SZGEP v Minister for Immigration - [2008] FMCA 1289

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGEP v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1289

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether applicant given sufficient opportunity to provide explanation for his lack of recall of an event – whether proper consideration of such lack of recall – whether manner of questioning unfair – whether “jurisdiction defect” in earlier Tribunal decision tainted present decision – whether breach of s.424A of the Act – applicant must make out own case – merits review not function of judicial review – credibility – procedural fairness – choice, assessment and weight of country information.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 474

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162
SZHLM v Minister for Immigration & Citizenship [2007] FCA 1100
Singh v Minister for Immigration & Multicultural Affairs (2001) FCA 389
SZCOQ v Minister for Immigration & Multicultural Affairs (2006) FMCA 189
SZBYR v Minister for Immigration & Citizenship (2007) HCA 26
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Abebe v Commonwealth (1999) 197 CLR 510
Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZHLM v Minister for Immigration & Citizenship [2007] FCA 1100
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
SBRF v Minister for Immigration & Citizenship [2008] FCA 712
SZJBE v Minister for Immigration and Citizenship (2007) FCA 190
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178

Applicant:

SZGEP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 238 of 2008

Judgment of:

Orchiston FM

Hearing date:

12 August 2008

Date of Last Submission:

12 August 2008

Delivered at:

Sydney

Delivered on:

12 September 2008

REPRESENTATION

Solicitors for the Applicant:

Sarom Solicitors

Counsel for the Respondent:

Ms T. T. Baw

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The application filed on 4 February 2008 and the amended application filed on 10 June 2008 and the further amended application filed in Court on 12 August 2008 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000 payable within six (6) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 238 of 2008

SZGEP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 January 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.

Background

The applicant was born on 1 June 1968. He claims to be a national of India and of Hindu faith.
The applicant arrived in Australia on 5 November 2004 on an Indian passport issued in his own name.
The applicant lodged an application for a protection visa on 23 November 2004 on the basis that he is a member of the BJP Party in India and has been threatened and attacked by Muslim groups in India due to his political views.
On 13 December 2004 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 6 January 2005 the applicant applied to the Tribunal for review of the delegate’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

On 27 January 2005, a differently constituted Tribunal (the first Tribunal) sent a letter to the applicant inviting him to appear before it on 2 March 2005 to give oral evidence and present arguments.
On 5 April 2005 the first Tribunal handed down its decision which affirmed the decision of the delegate not to grant a protection visa (RRT case number N05/50455).
The applicant sought review of the first Tribunal’s decision in the Federal Magistrates Court and on 10 October 2006 Orders were made by consent by Lloyd-Jones FM, issuing a writ of certiorari, quashing the decision of the first Tribunal and remitting it to the Refugee Review Tribunal (RRT) to be determined according to law.
On 20 November 2006, the RRT sent a letter to the applicant inviting him to appear before a differently constituted Tribunal (the second Tribunal) on 3 January 2007 to give oral evidence and present arguments. The applicant did not appear at the second Tribunal hearing.
On 5 January 2007 the second Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa and handed down its decision on 5 April 2007 (RRT Case Number 060905886).
The applicant sought review of the second Tribunal’s decision and on 5 September 2007 Smith FM, by consent, quashed the decision and remitted the matter to the RRT.
On 16 October 2007, the present Tribunal sent a letter to the applicant inviting him to appear before it on 15 November 2007 to give oral evidence and present arguments. On that occasion, the applicant attended the hearing.
On 13 December 2007 the Tribunal affirmed the decision not to grant the applicant a protection visa.

The applicant’s claims and evidence (Court Book (CB) 114-128)

The Tribunal summarised the applicant's claims set out in his original protection visa application (at CB 114-115), including that:
·In 2002 political riots broke out in Gujarat and thousands of Hindus and Muslims were killed. In the Godhra train incident hundreds of people were burnt alive and relief camps were set up for the victims;
·He had been an active member of the BJP for the past few years and was also actively involved in the relief camps for the victims of the riots;
·These activities were noticed by the Muslim political parties and the Congress government who viewed the BJP and its members as criminals;
·In June 2004 the BJP lost the elections in “the state and in the centre”. The Congress party came to power and started harassing BJP supporters;
·He was attacked a few times by Congress supporters who knocked on his door and threatened to kill him at will. He was unable to bear the pressure and left the country to save his life;
·The riots between the Hindus and Muslims are ongoing and the Muslim political parties and Congress government are looking for a chance to get rid of BJP supporters;
·As he is a BJP supporter and is in a position to help and influence other farmers he has been targeted and attacked a few times in the last few months; and
·He has considered moving to other cities but the Congress party is ruling in the centre and would be looking to target him so running away to other cities will only make him a bigger target. He does not believe that complaining to police or seeking protection is any use as the police favour the government and would help get hold of him and other BJP supporters.
He claims that the current Congress government and the Muslim parties are looking to target him and that there is a high risk to his life if he returns to India. He does not believe that the Indian authorities will assist him as they are prosecuting BJP supporters in Gujarat.
The Tribunal also summarised the applicant’s claims and evidence at the first Tribunal hearing (at CB 115-116); as well as setting out relevant independent country information (at CB 117-124).
The Tribunal further summarised the applicant’s claims and evidence at the hearing on 15 November 2007, including the exchange of questions and answers over matters of concern to the Tribunal (at CB 124-128).

The Tribunal’s findings and reasons (CB 128–132)

The Tribunal did not accept that:
·the applicant’s evidence was credible or reliable. It found that his evidence at the first Tribunal hearing was vague, unconvincing and so lacking in detail that it was not credible
·he was an active member of BJP, or that he was involved in publicity or transportation because his evidence about his involvement with the BJP was non-specific and vague; and that he did not have the level of knowledge of political affairs in Gujarat which the Tribunal would expect
·he was involved in the Hindu/Muslim riots about five years ago because his evidence was vague and ambivalent
·he was actively involved in the relief camps for victims of the political riots in 2002 following the Godhra train incident because, it did not accept that he would forget what his role was in the relief camps
·he came to the attention of Muslim political parties or the Congress government
·he was attacked a few times by Congress supporters who knocked on his door and threatened to kill him at will because it would expect that a person who had been attacked would be able to recall some details about those attacks
·he received anonymous letters or calls, or that he would be killed for reason of his BJP membership or for any other reason
·his crops were burnt by the Congress party or Muslim political parties because his evidence about the crop-burning was vague and hesitant
·he had been targeted and attacked a few times as he was in a position to help and influence other farmers because he had not provided any details about such attacks
·he had been harassed, attacked, threatened or been the victim of crop-burning, because it did not accept that the applicant would not have reported these incidents to the police in a state governed by the BJP
·he or his family had been harassed by the Congress Party at election times, including the 2004 election, nor that his family had to move villages because of difficulties caused by the applicant, nor that a group, who the applicant is “probably sure” is Congress, are looking for him and have said that they would kill him and his children, or that Congress members have asked his family where he is
·he would be a bigger target in other cities as the Congress party is ruling in the centre, or that he would be targeted in his own area or other areas
·he was currently an active BJP member or that there is a high risk to his life if he returns to India. Even if the applicant did become an active member of the BJP, the Tribunal did not accept that he would suffer serious harm now or in the reasonably foreseeable future. On the basis of country information and the evidence before it, the Tribunal found that there was not a real chance that the applicant would face persecution if he were to return to India and become involved in the BJP, nor that his family would have problems if he returned
·the Indian authorities would not assist him, nor that a Hindu BJP supporter living in this predominantly BJP Hindu state would not receive a reasonable level of protection from the police.
The Tribunal further found that, although the applicant made no specific claim relating to persecution for reasons of religion, there was no real chance that the applicant would face persecution now or in the reasonably foreseeable future for the Convention reason of religion.
Having considered all the applicant’s claims, the Tribunal found that the applicant did not have a well-founded fear of persecution, now or in the reasonably foreseeable future.

The proceedings before this Court

The applicant filed the application in this Court on 4 February 2008 setting out 2 grounds of review of the Tribunal’s decision. He filed an amended application on 10 June 2008 setting out 3 grounds of review. On 12 August 2008, the applicant filed in Court a further amended application setting out 2 grounds of review.
Mr Singh appeared for the applicant at the hearing. Ms Baw of counsel appeared for the first respondent.

Grounds of application and amended application

Mr Singh indicated at the hearing that the grounds set out in the application and amended application were not pressed by the applicant.

Grounds of further amended application

Ground 1 of the further amended application

Ground 1 of the application states that:
Failure to comply with s.424A of the Migration Act
Particulars:
The Tribunal breached the provisions of s.424A(1) of the Migration Act 1958 (Cth), in failing to disclose to the applicant material that it considered adverse to the applicant.
1. The Tribunal failed to comply with its obligations under s.424A of the Act. Section 424A obliged the Tribunal to provide the applicant with particulars of any information that it considered would be the reason, or part of the reason, for affirming the decision under review in order to ensure that the applicant has an opportunity to comment upon these matters.
2. The Tribunal (third Tribunal) proceeded to decide the matter on all the available information including “listening to the tapes of the first Tribunal hearing (differently constituted), and decided that in both the first and second hearings, the applicant’s evidence was vague and unconvincing” (CB – p 129.3). This means the third decision was essentially based on the same information as the first decision and second decision. Accordingly, it is submitted that the jurisdictional defect inherent in the first decision has carried over into the third decision. It is further submitted that the Tribunal was obliged to provide the applicant this adverse information.
3. It is further submitted that the judgment of the High Court of Australia in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005), 215 ALR 162 is relevant to this appeal.
The effect of SAAP was that any tribunal decision based on “information” adverse to the applicant, where such information did not fall within any of the exceptions contained within s.424A(3), was likely to be set aside irrespective of whether there has been any actual unfairness to the applicant.
The Tribunal used the information from the first and second hearing to form conclusions that discredited the applicant. The Tribunal declared that the “applicant’s evidence was so lacking in detail that it was not credible…” (CB – p 129.3).
This was crucial in that the Tribunal was obliged under s.424A to put to the applicant all relevant information that the Tribunal was relying on to form its adverse decision. If the applicant’s evidence was ‘so lacking in detail that it was not credible’, the Tribunal was obliged to put this information to the applicant.
SZHLM v Minister for Immigration & Citizenship [2007] FCA 1100 at [34] noted per Cowdroy J. that “the reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place”.
4. The Tribunal in its decision record provided 7 ½ pages of Independent Country Information (CB – p 117-124). The Tribunal relied on this country information to reach its decision.
The country information was used to reach an adverse conclusion on the credibility of the applicant’s claims. There is no evidence that the information was disclosed to the applicant prior to the Tribunal’s decision. The applicant was never served the contents of the 7 ½ pages of the country information for comments.
5. During the course of the Tribunal’s hearing held on 15 November 2007, all that the Tribunal did was to make brief references to the country information without stating the relevance of this information to the applicant. At no stage during the hearing (as evidenced by the transcript) did the Tribunal indicate that it was going to rely on this information to form its decision. It follows that at no stage was there ever a mention of the purpose of the country information.
6. Section 424(A)(3)(a) is not an exception that the Tribunal can rely upon in order not to conform to section 424(A)(1).
7. It is submitted that the decision of the Tribunal is infected by jurisdictional error in that it breached its procedural fairness obligations under the general law and breached section 424A(1) of the Migration Act in failing to disclose to the applicant clear particulars of information that was the reason or part of the reason for affirming the decision that was under review.
In support of this further amended ground, Mr Singh points to the three examples set out below of exchanges between the Tribunal member and the applicant which took place at the Tribunal hearing. He makes the following general submission in relation to each of these examples:
It is submitted that the example cited … in relation to the applicant being involved in the riots, the applicant's role with and influence with other farmers in forming a group and his role in relief camps all form the basis of the information that the applicant says the tribunal should have provided.
Section 424A was not engaged at all by the tribunal and as for the examples cited the questions posed to the applicant, and the whole exchange with the applicant and the tribunal, in our opinion, is properly to be seen as information … it is submitted that it was important and necessary that the whole of the exchange on the specific questions and/or statements and the reasons for such information ought to have been disclosed otherwise the applicant was denied part of the information which section 424A guaranteed him.
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 specifically that is found to be adverse to the applicant simply because the tribunal has already invited the applicant to appear before it, or has alluded to this information in some other way.

Example 1: the applicant’s involvement in the riots

Mr Singh referred the Court to the relevant exchange in the Tribunal transcript, 15/10/07 (Annexure “A” to the affidavit of Hirstroma Singh filed 10 June 2008), at page 7; and the Tribunal’s findings on this matter at CB 129.
Mr Singh submitted that there was no basis for the Tribunal to reach the decision it did without putting the applicant on notice that the response to its questions in relation to the riots was vague, ambivalent and not commensurate with the level of detail and explanation that would be expected of a person who had participated in the riots. The applicant submitted therefore that this was vital information that the Tribunal was obliged to provide to the applicant under s.424A(1):
It is submitted that at no stage did the Tribunal inform the applicant that the information sought on the subject of the riots would be the reason, or part of the reason, for affirming the decision that was under review, thus a breach of s.424A(1)(a). Furthermore the Tribunal failed to observe the requirements of s.424A(1)(b) because at no stage did the Tribunal ensure, as far as was reasonably practicable, that the applicant understood why the information on the subject of the riots was relevant to the review and the consequences of it being relied on by the Tribunal in affirming the decision under review …
… this was not information that the applicant gave for the purposes of the review application. Because the Tribunal used the information as part of its Findings and Reasons and its decision-making, it is submitted that it failed to comply with the requirements of s.424A …the applicant in fact answered questions and he had not as such given information to the Tribunal. The Tribunal, in therefore relying on that information, was, in our opinion, obliged to provide that information to the applicant for response … that was not information under ss.(3)(b) that we say was given to the Tribunal for the purposes of the hearing.

Example 2: the applicant’s influence over other farmers

Mr Singh referred the Court to the relevant exchange in the Tribunal transcript at page 8; and the Tribunal’s findings on this matter at CB 130.
Mr Singh points to “a slight misrepresentation on the part of the Tribunal” at page 8, line 39 where he submits the Tribunal reached a conclusion that the applicant had provided scant details in response to the following question:
I was just wondering if you could tell me a bit about that [ie, the applicant influencing other farmer]) [emphasis added].
He submits that for all intents and purposes the applicant answered the Tribunal’s question, therefore for it to make a conclusion and state categorically in the decision-record that the applicant only said that during the night someone burned the crops so the farmers formed one group, was “not really a true representation” on the part of the Tribunal.
I do not accept this submission. The Tribunal transcript states that the question asked by the Tribunal was in fact:
I was just wondering if you could tell me a bit more about that [emphasis added],
which clearly places quite a different connotation on the Tribunal’s question.
Mr Singh further submits that again the Tribunal failed to inform the applicant that this information would be the reason or part of the reason for affirming the decision under review and failed to ensure that as far as reasonably practicable that the applicant understood why the information on the subject of how he was in a position to help and influence other farmers was relevant to the review, and the consequences of it being relied on by the Tribunal in affirming the decision under review. He submits that:
the Tribunal failed to comply with requirements of s.424A because the Tribunal should have put this information which the Tribunal thought was adverse to the applicant … to the applicant.

Example 3: the applicant’s role in the relief camps

Mr Singh referred the Court to the relevant exchange in the Tribunal transcript at page 8; and the Tribunal’s findings on this matter at CB 129.
Mr Singh submits in this regard that:
In its decision the tribunal was critical of the applicant giving … inconsistent evidence regarding his claims and was particularly critical of the applicant's inability to recall certain events in detail. Any reading of the tribunal's decision would tend to the view that this alleged inability of the applicant to recall certain events, events that were significant to him, but this inability of him to recall events was significant in undermining his credibility in the eyes of the tribunal and was therefore important in the conclusion that the tribunal reached.
Of great significance to this case is that the tribunal has failed to take into account the applicant's, for want of a better word, loss of memory, and the possibility that the loss of memory may have affected his recall in reaching the conclusions referred to earlier. What the tribunal failed to realise was that the applicant said that he could not remember. He said it was a long time back … and the tribunal failed to realise that the applicant's memory loss could be attributed to the carnage that he witnessed or in the Godhra train incidents and the relief work in which he participated at the relief camps were perhaps something that he did not want to relive because of the carnage that took place. The tribunal entirely overlooked the applicant's claim when he said that it was a long time back and I can't remember …
… the difficulty was that at all times during the tribunal hearing the tribunal conducted the hearing and the applicant was answering specific questions. At this juncture one may have expected perhaps the tribunal to come in and say, "Is there any reason why you can't remember?" would have been an expected thing in terms of the natural flow of the discussion, rather than terminating the question there and then moving to other parts of the hearing and then coming in in its decision and using that as a credibility issue.
Mr Singh relies on the following two cases: Singh v Minister for Immigration & Multicultural Affairs (2001) FCA 389 at [52] to [59]; and SZCOQ v Minister for Immigration & Multicultural Affairs (2006) FMCA 189 at [18] to submit that:
these two cases said that it was not sufficient simply to note a claim in a decision record and the cases said that meaningful consideration had to be given to any such claims and our point is that the tribunal gave no consideration to the issue arising from the applicant's claim, and that claim is that when he said that "I can't understand the relief camp. It was a long time back. I can't remember that much what I had done or what had been done." This was not simply an item of evidence as such, this was an element of the applicant's claims during the hearing and by failing to give any meaningful consideration to that element of the applicant's claim, we say that the tribunal committed a jurisdictional error by failing to put the applicant on notice that his inability to remember what the tribunal considered was essential elements of his claim was going to be adverse to his case, the tribunal failed in its obligation under section 424A.
Mr Singh distinguished the present case from SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 on the basis that:
In this present case … we contend that there was no gap or defect as such in the evidence given by the applicant. What told against him was that, as mentioned earlier, the tribunal engaged in a series of specific questions which the applicant had no knowledge about its reasons or implications, or had explained to him what the relevance of that specific information was to his proceeding … there is no reason in‑principle why an omission by the tribunal to meet its obligation should be treated any differently to when it comes to section 424A. That is particularly so when, as the tribunal seems to have done in the present case, it treats its questions as though it provides implicit support for a positive assertion that is detrimental to an applicant's case.
In considering the applicant’s submissions, I note firstly in regard to Example 3, that at no stage did the applicant himself state or claim at the Tribunal hearing that he was suffering from a loss of memory, or claim that his “loss of memory may have affected his recall” as Mr Singh has submitted. Nor did the applicant seek to provide any evidence to the Tribunal, or since, in support of such a contention.
In fact, the applicant provided the Tribunal with his explanation at the hearing for why he could not remember, namely, that “it was a long time ago” (CB 125). It was not for the Tribunal to “second guess’ any other explanation over and above that proffered by the applicant, such as that suggested by Mr Singh that the applicant's memory loss could have been “attributed to the carnage that he witnessed or in the Godhra train incidents and the relief work in which he participated at the relief camps were perhaps something that he did not want to relive because of the carnage that took place”.
In these circumstances, I do not consider that the Tribunal was under any obligation to ask further questions of the applicant to elicit any further explanation for his lack of recall. There is no duty on a Tribunal to prompt or stimulate an expansion of an applicant’s answers or claims.
It is well settled in this regard that although the concept of onus of proof is not appropriate to administrative inquiries and decision making: Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288, the relevant facts of an individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts.
The Tribunal is not required to make the applicant’s case for him: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As also observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

The Tribunal is not required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451.
Mr Singh further submits that the Tribunal did not ask the applicant sufficient questions in regard to the relief camps and did not thereby give him sufficient opportunity to address this issue; that the transcript discloses that “there was a quick flow from one point to the next”; and that whilst the applicant “was probed and it was like a quiz on the actual train riots”, however, in terms of his activities with the BJP there was “no similar probe”.
I consider that a fair reading of the transcript of the Tribunal hearing discloses that the applicant was not shut down, nor foreclosed, nor interrupting when providing his responses to the Tribunal’s questions. I accept the submission by the first respondent in this regard that the Tribunal adopted “a step-by-step way of approaching the topic of the relief camps”, as with other topics, which “gave the applicant opportunity to answer in those step-by-step questions.” I thus detect no procedural unfairness on this basis.
As stated above, the Tribunal is not required to make out the applicant’s case for him and it is for him to put whatever evidence or argument he wished to the Tribunal to enable it to reach “the requisite state of satisfaction.”
In regard to the above three examples relied on by the applicant upon which he asserts a breach of s.424A of the Act, I consider that each turns upon the same question of what constitutes “information” for the purposes of s.424A.
The “information” in relation to Example 1, which the applicant identifies as not having been put to the applicant, was that his evidence was “vague and ambivalent and not commensurate with the level of detail and explanation that would be expected of a person who had actually participated in the riots.” I do not accept that this constitutes “information” under s.424A. It is clear that the word “information” in s.424A, upon a proper construction, does not extend to the Tribunal's subjective thought processes, reasoning, determinations and appraisals of the evidence, including its failure to believe the applicant's evidence. As relevantly observed by the High Court in SZBYR at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself .
… Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal ...
Similarly, in regard to Examples 2 and 3, the alleged information does not constitute “information” for the purposes of s.424A: SZBYR (at [18]). It constitutes the Tribunal’s thought processes and subjective appraisals of the applicant’s evidence, including its adverse findings of credibility, and in circumstances where the Tribunal made the overarching finding that:
The Tribunal finds that the applicant’s evidence was so lacking in detail that it was not credible, even taking into account the length of time that has passed since these events occurred (CB 129).
Accordingly, I detect no breach of s.424A of the Act in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule in this regard.
In these circumstances, I accept the submission by the first respondent that the applicant is in effect seeking that the Court engage in impermissible merits review which is not the function of this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Merely because the applicant disagrees with the Tribunal’s adverse finding of credibility does not amount to an error of law. The Tribunal’s finding in this regard is a finding of fact par excellence and not open to review by this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and reasoned analysis of, the applicant's claims; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; closely noted the applicant's responses and made findings based on all the evidence and material, including the independent country information, before it.
I consider that the Tribunal’s findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that the Tribunal provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.

“information” from the first and second Tribunal hearings

In regard to paragraph 2 of further amended ground 1, the applicant asserts that, by the Tribunal having regard to the evidence at the first and second Tribunal hearings which “discredited” the applicant, “the jurisdictional defect inherent in the first decision has been carried over’ into the present Tribunal decision.
In support of this proposition, Mr Singh relies on the decision in SZHLM v Minister for Immigration & Citizenship [2007] FCA 1100 at [34] in which Cowdroy J observed that:
the reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place.
In contrast to this dictum, however, the first respondent points to the decision in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 in which the Full Federal Court held, at [39], that:
An invalid decision by the tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it materials that were obtained when the decision that had been set aside was made.
As further submitted by the first respondent, that after quoting the above quoted passage in SZEPZ, Finn J made the pertinent remark in SBRF v Minister for Immigration & Citizenship [2008] FCA 712, at [24], that:
To the extent that Cowdroy J is properly to be taken as suggesting to the contrary in SZHLM v Minister for Immigration and Citizenship (2007) 98 ALD 567 at [34] his Honour’s view ought not be followed in my view.
I accept these submissions by the first respondent. I consider that the present Tribunal was entitled to have regard to the material provided to the first and second Tribunals. Section 424(1) of the Act provides that in conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. In this instance, the present Tribunal had regard to the tapes of the first Tribunal hearing and decided that in the first and second hearings, the applicant’s evidence was “vague and unconvincing”. The material before the Tribunal in the first hearing included the applicant’s oral evidence and arguments. I accept the first respondent’s submission in this regard that “the invalidity of that first decision does not invalidate such material presented at the earlier hearing of the Tribunal.[1]”
[1] Also see SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 (unreported, Emmet J, 13.2.07) at [17].

For these reasons, I find no merit in the applicant’s assertion that “the jurisdictional defect inherent in the first decision has carried over into the third decision”. I find no such tainting effect. I thus detect no jurisdictional error on this basis.
The applicant further asserts that the Tribunal was obliged to provide this adverse “information” from the first and second hearings to the applicant to give him the opportunity to comment or respond thereon.
As relevantly observed by Emmett J in SZJBE v Minister for Immigration and Citizenship (2007) FCA 190 at [16]-[17]:
… the primary judge considered the possibility that there may have been a contravention of s 424A of the Act by reason of the Tribunal having taken into account, in assessing the credibility of the applicant, the fact that the applicant failed to mention before the reconstituted Tribunal matters that he had mentioned to the earlier constituted Tribunal until he was reminded of them. His Honour concluded that there was no contravention of s 424A in adopting that course without giving written notice of information consistent of the evidence given by the applicant to the previously constituted Tribunal. Section 424A does not require such notice to be given in respect of information given by the applicant for the purposes of the application to the Tribunal. Sections 421, 422 and 422A of the Act refer to a particular review conducted by the Tribunal. In doing so, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430. That is a review that a particular person, namely the applicant for review, has initiated in respect of an RRT reviewable decision.
An invalid decision by the Tribunal is no decision at all. However, it does not follow that steps and procedures taken in arriving at that decision are themselves invalid, or of no effect. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made. Specifically, under s 422(2), where the Tribunal is reconstituted, that Tribunal may have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. In the present case, it may be said that the Tribunal had regard to the statements made by the applicant to the Tribunal as previously constituted. I do not consider that s 424A could be said to have been breached by an assessment on the part of the Tribunal of the credibility of the applicant based upon what he said at an earlier hearing of the Tribunal. Even if that ground were raised in the application to the Federal Magistrates Court, it had no substance.
In the present case, the lack of credibility of the applicant’s claims was clearly at the forefront of the Tribunal’s thought processes. In this regard, the Tribunal did not accept the applicant’s assertion that he was an active member of the BJP and that he had been “harassed, attacked, threatened or been the victim of crop-burning”, as claimed, because of its doubts about the credibility, reliability, and lack of detail of the evidence provided by the applicant. The Tribunal stated in this regard at (CB 129) that:
The Tribunal does not accept the applicant’s claims for refugee status because the Tribunal does not accept that the applicant’s evidence was credible or reliable. The Tribunal has listened to the tapes of the first Tribunal hearing (differently constituted), and in both the first and second hearings, the applicant’s evidence was vague and unconvincing. The Tribunal finds that the applicant’s evidence was so lacking in detail that it was not credible, even taking into account the length of time that has passed since these events occurred.
As stated above, the word “information” in s.424A, upon a proper construction, does not extend to the Tribunal's subjective thought processes and reasoning, its determinations and appraisals of the evidence, including its failure to believe the applicant's evidence. The Tribunal was not obliged to put to the applicant in writing its adverse findings as to his credibility: at SZBYR at[18]. As the High Court remarked therein, such doubts or absence of evidence is clearly not relevant “information” for the purposes of s 424A.
Likewise, in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27], the Full Federal Court commented that:
The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of sub 424A(1) does not fit easily into the structure of s.424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review… The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of sub 424A(1).
Pertinent also in the present context, is the observation by the Full Federal Court in SZEPZ at [40] that:
In so far as [s.424A] refers to a state of mind or mental process, it must be taken to refer to the state of mind or mental process of the particular member constituting the Tribunal for the purposes of the review [emphasis added].
I thus detect no jurisdictional error on the above bases.

Country information

In regard to paragraphs 4, 5 and 6 of further amended ground 1, it is well settled that the Tribunal’s choice, assessment and weight of relevant country information is a purely factual matter for it: NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J. As summed up by the Full Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, in the context of assessing country information:
Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal (at [13]) …
… the Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item (at [14]); (and see NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]).
Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: Abebe at [137].
I consider that the Tribunal properly considered all the independent country information before it in the present case, and that the conclusions it reached in this regard were open to it on this material.
The applicant further asserts that the Tribunal breached s.424A by failing to put clear particulars of independent country information (relied upon by it in reaching its decision), to the applicant for his comment or response. It is well settled, however, that country information falls within the statutory exemption: s.424A(3)(a), being information “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”: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 at [66] – [71] per Beaumont J, at [138] per Merkel and Hely JJ; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44]-[46]; QAAC of 2004 vRefugee Review Tribunal [2005] FCAFC 92 at [7]-[30]; and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16].
I am satisfied therefore that there has been no breach of s.424A on this basis, and that the Tribunal has accorded the applicant procedural fairness in accordance with the statutory regime.
Accordingly, for the reasons stated above, Ground 1 of the further amended application is rejected.

Ground 2 of the further amended application

Ground 2 of the further amended application was formally withdrawn by the applicant at the hearing on 12 August 2008.

Conclusion

The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application, amended application and further amended application before this Court are dismissed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 12 September 2008