SZEPZ v Minister for Immigration & Anor

[2005] FMCA 1614

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPZ v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1614

MIGRATION – RRT decision – s.424A invitation to comment – given when Tribunal differently constituted – no duty to serve second invitation – findings rejecting claim of Hindu activism by Bangladeshi – not illogical and unsupported – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.410, 414, 415, 420, 421, 421(2), 422, 422(2), 424(1), 424A, 424A(1), 424A(3)(b), 425, 457, 474(1), 483A, Pt.8

Lee v Maskell‑Knight (2004) 137 FCR 59
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZAGF v Minister for Immigration & Anor [2005] FMCA 1448
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74

Applicant: SZEPZ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3182 of 2004

Judgment of: Smith FM

Hearing date: 27 October 2005

Delivered at: Sydney

Delivered on: 27 October 2005

REPRESENTATION

Counsel for the Applicant: Mr I Archibald

Counsel for the First Respondent: Ms S McNaughton

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3182 of 2004

SZEPZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 September 2004 and handed down on 5 October 2004.  The Tribunal affirmed a decision of a delegate made on 8 March 2001 refusing an application by the applicant for a protection visa.  The delay between the delegate’s decision and the Tribunal’s decision is explained in part by reason of the need to reconstitute the Tribunal following a successful application to this Court in relation to an earlier decision of the Tribunal constituted by a different member.  

2. Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction is under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) but subject to limitations under Pt.8 of the Migration Act. The effect of those limitations is that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa.

3. The present applicant arrived in Australia on 9 October 2000 and made an application for a protection visa on 17 November 2000.  He was assisted by a migration agent when making his application and in the subsequent proceedings before the Tribunal.  After the remittal to the Tribunal, he was represented by a solicitor.  It is unnecessary for me to recount the lengthy procedural history of the matter, nor all the documents which comprise a bulky Court Book.  It is clear that the applicant enjoyed extensive opportunities to make submissions and to put forward documentary material in support of his claims.  The material is recounted at length in the Tribunal’s decision, including an account of evidence given by the applicant to a hearing by the Tribunal as first constituted on 11 February 2003.  After the remittal, the applicant attended a second hearing on 16 August 2004 held by the member who constituted the Tribunal when making the decision presently before me.  

4. In its decision, the Tribunal extracted a summary of the applicant’s claims which it took from the decision written by the Tribunal as previously constituted.  No point is taken in relation to that adoption.  The Tribunal also recounted the evidence obtained at the hearing before it.  It is clear that in the course of the hearing the applicant was given a full opportunity to respond to the concerns which ultimately caused the Tribunal to affirm the delegate’s decision.  After the hearing, the applicant enjoyed an opportunity for his solicitor to put forward further submissions on points raised during the hearing. 

5. In its reasons under the heading “Findings and Reasons”, the Tribunal dealt with the various claims made by the applicant to fear persecution if he returned to his country of nationality, Bangladesh.  It is not contended that the Tribunal overlooked or did not deal with any claim. 

6. The two grounds of review which were argued by the applicant’s counsel related to only one part of his claims, being a significant claim that he feared persecution from people who opposed his activities as an activist fighter for the rights of Hindus in Bangladesh and from Muslim extremists as a result of those activities.  He also feared that he would suffer harm as a result of false criminal charges which he claimed had been laid by his opponents as a result of his activities.  I shall explain the Tribunal’s reasoning in relation to these claims further below. 

7. In relation to his other claims for refugee protection, it is enough for me to note that the Tribunal addressed a claim that the applicant had suffered detention and torture in 1983 while he was at university.  The Tribunal was prepared to accept that while he was studying at Dhaka University in the early 1980s he was a student activist on behalf of the rights of Hindu students, and that he was arrested in connection with this activity and he suffered mistreatment at the hands of the authorities during his detention.  However, the Tribunal did not accept the applicant’s subsequent history upon which his claims to fear persecution as a Hindu activist depended.  For reasons which I shall examine below, it was not satisfied that he had ever been an activist on behalf of the Hindu minority at any point after he left university. 

8. The Tribunal also addressed claims that referred to the confiscation of his parents’ house and property before the independence of Bangladesh from Pakistan, but was not satisfied that there was a real risk of harm to the applicant from state‑sponsored expropriation of his property if he should return to Bangladesh either now or in the reasonably foreseeable future.  Based on independent country information about the relations between the Muslim majority and the Hindu minority generally, the Tribunal was not satisfied that there was a basis for believing that the applicant risked losing property through communal rioting either now or in the reasonably foreseeable future. 

9. The Tribunal also addressed claims that the applicant had suffered discrimination in his education and in his employment prospects, but was not satisfied that he had suffered discrimination amounting to serious harm in either areas.  

10. The Tribunal also addressed the applicant’s position just as a member of the Hindu minority as a result of what it referred to as “societal discrimination” in Bangladesh against Hindus.  On the basis of general country information, it was not satisfied that the applicant faced a real chance of religious‑motivated harm from societal discrimination against the Hindu minority, notwithstanding a recent deterioration in the level of religious tolerance in that country. 

First ground of review

1. The first ground raised by the further amended application contended that the Tribunal’s decision was affected by jurisdictional error by reason of a failure to comply with a duty on the Tribunal under s.424A(1). That section provides:

   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)The invitation must be given to the applicant by one of the methods specified in section 441A.  However, this subsection does not apply if the applicant is in immigration detention. 

   (3)This section does not apply to information:  

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application; or

   (c)that is non‑disclosable information. 

2. It was common ground between counsel that the decision of the Tribunal to affirm the delegate’s decision was in part based on information which had reached the Tribunal from the Australian High Commission in Dhaka.  This followed a request for inquiries relating to the applicant’s evidence given at the first hearing as to his involvement in a Hindu welfare trust organisation based at a local temple.  The Dhaka High Commission responded that there was no temple of the name given by the applicant, that an organisation with the name he gave was not known to exist, and that an organisation with a similar name “has no knowledge of” the applicant’s name.  This information was clearly inconsistent with the applicant’s evidence given to the Tribunal at its hearing on 11 February 2003. 

3. The High Commission information was the subject of a s.424A invitation for comments which was sent to the applicant on 9 April 2003. This elicited responses from the applicant in writing which were received on 1 May 2003. The inconsistency was also put to applicant orally by the member who constituted the Tribunal at the second hearing held on 16 August 2004, and who subsequently made the Tribunal’s decision which is now under judicial review.

4. However, at the time that the notice was sent, the Tribunal was constituted by a different Tribunal member.  A purported decision of the Tribunal made by this member was handed down on 5 June 2003.  This decision was the subject of an application for judicial review whose terms are not in evidence before me.  It was implicitly found to be invalid in an order made by Scarlett FM on 15 April 2004, which provided: 

   1.The application be allowed. 

   2.The matter be remitted to the Refugee Review Tribunal differently constituted for reconsideration according to law.  

   3.The respondent pay the applicant’s costs agreed in the sum of $1600.00.  

5. That order was made by consent. There is nothing in the material before me to show the basis on which that consent order was made, and counsel were not able to inform me. I consider it should be understood as making an order of the nature of mandamus under s.39B of the Judiciary Act, upon satisfaction by the Court that the purported decision made by the Tribunal on 5 June 2003 was invalid so as to allow the grant of the relief notwithstanding the provisions of s.474(1) (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). In effect, the Court’s order identified an outstanding duty under ss.414 and 415 of the Migration Act on the Tribunal to proceed and complete the review proceeding which had been initiated by the applicant’s original application for review filed on 3 April 2001 (c.f. Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [53]).

6. There is no direct evidence before me of the procedures by which the Tribunal was reconstituted so as to completing the review.  However, it is clear that a reconstitution did occur, because a different member conducted a hearing on 16 August 2004 and that person then constituted the Tribunal when the present decision was handed down on 5 October 2004. 

7. Sections 421 and 422 of the Migration Act provide:

   SECT 421 

   Constitution of Refugee Review Tribunal for exercise of powers 

   (1)For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2), by a single member. 

   (2)The Principal Member may give a written direction about who is to constitute the Tribunal for the purpose of a particular review. 

   SECT 422 

   Reconstitution of Refugee Review Tribunal–unavailability of member 

   (1)If the member who constitutes the Tribunal for the purposes of a particular review: 

   (a)stops being a member; or

   (b)for any reason, is not available for the purpose of the review at the place where the review is being conducted;

   the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review. 

   (2)If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. 

   (3)In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1). 

8. Counsel for the applicant argued that no direction under s.422 would have been made when reconstituting the Tribunal because, as I understood him, the effect of the Court order was that a direction constituting the Tribunal for the review de novo would have been required under s.421(2).

9. However, in my opinion, the proceeding which occurred after the remitter of the Court remained the same “particular review” as had been commenced following the applicant’s application for review, and the effect of the Court order was to require or justify a direction reconstituting the Tribunal under s.422. The Court’s order itself had no direct effect on the constitution of the Tribunal.

10. On this construction of the legislation, and based on a presumption of regularity, I would infer that there was a reconstituting direction given under s.422 which appointed Mr Mullin as the member to constitute the Tribunal for the continued proceedings upon remitter. In those circumstances, subsection (2) of s.422 permitted him to “continue to finish the review” and to exercise his discretion to have regard to “any record of the proceedings of the review made by the Tribunal as previously constituted”.  As appears from his statement of reasons, he did take that course, and no objection to this was or is now taken on behalf of the applicant. 

11. That record “of the proceedings of the review as previously constituted” included the information from the Dhaka High Commission, the invitation for comments under s.424A, the applicant’s written responses, and all the previous evidence and material obtained by the Tribunal as previously constituted. It was then amplified by additional material obtained by the Tribunal when constituted by Mr Mullin. It is, however, common ground that no further s.424A notice or invitation was given to the applicant in relation to that information before it was used by the reconstituted Tribunal as part of its reasons for affirming the delegate’s decision.

12. The issue raised by the first ground of the application is whether there was a breach of the duty under s.424A by reason of the failure of the Tribunal to serve a second invitation at a time when it was reconstituted as a result of the Court’s order. On current authority, it is clear that if such a duty existed, the failure to give effect to it would give rise to jurisdictional error for which the present decision should be set aside, even if no unfairness might appear to have occurred (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (“SAAP”)). 

13. This gives rise to an issue of construction upon which I was referred to no authority directly on point. The duty under s.424A is given to “the Tribunal” which is defined via ss.410 and 457 as the Tribunal “established” by force of s.457. The establishment of the Tribunal as a legal entity is reflected in the form of relief normally given in proceedings by way of judicial review in relation to Tribunal decisions, which directs orders at the “Refugee Review Tribunal”, rather than any particular member or members of that Tribunal. In my opinion, this properly reflects the separate legal identity of that Tribunal as the repository of duties to entertain an application for review, and to perform and complete that review by producing a valid decision under s.415.

14. However, the Act also envisages that the performance of the duties of the Tribunal will from time to time be performed in relation to a particular review by a single member of the Tribunal. This is reflected in the provisions of ss.421 and 422 set out above.

15. The language of s.424A appears to reflect this intention that some powers are to be exercised personally by a member constituting the Tribunal. It requires a person constituting the Tribunal to “consider” the way in which particulars of information should be given to the review applicant and what information should be included. The information is to be the information “that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. It is therefore appropriate to read s.424A as imposing a duty to be performed upon a decision made by the Tribunal constituted by a member under a direction given under ss.421 and 422.

16. However, I cannot find in the language of s.424A a direction that this person must be the person constituting the Tribunal at any particular time in the course of the review proceeding, and certainly no express limitation to the person who last constitutes the Tribunal in the review, i.e. at the time that the Tribunal’s decision is made.

17. The nature of the duty imposed by s.424A also, in my opinion, does not clearly suggest that the duty is imposed on the Tribunal in relation to that person and not generally in relation to any person constituting the Tribunal from time to time during the review proceeding. The draftsperson might have envisaged that normally the predictive and provisional assessment of the likely reasoning of the ultimate decision would be made by the person who would constitute the Tribunal when making the decision, but the nature of the duty does not suggest that this would necessarily be so in every case. In this respect, I think it is irrelevant that a Court would ultimately confirm the existence of the duty retrospectively from the actual reasons given (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [29]).

18. Exploring the objects of the provision and the scheme of the relevant parts of the legislation, guidance can be taken from the recent discussion of s.424A by the High Court in SAAP (supra). A common theme through all judgments was that the object of s.424A is to afford a review applicant a right of procedural fairness, by giving an opportunity in writing to address the classes of information to which the section relates after being alerted by written invitation as to its potential relevance and with particularity.

1. However, in my opinion, that object can be satisfied at any point of time in the course of the review proceeding, assuming that ultimately a Court could retrospectively be satisfied that it was complied with in the light of the actual reasoning which emerged.  But in point of time, the object of the section, in my opinion, is not served by limiting it to a stage in the proceeding near to the point of decision.  Nor, in my opinion, is the object of the provision served by confining its exercise to the member who has been constituted as the ultimate decision‑maker.  To make these implications might be regrettable, since they could have the effect of delaying and thereby diminishing the opportunity for an applicant to respond to adverse information. 

2. These considerations pointing to an unconfined interpretation of s.424A find additional support in the opinions of the majority in SAAP (supra). They differed from the dissenting justices over whether s.424A should be read as having an operation restricted to a particular stage in the Tribunal review proceedings. The reasoning of the majority rejected a sequential approach which would have given the section no operation after a hearing was held under s.425. The reasoning of McHugh J in this respect was:

   [55]The main purpose of the Division is to accord procedural fairness to applicants in determining whether a decision of the Minister or the Minister’s delegate should be affirmed. The Tribunal is the vehicle through which this purpose is effected. The Tribunal is empowered to use an inquisitorial process to conduct the review of the decision. The Division does not provide for an adversarial contest that culminates in a trial of issues joined between the parties. It is inconsistent with the inquisitorial nature of the review to require the Tribunal to obtain all information relevant to the decision under review before invoking the s 425 procedure. This is particularly the case if subsequent information emerges that affects the decision under review. Such information may emerge at any time. Given that the Tribunal exercises all the powers of the Minister or the Minister’s delegate when conducting the review (s 415), there is no reason to confine the exercise of the Tribunal’s power to “get any information that it considers relevant” (s 424(1)) to a particular point in time.

   [56]In addition, s 424A “is enlivened only at the point at which the RRT has information and has determined that the information would be the reason or part of the reason for affirming the decision” under review. The Tribunal may not realise that information it has obtained from a third person will form the reason or part of the reason for affirming the decision until after the applicant has appeared before it. Information obtained before the hearing may become the reason or part of the reason for affirming the decision only after an applicant has responded to questions at the hearing. It would seem to be contrary to the requirements of procedural fairness if the Tribunal were not required to invite the applicant to comment on such information (that is found to be adverse to the applicant) simply because the Tribunal has already invited the applicant to appear before it. (citation omitted)

   [57]No doubt there is a tension between different elements of the review process. There is the obligation to accord procedural fairness to the applicant by advising the applicant of adverse material and inviting the applicant’s response. But the object of the Division is also to facilitate the quick and efficient determination of applications for review (s 420(1)). The second object can be achieved, however, by the Tribunal using its broad powers to obtain documentary evidence before invoking s 425 and, in some cases, enabling the Tribunal to decide the application in favour of the applicant without needing to conduct a hearing under s 425.

   Justice Kirby at [164] thought that: 

   the more natural reading of s 424A is therefore that it operates throughout such review conduct and is not spent at the earlier stage before any hearing by the Tribunal is concluded. 

   Justice Hayne at [196] and [197] pointed to the purpose of the provision to: 

   provide procedural fairness to applicants in determining, by inquisitorial methods, whether an earlier decision reached should be affirmed or set aside.  The provisions are not made to regulate an adversarial contest that will culminate in a trial of issues joined between parties. 

   And at [202] his Honour said: 

   given the nature of the power to be exercised by the Tribunal, there is no reason to read the Act as defining the order in which the Tribunal should set about undertaking its task of reviewing a decision.  It may be necessary to read it in that way if the appearance were the point at which issues joined between contesting parties were to be resolved.  But there is no joinder of issue between contesting parties.  And it is not necessary to read the provisions as providing for an invariable order of events if, as I consider to be the better view of the provisions, the appearance before the Tribunal is no more than one of several different steps to be taken in the course of the review. 

3. The reasoning of the majority, in my opinion, points against reading s.424A as imposing a duty on the Tribunal to send a second invitation for comment if the Tribunal is reconstituted in the course of a review, and against the implication of words into the section which direct the duty at the Tribunal as constituted at any particular point in time. The considerations of convenience identified in the majority judgments, and the general duties of the Tribunal under s.420 “to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick” would also, in my opinion, point against reading the section in that way. 

4. The provisions of s.422(2) which I have referred to above, tend to confirm a construction which would allow for the procedure of a notice under s.424A to have been performed by a Tribunal prior to a reconstitution. On this construction, the record of those proceedings should then form part of the record to which the reconstituted Tribunal might refer without it having to re‑perform the duty.

5. As I have indicated, the parties referred me to no authorities directly bearing on this point.  I was referred to a judgment of Scarlett FM in SZAGF v Minister for Immigration & Anor [2005] FMCA 1448. This made the point that the exclusion under s.424A(3)(b) of a duty under s.424(1) would apply to information given by an applicant to the Tribunal when constituted by a member who made a decision which was subsequently set aside, so that the reconstituted Tribunal could refer to that information without it accruing a duty under s.424A. However, in my opinion, that is a different point.

6. There are some similarities with the issue which was addressed in Lee v Maskell‑Knight (2004) 137 FCR 59 at [30]‑[39] and [112]‑[122]. The issue in that case was whether a final determination imposing a penalty on a medical practitioner was required to be made by the same determining officer who had made a draft determination which was served for comment on the practitioner, in circumstances where the holder of that office had changed. The majority in the Full Court were of the opinion that the legislative scheme did not contemplate that there would be more than one draft determination, but rather that the draft determination was to be made once only. Their Honours were not swayed by the consideration that the purpose of the draft determination might be to alert the recipient to the thinking of the ultimate decision‑maker.

7. In the present scheme, I consider that, although opinions might differ, the proper construction of the section in its context is that it is necessary for only one s.424A notice to be served on an applicant in relation to information covered by its scope which ultimately is used as part of the reasons for the Tribunal for affirming the decision. I decline to read it with an implicit qualification confining the duty to the Tribunal member who constitutes the Tribunal when making the Tribunal’s decision. I consider that the duty can be sufficiently complied with by a notice served at a time when the Tribunal is otherwise constituted for the purposes of the review. In my opinion, that has occurred in the present case and the first ground of review should therefore be rejected.

Second ground of review

1. The second ground for review challenged the Tribunal’s reasoning when rejecting the applicant’s claims to have been an activist on behalf of the Hindu minority in Bangladesh.  In particular, it argued that jurisdictional error was revealed in the paragraph which appears at the end of the following reasoning:  

   The Applicant claims that, after he left University, he was an activist fighting for the rights of the Hindu minority, including as a member of the Minority Welfare Trust based in his local Hindu temple from 1994 to 1999.  He claims to have been very prominent in this role and to have occupied the position of Welfare Secretary in the organization.  The Tribunal does not accept the credibility of these claims. 

   Neither the photographs submitted to the Tribunal by the Applicant showing him in Hindu religious processions nor his temple membership certificate provide any evidence that he was an activist on behalf of the Hindu minority.  This documentation only indicates that in Bangladesh the Applicant was a practising Hindu, which the Tribunal accepts. 

   When the Australian High Commission contacted the Minority Welfare Trust (or Hindu Welfare Trust) it was told that nobody knew of the Applicant under either of his names.  The Applicant sought to explain this at the hearing by stating that everybody who knew him in the organization had been forced to leave.  In his subsequent submission to the Tribunal, however, the Applicant states that one of the Trust’s committee members has left Bangladesh but that he does not know the whereabouts of the others.  If this is so it undermines his claim that everybody who knew him has left.  Moreover, the Tribunal does not accept that if the Applicant had occupied a prominent position in the organization as he claims, had his family roots in the immediate area of the temple and had been forced to leave Bangladesh because of his activism he would not have been remembered, or at least known of, in the Trust.  The Applicant’s alternative (and contradictory) explanation is that those in the Trust who do know him are afraid to acknowledge him because of fear of Islamic fundamentalism, fear of a local Awami League commander or fear of being caught up in the legal cases against him.  The independent country information does not provide a basis for the Tribunal to be satisfied that problems faced by the Hindu minority in Bangladesh would explain why members of the Trust would fear to confirm to the High Commission the simple fact that they knew the Applicant.  Nor is the Tribunal satisfied, on the evidence before it, that any fear of the local Awami League commander or fear of being somehow caught up in legal cases would prevent members of the Trust, who would logically be expected to be persons with some ability and experience in representing their community, from simply confirming that they knew the Applicant.  The Tribunal does not accept the Applicant’s other explanation that the High Commission simply spoke to the wrong people.  In the absence of any credible explanation, the Tribunal does not accept that the Applicant was ever a member of the Hindu Welfare Trust or an office bearer in it as he claims. 

   The Tribunal is reinforced in this view by the Applicant’s responses to questions about the specific role he played as an activist in the welfare organisation.  Despite a number of invitations to explain the details of his responsibilities he was unable to provide more than a highly generalised description, amounting to no more than taking part in relatively small‑scale meetings.  It was only after a recess that he was able to add to this by saying that he had encouraged people to come to the meetings and had participated in demonstrations.  Notwithstanding the Applicant’s further claim, in his post‑hearing submissions, that his job was to organise young people to participate in religious festivals and protests, these responses do not provide a basis for the Tribunal to be satisfied that the Applicant ever had a part in organizing protests on behalf of the Hindu minority or played any role in working for Hindu rights as a member of the Hindu Welfare Trust. 

   The Tribunal is not satisfied that the Applicant has involved himself as a pro‑Hindu activist within the Hindu Welfare Trust in his local temple, as he claims.  Given its lack of satisfaction with the credibility of the Applicant’s claims in this regard, the Tribunal is not satisfied that the Applicant was ever an activist on behalf of the Hindu minority at any point after he left University.  (emphasis added) 

2. The second ground was simplified by counsel for the applicant in his written and oral submissions.  His contention was that the reasoning shown in the last paragraph allowed the Tribunal’s determination to be characterised as “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38], and the passages from Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“Applicant S20”) cited in the footnote). 

3. Counsel argued that in the second sentence of the challenged paragraph: 

   (the Tribunal) made a quantum leap without apparent cause, from a finding in relation to the activities with the Trust to a finding that the applicant was never an activist on behalf of the Hindu community at any time after he left university. 

4. He argued that by reasoning this way, the Tribunal made an error which is referred to in Applicant S20 (supra) at [49] because:

   it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question.  

   It showed a refusal to consider corroborative evidence, of the sort referred to in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [26]‑[28].

5. In short, his argument was that the Tribunal extrapolated in an irrational way from its finding based on the Australian High Commission information which rejected the applicant’s claims to have been a pro‑Hindu activist in the Hindu Welfare Trust in his local temple, into a rejection of the whole of his claims to have been a Hindu activist without properly addressing the evidence going to those claims. 

6. Counsel pointed out that in the subsequent reasoning of the Tribunal it then used its general rejection of his claim to have been a Hindu activist as part of its reasons for rejecting the genuineness of his documentary evidence, and for rejecting his general claims to have encountered attempts to kill him, death threats, being placed under surveillance, threats to family members and false charges. 

7. The significance of the Tribunal’s rejection of the general “activist” claim is clear in the Tribunal’s reasoning.  However, I do not accept that it was arrived at by any process which was irrational, illogical, or based on unsupportable or unwarranted reasoning. 

8. I consider that counsel’s argument proceeds upon a misreading of the Tribunal’s reasons.  The paragraph which he has focussed upon must be read in the light of the preceding reasoning which shows plainly that the Tribunal was aware of, and addressed, the applicant’s claims to have been a Hindu activist based not only on activities as a member of his local welfare trust, but also upon other activities which were poorly specified by the applicant in his evidence.  In the extract above, the Tribunal expressly addressed his evidence of other activities, including photographs and, importantly, its assessment of his responses to questioning about his claimed activist activities.  I do not accept that the Tribunal did not assess the whole of the applicant’s evidence when arriving at its conclusion that it “is not satisfied that the Applicant was ever an activist on behalf of the Hindu minority at any point after he left University”. 

9. I accept that the Tribunal has given significant weight in that credibility finding to its finding about the specific activity which the applicant had pointed to in the course of the hearing before the first Tribunal member, and which had been tested by inquiry by the Australian High Commission.  However, to reason in this manner was not irrational, and in my opinion it did not give rise to a general conclusion which was unwarranted on the evidence and was not open to the Tribunal when performing its duty to review the delegate’s decision.  I therefore reject this ground also. 

10. No other grounds for review were argued for the applicant, and I must therefore conclude that the Tribunal’s decision was not affected by jurisdictional error. It was therefore a privative clause decision within s.474(1) and I must dismiss the application. The parties have agreed upon a consequential costs order.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding forty‑five (45) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  10 November 2005