SZDWW v Minister for Immigration
[2005] FMCA 780
•21 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDWW v MINISTER FOR IMMIGRATION | [2005] FMCA 780 |
| MIGRATION – Refugee – Convention claims based on fear for political opinion – independent country information and an alleged breach of s.424A – bias – bad faith – no reviewable error. |
| Migration Act 1958, ss.424A, 424A(1), 424A(3), 422B, 65, 36(2) |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264 NARVv Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 |
| Applicant: | SZDWW |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1903 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 7 June 2005 |
| Date of Last Submission: | 1 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. G. Johnson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant to pay the respondent’s costs set in the amount of $4500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1903 of 2004
| SZDWW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 21 June 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 April 2004 and handed down on 25 May 2004 affirming the decision made on 1 December 2003 by a delegate of the respondent Minister to refuse a protection visa to the applicant.
The applicant's claims to refugee protection are set out in his application to the respondent's Department, reproduced at Court Book 1 to CB 23, a statement provided by the applicant to the respondent's Department at CB 24 to CB 25 and in his application for review to the Tribunal at CB 49 to CB 52. The applicant's claims as put to the Tribunal at the hearing before it, held on 21 April 2004, are set out at some length and with considerable detail by the Tribunal in its decision record at CB 69 to CB 77.8. The applicant's claims prior to the hearing before the Tribunal were also set out in the Tribunal's decision record at CB 66.5 to CB 68.
The applicant is a national of India. His claim to fear persecution was on the ground of political opinion arising from his membership and active involvement in the Congress (I) Party. He claimed to fear harm from a rival political party in his home state of West Bengal, namely the Communist Party of India Marxist (CPIM). The applicant claimed that in 2001 he had been beaten by his political opponents who targeted activists such as the applicant and that this was only the first of a number of incidents that led to his decision to leave India. The incidents he referred to also included that a false case was filed against him in May 2003 to “doom” his political future. Essentially, the Tribunal made three key findings in relation to the applicant's claims:
1)That the applicant's profile was such that he would not attract adverse interest from the CPIM. The Tribunal based this on the applicant's responses at the hearing before it, where it found that although displaying a degree of political knowledge the applicant was not able to answer some questions on politics put to him at the hearing (commensurate with the expected level of knowledge) (CB 83.8), and the lack of information that he was able to provide about his claimed political roles, was indicative of the applicant holding a minor position, if any, in the Congress (I) Party. The Tribunal found that, as such, his profile was of such level that he was not harassed, threatened or that false charges had been made against him by the CPIM (CB 85.2).
2)In any event, the Tribunal found on a separate basis that it was reasonable for the applicant to relocate elsewhere in India to avoid any possible harm he may fear as an ordinary rank and file member of the Congress (I) Party in India (CB 85.3).
3)That there was meaningful protection available to the applicant from the Indian police and other security institutions and that protection within India met basic norms of civil, political and socio-economic human rights and that:
“…internal safety is not illusory or unpredictable and that state accountability for the harm is established.” (CB 88.1)
In relation to these findings, it is clear that the applicant had not satisfied the Tribunal that his profile was such that he had attracted an adverse interest from the CPIM. The Tribunal's reasons in this regard are set out at CB 83.9 to CB 84.4. At CB 85.2 the Tribunal found:
“Overall, the Tribunal finds that the applicant’s responses and lack of information about his roles are indicative of the applicant holding a minor position, if any, in the Congress (I) Party. As such, I find that his profile was such that he was not harassed, threatened or that false charges were made against him by CPIM. I therefore do not accept that the applicant sought the assistance of the Police on any occasion”
The Tribunal also rejected the applicant’s claim that he had been beaten or that the applicant had tried to report the beating to police and was rebuffed. While the Tribunal clearly rejected the applicant's claims of past harm, it does not appear to have made a clear finding that there was not a real chance of persecution arising directly from that finding in the future. But clearly the Tribunal’s finding was that in a context of no serious harm in the past that the applicant could, in the reasonably foreseeable future, relocate elsewhere in India and that effective protection would be available (CB 85.4 to CB 87.7). The Tribunal also found that effective protection would be available to the applicant in all parts of India (CB 87.8). In relation to the issue of relocation within India, the Tribunal found that the applicant could effectively access protection by this means, and that it would be reasonable and practical for him to do so in his circumstances (CB 85.4 to CB 88.5). The Tribunal's analysis in this regard is extensive and at CB 88.2 the Tribunal says:
“I am not satisfied that he will encounter any difficulty in the reasonably foreseeable future for reason of his political opinion if he moves to other parts of India where he is not known, even if he were to continue his interest in politics, as he intimated. There is no reason he could not start a new life in another part of India and develop new social circles amongst the one billion people in India. I am satisfied that the practical realities are such that he is able to relocate without difficulty. I am satisfied the relocation is both a reasonable and practical option for the applicant and his wife.”
The applicant's originating application to the Court contains a number of stated complaints which in form, content and style are often seen in this Court. They are devoid of any particularity and the absence of any specificity detracts from the substance of the claims. But in any event, the applicant filed an amended application on 13 December 2004 and asserted the following grounds:
1)“The Tribunal denied the procedural fairness and, in so doing, made a jurisdictional error.
Particulars:
a)The Tribunal relied on independent evidence as to the availability of country information in India;
b)The Tribunal failed to afford an opportunity to deal with adverse information, contained in the independent country information relied upon by the Tribunal, that was credible, relevant and significant to the Tribunal's decision;
c)The Tribunal relied on independent country information. But did not invite my comment.
d)In the Tribunal decision FINDINGS AND REASONS is not accepted by me because the Tribunal did not observe Migration Act 1958 properly if the Honourable Court hear the RRT interview audio cassette transcript.
e)I rely on the decision of the Full Court of the Federal Court in NARV v The Minister for Immigration and Multicultural and Indigenous Affairs (2003) ALR 494.
2)The Tribunal failed to comply with the mandatory requirement of the Migration Act 1958 (Cth) in that I was not provided with the independent country information which was not “just about the class of persons of which the Applicant was member” and which fell outside the meaning of section 424A(3)(a) of the Migration Act, where such information was relevant to the Tribunal's Decisions not only because it concerned the class of persons, but also because it went to a separate issue in the proceeding in the proceedings: NARV & Ors v The Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494.
Particulars:
3)The procedures that were required by the Migration Act or regulations to be observed in connection with the making of the decision were not observed.
4)The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of the dated information without any investigation.
5)The Tribunal failed to take a relevant consideration into account in exercising its power to determine me as a Refugee.
6)The decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the refugee review Tribunal.
7)The Tribunal decision was unjust and was made to the taking into account the full gravity of the applicant’s circumstances and consequences of the claim.
8)The decision by the Tribunal is not justifiable by the evidences used in the decision. The used documents had indicated clear violation of human rights, which is tantamount to persecution. The Tribunal ignored its own information in deciding the case.
9)The decision was an improper exercise of the power confirmed by this Act or the regulations and I was deprived to attain natural justice.
10)In the decision of RRT Findings And Reasons are got wrong.
11)I will provide details in my written submission.”
The applicant filed written submissions on 31 May 2005. The submissions focus on an allegation of actual bias and reiterate the complaint relating to s.424A and make a number of assertions, which at best, can be seen as an attempt to argue for impermissible merits review. The applicant was unrepresented at the hearing before me. He was assisted by an interpreter in the Bengali language. Mr. Johnson of Counsel appeared for the respondent. As foreshadowed in his written submission, the applicant sought an adjournment of the hearing before me on the basis that he wanted to engage a lawyer. In response to my pressing the applicant as to why he had not taken any steps to engage legal representation in the 8 ½ months since he had filed his application to the Court, he said that this had been a mistake on his part and that the fees for a barrister are very high and he thought he would be getting some financial help from his friends. However, he was unable to provide any details, and nor did he assert, that he had actually taken any steps to engage legal representation. He then asserted that he had a friend in New Zealand who may provide him with the funds to engage counsel. He claimed to have communicated with this friend through e-mail but was unable to provide any evidence of this as the contact had been through an Internet cafe and he had no printouts. The applicant subsequently confirmed that he had received legal advice from a lawyer on the panel of the Court's Legal Advice Scheme. The applicant stated that he had received written advice but indicated some dissatisfaction with it. He also confirmed that he had received advice from an acquaintance and had been given some assistance in the drafting of the amended application and his written submissions.
I refused the request for the adjournment. The applicant's explanation for his lack of action in arranging legal representation given that he had a considerable period of time available to him was unsatisfactory.
At best, he claimed some vague expectation that friends would assist him with the funds but was unable to state that he had taken any specific action to arrange funds or indeed to arrange legal representation. His claim now of a friend in New Zealand who would provide funds did not rise above the circumstances, as put by the applicant, of a familiar (similar to some other applicants before the Court who after a considerable period seek an adjournment at or near the hearing) and vague hope that the funds may be forthcoming. The applicant's presentation on this point was far too vague to cause me to feel that there was any real prospect of funds forthcoming. Further, on the material that was before me, there did not appear to be any legal features of the case that would warrant an adjournment for legal representation to be arranged. I note that the applicant did have access to some legal advice and did have assistance in the preparation of the material that he put before the Court. In all the circumstances, I could see no real utility, or necessity, to grant the adjournment. I returned to this issue at the conclusion of the hearing before me where the applicant's complaint was that the free legal advice that he had received was not of any help to him. The applicant was unable to add anything of substance at the conclusion of the hearing to justify, even at that stage, any further adjournment.
The applicant's first ground of complaint as stated in the amended application is that the Tribunal denied him procedural fairness -possibly a reference to common law principles of procedural fairness. However, when looked at in context of the particulars that the applicant provides, it appears that this is a complaint that the Tribunal breached the requirements of s.424A(1) of the Act in that it relied on independent country information and failed to afford an opportunity to the applicant to deal with this adverse information. He claimed that the Tribunal did not invite his comment. In this regard the applicant has not put forward any helpful particulars giving details as to what specific adverse information he says was not put to him, nor has he provided any evidence of any such failure. I note by way of introduction to considering this complaint that the Tribunal's decision and the application made to it, postdates the introduction of s.422B of the Migration Act. I also note that the Tribunal had before it the applicant’s written claims from the various sources cited above in paragraph 2 of this judgment. Further, on 9 March 2004, the Tribunal wrote to the applicant, with a separate copy sent to his then migration adviser, seeking specific information to be provided by the applicant in support of his claims (CB 53 to CB 54). The Tribunal, as recorded at CB 48 in its decision record, refers to this as the “s.424” letter and notes at CB 77.7 that it discussed the s.424 letter with the applicant at the hearing before it and the applicant stated that the failure to respond to that letter was because he could not obtain “the documents”. The applicant has put nothing before me to contradict the Tribunal's account of what occurred at the hearing before it. The applicant in his amended application states the Tribunal relied on independent evidence, failed to give him an opportunity to deal with adverse information contained in it, and that the Tribunal's decision record, in particular in its “Findings and Reasons”, is “not accepted” by him. At the hearing before me the applicant's complaint in this regard was vague and at best appeared to be based on a refusal to accept the Tribunal's decision rather than as a real complaint about how the Tribunal went about its task. While clearly the Tribunal's decision record does not need to recite everything that was put to the applicant at the hearing, the Tribunal has provided an extensive account of what occurred at the hearing before it, and in that regard, from the material before me, I cannot see any issue of relevance if common-law procedural fairness principles were to apply to this case arising from the Tribunal's use of independent country information. It appears that the information relied on by the Tribunal, or at least its substance, was discussed with the applicant at the hearing before the Tribunal, and the Tribunal made a clear reference in the following parts of its decision record, to independent country information that it says that it put to the applicant at the hearing:
1)At CB 71.2 it put independent country information that suggested local alliances between Congress (I) and the Communists.
2)At CB 71.3 it discussed independent country information that India is a longstanding Parliamentary democracy.
3)At CB 71.4 it discussed independent country information with the applicant that the judiciary in India is independent and related this to his claims that if false claims were lodged against him he could rely on the judiciary.
4)At CB 71.8 the Tribunal reports that it discussed independent country information with the applicant that the Constitution of India provided for the right of peaceful assembly and that the government generally respected this practice.
5)At CB 72.2 it discussed that there was no indication on independent country information available to the Tribunal that police and authorities could not protect him.
6)At CB 72.5 the Tribunal discussed independent country information with the applicant that there are many states of India under the control of the Congress (I) Party and linked this to the indication that these would be a safe haven for the applicant.
7)At CB 72.8 the Tribunal indicated to the applicant that it did not have any information that there was any movement within the Indian states to remove Bengalis.
8)At CB 74.3 the Tribunal reported that it discussed independent country information with the applicant that freedom of movement is guaranteed under Article 19 of the Indian Constitution.
9)At CB 74.9 the Tribunal reported that it discussed independent country information with the applicant that the UNHCR had observed that unsuccessful asylum seekers with appropriate documentation did not experience problems on return to India.
Also in the context of any common law principles of procedural fairness that may apply, as to the failure on the part of the Tribunal now being asserted by the applicant, the applicant would have been on notice as to the substance of much of this material, in any event, from the decision record of the respondent’s delegate. The applicant was clearly aware of the delegate’s decision record (CB 30.5 and CB 51).
In the delegate’s decision record at CB 40 and CB 41, there is clear reference to independent country information in relation to relevant parts of the Indian Constitution and the criminal code procedure which provides for open trials. In view of all relevant information the delegate found it reasonable to conclude that India is a fully functioning democracy with all the legal checks and balances normally associated with such a society, and further goes on to say that the applicant has provided no evidence of any kind to substantiate any of his claims and that further, there was a fully functioning legal system and a network of human rights organisations in India to which the applicant could go to seek redress from any real or perceived wrong that he had experienced. I also note relevantly, the delegate went on to look at the issue of relocation and in that regard, was also guided by independent country information which indicated and reflected the information subsequently relied on by the Tribunal. In all the circumstances, to the extent that the applicant now seeks to rely on some breach of common law procedural fairness on the part of the Tribunal, based on the material before me, the applicant would have had notice of the issues arising out of the independent country information relied on by the Tribunal, both arising out of the delegate’s decision record and the report (unchallenged by the applicant) of the hearing before the Tribunal. The applicant has not put forward any evidence to support the assertion that he was denied natural justice and the Tribunal's decision record and the material before me showed no such denial.
Focusing on s.424A of the Migration Act, it is clear, particularly in relation to the information relied on by the Tribunal to make its findings regarding relocation and effective protection, that the Tribunal relied on independent country information as set out in CB 77.8 to CB 82.8 in its record of decision. In the “second ground” of the amended application the applicant asserts that the information relied on by the Tribunal fell outside the meaning of s.424A(3)(a) of the Act and presumably therefore any adverse independent information relied on by the Tribunal should have been put to him pursuant to s.424A(1). In light of the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, information obtained from a third party on which the Tribunal relies, would need to be put to an applicant in writing, with an opportunity for the applicant to comment, unless it falls within one of the exceptions set out in s.424A(3) of the Act. On the material before me, it is clear that the Tribunal relied on general country information about the political, legal, constitutional and to some extent social situation existing in India. It is clear that on the preferred authority of the meaning of s.424A(3)(a) (NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264) that this information would be caught by the exemption as set out in that paragraph. In his written material the applicant seeks to rely on Full Federal Court authority in NARVv Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494. On the issue of the meaning of s.424A(3)(a), it is clear that later Full Federal Court authorities are the preferred authorities to be followed on this issue. However, to the extent that the applicant also seeks to rely on NARV to argue that the information relied on by the Tribunal went to a separate issue in the proceedings, this also must fail. In NARV the information relied on by the Tribunal was found to go to a separate issue in the proceedings, being the weight to be attached by the Tribunal to particular documents relied on by the applicant. The Court majority found that in these circumstances, that is, where the information was about a very high level of document fraud in Bangladesh, and where the information also went to the issue of the weight to be attached by the Tribunal to these particular documents then this was clearly a matter on which the applicant should be heard. This can clearly be distinguished from the circumstances in the case before me, where the applicant had not relevantly put forward any such information in relation to which the Tribunal was required to make an assessment as to the weight that it should accord to any such documents. This ground also must fail.
Far from having put other supporting material or information before the Tribunal, the applicant in this case did not respond to the Tribunal's written request for information in relation to a number of issues on which the Tribunal subsequently relied in making its decision. By letter dated 9 March 2004 (CB 53 to CB 54) the Tribunal sought evidence, pursuant to s.424 of the Migration Act, from the applicant to support his claimed involvement in politics and his medical and hospital records of injury sustained as a result of the claimed beatings. The Tribunal noted that the applicant did not respond to this request. While it accepted to some extent his subsequent explanation at the hearing before it that it was difficult for his wife to obtain some of these documents, it found this explanation to be inconsistent with the applicant’s statement in his application for review before the Tribunal that the delegate did not provide him with an opportunity to provide further documents to support his claim. The Tribunal also found the applicant's position regarding further documents to be inconsistent with what the applicant had suggested at the hearing before the Tribunal, that the Tribunal would be able to obtain these documents in part from the applicant's College, and yet he was unable to do so himself. The Tribunal did not accept the explanation that the documents, relating to the hospital and doctors’ notes regarding his treatment in hospital, would present the difficulties that the applicant claimed. The Tribunal then found that this lack of information, coupled with the applicant’s responses at the hearing before it, led it to the finding that it was indicative of the applicant holding a minor position, if any, in the Congress (I) Party and that he had not been harassed, threatened, or that false charges had been made against him (CB 85.2). I can see no error in how the Tribunal has approached its task in this regard. On the material before it, the Tribunal was entitled to make the findings that it did. The applicant had been on notice following the delegate’s decision that the need to provide information to support his claims was important to his application. The applicant himself recognised this when he said to the Tribunal in his application to it, that the Minister’s delegate did not provide him with an opportunity to file further documents to support his claims. Further, when the Tribunal wrote to the applicant prior to the hearing before it, and specifically directed the applicant's notice to the need to provide information by way of evidence to support his claims, neither the applicant nor his migration adviser provided any response to the Tribunal. It was, in these circumstances, open to the Tribunal to find the applicant's explanation that having complained that he was denied the opportunity to provide documents, he then subsequently argued that he could not obtain those documents, that this was inconsistent. Further, it was open to the Tribunal, in relation to the hospital and doctors’ notes, to reject the applicant's explanation as to the danger that this would pose to his wife, as it also found that this could be done independently of her involvement. It is clear that s.424 of the Act establishes an obligation on the Tribunal that once it asks for information, and when it receives such information, it must have regard to that information in making a decision on the review. I cannot see that within the current statutory regime, and even in the broader circumstances of this case, that the Tribunal had any duty to make any further enquiries. It is clear that under the current statutory regime s.65 of the Migration Act provides that a decision maker must be satisfied as to the criteria relevant to the visa being applied for, before the visa can be granted. Relevantly, s.36(2) of the Migration Act sets out in that a relevant criterion for a protection visa is that the decision maker must be satisfied that the applicant comes within the definition of refugee as set out in Article 1A(2) of the Refugees Convention. In the case before me, the Tribunal clearly required evidence in writing to support various aspects of the applicant's claims of what had occurred in the past. It was clear in the context of the applicant's own statement in his application to the Tribunal, that he was aware of the need to provide documentary evidence. Yet the applicant did not respond to the Tribunal's written request and when called upon to give an explanation at the hearing before it, provided, in the Tribunal's view, an inadequate explanation. The Tribunal was entitled to reach that conclusion. It specifically took into account, as set out in its “Findings and Reasons”, the applicant's suggestion at the hearing before it that the Tribunal would be able to obtain documents from his College and specifically found the applicant’s claim to be inconsistent in that the applicant claimed that he was unable to do so himself. There is nothing before me to show that the Tribunal was in any better position than the applicant himself to obtain any of these documents. In his written submission to the Court the applicant appears to also argue that he was waiting to receive some documentary evidence from India to support his claims and then explains that he did not collect these documents because no one helped him. To some extent this appears to support the Tribunal’s account of what occurred at the hearing before it in that the applicant now confirms he did not have assistance to collect the documentary evidence with the implication that he was not waiting for documents, but that he was not in a position to provide documents. In any event, the applicant’s complaint now of a breach of the relevant statutory requirements relating to adverse information, an even a breach of common law procedures, is not made out.
In relation to its finding that the applicant did not face harm in his being a high profile or senior member of the Congress (I) Party in his home state, the Tribunal found that in part, the lack of information about his role was indicative of the applicant holding at best a minor position in the Congress (I) Party. In its account of the hearing as conducted with the applicant (as set out at CB 75) the Tribunal records that it indicated to the applicant that the Tribunal was unable to find references (presumably amongst the independent country information that it consulted) to a number of specified claims in the applicant's application. In relation to the applicant himself, the Tribunal indicated that it was unable to find any reference to the applicant being elected as general secretary of the “Sree Chaitanya College Chatra Parishad Committee”, nor was it able to find any reference to the applicant being elected as organising secretary of “Yuba Congress Habra Thana”. In its “Findings and Reasons” at CB 84.2 the Tribunal subsequently noted that it could not find references to the applicant holding positions with political organisations as he had claimed. I considered whether this was information adverse to the applicant that should, pursuant to the High Court authority in SAAP, have been put to the applicant in writing (noting of course that it had been put to the applicant at the hearing before the Tribunal). I took the view that this was not information for the purposes of s.424A but was in fact the opposite, that is, the absence of information. It is clear that in the context of common-law procedural fairness, the Tribunal clearly put this absence of information to the applicant and sought comment from him. I accept Mr. Johnson's submission that what is clearly intended to be put to an applicant pursuant to s.424A(1) is adverse information from third parties that is part of the reason for the decision. In the case before me the issue involves the absence of supplying information. I accept Mr. Johnson's submission that neither the relevant statutory provisions nor the majority High Court decision in SAAP would require that every piece of information on the Tribunal's data base or library which it searched should be put to an applicant to show that the Tribunal could not find certain references. Mr. Johnson's submission was that the Legislature cannot have intended that putting information to an applicant, that is adverse information, also included the absence of information. His argument was that in the case before me, that there was no particular document containing adverse information that would meet the necessary description to fall within the meaning of s.424A(1). I accept this submission as it relates to the circumstances of this case. The Tribunal’s approach in this regard was not to rely on adverse information obtained from a third party, but to note the absence of corroboration of the applicant’s claims. But in any event, it is also quite clear that the Tribunal accepted that these particular positions or roles claimed by the applicant may not have been widely reported, and found in spite of the absence of information at CB 85.1 that the claims in relation to the applicant's political activities at school College are accepted but that no claims of persecution were made out in relation to them.
The applicant also complains variously, that the Tribunal acted with bias or in bad faith. In relation to bad faith in the applicant's contention fails the test as set out in Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 [18]-[20] and in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43]-[47]. The application is not clearly alleged or proved, and there is no personal fault or absence of honesty, on the part of the decision maker that has been made out. Allegations of bias carry with them an onus that they must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision maker in the sense that the decision maker is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72] and [127]). 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 process (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] to [32]). No particulars of bias are alleged in the case before me and there is no basis that I can see for review of the decision on the basis of actual or apprehended bias. The applicant's submission now appears to try to show bias on the basis that the Tribunal did not believe his claims and did “not consider his genuine claims” and that he provided oral evidence to the Tribunal which it did not accept. I can see nothing in the material before me to in any way assist the applicant in making out any of these grounds.
In relation to the other claims stated in the applicant’s amended application under the heading of “particulars” I can see nothing in the material before me to assist the applicant in this regard:
1)In relation to the claim that Migration Act procedures were not observed I have already dealt with the relevant statutory issues above.
2)The claim that the Tribunal ignored the merits of his claim and that the decision was given on the basis of dated information without any investigation has again been dealt with above. It is clear that the Tribunal looked at all of the applicant's claims as put by the applicant, gave the applicant an opportunity to provide documentary evidence to support his claims, and in relation to the claim of dated information, it is plain from the Tribunal's decision record that it used contemporary information.
3)There is nothing to support an allegation of a failure to take into account a relevant consideration nor has the applicant been able to show any incorrect interpretation or application of the relevant law to the facts of his case.
4)The remainder of the applicant's claims clearly seek impermissible merits review.
In this case the Tribunal made three clear the findings in relation to the applicant's claim to fear harm of persecution in India. Firstly the Tribunal found that the applicant did not have a political profile which would attract the interests of his political opponents and as such found that he was not harassed, threatened or subjected to false charges as he had claimed. But, in any event, and as distinct findings, the Tribunal found that it was reasonable for the applicant to relocate to another part of India to avoid any possible harm that he may fear as an ordinary rank and file member of the Congress (I) Party, and that in any event the Tribunal further found that the applicant was able to enjoy meaningful protection by the Indian authorities anywhere in India. The Tribunal clearly understood the relevant tests to be applied in reaching its decision and its findings were open to it on the material before it, and it gave reasons. The applicant, through inconsistencies in his claims and his failure to provide the documentary evidence sought by the Tribunal in support of his claims, was unable to satisfy the Tribunal that he met the relevant test that he was a person who had a well founded fear of persecution for Convention reasons should he return to India or that he could not reasonably relocate, or that protection would not be available to him. I can see no jurisdictional error on the part of the Tribunal in making its decision, and accordingly I dismiss this application.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 21 September 2005
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