SZENU v Minister for Immigration - [2005] FMCA 1663

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZENU v MINISTER FOR IMMIGRATION

[2005] FMCA 1663

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 415, 424A(1), 430(1)(c), 430(1)(d), 474, 483A
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265
Applicant S256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 170
Syan v Refugee Review Tribunal & Anor (1995) 61 FCR 284
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

VAF v Minister for Immigration & Multicultural & Indigenous Affairs

Applicant:

SZENU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG3044 of 2004

Delivered on:

22 November 2005

Delivered at:

Sydney

Hearing date:

28 September 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

Solicitor for the Applicant:

Mr C Jayawardena

Advocate for the Respondent:

Ms A Alex

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3044 of 2004

SZENU

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 11 October 2004 for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 August 2004 and handed down on 14 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 13 May 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZENU”.

Background

The applicant, who claims to be a citizen of India, arrived in Australia on 18 April 2004. On 7 May 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.2-37) (“CB”). On 13 May 2004 the delegate refused to grant a protection visa (CB pp.38-53) and on 7 June 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.54-57).
In his original visa application, the applicant stated he is an Indian Sikh, born in Jammu Kashmir in 1969. He is married with one daughter and his occupation is farmer (CB p.77).

Applicant’s claim

The relevant background facts of the applicant were set out in the written submissions prepared on behalf of the respondent by Ms A Alex and I adopt paragraphs 3 and 4 for the purpose of this judgment:
The applicant claimed fear of persecution by the Indian police due to his imputed political opinion if he returned to India. He claimed that:
a)In 1994 five armed persons arrived at his house in Jammu Kashmir and demanded that he allow them to stay there. They threatened to kill him if he informed police and demanded that food be cooked for them. They left their luggage in a house in a locked room.
b)When police arrived to search the house and he told them no one was staying there, he was accused of lying. He was beaten and interrogated at the police station.
c)After he returned to the house recovering for 6 months, two men returned to his house and began leaving their luggage there. The police returned and discovered the luggage. He was taken for questioning and beaten.
d)His father and the village leader asked the police to release him. The officer asked for a R50,000 bribe and said that the applicant had to leave the district within a month.
e)His father arranged for his son to leave for Lebanon where he remained between January 1996 and February 2000.
f)In February 2000 he returned to India to discover that the police had taken his father and wife and beaten them so severely that his father died and his wife had gone insane.
g)The police returned to the applicant’s house, searched it, and learnt that he was back in India.
h)He moved around his friends’ houses the next 4-5 months. He returned to Lebanon where he remained for nearly 2 years. He returned to India on 25 December 2002 as he was unable to adjust.
i)The police began harassing him. He began drifting around India with his family until one day he met an agent who arranged a visa for him to return to Australia. He left his wife and daughter in India.
At the RRT hearing (CB 79-80), the applicant clarified his claims and corrected some errors of translation. The claims made at hearing were mostly consistent with earlier claims. He also claimed that:
a)After the police asked him to leave Jammu in July 2003 following his return to India from Lebanon, he went with his wife and child to Pathankot in the Punjab, his parent’s home village, where he remained for 3 months. They then moved to Kolkata where they lived for 5 months. During this period they were not harassed by police.
b)The applicant’s agent submitted that as his client had been inadvertently involved with Pakistani militants in Kashmir he was at risk of police persecution wherever he went in India. It was submitted that if he returned to Punjab he would be arrested.

The Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons were contained in the respondent’s written submissions prepared by Ms Alex and I adopt paragraphs 5-9 for the purpose of this judgment:
The RRT pointed out that the applicant did return to Punjab for
3 months and had no difficulties with the police.
The RRT found that the applicant’s evidence contained embellishments, which caused it to question his credibility. It found that in important respects he failed to provide credible evidence (CB 81).
Although the RRT expressed doubts as to the applicant’s credibility, it gave him the benefit of the doubt and accepted that he was forced to take in terrorists on two occasions which resulted in him being twice detained by the police and on one occasion he was tortured and a bribe was paid for his release. It accepted that the harm suffered by the applicant amounted to persecution (CB 82):
a)Country information indicated that there were terrorist problems [in] Kashmir.
The RRT did not accept claims that the applicant’s father died as a result of police brutality and that his wife was insane (CB 82):
a)The applicant said his wife did not go insane as previously claimed.
b)There was no other evidence to support these claims.
The RRT found that the applicant could relocate outside Kashmir to somewhere else in India. It did not accept that he would be of adverse interest to the police outside Kashmir:
a)In his statement he claimed that following his return from his second visit to Lebanon, he left Jammu in Kashmir and lived for 3 months in his family village of Pathankot in Punjab. During this period he did not have any difficulties with the police. He did not claim to have left this address because of the police.
b)Later he moved with his family to Kolkata where they lived for a further 5 months. During this period he did not claim to have any difficulties with the police.
c)Although he was subjected to torture by the police, he was not arrested or put on trial because the police did not see him as a security threat and asked him to leave Jammu.
d)He did as the police asked, so they would have no further interest in him therefore did not harass him when he was in the Punjab or Kolkata.
e)If the applicant was a person of interest he would have been prevented from leaving India and this did not occur.

Application for review of the Tribunal’s decision

On 11 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). This was supported by an affidavit of the same date sworn by the applicant. On 4 February 2005 the applicant filed an amended application which contained the following grounds:
(1)The Tribunal made Jurisdictional Error by drawing the following conclusions where there is no evidence and thus questioning the credibility of the Applicant:
Particulars – Green Book
Page 81 – Para 03
“In the context of the Applicant’s total evidence, the Tribunal found his written submissions vague and his verbal evidence contained embellishments which caused the Tribunal to question not only their credibility but his entire evidence.”
Applicant’s Comments:
This is a serious misdirection made by the Tribunal and jurisdictionally wrong. The fact is that the Applicant had very clearly said in his written claims that he was suspected of helping the Kashmir separatists. He also informed that he was severely beaten and tortured by the Indian Police and that he was detained many a time. Hence the Tribunal’s conclusion that his claims caused embellishments was a highly unfounded and an exaggerated situation created by the Tribunal and therefore jurisdictionally wrong.
(2)The Tribunal was Wednesbury Unreasonable in holding that the applicant was not able to provide certain information, thus holding against him:
Particulars – Green Book
Page 83 – Para 02
“The Tribunal believes that the Applicant was an unwilling participant in the long running sectarian dispute over the future of Jammu & Kashmir and as a Sikh he would have no interest in supporting the Moslem terrorists who invaded his home.”
Applicant’s Comments
This is sheer speculation by the Tribunal. The Applicant never said that he was supporting the Moslem terrorists who invaded his home. The issue was the torture the Applicant suffered in the hands of the Indian Police which the Tribunal had accepted as truthful. Therefore the Tribunal’s misdirection and misconception on a very important issue in detriment to the Applicant’s claims is highly unreasonable and a serious jurisdictional error committed by the Tribunal.
(3)The Tribunal was procedurally unfair and failed to comply with sec.424A of the Migration Act, making a serious jurisdictional error by concluding:
Particulars – Green Book
Page 83 – Para 03
“The Tribunal has concluded that in all circumstances it is reasonable for the Applicant to return to India and seek re-location for himself and his family outside Jammu Kashmir. In view of this fact that the Tribunal has found that re-location in India is reasonable for the Applicant and his family. Australia does not owe the Applicant further protection obligations.”
Applicant’s Comments:
It was highly unfair for the Tribunal to have decided that it felt reasonable for the Applicant and his family to re-locate without ascertaining the geographical and economical conditions of India and how difficult it would be for the Applicant and his family to overcome them. Tribunal’s conclusion was against the principles outlined in Randhawa’s Case
(4)The Tribunal made further Jurisdictional Error by breaching s.424A, s.430(1)(c) & s.430(1)(d) in the Migration Act 1958 in relation to its conclusions:
Particulars – Green Book
Page 83 – Para 02
“When he was taken into custody for aiding the terrorists, the Tribunal noted that although he was subjected to torture, he was not arrested and put on trial on either occasion. It believes that this was because the Police did not see him as a threat to security and advised him to leave Jammu.”
Applicant’s Comments:
This is clearly a grave jurisdictional error on the part of the Tribunal because it was relying on questions of fact which are unknown to the applicant nor to the Tribunal. The Tribunal was highly optimistic about the unpredictable political situation in India specially in Jammu – Kashmir. This type of a comparison made by the Tribunal without having any proof to justify that conclusion is a grave error made by the Tribunal. In short this amounts to mere fantasy by the Tribunal which has point-blankly disbelieved the Applicant and believing that the State machinery (Police) was kind enough to ask the Applicant to leave Jammu for his protection.
(5)The Tribunal was procedurally unreasonable in making the following conclusions against the applicant:
Particulars – Green Book
Page 81 – Para 05
“While the Tribunal accepts that, as observed by Gummow and Hayne JJ in Abebe v The Commonwealth (1999) CLR 510, at para (190), it is hardly surprising that applicants for refugee status may yield to the temptation to embroider their accounts, the Tribunal found that in important respects the Applicant failed to provide credible evidence.”
Applicant’s Comments:
This type of conclusions by the Tribunal naturally amounts to “Procedural Unreasonableness”. It was a grave jurisdictional error on the part of the Tribunal for trying to compare the Applicant’s claims with an unseen and un-tested situation. The Tribunal has not mentioned in its decision what instances of the evidence of the Applicant comes under this conclusion. Therefore a general nature of accusation against the Applicant’s evidence is definitely a serious procedural unreasonableness in respect of the Applicant’s claims.

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Reasons

In respect of Ground 1, it was submitted on behalf of the applicant that the Tribunal made several findings which had directly favoured the credibility standing of the applicant:
(i)“On the basis of this country information, the Tribunal is prepared to give the Applicant the benefit of the doubt, regarding his claim that he was forced to take in terrorists on two occasions which resulted in him being twice detained by the police and on one occasion he was tortured and a bribe was paid for his release.” (CB p.82, para 03)
(ii)“The Tribunal also accepts that the Applicant’s claim that he was tortured by having his legs beaten by police using their batons for about two to three hours prior to his release. The Tribunal was skeptical that the scale of the injuries was such that they took six months to heal as claimed by the Applicant. Regardless of the time, the Tribunal accepts that under the Convention this would be defined as ‘persecution’.” (CB p.82, para 04)
The applicant submitted that in these circumstances, the Tribunal’s finding that:
“In the context of the Applicant’s total evidence, the Tribunal found his written submission vague and his verbal evidence contained embellishments which caused the Tribunal to question not only their credibility but his entire evidence.” (CB p.81, para 03)
had been a serious contradiction of the Tribunal’s own findings.
It was submitted, on behalf of the applicant, that at no stage of the hearing did the Tribunal raise any of these credibility issues, which had seriously affected the outcome of the applicant’s refugee application, face to face with the applicant: s.424A(1) of the Act. It was submitted that these types of finding by the Tribunal which completely destroy an applicant’s credibility and all his evidence, is contrary to law because the law requires that the applicant should have been given the opportunity to comment on any adverse finding that would seriously affect the outcome of the applicant’s refugee claim. Counsel for the applicant submitted that the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (“SAAP”) has squarely rejected the approach previously adopted as orthodox by the decision of the Full Federal Court in Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs that the provisions of s.424A(1) could be said to have been complied with where the matters in issue were raised with the applicant at hearing. The Full Court did this adopting a fairness test. However, the High Court held that there could be no partial compliance with the statutory obligation to accord procedural fairness.
Counsel for the applicant was asked to identify the material that was being claimed that the Tribunal relied upon to make its decision but which had not been provided to the applicant in accordance with s.424A(1) of the Act. Counsel conceded that he was unable to identify any of the material upon which this submission was being made. Nor did the written submissions prepared by the applicant’s solicitor, Mr Jayawardena, identify any of this material.
The respondent submitted that the Tribunal’s decision did not turn on any adverse credibility finding. The Tribunal decision record clearly indicated that despite finding the applicant’s written evidence to be vague and his oral evidence to contain embellishments which led the Tribunal to question the applicant’s credibility and evidence in its entirety, the Tribunal nevertheless gave the applicant the benefit of the doubt based on the country information before it. The respondent relied upon the same passage in the Tribunal’s decision as quoted by the applicant in paragraph 10(i) above.
In light of those findings by the Tribunal, Ground 1 of the applicant’s amended application cannot be sustained.
In respect of Ground 2, Counsel for the applicant argued that under normal circumstances no reasonable man could have drawn the conclusion that the applicant was an unwilling participant in the long running dispute in the Kashmir issue. Nor could the Tribunal speculate with certainty that the applicant, being a Sikh, would not support the Moslem terrorists. The applicant submitted that nowhere is it laid down that a Sikh cannot support the Moslem terrorists fighting in Kashmir with the Indian authorities. It was submitted that Sikhs were fighting against the Indian government to create Punjab as an independent nation outside Indian domination for which Sikhs suffered terribly. It was submitted that more than five thousand Sikhs were killed by the Indian security forces during this decade. Counsel contended therefore it was not strange for a Sikh supporting the Moslem cause in Jammu – Kashmir because of their anger against the Indian massacre of Sikhs. It was submitted that Sikhs never considered any place as their home except Punjab. The applicant relied upon the test in Craig v South Australia. Counsel for the applicant submitted that the error made by the Tribunal came within the principles in Craig v South Australia at 179 where the High Court stated:
“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

The structure of the applicant’s argument does not appear to be logical because although the applicant stated he did not express support for Moslem terrorists, he had been subjected to violence meted out by the Indian authorities over the respective territorial disputes in both Kashmir and Punjab. There are a number of pieces of supporting evidence indicating that the applicant was unwilling to be involved in the unrest. The applicant had taken a number of steps to remove himself and his family from this environment by moving to the village of Pathankot in the Punjab and to Kalkota and then to Lebanon for a substantial period before finally leaving for Australia. Each one of these moves supports the view that the applicant did not wish to participate in the dispute in Jammu – Kashmir. Although there are no positive statements to the effect argued by the applicant, the conclusion drawn by the Tribunal is logical from the material that is available. The applicant may well have supported the Moslem position in Kashmir and also may well have supported their action out of sympathy for his own people in the Punjab. However, neither of those views could be interpreted as indicating that he was a willing participant in the dispute because of his positive action to remove himself from the situation.
There is no evidence that the Tribunal identified the wrong issue, asked itself the wrong question, ignored relevant material or relied upon irrelevant material. I am not satisfied that the Tribunal made any of the errors that form part of the test in Craig v South Australia. The ground based on Wednesbury Unreasonableness cannot be supported by the argument led by Counsel for the applicant.
In respect of Ground 3, Counsel for the applicant submitted that the Tribunal never put the issue of relocation to the applicant during the hearing to ascertain whether the applicant had any reason why he felt that relocation to another part of India, outside Jammu – Kashmir, would be the best option for him and his family. The applicant submitted that according to the principles enunciated by His Honour Chief Justice Black in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (“Randhawa”) at 270, the Tribunal should have first convinced itself of the following:
“If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded.”
The applicant submitted that the Tribunal was aware that he and his family had a well founded fear in Jammu – Kashmir and that was why the Tribunal said that the best option was for the family to relocate to another part of India. As this was the main reason or part of the main reason for refusing the protection visa to the applicant, it was submitted that it was mandatory that the Tribunal should put this issue to the applicant during the hearing and the failure to do so was a fundamental error on the part of the Tribunal.
The respondent submitted that the critical finding made by the Tribunal in this case was that the applicant could relocate outside Kashmir. The respondent also relied on the decision of Randhawa where the Court applied the principle that an applicant for a protection visa must have a well founded fear of persecution throughout their country. Alternatively, if an applicant’s well founded fear was confined to some part of that country, then he or she may still be entitled to a protection visa if it is not reasonable to expect them to return to a part or parts of the country where the fear of harm is not well founded.
It is well established that a finding of relocation provides a separate and independent basis for the Tribunal to affirm the refusal to grant a protection visa: Applicant S256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [18].
In Syan v Refugee Review Tribunal & Anor, the Federal Court upheld the approach of the Tribunal in that it did not even consider the substance of the applicant’s claim in relation to persecution. The Tribunal decided the case on the basis that the applicant, a Sikh who had lived in Punjab for most of his life, could reasonably be expected to relocate to Bombay. In this case, the Tribunal relied upon the applicant’s own evidence that he had lived elsewhere in India without being approached or harassed by police. The Tribunal’s findings on this issue were stated as follows:
“In view of this evidence, the Tribunal is not convinced of the applicant’s claim that if he returns to India he will be unable to re-locate because he will be pursued by the police throughout the sub-continent because of his political views. The applicant provided evidence that after he left Jammu he was able to live in his family’s home village in the Punjab for three months without being pursued by the police. When asked by the Tribunal, he did not claim that he left that address because of their activities. Furthermore, he did not claim that during his period of residence in Kolkata that he had difficulties with the police. The applicant’s evidence before the Tribunal confirmed that he was not pursued by the authorities because of his imputed political views.” (CB p.83)
I accept the respondent’s submission that this was a finding reasonably open to the Tribunal on the evidence before it.
In respect of Ground 4, Counsel for the applicant submitted that the applicant had been taken into custody by police and tortured. It was submitted that Article 1(A)(2) of the 1951 United Nations Convention on the Status of Refugees defines the main criteria for the grant of a protection visa by a signatory country and according to this definition, the Tribunal was fully aware of the fact that the applicant was beaten and tortured by police because of his imputed political opinion. Therefore, the applicant submitted that the Tribunal’s conclusion that: “the Tribunal noted that although he was subjected to torture, he was not arrested and put on trial on either occasion. It believes that this was because the police did not see him as a threat to security and advised him to leave Jammu” (CB p.83), was clear evidence that the applicant had a well founded fear for his safety.
The applicant submitted that the Tribunal’s avoidance of this issue in its decision amounted to a jurisdictional error. In support of this contention the applicant relied upon the Full Court’s decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) where their Honours held that the “failure by a Tribunal to make a finding on a substantial, clearly articulated argument relying upon established facts” can amount to jurisdictional error by failure to carry out the review required by s.415 of the Act. Their Honours also noted at [63]:
“… if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute a jurisdictional error.”
The applicant submitted that this was exactly what happened to his claim being decided by the Tribunal.
The pleaded ground was that the Tribunal breached ss.424A, 430(1)(c) and 430(1)(d). Those sections of the Act are reproduced as follows:
Section 424A - Applicant must be given certain information
(1)Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)…
(3)…
Section 430 - Refugee Review Tribunal to record its decisions etc.
(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)…
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
(3)…
The section of the decision that the Tribunal is alleged to have breached was:
(4)The Tribunal made further Jurisdictional Error by breaching s.424A, s.430(1)(c) & s.430(1)(d) in the Migration Act 1958 in relation to its conclusions:
Particulars – Green Book
Page 83 – Para 02
“When he was taken into custody for aiding the terrorists, the Tribunal noted that although he was subjected to torture, he was not arrested and put on trial on either of occasion. It believes that this was because the Police did not see him as a threat to security and advised him to leave Jammu.” (CB p.83.2)
The argument is that because the Tribunal relied on questions of fact, namely that the applicant was not arrested or put on trial, that were unknown to the applicant or the Tribunal, there can be no dispute in this respect because that decision would be the province of some decision maker within the police administration. Whether this is formally recorded or purely a form of procedure adopted by the police department is unknown. However, there is a logical sequence of information that would permit that conclusion being drawn on the material that is available and in the circumstances likely to be the totality of the information that would ever be available to either the applicant or the Tribunal, given that:
a)the applicant was taken into custody on a number of occasions on suspicion of being involved with terrorists;
b)he was not formally arrested;
c)he was not put on trial for any offence;
d)a condition of release on the payment of a bribe by his family was that the applicant left the Jammu area within one month;
e)he was not harassed by the authorities at any time he was located outside the Jammu-Kashmir province;
f)his multiple exits from India by passport issued in his own name did not arouse suspicion or investigation by the Indian authorities.
An analytical appraisal of these undisputed facts would permit the Tribunal to reach that conclusion without requiring a specific statement by the police or the Indian authorities of the nature claimed by Counsel for the applicant.
During the hearing on 9 August 2004 the Tribunal discussed with the applicant the circumstances surrounding the issues listed in the paragraph above. The issues raised and the answers given by the applicant are recorded in the decision. There is no breach of ss.424A, 430(1)(c) or 430(1)(d) in relation to that information: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs per French, Sackville and Hely JJ at 46. The Tribunal’s decision that the applicant was not seen as a threat to security and the advice given to him to leave can only ever have the status of a conclusion or inference drawn from the facts that are available. I am satisfied that the provisions of the Act have been complied with and the conclusion drawn by the Tribunal from the information that it had before it is logical. I am not satisfied that Ground 4 can be sustained.
In respect of Ground 5, the applicant submitted that at no stage during the Tribunal hearing did the Tribunal member put to the applicant that one or more accounts of his evidence was not credible. Counsel for the applicant submitted that according to procedural fairness, it was the responsibility of the Tribunal to have cleared these issues during the hearing rather than issuing its decision that the applicant’s account was not credible. Counsel for the applicant submitted that the Tribunal’s failure to confront this issue during the hearing was a breach of the statutory provisions of the Act. Counsel for the applicant relied on the decision in SAAP which has rejected the approach previously adopted in Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs. The High Court held in SAAP that there could be no partial compliance with a statutory obligation to accord procedural fairness; either there had been compliance or there had not.
The applicant submitted that the Tribunal’s failure to challenge him on the credibility issues and consequently had committed jurisdictional error.
I believe that Counsel for the applicant is confusing the application of the authority upon which he relies and the issue is whether the Tribunal possessed information which it should have provided the applicant and requested him to respond to that information. The problem arises that the definition encompassing the term “information” is limited to the extent that it “does not encompass the Tribunal’s subjective appraisal, thoughts, processes or determinations”. The term also excludes “identified gaps, defects or lack of detail or specificity in evidence or to the conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps: VAF v Minister for Immigration & Multicultural & Indigenous Affairs per Finn and Stone JJ at [24(iii)].

I believe that this is the proper approach and that the Tribunal has not committed jurisdictional error in the way it has dealt with the material provided to it and the conclusions that are formed from it. I do not believe Ground 5 can be sustained.

Conclusion

As the grounds pleaded by the applicant and the submissions in support of those grounds cannot be sustained, I am satisfied that the Tribunal has not committed any jurisdictional error in its decision making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 22 November 2005