SZFDU v Minister for Immigration
[2005] FMCA 740
•6 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFDU v MINISTER FOR IMMIGRATION | [2005] FMCA 740 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether apprehended bias and lack of procedural fairness. |
| Migration Act 1958, ss.422B, 424A, 430(1)(c), 430(1)(d) |
| SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Applicant A165 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 977 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 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 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZFDU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3533 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 10 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Mr C. Jayawardena |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Phillips Fox Lawyers |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3533 of 2004
| SZFDU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant seeks review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 26 June 2001 affirming a decision of a delegate of the respondent not to grant him a protection visa. The applicant, a citizen of India, arrived in Australia on
27 November 1999. On 11 February 2000 he lodged an application for a protection visa in which he claimed that he left India because the government authorities wanted to arrest him claiming that he was a Sikh militant. He claimed that they wanted to arrest him because of a complaint from members of a faction of the Akali Dal Party to which he had once belonged (the Akali Dal (Badal) group) which was in government at the time. He claimed that he had defected from the Badal group to be an honorary member of the Akali Dal (Mann) and that the Badal group wanted to harm him because he had engaged in activities against them. On 28 February 2000 a delegate of the respondent refused to grant the applicant a protection visa.
On 21 March 2000 the applicant sought review by the Tribunal. He had the assistance of a migration agent. In his application for review he stated that details of why he disagreed with the delegate’s decision would be sent in due course. However it appears that no such details were provided to the Tribunal. The Tribunal invited the applicant to a hearing which it postponed at his request. The applicant attended a hearing on 29 May 2001 and gave evidence with the assistance of an interpreter. There is no transcript of the Tribunal hearing before the court.
In the Tribunal reasons for decision the Tribunal set out the applicant’s claims in his protection visa application and then stated:
In his oral evidence, the applicant stated that the claims he made in his primary application were not entirely accurate as he had been embarrassed to discuss his claims with a stranger.
The Tribunal recorded that the applicant then gave an account of the reasons he claimed to be afraid to return to India. He described his background as the son of an ordinary person involved with the Badal group. He claimed that he ran into problems when his sister was raped, that they had managed to arrange a marriage for her but that she was divorced and had then remained at home doing nothing. The applicant stated that the people who raped his sister, who were associated with the Badal group (who held power in the state from which he came), thought the applicant might take revenge on them and so they arranged for the police to ‘involve’ him in a case. He stated that he was beaten by the police in about 1995 or 1996 and that opponents of the Badal group encouraged him to take action against the rapists in order to give the Badal group a ‘bad name’. The applicant described his domestic responsibilities, claimed that ‘the other party’ had twice assaulted him over this matter, and that he had tried to work elsewhere but was not successful and so came to Australia. According to the Tribunal he told the Tribunal that he feared that if he returned to India those who wished him harm (that is the Badal group) would know where he lived. He said that he used to be with the Mann group but was no longer with them. He claimed that a Badal government Minister had offered him assistance but that such assistance had not eventuated. He believed that this was because he had formerly been with the Badal group and left it. He also said that he had contacted the Mann group and had been with them for a few months in order to gain their assistance but their assistance had also not been forthcoming and he thought this was because he was formerly associated with the Badal group.
The Tribunal recorded that the applicant was also asked why he could not move to another city in India to avoid these difficulties and that he stated that:
… he had moved to Madya Pradesh and that was what he had meant earlier by having moved elsewhere to find work. However, he stated he could find no work there and could not survive. He said while in Madya Pradesh he was suspected of having brought arms from the Punjab and it was only through the intervention of a deputy commissioner that he avoided trouble with the authorities there.
The Tribunal stated that the applicant:
reiterated that his troubles stemmed from the people who wish to do him harm being afraid that he would inform the authorities about his sister’s rape.
In the findings and reasons part of its decision the Tribunal summarised the applicant’s oral evidence as to the reason he feared to return to India (that his sister had been raped, that he was being threatened by elements associated with the Badal faction of the Akali Dal party who were involved in the rape and that elements in the opposing Mann faction wished him to pursue the matter to bring their political opponents into disrepute). The Tribunal accepted that the applicant’s sister was raped some years ago and that those who perpetrated the rape would be prepared to bring pressure upon the applicant not to pursue the matter. It also accepted there may be support from the opposing political faction for the applicant to pursue the matter for the reason he gave. However the Tribunal continued:
However, the Tribunal finds that any harm he might suffer in either pursuing, or indeed not pursuing, the rapists of his sister, would not be for a Convention reason. Moreover the Tribunal notes that these events are now some five or six years in the past and the Tribunal finds that any chance of his pursuing the matter would, in any case, be remote.
The Tribunal has considered his claim that while in while in [sic] Madya Pradesh he was suspected of having brought arms from the Punjab and it was only through the intervention of a deputy commissioner that he avoided trouble with the authorities there. The Tribunal finds that in the light of the evidence that militancy in the Punjab has, according to the independent evidence cited above, which the Tribunal accepts, all but ceased, there is no real chance the applicant might be implicated in Sikh extremism and hence be of interest to the authorities. Moreover, the Tribunal notes that he was in fact cleared by a police inspector of any such involvement.
In the light of the evidence before it, the Tribunal finds that any fear by the applicant of persecution for a Convention reason is not well founded.
The applicant sought review of the Tribunal decision by application filed in this court on 2 December 2004. The applicant relies on an amended application filed on 3 May 2005.
Bias
The first ground of the application is as follows:
(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 and acting biasly [sic]:
Particulars – Green Book Page 61 – Para 02
“In the light of the evidence before it, the Tribunal finds that any fear by the Applicant of persecution for a Convention reason is not well founded.”
The amended application contains what are described as ‘applicant’s comments’ after each ground and particular. In relation to ground one the comment is that the Tribunal made an error and misconception about the reasons given by the applicant in his protection visa application which was elaborated on during the Tribunal hearing and “failed to understand that the whole purpose of the Applicant’s application was to establish his refugee status in Australia due to his imputed political opinion favouring the Sikh cause therefore it was completely biased against Applicant when concluded that ‘any fear by the applicant is not well founded’, this inference by the Tribunal was procedurally unfair and biased and therefore amounts to a jurisdictional error.”
In oral submissions the solicitor for the applicant suggested that the Tribunal erred in failing to address the claims made in the protection visa application and erred in not finding that the applicant’s concerns revolved around the fact that he had been a member of one group or faction of the Akali Dal Party and had defected to the other group and in not finding that because of this his fear was by reason of his political opinion.
There are a number of problems with this ground. First insofar as the applicant seeks merits review, merits review is not available in this court. In relation to the contention that the Tribunal did not deal with the applicant’s claims or consider whether the evidence before it gave rise to a claim that he feared persecution by reason of political opinion, it is apparent from the Tribunal account of what occurred in the Tribunal hearing that the applicant retreated from the claims he had made in his primary application as ‘not entirely accurate’ and then went on to explain to the Tribunal precisely what he claimed was the reason for his fear. That explanation concluded, according to the Tribunal, with the applicant reiterating that his trouble stemmed from the people who wished to do him harm being afraid that he would inform the authorities about his sister’s rape. He did not pursue his original claim that he would be harmed because of his membership or past membership of a particular group or faction of the Akali Dal. Rather he clarified the basis for his fear – and that basis was addressed by the Tribunal. He did claim that he believed that assistance had not been forthcoming from a Badal government Minister because he had left the Badal group and that the Mann group had not provided him with assistance because he had formerly been associated with the Badal group. However the absence of assistance was not the basis for the applicant’s claim to fear harm. The Tribunal accepted that the applicant may be under pressure from both the perpetrators and the opposing political faction, but he had not claimed that this pressure had to do with his political opinion but rather that the people who raped his sister wished to do him harm because they were afraid he would inform the authorities about the rape. In these circumstances it was open to the Tribunal to find that any harm the applicant might suffer in pursuing (or not pursuing) the rapists would not be for a Convention reason.
Further, it is apparent from the Tribunal account of the applicant’s claims (the only evidence before the court of what occurred in the Tribunal hearing), that the applicant did not claim in the hearing to have left India because the authorities wanted to arrest him claiming he was a Sikh militant. Nor was he claiming that his problems arose out of his past membership of or activities with either of the Akali Dal groups albeit such claims had been made in the protection visa application. Given the nature of the applicant’s claims as presented in the Tribunal hearing, in the context of his disavowal of the claims made in his primary application as ‘not entirely accurate’, it was open to the Tribunal on the material before it to make the findings that it made in relation to the absence of a Convention reason and the remoteness of any chance of the applicant pursuing the rape of his sister after some five or six years. He had reiterated in the hearing that this was the basis for his claim, having retreated from his initial claims about a fear of implication in Sikh extremism and a fear based on his political activities. In any event, the Tribunal also addressed any fear about implication in Sikh extremism in finding (based on independent evidence) that there was no real chance now that the applicant might be implicated in Sikh extremism and hence be of interest to the authorities. In other words the Tribunal conclusion that, in the light of the evidence before it, any fear of persecution for a Convention reason was not well-founded was made on the basis that even the applicant had a subjective fear of persecution for a Convention reason (for example by reason of an imputed political opinion of being implicated in Sikh extremism) based on the independent evidence, any such fear was not well-founded.
The solicitor for the applicant suggested that the applicant took issue with the Tribunal account of what he had said in the hearing. However there is no transcript of the hearing before the court to support such a suggestion. It has not been established that the Tribunal erred in the manner contended.
There is nothing in the findings referred to in this ground or, indeed, in any of the other findings of the Tribunal or the material before the court to establish actual or apprehended bias or a lack of procedural fairness. A party asserting bias carries a heavy onus. As von Doussa J stated in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] “… it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” Also see Applicant A165 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 977 at [58] – [63] and Minister for Immigration & Multicultural Affairsv Jia Legeng (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J pointing out that actual bias arising out of prejudgment involves a state of mind “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.” In this case, on the material before the court the applicant has not met the heavy onus (see SCAA at [36] and Jia Legeng at [69]) of clearly proving that the Tribunal was biased. The adverse findings of the Tribunal do not give rise to an inference as to the state of mind of the Tribunal member.
Apprehended bias may be established where the relevant circumstances are such that “a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision” (see NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 per Allsop J at [14] and cases cited therein, in particular Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]). All that is relied on in this case (in contrast to NADH of 2001) are particular findings of the Tribunal. There is no material before the court as to the conduct of the Tribunal hearing or anything else to support the assertion that the Tribunal’s conduct was such as to give rise to an apprehension of a predisposition, tendency or propensity towards a given result reached other than by an evaluation of the material before it in a fair way with a mind open to persuasion in favour of the applicant (see NADH of 2001 at [16] and [20] and Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [187] per Hayne J). Nor is it established that there was any lack of procedural fairness in the Tribunal concluding that any fear of the applicant was not well-founded. The Tribunal has a duty to assess the facts and reach its own conclusion on the review (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [73] per Kirby J.)
It is the case that in NADH of 2001 Allsop J suggested at [12] that the existence:
of arbitrary unreasoned conclusions made without a scintilla of evidence may lay a foundation for an argument that the decision-maker moulded his or her fact-finding to reach a particular result. Such may also lay the foundation for argument that the decision reached was capricious, arbitrary, made according to humour or private opinion rather than reason or justice, or that it was unreasonable.
However the findings in issue in this case cannot be described as constituting an ‘arbitrary, unreasoned conclusions made without a scintilla of evidence’. The Tribunal first considered whether there was a Convention reason associated with the claimed fear that the people who raped his sister wished to do the applicant harm as they were afraid he would inform the authorities. The Tribunal also went on to consider his claim that while in Madya Pradesh he was suspected of having brought arms from the Punjab. In that context it addressed what might be said to be the broader claim raised in the hearing (as well as in his primary application) in relation to a perception that he may be a Sikh extremist and hence now of interest to the authorities. In light of the findings that it made based on independent information about militancy in the Punjab the Tribunal found that any fear by the applicant of persecution for a Convention reason was not well founded. There was an evidentiary basis for such findings which cannot be said to be ‘arbitrary, unreasoned conclusions made without a scintilla of evidence.’ Nor did the Tribunal ‘refute the credibility’ of the applicant as contended, either openly or otherwise. Rather it accepted his claims to fear harm in relation to pursuing or not pursuing the rapists of his sister but found that such fear would not be for a Convention reason. It also found that any other fear for a Convention reason was not well founded for the reasons given. The findings of the Tribunal were open to it on the material before it for the reasons it gave. No jurisdictional error is established in the manner contended.
‘Wednesbury’ unreasonableness
Ground two in the amended application is:
The Tribunal was Wednesbury unreasonable in holding that the applicant was not able to provide certain information, thus holding against him:
Particulars – Green book
Page 61 – Para 03
“There is no real chance that the applicant might be implicated in Sikh extremism and hence be of interest to the authorities. Moreover the Tribunal notes that he was in fact cleared by a Police inspector of any such involvement.”
The ‘applicant’s comments’ in relation to this ground are that the Tribunal failed to properly evaluate what the applicant said in his evidence where he ‘clearly told the Tribunal how the people implicated him previously on false grounds’. It was contended that therefore it would be still very risky for the applicant being told to relocate to any other place in India and that he would not be of any interest to the authorities.
However, what the Tribunal records that the applicant said during the hearing was as follows:
The applicant was asked why he could not move to another city in India to avoid these difficulties. He stated that he had moved to Madya Pradesh and that was what he had meant earlier by having moved elsewhere to find work. However, he stated he could find no work there and could not survive. He said while in Madya Pradesh he was suspected of having brought arms from the Punjab and it was only through the intervention of a deputy commissioner that he avoided trouble with the authorities.
There is nothing to suggest that the applicant told the Tribunal how he was implicated – although it may be inferred that he contended that he was not involved in bringing arms from the Punjab. There is nothing to suggest that the Tribunal misunderstood what he claimed about being suspected of having brought arms from the Punjab. It acknowledged the applicant’s claim that he had avoided trouble in Madya Pradesh ‘only’ through the intervention of a deputy commissioner but also found that (based on independent evidence that militancy had all but ceased in the Punjab) there was no real chance that the applicant might be implicated in Sikh extremism and hence of interest to the authorities. Such findings were open to the Tribunal on the material before it and are not such as can be described as arbitrary, unreasonable or lacking in logic (and see in any event NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 and VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 in relation to irrational and illogical reasoning). There is no basis for the complaint of ‘Wednesbury unreasonableness’ or that the Tribunal reached a decision so unreasonable ‘that it might almost 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 [1948] 1 KB 223 at 229 and also see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327.
Further, there is nothing in the Tribunal reasons to indicate that the Tribunal made findings adverse to the applicant because he was not able to provide certain information as is contended. The Tribunal did not rely on any failure by the applicant to provide information.
In oral submissions the solicitor for the applicant suggested that in finding that the applicant had been cleared by a police inspector of involvement in Sikh extremism, the Tribunal had misunderstood the applicant’s claim. It was contended that the Tribunal erred in finding that the applicant had been cleared by a police inspector of involvement in Sikh extremism. Rather the applicant’s claim was that he had been cleared of involvement in arms smuggling.
However reading the whole of the paragraph in which this finding was found (see [6] above) fairly and in the context of the decision as a whole it is clear that when the Tribunal found that the applicant was cleared by a police inspector of any such ‘involvement’, it was referring to the trouble that he had in Madya Pradesh and the suspicion that he had brought arms from the Punjab. This is apparent from the earlier description of what occurred in the Tribunal hearing, where the Tribunal recorded that the applicant said that it was only through the intervention of the deputy commissioner that he avoided trouble with the authorities there (that is, trouble based on the suspicion that he had brought arms from the Punjab). It is the case that there is nothing to suggest that the applicant claimed that he was cleared of involvement in Sikh militantism. However it has not been established that the Tribunal made such a finding. Further, if it had done so it would be at most an error in fact-finding, not a jurisdictional error.
It has not been established that the Tribunal findings referred to in this ground involved unreasonableness, whether in the Wednesbury sense or otherwise, let alone any jurisdictional error. In particular it has not been established that the Tribunal misunderstood or failed to properly evaluate what the applicant said in his evidence.
Section 424A and procedural fairness
Ground three of the amended application is that the Tribunal was ‘procedurally unfair’ and failed to comply with s.424A of the Migration Act making a serious jurisdictional error by concluding:
… according to the independent evidence cited above which the Tribunal accepts, all but ceased, there is no real chance that the applicant might be implicated in Sikh extremism.
The applicant contended that there was no indication that the Tribunal had notified the applicant of such independent evidence either by letter or notification during the hearing in accordance with s.424A(1). This appears to be a reference to the evidence cited by the Tribunal to the effect that militancy in the Punjab has all but ceased. However, the independent evidence in issue is within the exception to the s.424A(1) obligation in subsection 424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264). Insofar as the applicant seeks to assert that the Tribunal failed to put this information to him in the hearing and hence denied him procedural fairness, the factual basis for such a claim is not established. There is no transcript of the Tribunal hearing before the court and this is not a case in which it should be inferred that the Tribunal failed to put the information to the applicant (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] and cf NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494).
No breach of s.424A or denial of procedural fairness has been established on the material before the court.
Section 430
The fourth ground is that the Tribunal made a jurisdictional error “by breaching s.430(1)(c) and s.430(1)(d) of the Migration Act1958 in relation to its conclusions”. The particulars of this claim are, yet again, a quote from the Tribunal reasons for decision, in this instance as follows:
However the Tribunal finds that any harm he might suffer in either pursuing or indeed not pursuing the rapists of his sister would not be for a Convention reason. Moreover the Tribunal notes that these events are now some five or six years in the past and the Tribunal finds that any chance of his pursuing the matter would in any case be remote.
The ‘applicant’s comments’ in the amended application are that:
This finding is not based on any material questions of fact or any other material on which the findings of facts are based. What the Tribunal has said was a general opinion about its own thinking with no supporting evidence to justify the finding that the Applicant’s claims were unreliable due to these reasons. This shows that the Tribunal had acted in taking into account irrelevant matters to dismiss the applicant’s application for review which amounts to a jurisdictional error committed by the Tribunal in reaching its decision.
The solicitor for the applicant contended that a failure to comply with s.430 of the Migration Act 1958 was a jurisdictional error but provided no authority in support of this proposition. He suggested that it would be a jurisdictional error “because if the Tribunal has made a finding without any evidence before it or without any proof to substantiate that, it is a finding which is not based on any material fact”. This appears to suggest that there was no evidence to support the Tribunal decision (a different issue to the question of whether there was compliance with s.430). I have considered both possibilities and, in light of Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, whether any jurisdictional error of the nature canvassed in that case is established under this ground.
First no breach of s.430 (whatever the consequences) has been established. This section requires the Tribunal to provide a written statement setting out the findings made by the Tribunal on material questions of fact, the evidence or material relied on for such findings and the reasons of the Tribunal. However the Tribunal is not obliged to refer to every piece of evidence or material put forward by the applicant in its statement of reasons (see s.430(1)(d) and WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [35]). Rather, the Tribunal must record its findings of the facts that it considers to be material (see Yusuf). In this instance the Tribunal met such obligation.
It is apparent, as discussed above, that the applicant’s claims as put at the Tribunal hearing in relation to what he feared were that his trouble stemmed from the people who wished to do him harm being afraid he would inform the authorities about his sister’s rape. The Tribunal made findings about the claims of rape and pressure on the applicant. It was open to the Tribunal on the basis of such findings to find that any harm the applicant might suffer in pursuing or indeed not pursuing the rapists would not be for a Convention reason. It is clear from the introductory portion of the Tribunal reasons for decision that the Tribunal properly understood this element of the Refugees Convention and, while brief, in light of the recitation of the claims of the applicant which it accepted, the Tribunal sufficiently set out its findings, the evidence relied on and its reasons. Moreover such findings were open to the Tribunal on the material before it. Similarly the finding in relation to the timing of these events was in fact based on evidence that the applicant gave that his problems arose in about 1995 or 1996 when his sister was raped (the hearing being in June 2001). Again the Tribunal recorded its finding on the material fact about when the events occurred. The Tribunal finding that any chance of the applicant pursuing the matter would be remote was open to it given the passage of time.
In these circumstances not only is no breach of s.430 established, but further, no jurisdictional error is established. This is not a case where the absence of findings on certain matters or the nature of the findings made by the Tribunal discloses that the Tribunal failed to attend to the task given to it by the Migration Act 1958 in the sense considered in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [37], [74-75] and [82]. The applicant’s complaint about the Tribunal findings in this respect seek merits review. There was evidence to justify the Tribunal conclusions and it did not find that the applicant’s claims were ‘unreliable’. There is nothing to support the assertion that the Tribunal took into account irrelevant considerations in a manner constituting jurisdictional error. No such irrelevant considerations were identified and none have been established. It was for the Tribunal to determine whether it was satisfied that the applicant met the applicable criteria. No jurisdictional error has been established in the manner contended.
Manifest unreasonableness
Ground five is that the Tribunal was ‘manifestly unreasonable’ in concluding to the effect:
“… Having considered the evidence as a whole the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”
This ground takes issue with the ultimate conclusion of the Tribunal on the basis that the Tribunal had:
gone to an extent to eliminate the applicant’s claims outright by taking a firm view that the applicant was definitely not entitled for any protection obligation in Australia. The Tribunal’s assessment that the applicant does not have any risk, without having had any cogent evidence to justify that conclusion is a serious lapse because the Tribunal failed to assess the applicant’s claims as against the criteria [in the Refugees Convention].
The argument appears to be that the Tribunal erred in reaching its earlier findings and so could not be satisfied of its ultimate finding and hence such ultimate finding was unreasonable. First the Tribunal did assess the applicant’s claims against the criteria in the Refugees Convention as amended by the Refugees Protocol. Secondly the Tribunal conclusion that the applicant was not a person to whom Australia had protection obligations was based on its earlier conclusion about the absence of a Convention reason and its finding that any fear on the part of the applicant was not well-founded. As discussed above no jurisdictional error is established in connection with the making of the earlier findings. It cannot be said that the ultimate conclusion was unreasonable either in the Wednesbury sense or otherwise. In essence the applicant takes issue with the merits of the Tribunal decision. No jurisdictional error is established in the manner contended.
Procedural fairness
In written submissions filed on 3 May 2005 the applicant repeated the five grounds contained in the amended application and contended that considered cumulatively the five ‘errors’ meant that the Tribunal did not accord procedural fairness to him due to the conclusions it made set out in the grounds above.
It is the case that a denial of procedural fairness may constitute a jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and note that s.422B of the Migration Act 1958 is not applicable in this instance). However this is not a case in which the adverse findings of the Tribunal are such as to warrant a conclusion that the Tribunal denied the applicant procedural fairness either in circumstances which constitute apprehended bias or otherwise. The material before the court in relation to the Tribunal procedures and decision indicate that, to the contrary, the Tribunal afforded the appropriate opportunity to the applicant to put his case and present argument to the Tribunal (see s.425 of the Migration Act 1958). There is nothing in the Tribunal reasons for decision to establish that the Tribunal resorted ‘very overtly’ to classifying the applicant’s claims as not well founded as contended. The Tribunal provided reasons for findings open to it on the material before it. No lack of procedural fairness is established.
The applicant’s solicitor also took issue with written submissions which were prepared by the solicitor for the respondent before the applicant’s amended application was filed which, in describing the Tribunal decision, suggested that the Tribunal considered the issue of relocation. The solicitor for the applicant contended that if the Tribunal was considering the issue of relocation, it did not do so in accordance with the requirements set down by the Full Court of the Federal Court in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437.
However it is apparent that while the Tribunal asked the applicant whether he could not move to another city in India to avoid his difficulties, in the findings and reasons part of its decision it considered whether any aspect of the applicant’s claims not related to the rape of his sister might bring him within the Refugees Convention. In that context it considered his claim that while in Madya Pradesh he was suspected of having brought arms from the Punjab in addressing the possibility that he might now be implicated in Sikh extremism and hence be of interest to the authorities. No jurisdictional error is established in this part of the Tribunal decision.
Finally, in oral submissions the solicitor for the applicant contended that the Tribunal failed to deal with substantial claims of the applicant for refugee status. This contention has not been established. This is not a case in which the Tribunal failed to deal with an integer of the applicant’s claims, a basis of a claim to fear persecution or a Convention reason raised by the applicant or apparent on the material before the Tribunal. No bias, whether actual or apprehended, or failure to understand or deal with the applicant’s claims is established by the finding that the applicant’s fear of persecution related to the rape of his sister was not for a Convention reason or otherwise.
As no error has been established the application must be dismissed. This makes it unnecessary to consider whether the unexplained delay by the applicant in instituting these proceedings (some 3½ years after the Tribunal decision) is such as to warrant the court exercising its discretion to refuse relief.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 6 June 2005.
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