SZEXY v Minister for Immigration
[2005] FMCA 1528
•28 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEXY v MINISTER FOR IMMIGRATION | [2005] FMCA 1528 |
| 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, 424A, 424B, 425, 474, 483A
Judiciary Act 1903 (Cth), s.39B
Migration Regulations1994 (Cth), reg.4.35
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
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192
NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554
NAAH v Minister for Immigration & Multicultural Affairs [2002] FCAFC 354
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
Minister for Immigration & Multicultural & Indigenous Affairs v Jia (2001) 205 CLR 507
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358
SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668
Sun Zhan Qui vMinister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Sarbjit Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902
Iyer v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 1788
Minister for Immigration, Local Government & Ethnic Affairs v Che Guang Xiang (unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ,
20 July 1994)
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAYL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 33
WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
SLGB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 224
VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Prasad v Minister for Immigration & Ethnic Affairs (1985) 65 AALR 459
| Applicant: | SZEXY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2234 of 2004 |
| Delivered on: | 28 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 7 September 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Counsel for the Respondent: | Ms S Mason |
| Solicitors for the Respondent: | Clayton Utz |
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 |
SYG 2234 of 2004
| SZEXY |
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 16 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on
31 May 2004 and handed down on 23 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
16 February 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant’s amended application seeks relief in the form of constitutional writs against the decision of the Tribunal.
Background
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 “SZEXY”.
The applicant, who claims to be a citizen of India, arrived in Australia on 1 January 2004. On 10 February 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.1-42) (“CB”). On 16 February 2004 the delegate refused to grant a protection visa (CB pp.43-56) and on 15 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.57-60).
The applicant is a single man from Gurdaspur Village in the Punjab State of India. He is a Sikh and was born in October 1977. The applicant indicated he speaks, reads and writes Punjabi and reads English. He stated he had thirteen years of education in India and was a farmer in India and Botswana (CB p.77).
The applicant claimed he belonged to an agricultural family and was engaged in farming after leaving school in 1993. He claimed he left his country under compelling circumstances in May 1995 due to the fact that freedom fighters for a separate state and their well-wishers used to go to his home for food and money. The applicant claimed the main reason for this was because his home was situated on the outskirts of the village and had become an easy spot for the freedom fighters to come and go (CB pp.77-78).
The Tribunal’s findings and reasons
A convenient summary of the Tribunal’s reasons was contained in the respondent’s written submissions prepared by Ms Mason and I adopt paragraphs 7-8 of those submissions for the purpose of this judgment:
The Tribunal found that:
(a)the applicant is a citizen of India (CB 89.3);
(b)on the basis of independent country information, it accepted that police in India are corrupt (CB 90.1);
(c)the applicant's religion and political opinion (including his father's support of the Congress Party and his perceived sympathy towards Sikh terrorists), (CB 90.3 and CB 90.8) were not individually or cumulatively, the essential or significant reason for the police harassing him and seeking bribes from him pursuant to section 91R of the Migration Act 1958 (Cth) (“Act”) (CB 90.5);
(d)the police in harassing the applicant were engaged in criminal conduct and such conduct had no Convention-basis (CB 90.6);
(e)it was satisfied that by reason of its above findings, the applicant had not been persecuted (CB 90.9);
(f)the applicant did not have a subjective fear of persecution. That is because:
(i)the applicant had been able to leave India on a number of occasions, and that, based on the applicant's own oral evidence, the reason for his leaving India was not Convention related (CB 90.5);
(ii)it was significant that the applicant had not applied for refugee status in either Botswana or South Africa, which was a further indicia of his not having a subjective fear of persecution (CB 90.9);
(iii)it was not satisfied by the applicant's explanation for why he did not apply for protection visa in Botswana and South Africa;
(iv)the applicant’s own response (at CB 90.5) had been that he had left India for Qatar because he faced poverty, not because to a fear of persecution (CB 91.2);
(g)it was not satisfied the Applicant experienced in the past, persecution that was Convention related;
(h)the applicant would not face a real chance of persecution in the reasonably foreseeable future if returned to India. That is because:
(i)based on country information, the Applicant would be able to bring the matter to Court for resolution if the police re-opened old cases against him and harassed him (CB 91.8);
(ii)based on country information, the Sikh terrorist secessionist movement had been "comprehensively defeated" and Punjab has experienced peace in the last 8 years; and
(i)even if there was a Convention basis for the police action against the applicant and the applicant's religion or political opinion was the essential and significant reason for that persecution, the applicant would be able to reasonably relocate to avoid harm. The Tribunal made this finding based on the applicant's own past experiences, his low political profile (if any) and on country information (CB 92.2-94.5).
Application for review of the Tribunal’s decision
On 16 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 16 December 2004 the applicant filed an amended application which is a lengthy document containing 17 grounds of review. Those grounds of review are as follows:
1.The applicant is a citizen of India. If the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.
2.The Tribunal erred in law in arriving at the decision to affirm the respondent’s decision not to grant the applicant a protection visa.
3.The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application in that:
a.it asked itself wrong questions that seemed biased and did not pay any heed to the information provided by the applicant.
Particulars
4.The Tribunal misinformed itself of the particular circumstances of the applicant and incorrectly applied the test to determine the status of a refugee and had a preconceived decision regarding the application.
5.The Tribunal erroneously applied information stated to be from ‘The Country Information Services report’, and relied on this information as matters of facts. This country information was very general in its presentation and lacked substantive depth in its information.
6.The Tribunal erroneously rejected that there was no real chance that the applicant would be attacked or face further prosecution if he was to return to his country.
7.The Tribunal based this judgment on a general approach to the claims made by the applicant rather than look at the merits of the applicant’s individual case.
8.The Tribunal asked wrong questions in assessing the applicant’s fear and in the most asked questions that was leading to the applicant to give answers that could be construed by the Tribunal that the applicant was not at risk.
9.The Tribunal did not ask the applicant questions directly in relation to the claims of the applicant. Instead the Tribunal approached the line of questioning in the same manner in which it dealt with one or at least two other RRT hearings with which I have prove of.
10.In determining my case in the same manner as that with the two other cases that I have referred to in the previous point, the Tribunal committed gross jurisdictional error in not following proper procedures and policies in relation to my case.
11.The Tribunal wrongly assumed that the applicant would not suffer Convention based persecution.
12.The Tribunal erroneously assumed that there is no real chance that the applicant would be persecuted if he returned to India.
a.The applicant was not accorded procedural fairness:
Particulars
i. The applicant was spoken to and presented verbal information that was ambiguous and misleading.
ii. The applicant was not given proper opportunity to present their case in light of this ambiguous and misleading information.
iii.The Refugee Review Tribunal did not comply with section 424B and 425 of the Migration Act 1958.
iv.The Tribunal proceeded to make the decision without regard to any further relevant information or without stating to the applicant that it had come to the stage where it would make a decision and that the applicant had a last opportunity in negating anything that the Tribunal had presented.
13.The making of the decision of the Tribunal was an improper exercise of the power conferred by the Migration Act 1958.
a.The respondents wrongly refused to take the following relevant considerations into account in the exercise of power.
Particulars
i. The total disregard to the status of the applicant’s fear;
ii. The general country information without consideration of the facts of the case with particular reference to the applicant’s perceived fear;
iii. The information provided by the applicant to substantiate his claims.
b.The respondents wrongly failed to take into account the following relevant considerations into account in the exercise of power:
Particulars
i. The political affiliations of the applicant in light of the claims made by him with regards to his family and what they had suffered due to their politics
ii. The independent information provided by the applicant
iii. To independently investigate the applicant’s evidence of fear that he would be persecuted.
14.The Tribunal incorrectly applied the internal flight principle and without regard to the evidence erroneously assumed that the applicant could relocate elsewhere in India without paying particular attention to the applicant’s personal claims.
15.The Tribunal disregarded the claims of the applicant that he was also claiming persecution due to his political affiliations and his fears of reprisals from his foes. Instead the Tribunal put a different spin on the political claims and erroneously used country information to negate the applicant’s claims.
16.The respondent exercised the power in accordance with a policy without regard to the merits of the applicant’s case:
Particulars
i. The Tribunal followed the policy of accepting country information without having regard to the individual circumstances of the applicant.
ii. At no stage in the proceedings or after the proceedings did the Tribunal extend an invitation to receive a copy of the country information so that the applicant could appraise himself of it and if need be mount a defence to the information provided by the Tribunal.
17.The Tribunal breached the rules of natural justice in connection with the making of the decision.
Particulars
i. The applicant was given ambiguous information.
ii. The Tribunal proceeded to make the decision without giving the applicant an opportunity to be heard.
iii.The Tribunal proceeded to make the decision without further relevant information being provided to the applicant or inviting the applicant to provide further information in light of the direction that the hearing took.
iv.The Tribunal dealt with the applicant’s case in the same manner and asked the applicant the same questions as it did to at least one other case that can be proven to the court if required. (Errors included)
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.
Applicant’s submissions
The applicant appeared self represented with the aid of an interpreter. At the time the applicant filed his amended application he also filed an affidavit on which he sought to rely and which contained the following statements:
1.I am the first applicant in this proceeding to review the decision of the Refugee Review Tribunal handed down on
23 June 2004.
2.I am a citizen of India and am a Punjabi who practices the Sikh religion.
3.I have been subjected to extreme violence which I have described in the application for review with the Refugee Review Tribunal.
4.I have provided a number of crucial documents in support of my claims at the time of lodging my application to fully detail every aspect of my claims of persecution but I feel this information was not even considered by the Tribunal in determining my application.
5.I have substantive proof that the Tribunal dealt with my case in the exact same manner as that in a previous Tribunal hearing with another client. The question that I raise is how can the Tribunal address tailor made questions to me and totally disregard my personal claims.
6.During the RRT hearing I was being badgered in to thinking along the lines of the Tribunal; rather than being given the opportunity to present my case.
7.In doing so the Tribunal steered the whole proceeding in a biased manner and dealt with my case in a patronising manner.
8.It is not practical for me to move to another part of the country. I fear that by use of technology my tormentors will still be able to locate, identify and harm me, even if the chance of doing so is not that great.
9.The Tribunal disregarded information that I had stated as a substantive part of my claims without even paying due regard to the merits of my case.
10.I believe I have legitimate claims on the grounds of race, religion and political beliefs to lodge a claim for a refugee and these grounds have not been looked at by the Tribunal.
11.I ask the Honourable Court to substitute the Tribunal decision and make orders in accordance with my application. (Errors included)
When the applicant was invited to address the Court in support of his submissions, he indicated he had no further comment to make and would rely upon his amended application and supporting affidavit.
Respondent’s submissions
Ms Mason of Counsel, appearing for the respondent, prepared a detailed and helpful written submission in response to the applicant’s pleaded grounds. Ms Mason noted that there was a number of grounds that were repetitive and consequently prepared a convenient summary indicating, wherever possible, the grounds that can be addressed together. The respondent submitted that the following grounds for review can be discerned and I adopt paragraph 12(a)-(j) as suitable groupings to address the issues:
(a)the applicant is at risk, the Tribunal erred in law in affirming the decision of the delegate, the Tribunal wrongly decided that the applicant would not be persecuted, improper exercise of power (grounds 1, 2, 6, 7, 11, 12, 13 above);
(b)the Tribunal was biased (grounds 3, 4, 8, 9, 12(i),17(iv) above);
(c)the Tribunal erred in its consideration/application of the real chance test and on the question of Convention-based persecution (grounds 3, 4, 8 above);
(d)the Tribunal erred in its consideration and application of independent country information (grounds 5, 15 and 16 above);
(e)the Tribunal did not give the applicant proper opportunities to present his case (grounds 12(a)(ii) and (iv), 17(ii) -(iv));
(f)the Tribunal denied the applicant natural justice/did not comply with the requisite procedures (grounds 10, 12 (a)(iii) and
17 above);(g)the Tribunal failed to address an integer of the applicant’s claim (ground 15 above);
(h)the Tribunal erred in its consideration/application of the relocation issue (ground 14 above);
(i)the Tribunal failed to take a relevant consideration into account/took an irrelevant consideration into account (ground 13 above); and
(j)the Tribunal did not investigate his claims (ground 13(b)(iii) above).
Reasons
The applicant in these proceedings was self represented with the aid of an interpreter in the Hindi-English medium and made no oral or written submissions addressing the issues of the Tribunal’s decision made on 31 May 2004 or any alleged jurisdictional error contained therein.
The respondent submitted that Grounds 1, 2, 6, 7, 11, 12 and 13 seek to re-agitate the merits of the Tribunal’s decision and/or are not proper grounds of review and should be dismissed: see Chan Yee Kin v Minister for Immigration & Ethnic Affairs (“Chan Yee Kin”) per Mason CJ at 420; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (“Peko-Wallsend”) at 40 - 42.
It is acknowledged that a number of the grounds in this category address more than one issue. However, in respect of an attempt to
re-agitate a merits review of the Tribunal’s decision, clearly a merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]:
“… any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
A merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. A judicial review asks whether the decision maker was authorised to do what he did under prevailing law not whether the actual decision was the best decision which could be made in the circumstances. A merits review provides complete rehearsal of all the issues relevant to the application. The reviewing body considers the relevant material as well as any new evidence. The reviewing body makes a decision about the merits of the application, unfettered by earlier decision or the reasons of the decision maker for the earlier decision. A merits review determines the correct preferable decision in all the circumstances. As has been explained on numerous occasions and in particular by Allsop J in SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs and NARE v Minister for Immigration & Multicultural & Indigenous Affairs and also by the Full Federal Court in NAAH v Minister for Immigration & Multicultural Affairs the Court cannot engage in a merits review and it is not part of its task to do so.
The respondent submitted that Grounds 3, 4, 8, 9, 12(i) and 17(iv) alleged that the Tribunal was actually biased. The allegation that the Tribunal was actually biased or that a “fair minded lay observer or a properly informed lay person might well apprehend bias by the Tribunal against the applicant” is not supportable: see Re Refugee Review Tribunal; Ex parte H. The allegation has not been clearly proved: Minister for Immigration & Multicultural & Indigenous Affairs v Jia at [69]. The applicant has not submitted any evidence of bias (actual or apprehended) on the part of the Tribunal, despite promising to do so in his amended application (see eg. Ground 17(iv).).
Moreover, Counsel for the respondent submitted, this Court should not infer bias or even a lack of good faith on the part of the Tribunal merely from written reasons: SBBF v Minister for Immigration & Multicultural & Indigenous Affairs at [16] per Tamberlin, Mansfield and Jacobson JJ citing SCAA v Minister for Immigration & Multicultural Affairs per von Doussa J at [38] with approval (see also [36] to [37] of SCAA). In the absence of a distinct allegation and clear proof, the respondent submitted the allegation of bias must fail.
The test for actual bias is set out in the Full Federal Court decision Sun Zhan Qui v Minister for Immigration and Ethnic Affairs per Wilcox J at 127 as follows:
“[Actual bias] requires an applicant to show that ‘the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant’s case’.”
This approach had been followed by Lockhart J in Sarbjit Singh v Minister for Immigration & Ethnic Affairs where he made the following three points:
“That the member concerned has formed a preliminary conclusion about a particular issue involved in an inquiry is not sufficient to establish actual bias, and so to disqualify a tribunal member from hearing a matter … Even where a decision-maker is shown to have expressed or otherwise formed strong views about an issue involved in an inquiry prior to the giving of evidence, actual bias will be established only where the evidence shows that these views were incapable of being altered because the decision-maker had unfairly and irrevocably prejudged the case.
It is important to keep in mind, when actual bias is alleged, that the matters upon which reliance is placed to establish bias must be considered in the context of the whole of the hearing before the decision-maker ….
It is not sufficient to show that a decision-maker has displayed irritation or impatience or even sarcasm during a hearing; regrettable though these manifestations may be, whether the relevant states of mind approach the level required to support a finding of actual bias remains a question of fact in each case.”
In the absence of a distinct allegation of bias and the complete absence of any evidence, the respective grounds making claims of bias must fail.
Grounds 3, 4 and 8 claimed that the Tribunal erred in its consideration of the application of the real chance test in respect of the question of Convention based persecution. The respondent submitted that the applicant claimed in various ways that the Tribunal committed jurisdictional errors by, inter alia, incorrectly applying the test to determine refugee status, asking itself the wrong questions as to the applicant's fear and made wrong assumptions about the applicant's fear. The respondent submitted that the Tribunal's finding that the applicant did not have a subjective fear of persecution was fatal to and determinative of his claim: Iyer v Minister for Immigration & Multicultural & Indigenous Affairs. In any event, the respondent submitted that the Tribunal directed itself to the proper test (CB pp.75-77) and examined the applicant’s claims on the bases put forward by him (namely political opinion, imputed political opinion, religion). The Tribunal also directed itself to the reasonably foreseeable future and to the real chance test and applied it to the applicant's claims. The respondent submitted that the Tribunal properly considered all of these matters and made findings which were open to it (CB pp.90.2, 90.5 and 91.9).
The test for a well founded fear of persecution contains both the subjective and objective component: Chan Yee Kin v Minister for Immigration & Ethnic Affairs at 396. Subjectively, the applicant must actually be in fear and objectively, the fear must be based in reality. There must be a “real chance” that the applicant will be persecuted for a Convention reason if he or she is returned to the country of nationality. A “real chance” is one that is substantial as distinct from remote (Chan’s case at 389, 398, 406-407). Obviously a far fetched possibility of persecution must be excluded per McHugh J at [429]. The Full Federal Court in Minister for Immigration, Local Government & Ethnic Affairs v Che Guang Xiang reiterated the “Chan test” for well founded fear at [38]-[41], that is:
“A ‘real chance’ that persecution may occur includes the reasonable possibility of such an occurrence but not a remote possibility which, properly, may be ignored. It is not necessary to show that it is probable that persecution will occur. A well-founded fear of persecution may be grounded upon the possibility of such an occurrence. Indeed, the fear that such harm may be suffered may be well-founded even though persecution is unlikely to occur.
…
The delegate may have thought it was unlikely that Che’s fears would be realized but the question to be answered was whether the prospect of persecution was so remote as to demonstrate the fear to be groundless.”
I accept the submissions that the Tribunal identified the test and applied it correctly. The reason for the applicant failing the test was because he lacked a subjective fear of persecution, evident by his own statements. Absent this element, the applicant could not succeed in satisfying the test. This ground must be rejected.
In Grounds 5, 13(b), 15 and 16(i) the respondent submitted the applicant’s claim the Tribunal’s use of independent country information was erroneous. The respondent contends that the Tribunal's use of independent country information was proper and the applicant's complaints amount to nothing more than an attempt to engage the Court in impermissible merits review. Furthermore, as stated in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs 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 s420(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.”
The restriction on this Court to undertake a merits review is addressed in more details in paragraphs 15 and 16 above. The invitation issued in this set of grounds focuses on the issue of the country information which is more specific than the general invitation issued in the first grouping of grounds. In this respect, this group of grounds must fail subject to the qualification below.
The respondent further submitted that in relation to the applicant's complaint that independent country information was not provided to him, that country information fell within the ambit of s.424A(3)(a) and does not need to be put to the applicant pursuant to s.424A(1). Division 4 of Part 7 of the Act is an exhaustive statement of the Tribunal’s obligation in relation to procedural fairness (see NAYL v Minister for Immigration & Multicultural & Indigenous Affairs (“NAYL”) at [10]) and s.424A is to be treated as exhaustive of the requirements of procedural fairness relating to the applicant’s right to comment on adverse material which is known and relied upon by the Tribunal (see WAID v Minister for Immigration & Multicultural & Indigenous Affairs (“WAID”) at [57]). Therefore any failure to explain to the applicant information the Tribunal member used in his decision, namely that contained in the country information, falls within the exception within s.424A(3)(a) and (b) and will not be a ground for jurisdictional error: NAYL at [10]; WAID at [47]. This group of grounds cannot be sustained.
In Grounds 12(a)(ii), (iv) and 17(ii)-(iv) the applicant claimed the Tribunal failed to give him the proper opportunity to present further evidence. Counsel for the respondent submitted that the applicant was informed by the Tribunal by letters dated 15 March 2004 and 13 April 2004 that he had to provide to it new documents or written arguments he wanted the Tribunal to consider. The applicant provided nothing, other than a brief statement responding to the Tribunal's letter dated
5 April 2004 inviting his comments on country information. The applicant was also invited to give oral evidence, which he did. It was further submitted that there is no statutory obligation imposed upon the Tribunal to give the applicant endless opportunities to present evidence. The applicant in fact did not provide any further submissions or information to the Tribunal after his hearing (see Ground 12(iv)). The applicant has not provided to this Court any evidence of what information he would have submitted to the Tribunal. This ground is unsubstantiated and should be dismissed.
In regard to Grounds 10, 12(a)(iii) and 17, the applicant claimed that the Tribunal did not follow the procedures of natural justice and procedural fairness. The applicant’s allegations were as follows:
a)the Tribunal did not ask the applicant questions directly in relation to his claims and instead “approached the line of questioning in the same manner in which it dealt with on or at least two other Tribunal hearing” (Grounds 9 and 10);
b)the Tribunal did not comply with ss.424B and 425 of Act (Ground 12(iii)). The allegation that s.424B was not complied with is without factual basis. The applicant was invited by letter dated 5 April 2004 to provide his comments by 30 April 2004. The applicant was given a "reasonable period" as defined in Migration Regulations1994 (Cth) (“the Regulations”) in which the provide his comments (see s.424B(2) and reg.4.35). The allegation that s.425 was not complied with is without basis. The Tribunal invited the applicant to attend a hearing, which the applicant accepted and appeared at; and
c)in relation to the applicant's general allegation that proper procedures and policies were not followed (Ground 10), no particulars have been provided.
This ground should be rejected.
In respect of Ground 15, the applicant alleged the Tribunal ignored an integer of his claim. In essence, this was a contention that the Tribunal failed to take into account relevant considerations or integers of the applicant’s case, being his claim that he had a well founded fear of persecution and that fear was the police harassment which resulted from the freedom fighters for a separate state using his home to obtain food and money. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs at [47], the Full Court of the Federal Court stated:
“The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
The applicant’s pleadings did not identify the integers claimed to have been overlooked. Nor were there any oral or written submissions that identified those integers.
Counsel for the respondent submitted that the applicant's claim was without factual foundation and the Tribunal had carefully considered the applicant's claims (CB pp.78.6, 79.5, 80.8, 90.2 and 93.5). The Tribunal’s findings were open to the Tribunal on the material before it and did not reveal that the Tribunal failed to take into account relevant considerations or integers of the applicant’s claim in the sense considered by Allsop J in Htun v Minister for Immigration & Multicultural & Indigenous Affairs (see also Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf).
The Tribunal also turned its mind to whether the applicant had a well founded fear of persecution if returned to India. Each of the claims put forward by the applicant was specifically addressed. In all the circumstances of this case, I do not consider it appropriate to draw the inference that the Tribunal failed to deal with the claim raised on the material before it. This ground should be dismissed.
Ground 14 of the applicant’s claim addressed the issue of relocation. The respondent submitted that the Tribunal correctly stated (CB p.92.5) the long established principles regarding relocation from Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (“Randhawa”) where Black CJ (with whom Whitlam J agreed ) stated at 443:
“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 Tribunal's finding about relocation was open to it having regard to the following:
a)the applicant had previously moved from state to state within India (CB 92.7);
b)the applicant had lived in Uttar Pradesh, Delhi & Gujarat (CB p.93.1);
c)the applicant did not, in the course of discussing relocation with the Tribunal, reject the Tribunal member’s proposition that he could move around India without being apprehended (CB p.93.3);
d)the applicant speaks a number of languages (CB p.93.7);
e)the applicant has no dependants (CB p.94.1)
f)the applicant has shown himself to be industrious, adaptable and versatile having lived in Australia, Botswana (having learnt the Botswana language), Qatar and other Indian States (CB p.93.9);
g)the Tribunal sought the applicant's response on the possibility that he could reasonably relocate within India;
h)the Tribunal had access to independent country information regarding the freedom of Indian citizens generally to relocate; and
i)the practical realities of the reasonableness of the applicant relocating (see NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs).
That the Tribunal made its relocation finding in accordance with the test in Randhawa and in a properly reasoned fashion. Findings about relocation are findings of fact: see SLGB v Minister for Immigration and Multicultural and Indigenous Affairs and as such, even if the reasoning is unpersuasive there is no jurisdictional error: VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs. This ground cannot be sustained.
In Ground 13 the applicant claimed the making of the decision of the Tribunal was an improper exercise of the power conferred by the Act. The respondent submitted this ground was misconceived and taking into account a particular consideration, or failing to take into account a particular consideration, cannot constitute jurisdictional error unless the consideration is one which on the proper construction of the Act or the Regulations is, respectively, “made compulsorily relevant” or is prohibited: Peko-Wallsend. The applicant does not identify anything in the Act or Regulations that prohibits the Tribunal from taking into account or ignoring, as alleged, the “status of the applicant's fear” (Ground 13(a) (ii)), the “information provided by the applicant to substantiate his fear” (Ground 13(a)(iii)). The respondent submitted that, to the contrary, the Tribunal's reasons demonstrated a thorough review of the applicant's claims and evidence and the ground should be refused. I accept this submission. This ground cannot be sustained.
In respect of Ground 13(b)(iii), the applicant claimed the Tribunal should independently investigate his evidence of fear that he would be persecuted. Counsel for the respondent submitted the Tribunal is not under a positive duty to investigate the applicant's claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB at [43] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 at [20]. The respondent further submitted that the exceptional situation which was found in Prasad v Minister for Immigration & Ethnic Affairs did not arise in this case. I accept this submission as the ground is ill conceived and cannot be sustained.
Conclusion
For the reasons clearly expressed in the submissions by the respondent Counsel, none of the grounds raised by the applicant in his pleadings can be sustained as no jurisdictional error has been identified and 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 respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 28 October 2005
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