SZEPV v Minister for Immigration - [2006] FMCA 71

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPV v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 71

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

Migration Act 1958 (Cth), ss.91R(2), 91X, 424, 424A, 430
Judiciary Act 1903 (Cth), s.39B

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Craig v State of South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 857
SZDTQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 867
Randhawa v Minister for Immigration & Multicultural & Indigenous Affairs (1994) 124 ALR 265
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327
Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263
WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330
Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507
Tin Shwe v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 988
Yit v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 885
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286
Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982
Livesey v New South Wales Bar Association (1983) 151 CLR 288
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Applicant:

SZEPV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG3173 of 2004

Delivered on:

27 January 2006

Delivered at:

Sydney

Hearing date:

9 November 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Solicitor for the Applicant:

Mr C Jayawardena

Solicitor for the Respondents:

Ms T Quinn of Phillips Fox

ORDERS

The Refugee Review Tribunal is joined as second respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3173 of 2004

SZEPV

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 26 October 2004 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 August 2001 and handed down on 5 September 2001, affirming the decision of the delegate of the respondent (“the delegate”) made on 11 December 1999 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.
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (“SAAP”) I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the Minister for Immigration & Multicultural & Indigenous Affairs; the first respondent.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEPV”.

Background

The applicant, who claims to be a citizen of India, arrived in Australia on 3 October 1999. On 1 November 1999 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.1-43) (“CB”). On 11 December 1999 the delegate refused to grant a protection visa (CB pp.46-57) and on 10 January 2000 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.58-61).
In written submissions in support of his application for review, the applicant claimed he was born in November 1953 and is a married Sikh male from the Punjab. His wife and son continue to reside in India. The applicant’s brother, sister-in-law and three children also reside in India however his parents are deceased. The applicant stated that he keeps in contact with his family via telephone calls. He speaks, reads and writes Punjabi and reads and writes some English and Hindi. The applicant stated his occupation as “truck driver” (CB p.80).
The applicant claimed he was born into a Sikh family and from an early age was interested in learning more about religion. He had a desire to spread the teachings of Sikhism to everyone. The applicant claimed he joined the Youth Akali Dal (Simranjit Singh Mann) in 1990 which was run by the Khalistani Sikhs. He claimed that the aim of the Akali Dal was to spread the teachings of Sikhism and to obtain freedom for Khalistan. The applicant claimed that in his local area he went to many organisations, Gurdwaras and religious meetings.

He claimed to have spread the message, religious and political, of the Khalistan Liberation Force, the Khalistan Commando Force and the Sikh Students Federation. The applicant stated that at the same time the Hindu fascist groups, Shiv Sena and Bajrang Dal were rising and their motives were to oppose the Sikh groups and threaten the Sikh community, as well as the Christians and Moslems by any means. The applicant claimed they did this by destroying the peaceful Sikh programs by force and by using the media (CB p.81).
The applicant stated that he used to work as a truck driver in different states such as Punjab, Haryana, Uttar Pradesh and New Delhi. On one occasion, while on his way to work, the applicant claimed that police in a jeep came and picked him up without a warrant and he was taken to an unknown location and detained for about ten days. He stated that he was mentally and physically tortured and his family did not know where he was or what had happened to him. The applicant claimed that after being released he met an agent who, for payment, arranged his travel to Australia (CB p.81).
The applicant claimed he is now working for ISYF (International Sikh Youth Federation) and it would therefore be unfavourable for him to return to India as he fears being killed or at least detained in a fake encounter with the Indian Hindu government forces. The applicant believes he is in danger because his religious, social and political views are different to those of the Hindu government and he does not believe that the Indian authorities can protect him. The applicant stated that he believes terrorist groups such as the Shiv Sena, Bajrang Dal, Red Army, CRPF (Central Reserve Police Force), Rashtriya Rifles and Punjab police, will kill him (CB p.81).

Applicant’s claims

The relevant claims made by the applicant are set out in the written submissions prepared on behalf of the respondents by Mr L Leerdham and I adopt paras.4, 5, 6 and 7 of those submissions for the purpose of this judgment:
[4]On 10 January 2000, the applicant applied to the RRT for review of the decision (CB pp.46-57). On 10 January 2000, the RRT wrote to the applicant detailing the procedures it would follow in connection with his application for review (CB pp.58-61) and requested that if he had any new documents or written evidence he should provide them.
[5]On 7 September 2000, the RRT wrote to the applicant informing him that it was unable to make a favourable decision on the information before it and invited him to attend a hearing to give oral evidence and present arguments on 8 November 2000 (CB pp.64-65). The applicant attended the hearing and gave oral evidence. At the RRT hearing the applicant claimed that (CB pp.82-87):
[5.1]He moved from Punjab to Himachal Pradesh and had lived there for five years before leaving his country.
[5.2]He assisted a terrorist group by transporting them across the border in his truck. The terrorists forced him to work for them.
[6]At the RRT hearing the applicant submitted three documents (CB pp.83-84):
[6.1]A letter purporting to be from the Sharomini Akali Dal Mann (SADM) office in Punjab, dated 10 October 2000 signed by the president which stated amongst other things that his life was in danger.
[6.2]A letter purporting to be from an Advocate dated
11 October 2000, stating (amongst other things) that the applicant was often arrested for false cases.
[6.3]A letter purporting to be from ISYF in Berry, South Australia, dated 7 November 2004, which stated that the applicant is a member of ISYF and faced persecution because of this.
[7]The applicant further claimed at the RRT hearing (CB pp.84-87):
[7.1]He was detained for 2 days in Haryana in 1997 by police and was released after paying a bribe.
[7.2]Being a Sikh living outside of Punjab is difficult because whenever there are problems in Punjab, the Sikhs outside of Punjab get into trouble.
[7.3]He had problems in Himachal Pradesh.
[7.4]He was detained for 10 days in Punjab in 1991 or 1992.
[7.5]He paid four lakh rupees to an agent to arrange his trip to India.

The tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons are contained in the respondents’ written submissions prepared by Mr L Leerdham and

I adopt paras.9-14 of those submissions for the purpose of this judgment:
[9]The RRT affirmed the decision under review refusing to grant the applicant a protection visa. The RRT accepted that the applicant was a citizen of India and assessed his claims against that country.
[10]The RRT found that the applicant was not a credible witness. It gave the following reasons:
[10.1]His oral evidence often contradicted itself and was inconsistent with the documentary evidence that he had provided.
[10.2]The RRT formed the impression that he was making up large sections of his evidence on the spot.
[10.3]The applicant did not speak as if recounting events which he personally lived through.
[10.4]He made new claims when reminded by the RRT of written submissions. He did not recall these submissions until prompted by the RRT.
[11]The RRT listed a number of examples of the inconsistencies in the applicant’s evidence. It found that the documents submitted were not genuine (CB pp.95-99):
[11.1]He never previously made the claim that he was forced to transport terrorists.
[11.2]He was unable to tell the RRT the name of the terrorist organisation he claimed to have been forced to work for. He could only name 2 men, whom the RRT could not find any reference to. He later mentioned 2 Khalistan groups, but only after the RRT mentioned them to him.
[11.3]His oral evidence about when his ‘problems’ began was confused and disjointed.
[11.4]The documents from SADM and from the Advocate had many similarities and appeared to have been written on the same typewriter (CB p.83). This suggested that both were produced by the same person at the same time – this would not be the case if they were genuine.
[11.5]The letter from SADM stated that he suffered persecution because of his membership, but he did not claim this in his oral evidence. The document stated he was arrested a few times, contrary to the applicant’s evidence that he was only arrested once (later changing his evidence claiming arrest a second time).
[11.6]The letter from the Advocate was written in a style which suggested that it was written for the express purpose of supporting his claims rather than in a style expected of a lawyer writing to his client. It made other claims which the applicant did not make. It was written in English and advised him not to return to India, if it were genuine it would have been written in Punjabi.
[11.7]The ISYF letter stated he faced persecution because of his membership. He did not make this claim and did not claim to be a member of the ISYF in India.
[11.8]He initially stated he only had problems relating to being forced to transport terrorists but changed his evidence to include other claims when reminded of his written submissions by the RRT.
[11.9]He stated he had general problems as a Sikh but was unable to be specific.
[11.10]He gave conflicting evidence that he was detained during his trip to Haryana for 10 days and 2 days. He stated that he was detained in Punjab despite saying the only time he was arrested was in Haryana.
[11.11]After his arrest in 1997 he claimed he sought an agent to assist him to leave India, however he did not leave until late 1999 indicating he was of no interest to the authorities.
[11.12]He claimed to have paid four lakh rupees for his passport. This was an exorbitant amount considering he was previously issued with a passport and this was simply replaced.
[11.13]He gave conflicting evidence about when he ceased working in trucking.
[11.14]He initially said he had no role with the SADM party, but changed to say he talked to people about the party.
[11.15]He said that the Khalistan Liberation Force (KLF) and Khalistan Commando Force (KCF) had the same aims as the Sikh Students Federation (SSF). This indicated he had little knowledge of the organisations as country information indicated that the KLF and KCF were violent but the SSF was not.
[11.16]He claimed to have been forced to work for the KLF and KCF, but also claimed to have spoken, apparently voluntarily, to people about them.
[11.17]He gave conflicting evidence about whether he had any problems while living in Himachal Pradesh.
[12]The RRT did not accept that the applicant had ever suffered any past persecution, or was ever involved in any activity, either in India or Australia, which would give him a profile which would draw him to the attention of any potential persecutor (CB p.99).
[13]The RRT did not accept that the applicant would face persecution as a Sikh (CB p.99):
[13.1]Although country information indicated that Sikhs were at risk of persecution in the mid to late 1980’s, the information suggested that this was at an end by 1992.
[13.2]Country information suggested that Sikhs are not a persecuted group in India today.
[14]The RRT rejected the applicant’s claim in relation to his Sikh religion because they were vague. Moreover, country information confirmed that Sikhs no longer face persecution in India.

Application for review of the Tribunal’s decision

On 26 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
“The applicant assert[s] that the Tribunal made a serious ‘jurisdictional error’ by concluding that ‘the Tribunal places no weight on any of the applicant’s claims of past persecution. The Tribunal is not satisfied that the applicant has ever been involved in any activity’.”
At the same time the applicant filed his application he filed an affidavit setting out details of the applicant’s background but it made no reference to the applicant’s claim in respect of judicial review.
On 18 April 2005 the applicant filed an amended application which was prepared with the assistance of his legal adviser and contained the following grounds:
(1)The Tribunal made a serious jurisdictional error by making the following conclusion contrary to facts and all the information constructively available on file thus refuting the credibility of the applicant openly:
Particulars
Decision Page 19 – Para 05
“The Tribunal did not find the applicant to be a credible witness. His oral evidence often contradicted itself and was inconsistent with the documentary evidence which he supplied to the Tribunal. He gave the Tribunal the impression that he was making up large sections of his evidence on the spot.”
Applicant’s comments:
The Tribunal has made a grave error and misconception about the reasons adduced by the applicant in his original 866 Protection visa application (written statement) submitted to DIMIA and factually elaborated by him in his oral evidence given before the Tribunal. He clearly stated in his written statement attached to the 866 application that in 1990 he joined the Akali Dal – Mann Group and that he was spreading the message of Khalistan to commando forces and Students Federation members. Therefore, the total failure on the part of the Tribunal to assess witness evidence and how vulnerable the applicant’s safety in the future would be, if asked to re-locate in India, amounted to a wilful neglect of the Tribunal’s responsibility towards the applicant as a quasi judicial reviewer, rather than satisfying itself on its own personal opinion. This was a serious jurisdictional error committed by the Tribunal.
(2)The Tribunal was Wednesbury Unreasonable in holding that the applicant was not able to provide certain information, thus holding against him:
Particulars
Decision Page 20 – Para 7
“the letter from ISYF states that the applicant faced persecution in India because he is a life member of the ISYF and because of his support of the cause. However the applicant only claims, to have suffered actual past persecution because his forcible recruitment by a group of unnamed terrorists. Furthermore he did not claim to have been a member of IYSF of India.”
Applicant’s Comments
This is a highly unreasonable conclusion made by the Tribunal point-blankly and procedurally highly unfair towards the applicant, because, the applicant had said in his written statement to the effect ‘Now I am working with the ISYF (International Sikh Student Federation) to succeed in our mission’. Therefore the Tribunal’s failure to consider the evidence available on the record is 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
Decision Page 23 – Para 03
“However independent information before the tribunal clearly indicates that the wholesale persecution of Sikhs was at an end by 1992 when peace was restored and the situation began to return to normal. Things have started to improve since the early 1990’s. Sikhs are not a persecuted group.”
Applicant’s Comments
The applicant submits that it was contrary to the law that the Tribunal used independent source of evidence to support its finding without providing to the applicant in advance the opportunity to either rebut or to make his counter arguments against such information, before the Tribunal handed down its decision to refuse the application the applicant’s claims as unreliable. This is a serious legal error committed by the Tribunal in the decision that was made against the applicant.
(4)The Tribunal made further jurisdictional error by breaching s430(1)(c) & s.430(1)(d) of the Migration Act 1958 in relation to its conclusions:
Particulars
Decision Page 23 – Para 02
“The Tribunal places no weight on any of the applicant’s claims of past persecution. Furthermore, Tribunal is not satisfied that the applicant has ever been involved in any activity, either in India or Australia which would give him a profile which would draw him to the attention of any persecutor.”
Applicant’s Comments
This finding by the Tribunal is not based on any material questions of fact or any other material on which the finding of facts were based. What the Tribunal has said was a general opinion about its own thinking with no supporting evidence to justify the finding. The Tribunal has acted as an Expert to summarily dismiss the documents submitted by the applicant rather than obtaining the services of an Expert with the help of the respondent’s services, to examine the questioned documents and give an opinion which could be acceptable in the ordinary course of justice.
Therefore this is a serious jurisdictional error committed by the Tribunal, who had discredited the applicant’s claims irrationally and contrary to the law.
(5)The tribunal was manifestly unreasonable in concluding to the effect:
Particulars
Decision Page 23 – Para 02
“For all of the above reasons cumulatively, the Tribunal does not find any of the applicant’s claims to be credible and does not accept that he has ever suffered any form of past persecution in India.’
Applicant’s Comments
There is no doubt that the Tribunal had gone to an extent to eliminate the applicant’s claims completely by taking a firm view that the applicant had definitely fabricated evidence to bring forth some false claims artistically. The Tribunal’s assessment that ‘does not accept that he has ever suffered any form of past persecution’ without any cogent evidence to justify that conclusion is a serious bias by the Tribunal and therefore manifestly unreasonable towards the applicant.” (Errors included)

The law

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 State of South Australia (“Craig”) per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Reasons

Both parties were legally represented and submitted detailed written submissions prior to the hearing. These submissions were supplemented by oral submissions during the hearing.
Mr Jayawardena, appearing for the applicant, referred to the Tribunal’s final conclusion that:
“Having considered all of the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in India now or in the reasonably foreseeable future.” (CB p.99)
Mr Jayawardena submitted that it was legally and jurisdictionally incumbent on the Tribunal to have satisfied completely that in the foreseeable future there would be no possibility of the applicant suffering serious harm if he was asked to re-locate to any part of India in keeping with the legal requirement in s.91R(2) of the Act. Mr Jayawardena submitted that the Tribunal failed to consider the applicant’s statements and oral evidence given at the hearing as he was at risk if compelled to return to India which is a serious procedural unfairness and an error committed by the Tribunal. Mr Jayawardena made reference to the decisions of SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs; SZDTQ v Minister for Immigration & Multicultural & Indigenous Affairs and Randhawa v Minister for Immigration & Multicultural & Indigenous Affairs as a line of authority that supports this contention. Mr Jayawardena also referred to the High Court decision in Craig where the Court held:
“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.”
Mr Jayawardena submitted that the Tribunal raised no credibility issues face to face with the applicant during the oral submissions given at the Tribunal hearing. If the Tribunal had some doubt there was no Convention ground established in the police beatings and the persecutions suffered by the applicant, it was the primary responsibility of the Tribunal to have acted under s.424 of the Act and ensure, as far as reasonably practicable, that the applicant understood why it was relevant to review what was being conducted by the Tribunal because that would be the reason or part of the reason why the delegate’s decision was upheld.
No hearing tape or transcript of the Tribunal’s hearing was filed in evidence by the applicant. Consequently, the Court must rely upon the Tribunal’s decision to determine what transpired during the hearing. The Tribunal set out in considerable detail the contents of the written submissions provided to the Tribunal in support of the applicant’s case and details the oral evidence given by the applicant at the hearing on

8 November 2000. This was then followed by an examination of independent information which the Tribunal obtained from its own resources to evaluate from an independent point of view the circumstances that existed in the relevant part of India and the various developments in respect of Sikh militancy. The Tribunal, in its “Findings and Reasons”, indicated that it found the applicant was not a credible witness and gave reasons for that conclusion. The Tribunal set out 17 different issues which led to this conclusion and noted that all of the factors were cumulative in reaching that decision. The Tribunal concluded that it placed no weight on any of the applicant’s claims of past persecution. Furthermore, the Tribunal was not satisfied that the applicant had ever been involved in any activity, either in India or Australia, that would give him a profile which would draw him to the attention of any potential persecutor.
Given that finding, it is not possible to sustain an argument that the applicant would suffer serious harm if he was asked to re-locate to any part of India. The focus then turned to whether during the Tribunal hearing, the Tribunal brought to the applicant’s attention the issues that would lead to the Tribunal doubting the applicant’s claims. Again, in the absence of the transcript of the hearing, the Court is forced to rely on the content of the Tribunal’s decision when determining this question. The decision does indicate that the normal pattern of the interview suggests that the Tribunal member systematically asked the applicant questions in respect of each incident and the claim made. In the circumstances, where the response of the applicant was not absolutely clear or incomplete, the Tribunal member sought further questioning to clarify the issue. This approach appears to be consistent when dealing with each issue. The line of questioning adopted by the Tribunal member makes it apparent on the decision record the nature of the concern held by the Tribunal member in addressing these issues.
In the Tribunal’s decision, under the heading “Findings and Reasons”, the 17 points are identified by the Tribunal member which led to the finding of the applicant’s lack of credibility. A significant number of these discrepancies relate to the Tribunal member referring to prior evidence and re-asking the applicant to explain the situation again and clarify the discrepancy from his previous evidence.
In respect of Ground 2, the applicant stated that the Tribunal finding that he did not claim to have been a member of the ISYF in India was a highly unreasonable conclusion. The applicant’s claim was that he faced persecution because of his forced recruitment by terrorists. The Tribunal records that the letter from ISYF (which the applicant provided in support) stated the applicant faced persecution because he was a member of the ISYF (and not because he was recruited by terrorists). There is nothing to suggest that the Tribunal’s decision was so unreasonable “that it might also be described as being done in bad faith” or “so absurd that no sensible person could ever dream that it lay within the powers of the Tribunal”: Associated Provincial Picture Houses Ltd v Wednesbury Corporation at page 229; and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme. A complaint of Wednesbury Unreasonableness cannot be sustained and this ground must fail.
Ground 3 of the amended application claimed the Tribunal was ‘procedurally unfair’ and failed to comply with s.424A of the Act. Mr Jayawardena referred to the High Court decision in SAAP which rejected the approach previously accepted as orthodox by the decision of the Full 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 as the matters in issue were raised with the applicant at the 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; either there had been compliance or there had not. His Honour McHugh J stated at [68]:
“The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case. Further, the mandatory nature of the obligation in s 424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s 424A.”
The majority in SAAP held that the provisions in s.424A as “one of the centrepieces of its regime of statutory procedural fairness”. Their Honours held that the best view of the section is that failure to comply with it goes to the “heart of the decision making process”. Mr Jayawardena submitted that the Tribunal did not inform the applicant that he was considered “an unreliable and untrustworthy applicant”. This was the main reason or part of the reason why the Tribunal dismissed the applicant’s application. It was submitted that this was information or a finding that the Tribunal relied on in assessing the applicant’s claim purely on an inference made by the Tribunal on its own volition and not on the basis of information that was provided by the applicant in his claims. Mr Jayawardena submitted that as this is a serious credibility issue, the Tribunal should have put the issue to the applicant during the hearing or subsequently in writing for comment before the decision was handed down dismissing the applicant’s claim.
Mr Jayawardena, appearing for the applicant, did not make any written or oral submissions as to which pieces of independent evidence he was referring to in respect of this ground of review. The Supplementary Court Book (“SCB”) filed in these proceedings on 11 November 2004 contains a letter dated 1 November 2004 from the Tribunal to the Department which attached 28 separate documents from various sources and dates, with the earliest appearing to be prepared in December 1992 and the most recent being dated August 2001. Reference was also made to a report from the Australian High Commission in New Delhi prepared in January 1994 that could not be located because of the insufficient details in the citation (SCB p.3). These documents represented approximately 360 pages of typed information in various formats and addressing a wide range of issues concerning the Sikhs in India. The Tribunal did cite and place some significance on the report that the persecution of Sikhs was at an end by 1992 and that Sikhs were not a persecuted group. The first of the references quoted from a DFAT cable No: ND86328 of 2 February 1993 (CX2578) stated:
“Media observers of the recent Panchayat elections in the Punjab have commented favourably on the changed mood of the state … Massive police operations have destroyed most of the activists’ leadership, curtailed their effectiveness and resulted in the collapse of new recruitment. Fewer insurgents, and fewer police are now being killed. There is a slow return to normalcy of basic institutions, movement of the populace at night, evening operation of cinemas and a proliferation of meat and liquor stalls once more (a section of the militants had launched a strong anti-meat, anti-liquor drive two years ago).” (CB p.90)
This trend was noted in a number of subsequent documents quoted in the Tribunal’s decision which reflect the return to normalcy due to the curtailment of activists’ activities and the virtual elimination of militant activities in the Punjab. There was a range of documents from various sources other than those distributed by DFAT. Comments were also made by the US State Department and independent observers from the UK, Canada, the Far Eastern Economic Review and various news organisations. The Tribunal extracted relevant parts of these reports and reproduced them in its decision (CB pp.90-95). This independent evidence is within the exception to s.424A(1) obligation in

sub-s.424A(3)(a): see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW. Insofar as the applicant asserts that the Tribunal denied him procedural fairness by not putting this information to him for comment at the hearing, the factual basis of such a claim is not established. As I have indicated above, there is no transcript or hearing tape of the Tribunal hearing before the Court and no inference can be drawn in the absence of this evidence: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs (“NAOA”) per Beaumont, Merkel and Hely JJ at [21]:
“For one thing, as the respondent submitted, the appellant’s case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this ‘appeared’ to be the case ‘from the record of the [Tribunal] decision’. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.”
The decision of NAOA also distinguishes the decision of NARV v Minister for Immigration & Multicultural & Indigenous Affairs in respect of the inferences that can be drawn in this situation.
To the extent that this ground complains about the use of country information by the Tribunal, the respondents submitted that the weight that is given to such information is a matter for the Tribunal itself, and is part of its fact finding function: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs per Gray, Tamberlin and Lander JJ at [11]:
“The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that. I do not believe that the argument submitted by the applicant in respect of a breach of s.424A can be maintained.”
In the fourth ground of review, the applicant claimed the Tribunal breached sub-ss.430(1)(c) and (d). Subsection 430(1) states as follows:
(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)…
(b)…
(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
The applicant claimed the Tribunal avoided this issue both at the hearing and in its subsequent written decision. The applicant relied on the Full Federal Court decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) where it was held:
“Failure by a Tribunal to make a finding on a substantial, clearly articulated argument relying upon established facts can amount to a jurisdictional error by failing to carry out the review required by s.415 of the Migration Act.”
“Where the Tribunal fails to make a finding on ‘ … a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.”
Their Honours held 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 jurisdictional error.”
Mr Jayawardena submitted that the Tribunal failed to consider whether “there was any truth about the persecution suffered by the applicant. This was clear avoidance of the issue by the Tribunal and therefore amounts to a grave jurisdictional error committed by the Tribunal”. In support of his contention, the applicant relied upon a passage from the Tribunal’s decision which states:
“The Tribunal places no weight on any of the applicant’s claims of past persecution. Furthermore, Tribunal is not satisfied that the applicant has ever been involved in any activity, either in India or Australia which would give him a profile which would draw him to the attention of any persecutor.” (CB p.99)
The respondents submitted that s.430 requires the Tribunal to provide a written statement setting out its findings on the material questions of fact, the evidence or material relied upon for such findings and reasons of the Tribunal. The Tribunal is not obliged to refer to every piece of evidence or material put forward by the applicant in its statement of reasons: WAJW v Minister for Immigration & Multicultural & Indigenous Affairs per R D Nicholson, Jacobson and Bennett JJ at [35]:
“Specifically, the Tribunal was not obliged to refer in its statement of reasons to every piece of evidence or material put forward by, or on behalf of, the appellant: s 430(1)(d) of the Act. In particular, the fact that the Tribunal did not refer to every statement made by the appellant in her oral evidence at the Tribunal hearing on 17 March 2003 or to various matters contained in country information reports did not establish a basis for a correct assertion that the Tribunal ignored that evidence or material.”
The Tribunal lists 17 separate reasons why the applicant’s claims could not be accepted. The applicant essentially disagrees with the Tribunal’s conclusion and his complaint about the Tribunal’s findings in this respect seeks a merits review. A claim that s.430(1) has been breached cannot be sustained.
The fifth ground of the applicant’s pleadings was not addressed by Mr Jayawardena in his written submissions or during this Court hearing. The pleadings claim that the Tribunal’s decision is manifestly unreasonable and biased. The particulars in support of this claim note:
“For all of the above reasons cumulatively, the Tribunal does not find any of the applicant’s claims to be credible and does not accept that he has ever suffered any form of past persecution in India.” (CB p.99)

The respondents submitted, and I accept the submission, that the Tribunal assessed the applicant’s claims as it was required to do against the criteria of the Refugee Convention as amended by the Refugees Protocol. The Tribunal’s ultimate conclusion that the applicant was not a person to whom Australia had protection obligations was based on its findings that any fear on the part of the applicant was not well founded.
Other than what is contained in the applicant’s comments in the amended application, no submission or evidence have been placed before this Court as to the serious allegation of bias. However, the amended application, which contained this allegation, was filed by a legally qualified practitioner who regularly practises in this jurisdiction and would be aware of the serious nature of any suggestion of bias.
Actual bias can be said to exist where the Tribunal member had a pre-existing state of mind which disabled him from undertaking or rendered him unwilling to undertake any proper evaluation of the relevant materials before him which were relevant to the decision to be made: Minister for Immigration & Multicultural & Indigenous Affairs v Jia (“Jia”) at [35] and [72]. Actual bias may be said to exist where the Tribunal member is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia at [71] and [72].
A party alleging actual bias on a decision maker’s part carries a heavy onus and it must be clearly proved: Jia at p.531. The existence of actual bias may be inferred from facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural & Indigenous Affairs at [27]; Yit v Minister for Immigration & Multicultural & Indigenous Affairs at [36]. Further, a case of actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [3].
Apprehended bias will exist where a fair minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (“Ex parte H”) at [27]; Livesey v New South Wales Bar Association 293-294. Examples of such apprehended bias were:
a)The applicant has been overborne or intimidated by the Tribunal: Ex parte H at [31].
b)Fact finding of the Tribunal was conducted in a manner which was:
i)substantially unreasoned;
ii)in the nature of mere assertion that lacked rational or reasoned foundation;
iii)at times plainly and ex facie wrong; and
iv)selective of material going one way: NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs at [115].
A determination as to whether an administrative decision is affected by apprehended bias should be informed by the following considerations:
a)Natural justice does not require the Tribunal member’s mind to be absent of any predisposition or inclination for, or against, an argument or conclusion. All that is required is for the Tribunal member to be open to persuasion: Jia at [72] and [86].
b)Apprehended bias, in the context of an administrative decision maker, is not attended with the strictures that apply in the case of judicial prejudgment: Jia at [179]-[187]; [244]-[245]; NADH at [19]. In NADH Allsop J (Moore and Tamberlin agreeing) described this difference as follows:
“The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.”
c)Where credibility is in issue, the Tribunal member will necessarily have to test the evidence presented – often vigorously: Ex parte H at [30]. The requirements of procedural fairness will often require that the applicant be plainly confronted with matters which bear adversely on their credit or which bring their account into question. Further, the decision maker’s assessment of the applicant’s credit will often depend upon the demeanour of the witness and the manner in which they give evidence: Ex parte H at [34].
d)Bias does not necessarily arise from illogical, irrational decision-making or inferences: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (“Applicant S20/2002”) at [52], [75], [99]-[101]. Further, a manifestly defective or illogical approach to the consideration of evidence, and even irrationality in the reasons for a conclusion, may create an impression of confusion, lack of care or incompetence. But such an approach, without more, does not necessarily demonstrate apprehended bias: Applicant S20/2002 at [101] and [136].
In respect of the issue of bias, whether actual or an apprehension of, is a completely unsupported claim with no evidence or submissions being made in support.

Conclusion

None of the claims of jurisdictional error pleaded in this matter can be sustained. The application should be dismissed.
I am satisfied that an order for costs should be made in this matter.

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

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 27 January 2006