serious harm and do not give rise to any real chance of persecution in the reasonably foreseeable future. The Tribunal, therefore, is not satisfied that the applicant has a well-founded fear of persecution for reasons of his political opinion or belief.”

   In coming to this conclusion the Tribunal clearly looked at the applicant's specific complaints of harm, and the fear of harm, in the context of both the political and religious elements arising out of the communal violence in Tamil Nadu. Specifically, it is clear that the Tribunal dealt with the issues as put by the applicant himself at the hearing, and this is confirmed by listening to the tape of the hearing with the Tribunal. The applicant’s claims to fear harm on religious grounds were clearly put as an integral part, an aspect of, the claim of fear of harm arising out of the circumstances of his being a person engaged in political activity which brought him into conflict with opposition parties. The fact that the applicant was Muslim and some of those in opposition to him were Hindu fundamentalists was clearly an aspect of his claims, but nonetheless intertwined with his political situation and activities and I note that the applicant presented his claims in this context.

2. Further, it is clear that while the Tribunal had made no specific reference to membership of a particular social group in its decision record, it did deal with the applicant's claims in the context of his being a Muslim in Tamil Nadu, against the background of political/religious communal violence. When the Tribunal said in its decision record that it was not satisfied that the applicant had a well founded fear of persecution for reasons of his religion (CB 86.6 and 88.7) it clearly encompassed the applicant's claim that he feared harm because he was a member of the Muslim minority in India. The applicant did not raise before the Tribunal, nor were there any other circumstances or elements arising out of the applicant's claims, anything that would have required the Tribunal to deal with the issue of membership of the Muslim minority in any additional way. The Tribunal dealt with the applicant's claims as put by the applicant. That is, that he feared harm from political opponents and that he feared harm on religious grounds because he was a member of the Muslim minority, and the incident at the mosque was an example of the harm that had befallen him and could occur to him on return. This is what the Tribunal dealt with. There is nothing before me to show that the applicant's membership of this group involved anything beyond being a member of the Muslim minority in Tamil Nadu, and that this was not properly considered and addressed by the Tribunal.

1. Further, in spite of the Tribunal’s comment in its decision record at CB 88.8, that it did not need to go on and consider the issue of the applicant’s relocation to another part of India, it indeed did go on to consider this issue, and said at CB 89.4:

“The Tribunal does not accept that the applicant will face problems for the reason of his support for TMMK or his Islamic faith throughout India. The Tribunal is satisfied that if the applicant wished to avoid the possibility of further conflict with Hindus in Tamil Nadu it is reasonable for him to relocate to a different part of India.”

This finding, that the applicant could reasonably and safely relocate to another part of India, was a direct response to the applicant's claims of fear of harm for both political and religious reasons including his being a part of the Muslim minority in Tamil Nadu. The finding that the applicant could safely and reasonably relocate, in the context of the Tribunal’s indication that it understood the principles set out in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437, was a finding that encompassed the applicant's claims as put by the applicant, and the circumstances arising out of those claims. This finding on relocation was open to the Tribunal on the material before it and can be seen as a separate basis for the Tribunal’s ultimate decision that the applicant was not a person to whom Australia owed protection obligations.

1. The applicant also complains that the Tribunal's lack of satisfaction that he was a refugee was not based upon reasoning which provided a rational or logical foundation for this belief. While some members of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 (“S20”) expressed some support for illogicality as a ground of review, the utility of the illogicality is limited. In NACB v Minister for Immigration and Multicultural Affairs [2003] FCAFC 235 (“NACB”) at [29] [30] the Full Federal Court held there is nothing in the remarks of the High Court in S20 which would warrant a departure from earlier line of decisions in the Federal Court to the effect that is logical reasoning does not in itself constitute an error of law or jurisdictional error:

“[29] In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error.  Nor does the want of logic which has been identified in the present case sound a “warning note” of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.

[30] Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was a want of logic in one aspect of the reasoning of the RRT.  However, want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional.  There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT’s reasoning.  Moreover, there are several bases upon which that reasoning can, in any event, be supported.  Accordingly, on the present state of the authorities, there is no reviewable error.”

In S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162 Moore J held that notwithstanding various observations of members of the High Court about illogical reasoning, he was bound to follow NACB.

I note that in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [53]-[54] Black CJ, French and Selway JJ. state:

“[53] It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision.  This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351 to 352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:

‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’

Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J.

[54] The question was further discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. McHugh and Gummow JJ, with whom Callinan J agreed, rejected a submission by the Minister that the presence of an error of law was essential for a finding of jurisdictional error to support the grant of relief under s 75(v) of the Constitution. They said (at 71 [54]):

‘The introduction into this realm of discourse of a distinction between errors of fact and law, to supplant or exhaust the field of reference of jurisdictional error, is not to be supported.’

Error of law may occur within jurisdiction – S20/2002 at 72 [57] …The observations in the joint judgement in S20/2202 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s. 85(v) or the exercise by this Court of its analogous statutory jurisdiction under s. 39B of the Judiciary Act.  The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error are likely to be quite limited.”

In the case before me the applicant has put nothing before the Court, beyond mere assertion, to support this claim. The Tribunal's decision, including its various findings leading to its decision, were open to it on the material before it, which dealt with the claims of the applicant as put by him, (confirmed by the tape of the hearing) and assessed against the background of independent country information available to it. The Tribunal gave reasons for its findings which go to, and support, its ultimate decision. There is nothing in the material before me which would support the applicant’s stated complaint of illogicality in the Tribunal’s reasoning.

1. The applicant also complains that the Tribunal did not observe the Migration Act “properly” in making its decision. This ground is not particularised. At the hearing before me the applicant was unable to provide any further particularity. The only reference that could be relevant in the applicant's written submissions is that relating to s.424A of the Act. However, the applicant's complaint in the written submissions is not clear. The submissions state that the Tribunal rejected his claims because his written evidence was inconsistent in relation to major issues, and that the Tribunal did not treat this matter (presumably his case), as “a s.424A issue”. The applicant was unable to assist further when he appeared before me. To the extent that this may be a complaint that the Tribunal did not put to the applicant adverse information arising out of the independent country information on which it relied as required by s.424A(1) of the Act, it is clear that the independent evidence relied on by the Tribunal, to which it refers in its record of decision at CB 81.8 to CB 85.3, is clearly information that on the most recent preferred Full Federal Court authority of Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 would fall within the exception set out in s.424A(3)(a) to the need to put this information to the applicant pursuant to s.424A(1). I will return further to this below.

1. The written submissions also raise the allegation of actual bias. For the applicant’s benefit in particular, allegations of bias, whether actual 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. Further, 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 (Re: Refugee Review Tribunal; Ex parte H [2001] HCA 28, [27]-[32]). In the absence of any particularity, or anything further before me, I cannot in the circumstances of this application, that there is sufficient material to show bias or apprehended bias on the part of the Tribunal.

1. The applicant also raises the allegation that the Tribunal acted in “bad faith”. The applicant has provided absolutely no evidence to support this claim nor were any other assertions or submissions made by the applicant on this point at the hearing before me. There is nothing before me to show that any of the propositions set out in the Full Federal Court decision in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 as expanded by the Full Court in SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 431 and Minister for Immigration and Multicultural and Indigenous Affairsv NAOS of 2002 [2003] FCAFC 142 can be made out. There is nothing that I can see in the circumstances of this case to justify the assertions being made or that this ground could be made out. The applicant has provided no evidence for these assertions. It appears that the assertion really is an attempt by the applicant (or his friend) to explain and understand the Tribunal's decision. The applicant really appears to be saying that the only rational explanation for the Tribunal not accepting that he was a refugee is that it must have been biased or acted in bad faith against him. None of the complaints can be made out.

1. The applicant's reference in his submissions to the High Court judgement of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 is similarly unsupported by any particularity or relevant argument. The applicant was unable to provide anything further at the hearing before me. Nor is there anything in the material before me to show that the applicant was misled in any way by the Tribunal, or that there was any relevant failure pursuant to s.418 of the Act, if this was the intention in making reference to this case.

1. During the course of the hearing on 25 October 2005 the applicant again raised the claim that there were “some friends in India” who could be contacted to corroborate his “story”. In this regard Mr. Potts fairly raised whether there had been a breach of s.426(3) and s.425A(3) of the Act and Regulation 4.35D of the Migration Regulations 1994 (“the Regulations”). I should note that beyond the mention of “friends in India” who could corroborate his claim the applicant made no further specific complaint in this regard.

   
   

   The possibility of any possible difficulty in relation to the statutory provisions was raised by Mr. Potts. Given the applicant's comment, in all these circumstances, I considered it appropriate to give Mr. Potts the opportunity to make further submissions in writing on this issue and provided a similar opportunity to the applicant. Again, it was in this context that I also provided the applicant with the opportunity to provide anything further in relation to his other complaint concerning the level of interpretation at the hearing before the Tribunal.

1. Pursuant to s.425 of the Act the Tribunal must, unless certain exceptions apply, invite an applicant to appear before the Tribunal to give evidence and present arguments relating to matters arising in relation to the applicant's case. Section 425A provides that a notice of invitation to appear be given to the applicant, and provides for prescribed periods for the giving of that notice, and further what must be contained in the notice.

   Section 426 of the Act provides:

“s.426.Applicant may request Refugee Review Tribunal to call witnesses

(1)In the notice under s.425A the Tribunal must notify the applicant:

(a)that he or she is invited to appear before the Tribunal to give evidence, and

(b)    of the effect of subsection 2 of this section.

(2)The applicant may, within seven days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to oral evidence from a person or persons named in the notice.

(3)If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the notice.”

1. In the case before me, in compliance with its obligation under s.425 of the Act, the Tribunal wrote to the applicant on 12 February 2004 and advised him that on the material before it, it was unable to make a decision in his favour, and invited the applicant to a hearing before the Tribunal on 24 March 2004. The letter (and copies) were was sent to the applicant's migration adviser, who was also the authorised recipient for correspondence, to the applicant's address for service, and to the applicant's then known home address as set out in the applicant’s application to the Tribunal. The letter enclosed a “Response to Hearing Invitation” form which directed the applicant to read and complete the enclosed form, and to advise the Tribunal if he was coming to the hearing or not, and relevantly asked the applicant to complete the “witnesses” part of the form if he wanted the Tribunal to obtain oral evidence from another person. The Tribunal noted that it did not have to obtain evidence from any person so named by the applicant. The letters were sent by registered post (one of the methods set out in s.441A of the Act by which the Tribunal gives documents to a person, pursuant to s.441(c)(4)(a) of the Act). The applicant was taken to have received the document seven working days after the date of the document, which in this case would have been 23 February 2004. The “Response to Hearing Invitation” form appears to have been returned to the Tribunal on 6 March 2004 (CB 51) according to the Tribunal's “received date stamp”. The reverse of this form is reproduced at CB 52, and the applicant in response to the question indicated that he had a witness, and indicated that this witness was a friend who knew about his persecution in India, and was at that time in India.

2. I note that the Tribunal does not refer in its decision record to the applicant’s request as expressed in the “Response to Hearing Invitation” form that his friend in India be called as a witness. There is no written record, in its decision record, nor arising from the hearing before the Tribunal, of the Tribunal having considered the applicant’s request that his friend be called as a witness. Therefore, the issue is whether the Tribunal had breached s.426(3) of the Act. Mr. Potts having fairly raised the issue, argued that the Tribunal did not breach s.426(3), and that the Court should not infer that the Tribunal did not have regard to the applicant’s request to call a witness. Mr. Potts asserted that in any event s.426(3) did not apply in this case because it was a pre-condition to its operation that a notice under s.426(2) had been received, but notification is required within 7 days of receipt of the notice by the applicant under s.426(1). This did not occur in this case. Further he argued, s.426(3) only applies to witnesses who are in Australia at the relevant time. As has been observed above, the applicant was notified of the ability to nominate witnesses under s.426(1) on 23 February 2004. Pursuant to s.426(2) the applicant was informed of his right to notify the Tribunal “within 7 days after being notified under subsection (1)” that he wanted the Tribunal to obtain evidence from the person named in the notice. In this case, the applicant had until 1 March 2004 to notify the Tribunal. In fact, the Tribunal was not notified until 6 March 2004. Therefore the applicant was in breach of s.426(2) when he failed to give notice pursuant to subsection (2). As a result s.426(3), which is conditional on compliance with subsection (2), was not “enlivened” as the applicant did not notify the Tribunal within the required period. Non-compliance with s.426(2) cannot be dismissed as inconsequential when one is considering whether a breach of a provision of the Act constitutes jurisdictional error. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [72] McHugh J. said:

“Jurisdictional error may arise where a decision-maker fails to discharge “imperative duties” or to observe “inviolable limitations or restraints” found in the Act. To determine whether a decision under the Act involves a jurisdictional error, it is necessary to take two steps. First, it is necessary to determine the limitations and restraints found in the Act. Secondly, it is necessary to attempt, through statutory construction, to reconcile them with s 474 of the Act to ascertain whether failure to observe any particular procedural or other requirement in the Act constitutes an error which has resulted in the decision-maker failing to exercise or exceeding its jurisdiction.”

Also at [204] Hayne and Kirby JJ. agreed that:

“The focus of the inquiry about jurisdictional error must be upon the combined operation of s 414(1) (which obliges the tribunal to review the decision) and s 415 (which gives the tribunal the same powers and discretions as are conferred by the Act on the primary decision-maker). It is the validity of the act done in purported performance of the obligation to review and decide which is in issue. The question is, having regard to “the language of the relevant [provisions] and the scope and object of the whole statute”, is it “a purpose of the legislation that an act done in breach of [s 424A] should be invalid”? That is, is the tribunal’s decision to affirm the refusal of protection visas to the appellants invalid for want of compliance with s 424A?”

1. I therefore agree with Mr. Potts that the time limit under s.426(2) has conditioned the obligation in s.426(3) as arising only on receipt of notice compliant with subsection (2). As a result, the applicant’s failure to correctly invoke s.426(3) in that the notice did not comply with s.426(2), the issue of any failure by the Tribunal to consider whether “the friend” in India should have been called as a witness simply does not apply in this case. I note further that as s.422B of the Act applies in this case, s.426(3) covers the field, in terms of the Tribunal’s obligations to afford natural justice to an applicant by considering calling witnesses: see SZDMC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 763 at [42]-[49] Stone J.:

I also specifically note that the Tribunal advised the applicant (CB 50.1) that the “Response to Invitation” form should be completed and returned to the Tribunal by 27 February 2004. Clearly the form was not returned until 6 March 2004. In these circumstances, given that the time limit set down in s.426(2) was not complied with, there cannot be said to be a request pursuant to s.426(3). The applicant's migration adviser (at least) would clearly have known of the importance of meeting date deadlines set by the Tribunal. No explanation was offered for the late return of the “Response to Hearing Invitation” form including the request relating to the witness. In this case s.430 of the Act did not apply, nor was there any common law obligation upon the Tribunal to give reasons as to how it had regard to the applicant’s request to call a witness under s.426(3) of the Act.

1. I also note that a similar circumstance in terms particularly of a failure, in the decision record, to note a request to call witnesses, was considered by French J., in W352 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 398 at [43]-[44], where his Honour said:

   “Ground 4(c) invokes s426 of the Act and asserts that the Tribunal did not have regard to the applicant’s request for the Department to contact his father and his father’s brother in accordance with s426 of the Act. Prior to the hearing the applicant completed a form nominating witnesses from whom he wished the Tribunal to take evidence. These were his father and his older brother. According to the form, each resides in Iran and speaks Farsi. A phone number was given for each. The evidence to be elicited from them was described on the form thus: “you can ask him “why did I leave my country”?”

   S426 requires the Tribunal to have regard to the applicant’s wishes in respect of witnesses, but specifically provides that the Tribunal is not required to obtain evidence from a person named in the applicant’s notice. The Tribunal did not refer to the request in its reasons for decision. It was submitted for the applicant that, in the absence of any indication by the Tribunal that it had regard to his request, the Court should infer that the Tribunal did not have regard to it.

   Whether an inference of the kind propounded can be drawn from absence of reference to a written request will depend upon the circumstances.  In this case the Tribunal may have concluded that there was nothing the proposed witnesses could have added to the applicant’s contentions.  There was no reference to the applicant’s request in the submission made on his behalf by his legal representatives, Macpherson & Kelley.  The Tribunal plainly had the request before it.  There is no duty on the Tribunal to refer to it in its reasons, although it would be preferable were it to do so.  There is no material on the record or in the notice of the request which could lead me to infer that the Tribunal disregarded it.  In fact it is difficult to see how the Tribunal could have disregarded it.  In my opinion this ground is not made out.”

   This decision was referred to with approval by the Full Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [34], where Carr J. (with whom Cooper and Finkelstein JJ. concurred) said:

   “The Tribunal was not obliged to refer to the appellant’s request in its reasons for decision:  W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [44]. In the circumstances of that case, French J was not prepared to infer that the Tribunal had disregarded the applicant’s wishes in respect of witnesses. As I have mentioned above, Mansfield J took a similar course at first instance in this matter. In my respectful opinion, there is nothing in his Honour’s reasoning which suggests any error of law on his part.”

   In the case before me I also note, and agree with the submissions made by Mr. Potts, that the Court should not infer that the Tribunal did not in any event have regard to the applicant's request, as the form was clearly received by the Tribunal, as evidenced by the stamps on the face of the document and action was taken as a result of receipt of the form in that a hearing was scheduled.

2. Although not raised by the applicant, I should also just note with reference to the date on which the hearing before the Tribunal took place that the Tribunal hearing was originally scheduled for
   24 March 2004. The applicant was advised of this, as I have already set out, by letter dated 12 February 2004 (CB 49). On 23 March 2004 the applicant wrote to the Tribunal and requested an adjournment. Once the Tribunal had received the applicant's medical certificate indicating the applicant was unfit (albeit not in reference to attending a hearing before the Tribunal) until 27 March 2004, the Tribunal agreed to reschedule the hearing for 31 March 2004, and advised the applicant's adviser of its agreement. The applicant subsequently attended on 31 March 2004. I note that s.425A(3) of the Act and Regulation 4.35D require 14 days notice of the hearing. This was clearly originally complied with by the Tribunal with its initial invitation to a hearing. The issue is whether the 14 days notice of a hearing applies when the applicant has requested a hearing date to be rescheduled as opposed to the Tribunal rescheduling the hearing date for its own purposes. In this regard I note SZDQOv Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1026 at [29] where Conti J., said:

   “In my opinion, in circumstances where the Tribunal decides to reschedule a contemplated hearing at the behest, explicitly or implicitly, of an applicant, s 425A does not apply in relation to the notice of the rescheduled hearing, at least in so far as concerns the period of the reviewed notice. The sanction on the Tribunal in those circumstances would be the operation of the general law as to natural justice, as Healy J. indicated in NAHF albeit in a different factual context, and subject to the operation of the recently enacted s 422B of the Act. As Barnes FM reasoned in SZBAZ, in my opinion rightly, ‘[w]ere it otherwise, any delay, even of minutes or hours, at the request of the applicant, would give rise to a failure to comply with s 425A’. Other examples of circumstances where the conduct of a review by the Tribunal could be unreasonably thwarted readily come to mind. It is conceivable moreover that an applicant could set in train an indefinite number of re-schedule hearings in a repetitive context of the requirements of not less than 14 days’ notice. It was I think soundly submitted by the Minister that Scarlett FM’s finding in the present case was correct to the effect that the period of notification given for the rescheduled hearing was reasonable and according to law, albeit involving less than 14 days’ notice. I would dismiss the appeal, which, aside from this controversial issue as to notice, was in any event devoid of any apparency of merit.”

   In the present case clearly the rescheduling of the hearing date was done purely at the behest of the applicant. In all the circumstances the period of notice provided for the rescheduled hearing date was reasonable. Nor does the applicant assert to the contrary, and nor significantly did his migration adviser at the time make any complaint that this would cause any difficulty for the applicant.

3. It is clear on what is before me that the Tribunal dealt with the applicant's claims as put by the applicant. Essentially these were that he feared harm from political opponents, and that he also feared harm because of his membership of the Muslim minority in India. As I have set out above, the Tribunal understood and properly dealt with these claims as they arose out of the circumstances presented by the applicant. It found that he did not have a well founded fear for a Convention reason. In any event, it is clear that in all of the applicant's circumstances the Tribunal found that the applicant could reasonably relocate elsewhere in India. The findings that the Tribunal made, to the extent that they were based on independent country information which led it to not accepting certain claims made by the applicant were all open to the Tribunal to make on the material before it, and it gave reasons. I can see no error in the way the Tribunal has gone about its task that would justify a finding that it failed to exercise or exceeded its jurisdiction. I can see no jurisdictional error on the material before me. This application is therefore dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  31 January 2006