SZHBS v Minister for Immigration

[2006] FMCA 1413

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBS & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1413

MIGRATION – Refugee – South African of Indian ethnicity – claims to fear persecution based on harassment by an individual – finding that fear of harm not Convention related – use of independent country information – illogocality – Tribunal asked itself the “wrong question” – denial of natural justice – apprehension of bias – no reviewable error – application dismissed.

Migration Act 1958, s.422B

Walton v Gardiner (1993) 177 CLR 378
A42 v Minister for Immigration [2004] FMCA 1002
Applicants 42/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 207
Applicants 42 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 967
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
Ramirez v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
Kioa v West (1985) 159 CLR 550
VHAP of 2002 v Minister for Immigration and Multicultural and  Indigenous Affairs [2004] FCAFC 82
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24

Applicant: SZHBS & ORS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2492 of 2005

Judgment of: Nicholls FM

Hearing date: 19 September 2006

Date of Last Submission: 11 September 2006

Delivered at: Sydney

Delivered on: 26 September 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr. T. Reilly

Solicitors for the Respondents: Australian Government Solicitor 

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.

2. The application is dismissed.

3. The first and second applicants pay the first respondent’s costs set in the amount of $6500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2492 of 2005

SZHBS & ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 6 September 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 February 1998 to affirm the decision of a delegate of the respondent Minister made on 10 April 1997 to refuse a protection visa to the applicants. The Tribunal is joined as the second respondent in these proceedings.  

2. The applicants now before the Court are wife, husband and one of their children and all are nationals of South Africa. They arrived in Australia on 4 March 1994. Although these three, and two other children, made the application for a protection visa, the applicant wife was the only applicant who made claims under the Refugees Convention, and for ease of reference I will refer to the applicant wife as “the applicant”. The applicant’s claims to protection can be found in her application for a protection visa (reproduced at Court Book (“CB”) 1 to CB 25, particularly in an attached statement at CB 26 to CB 30), in a letter dated 31 July 1995 containing “further comments” in support of the application, in the application for review (reproduced at CB 81 to CB 84, particularly in an attached statement at CB 85 to CB 88), and in the Tribunal’s record of the hearing it conducted with the applicant, the Tribunal’s account of which is reproduced at CB 151.3 to CB 151.9.

3. The applicant’s claims for protection were based primarily on her Indian ethnicity. In her application to the first respondent’s Department the applicant claimed that her grandfather owned shops in Natal which were broken into by “blacks”, and that as she grew up she realised that there were problems accompanied with her “race”, “being Asian”.
   This was particularly so under the apartheid regime in South Africa. She claimed that in the course of her employment at a law firm the son of one of the firm’s “black” clients, a “Simon Buthelezi”, “liked” her, without the applicant’s “knowledge”, and that when he learnt that she was to marry someone else, threatened her fiancée and herself. She claimed that she and her fiancée were secretly wed despite the threats, but that after the marriage her husband “encountered even more threats”, and for “safety” they changed his name. Upon learning that Australia was a “peaceful country” they attempted to travel here.
   She claimed that after encountering “lots of problems” (including having their flights cancelled twice by their “enemies”) they managed to travel to Australia. Her claims were that there was no-one who could “stop the blacks from murdering, robbing and assaulting the Indians.”

4. Further, in relation to employment, that “whites are always considered first”, and Indians suffer prejudice when looking for a job, and prejudice in relation to access to educational facilities and in other respects such as seating at cinemas and use of “white only” parks. She specifically claimed in her protection for review that discrimination in South Africa was of a “substantially prejudicial nature” that would impact on her children’s education, and that this was persecution in the “sense of the Convention definition”. Further, in relation to Simon Buthelezi, that he belonged to a party with “strong influence” in the community which she indicated at the Tribunal hearing was the “Inkatha Freedom Party”. At the Tribunal hearing the applicant claimed she had been raped by Simon Buthelezi, and despite reporting the ongoing harassment to the police she claimed she was not adequately protected.  Further, that Simon Buthelezi may have harassed her as the law firm that she worked for dealt with African National Congress (ANC) members.

5. The Tribunal’s “Findings and Reasons” are reproduced at CB 155.7 to CB 159.8. The Tribunal found:

   1)In spite of some “minor inconsistencies” in the applicant’s evidence, the applicant was a credible witness in relation to her claims of having been raped and harassed by Mr. Buthelezi (CB 156.6).

   2)In relation to the applicant’s statement that Mr. Buthelezi had been a member of the ANC, that although aware of the ongoing rivalry between the ANC and the Inkatha Freedom Party, the Tribunal did not accept the applicant’s claims that the rape and harassment were for reasons of political opinion (CB 157.2). Further, that the law firm for whom she worked represented not only ANC members but Mr. Buthelezi’s uncle and there was no evidence that the applicant was an ANC member or had been involved in any political activities (CB 157.3). It concluded that these claims amounted to no more than “unsupported speculation” (CB 157.4).

   3)In relation to the applicant’s claims based on race, that there was no evidence to suggest that Indians were being targeted for persecution because they are Indians, and in this regard referred to the guarantees of the rights of all people in South Africa’s “new” constitution, and independent country information in support of this conclusion (CB 157.7 to CB 158.1). The Tribunal accepted that crime and violence are problems in South Africa but that such violence “cuts across ethnic lines” (CB 158.3). In this regard the Tribunal noted that it had considered also whether it could be said that the applicant’s fear arose for reasons of her membership of a particular social group – “South African women of Indian ethnicity”.

   4)In relation to the applicant’s claims to fear harm based on her membership of a particular social group, that even if it accepted that “South African women of Indian ethnicity” was a particular social group, the evidence supplied by the applicant made it clear that Mr. Buthelezi was interested in the applicant because of the attributes and characteristics particular to her, and not the characteristic of any Convention group (CB 159.4). As such, that the applicant was being targeted as an individual. The Tribunal could not be satisfied that the applicant was being targeted for reasons of membership of a particular social group in the Refugee Convention sense (CB 159.6).

   The Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason. Noting that no specific Convention claims were made by the applicant husband and children, the Tribunal concluded that there was no basis upon which it could be satisfied that they were refugees within the meaning of the Convention.

6. In the application to this Court, filed 6 September 2005, the applicant put a number of grounds often seen, in both form and style, in this Court. The “formulaic” nature of these complaints can also be seen with reference to “ground 11” which refers to “BNP politicians” (I have reproduced this as the applicants make reference to this in their subsequent amended application).

   “4. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding my persecution and did not take into considering of the oral evidence that was given by the RRT hearing.

   5.The Tribunal denied the application natural justice in determine the appeal in that the Tribunal was biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.

   6.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied the applicant procedural fairness in that the Tribunal failed to investigate our genuine claims.

   7.The tribunal has denied the procedural fairness by ruling out my claim as fabricated without proper investigation. If the reliance was going to be placed to this I was not given an opportunity to contest at any time prior to the RRT decision.

   8.The tribunal did not use the country information as specific however, the general information gathered by the tribunal considered to weigh against my case in the final outcome. The tribunal used all the information for matter of reasoning and evaluation of my case for the protection visa. The tribunal did not consider independent country Information like the Amnesty International report.

   9.I refer recent High Court decision SAAP v MIMIA [2005] HCA 24 (18 May 2005).

   10.I also refer SZFKL v MIMIA [2005] FCA 931 for the Refugee Review Tribunal be joined as a party to the proceedings.

   11.As a BNP politicians and I am the victim of systematic torture.

   The tribunal used all the information for matter of reasoning and evaluation of my case for the protection visa. The tribunal was preoccupied and did not have a fresh look.

   I refer High Court case Plaintiff S 157/2002 v Commonwealth of Australia. This decision will be examined in three respects-implications affecting jurisdiction, time limits and jurisdictional error. Making sense of the Rule of Law: Trends in the judicial Review of Migration Decisions Post S 157/2002 v Commonwealth of Australia. By DR Mary Crock and Catherine Chang.”  (errors in original)

7. At the hearing the applicants appeared in person. Mr. Reilly appeared for the respondents. I note that at the first Court date in this matter the applicant (mother) was appointed as the applicant child’s litigation guardian. An “unfiled” amended application was on the Court’s file.
   I confirmed with the applicant (the applicant husband was not present at the commencement of the hearing) that she intended to rely only on the amended application. Leave was granted in Court for the filing of this application with no objection by Mr. Reilly.

8. The amended application complains (I have numbered the paragraphs in this document for ease of reference):

   “1.That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.

   Particulars:

   2.The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to South Africa based on the member of a particular social in South Africa. I was persecuted because of discrimination I married a Pakistan national in South Africa. I was persecuted by the authority & I am the target of them. If I persecuted by the authority it is not possible for me to go back to South Africa. I will be persecute if I return back to South Africa. It is a convention base persecution. I will provided documentary evidences to established my persecution.

   3.It is true I did not collect my relevant documentary evidences to prove my persecution. Because I have no one to help me to collect documents.

   4.The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.

   5.The tribunal did not observe Migration Act 1958 properly to making the decision.

   6.The Tribunal fail consider my evidences with the proper way which the migration Act 1958 provided in my claims.

   7.I will provide more details to support my judicial review application in my outline of submission.

   Particulars

   8.The Tribunal did not provide me adequate particulars of the independent information.

   9.The Tribunal did not provide mean adequate opportunity to respond the substance of the information.

   10.The Tribunal finding that the totality of the country information does not show that like my circumstance person is not persecuted in South Africa.

   11.I attend the Tribunal hearing & I provided oral evidence to support my claims. The tribunal did not consider my oral evidence.     Without the proper consideration of my statement and oral evidence if the tribunal made decision the decision effected by the procedural fairness. I refer High Court Judgment plaintiff S157 v Commonwealth of Australia (4 February 2002).

   12.I repeat the claims as relief which I provided in my application under judiciary act 1903.

   13.I am withdrawing the paragraph no. 11 Of my judicial review application, because that paragraph was a mistake.

   14.I will provide the transcript of my RRT hearing audio cassette to establish my judicial review application. At present I have no fund to prepare the transcript of the tribunal hearing.” (errors in original)

9. By way of background, and with reference to the affidavit of Elizabeth Warner-Knight, a solicitor in the employ of the respondent’s solicitors, made on 11 September 2006, I note the following:

   1)The Tribunal’s decision was made on 26 February 1998.

   2)From 10 September 1998 the applicants were relevantly part of the “Heljanto class action” (which subsequently “merged” with the “Muin/Lie class action”) until they filed a separate proceeding in the High Court of Australia on 29 May 2003 (High Court proceeding number S1560/2003).

   3)This was remitted to the Federal Court (N413/2003) and on
   4 December 2003 (see CB 163 to CB 168) following the filing of a Notice of Discontinuance by the applicant’s solicitor, Emmett J. dismissed the application.

   4)The application to this Court now was made on 6 September 2005.

10. In written submissions filed on 11 September 2006 the respondent sought that the application be dismissed:

    1)As an abuse of process.

    2)As there was no jurisdictional error in the Tribunal’ s decision.

    3)In the alternative that relief should be in any event refused given the delay (derived from proceedings both before and after the proceedings in the High Court and Federal Court) in bringing the current proceedings. The delay was said to be over 3 years and “entirely unexplained”.

11. At the hearing before me:

    1)The applicant commenced her submissions with general assertions that “their application” was rejected by the Tribunal because she did not know “a lot about the law”, and that as a result there was a delay in filing the application (to the Court).

    2)The applicant then proceeded to make submissions in relation to the merits of her refugee claims.

    3)I explained to the applicants the difference in function, power and role between the Tribunal and the Court and that they needed to demonstrate a “legal” or a jurisdictional error. In this regard I referred the applicants to the grounds as stated in their amended application.

    4)The applicant then submitted that the Tribunal was in error as it referred to independent country information to the effect that crime rates in South Africa would decrease with time, and that this had not occurred.

    5)The applicant referred to CB 177.5 and complained about the Tribunal’s use of this information in determining that the applicant did not have a well founded fear of persecution, particularly when it is compared to the “evidence” that the applicant had before her (the applicant had with her a number of documents relating to the “current situation” in South Africa. These were not tendered and I explained to the applicant that country information dated after the Tribunal’s decision was not relevant to the Tribunal’s decision).

12. In relation to the delay in the filing of the application to the Court, I explained that evidence could not be given from the Bar Table. In this regard it was decided by the applicants (wife and husband) that the second applicant (the applicant husband) would give evidence, under oath, regarding the delay.

13. The applicant husband:

    1)Made a number of claims that related to the merits of the applicant’s refugee claims.

    2)Stated that the “main reason” for the delay in filing the application was the “legal costs”.

    3)Stated that he has no “work permission”, and is not working.
    This had also led to some difficulties in the relationship between him and the applicant and that there had been an impact on the children.

    4)Stated that he was aware that the application was “too late” but that “they didn’t have any other way” because “if we don’t have visa they will…send us again in the detention centre”.

14. Mr. Reilly cross examined the applicant husband. The following emerged:

    1)That the reasons for the delay were financial, given that the applicant did not have permission to work.

    2)That the applicants were part of a class action.

    3)That the applicant husband was unaware of the details of when “the class action” took place.

    4)That notwithstanding the class action (concluded in 2003) the applicant husband did not “know” about the times between the Tribunal’s decision and the “class action” and the time after the “class action” until the making of the application now.

    5)The applicant husband explained that he did not “have much information about these things”, because “these things” were handled by his wife.

    6)He agreed that he “didn’t have any explanation” for the delay.

    The applicant wife, despite opportunity, chose not to give evidence.

15. Mr. Reilly submitted that “logically” the first issue for the Court would be whether these proceedings are an abuse of process. In this regard he referred to:

    1)The evidence from the applicant husband that the current proceedings were only brought “to stay out of immigration detention”.

    2)The evidence of the past litigation in this matter as contained in the Court Book and the affidavit of Elizabeth Warner Knight.
    As stated above it can be seen from this material that:

    i)The Tribunal decision was made on 26 February 1998.

    ii)The applicants were members of the “Heljanto class action” from September 1998, which was merged with the “Muin/Lie” class action.

    iii)On 29 May 2003 the applicants filed a separate proceeding in the High Court, being proceeding number S1560/2003 (see annexure “A” to the affidavit).

    iv)These proceedings were remitted to the Federal Court (as proceedings N413/2003) and determined by Emmett J. on
    4 December 2003 (a copy of the reasons for Judgment appears at CB 166 to CB 168).

    v)The applicants filed the application with this Court on
    6 September 2005.

    3)Walton v Gardiner (1993) 177 CLR 378 at 393. This was cited for the authority that in light of the litigation history the proceedings are unduly vexatious, bring the administration of justice into disrepute and are an abuse of process for that reason.

    4)A42 v Minister for Immigration [2004] FMCA 1002, Applicants 42/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 207 and Applicants 42 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCATrans 967. These were cited to support his submission that it does not matter whether the previous proceedings gave rise to an estoppel when applying this test.

1. Mr. Reilly’s submission was that the circumstances before the Court were that the applicants (at least the applicant and the applicant child) had filed a Notice of Discontinuance in the previous proceedings in the Federal Court. Further, that the applicant husband provided evidence now that the current proceedings were brought for the purpose of not being taken into immigration detention, leading to the inference that the current proceedings were not brought for a proper purpose based on a genuine belief of legal error on the part of the Tribunal. I accept this submission on what is before the Court now.

2. Mr. Reilly further submitted that in any event, the application fails on its merits, as there was nothing in the amended application that demonstrated jurisdictional error. He submitted that no written submission had been provided, and that nothing that the applicants said in relation to the review application demonstrated error. Further, that the Tribunal’s decision was based on the finding that the applicant had not suffered Convention related harm and in this regard referred the Court to Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568 per Burchett J. The submission was that this was a finding of fact (Ramirez v Minister for Immigration and Multicultural Affairs (2000) 176 ALR 514), and as such the Court had no power to review this decision on this basis (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”).

3. In relation to the complaint made at the hearing regarding the Tribunal’s use of independent country information as it related to the crime rates in South Africa, the respondent relied on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, particularly at paragraphs [11] to [13] as authority for the proposition that the Tribunal’s use of country information is a factual matter for the Tribunal. At [11] to [13] the Court, comprised of Gray, Tamberlin and Lander JJ., said:

   “[11] The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

   [12] The appellants’ submissions asserted that the Tribunal rejected all of the appellants’ claims on the basis of ‘country information’. The Tribunal’s reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent improbability of some aspects of the first appellant’s story, inconsistencies between different parts of his story, and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant’s credibility in determining whether it accepted some of the ‘country information’. Its treatment of the DFAT advice about Tamil males from Batticaloa, to which we have referred in [4], is an example. The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.

   [13] In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. 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.”

4. In any event, Mr. Reilly submitted that the independent country information that the applicant referred to (this appears to be the information referred to by the Tribunal at CB 154.9 to CB 155.7) was in fact evidence in support of the Tribunal’s conclusion that Indians are not targeted in South Africa because they are Indians. Clearly the Tribunal did have regard to this country information. The complaint that the Tribunal referred to (and presumably relied upon) information that stated crime rates would decrease is not consistent with what the Tribunal has done. The thrust of the Tribunal’s findings in this regard was that the independent country information (including the new South African Constitution):

   “The independent evidence available to the Tribunal clearly indicates that the South African government policy is non-racial. Further, the evidence makes it clear that although South Africa has a crime problem, Indians are not being targeted because they are Indians. The Tribunal therefore, cannot be satisfied that the applicant has a well founded fear of being persecuted for reasons of her race.” (CB 158.3)

5. In relation to the complaints as raised in the amended application (with reference to the numbers I have assigned at paragraph 8 above for ease of reference):

   1)Grounds 1 and 11 appear to complain that the Tribunal failed to take into account relevant considerations when it assessed the applicant’s claims. This was both in relation to the applicant’s written statement, and oral evidence, provided to the Tribunal.

   In the absence of any particularity this complaint is not easily translated into a ground of review. It is clear that the Tribunal engaged in a thorough, and considered assessment of the claims as presented. I further note that the Tribunal not only considered the applicant’s claims as presented, but further, and although not articulated by the applicant, considered whether there was a fear of harm for reasons of her membership of a particular social group, namely “South Africa women of Indian ethnicity” arising from the circumstances put forward by the applicant (CB 158.5). The reference to “plaintiff S157 v Commonwealth of Australia (4 February 2002)” is clearly of no assistance to the applicant in showing error in the Tribunal’s decision.

   2)Ground 2 amounts to a request for impermissible merits review.
   It is trite to say that such a review is not within the role of the Court, but for the Tribunal (Wu Shan Liang). To the extent that it may be seen to be a complaint that the Tribunal failed to consider that the applicant’s fear of harm was because of “discrimination” based on membership of a particular social group, then this is a misrepresentation of what the Tribunal has done. The Tribunal accepted much of the applicant’s claims (CB 156.6), but clearly found that “Indians are not being targeted because they are Indians”. The Tribunal considered the claims in relation to the issue of discrimination, but clearly found that the harm suffered was not Convention based. This was with reference to the harm claimed by the applicant which the Tribunal accepted had occurred, but was not related to a Convention ground.
   The applicant’s assertion now that “she was persecuted by the authorities” and is a “target of them” is not what she claimed before the Tribunal. The Tribunal properly dealt with the applicant’s claims as put by her and claims arising from the circumstances of her case. I cannot see any obligation on the Tribunal to have dealt with the complaint as put forward now by the applicant.

   3)Ground 3 is in essence a statement that the applicant was unable to provide “more relevant documentary evidences” to support her application. The Court is sensitive to the difficulty that refugee applicants face in obtaining material in support of their refugee claims before the Tribunal, but clearly this issue is of no assistance to the applicant now. That the applicant claims that now, some eight years after the Tribunal’s decision, she has documents to support her case, cannot go to show error on the part of the Tribunal. The Tribunal did consider documents and evidence submitted by the applicant at the relevant time (CB 153.1).

   4)Ground 4 complains of illogicality, or the absence of a rational or logical foundation in the Tribunal’s decision. While some members of the High Court in Re: Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 (“S20”) expressed some support for illogicality as a ground of review, the utility of illogicality is limited. In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] and [30] the Full Federal Court held there is nothing in the remarks of the High Court in S20 which would warrant a departure from the earlier line of decisions in the Federal Court to the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error. The applicant’s complaint in this regard is un-particularised. But in any event I cannot discern any illogicality, or irrational basis, or analysis, in the Tribunal’s decision. To the contrary, the Tribunal’s decision record reveals clear reasons for its findings.

   5)Grounds 5, 6 and 12 are general assertions of error and are meaningless in the absence of further particulars. The applicants provided nothing further at the hearing before the Court in support.

   6)Grounds 8 and 9 complain that the Tribunal did not provide the applicant with adequate particulars of the independent information to which it referred or with an opportunity to respond to the substance of that information.

   i)I note that the date of application to the Tribunal for review predates the introduction of s.422B of the Act which operates to make the matters set out in Division 4 Part 7 of the Act an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   ii)The common law rules of procedural fairness are not excluded from application in the case before me. In this regard, the common law may require that the Tribunal put such information as it relied on in this case to the applicants as a matter of fairness. It is well established that the applicants have the right to know the case against them. An applicant must be given an opportunity to address information that is relevant, credible and adverse Kioa v West (1985) 159 CLR 550 (“Kioa”).

   iii)However, I note that in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (“VHAP of 2002”) the Full Federal Court at [17] and [27]-[28] held that there is no general proposition that the failure to put adverse country information to an applicant, on its own, amounts to a breach of natural justice.

   iv)The primary issue to be addressed relates to the question of fairness in the circumstances. In relation to country information, situations that can give rise to a breach of common law procedural fairness include where the information is critical to the Tribunal decision, and the applicant is not on notice of the issues raised by the information. The applicant clearly should not be caught unawares, or be in the dark, about the case against her or him.

   v)In this case no reference is made to exactly what independent information the applicant refers to in this complaint.

   vi)Whatever the case, it is clear that the Tribunal’s decision turned upon the finding that “Indians are not being targeted because they are Indians” (CB 158.3). This was based on the independent country information before the Tribunal, particularly from the Department of Foreign Affairs and Trade (DFAT Cable CT011242). I note that the Tribunal records that it specifically asked the applicant at the hearing for comment on this information. The applicant is recorded as making comments to the Tribunal on this point (see CB 152.8). The applicant, therefore, was clearly provided with, and given an opportunity to respond to, the critical independent country information supporting the Tribunal’s decision. It is clear that the common law principles of procedural fairness were observed, and the applicant’s complaint in this regard cannot succeed.  

   7)Ground 10 is a complaint based on the Tribunal’s use of independent country information and an assertion that the Tribunal should have found that the applicant was persecuted in South Africa in light of this information. This seeks to challenge the Tribunal’s findings of fact and does not rise above a request for impermissible merits review.

   8)Grounds 7 and 14 are assertions that the applicant will provide details in support of the application both in the form of written submissions and with the provision of the transcript of the Tribunal hearing. Neither has been forthcoming from the applicants. I note that the first Court date in this matter was on
   22 September 2005 before a Registrar of this Court. On that day orders were made that the applicant file any further evidence by 24 November 2005 and written submissions 14 days before the hearing. The applicants did not do so.

   9)Ground 13 is an assertion that paragraph no. 11 of the original application before the Court be withdrawn as it was a “mistake”. This paragraph related to a claim that the applicant was a BNP (presumably Bangladeshi National Party) politician, and was clearly not relevant to the applicant’s refugee claims.

6. While the applicants pressed their amended application to the Court I did, given they were unrepresented before me, seek to discern whether any other ground of review was evident and could be made out.
   The original application was not of assistance in this regard.

7. The originating application to the Court is a formulaic document as is often seen in this Court. Unfortunately for the applicants some of the application does not appear to relate to their circumstances (the following references to grounds are with reference to paragraph 6. above).

   1)Ground 7 claims that the Tribunal ruled out the claims “as fabricated” although clearly the Tribunal found that the applicant was a credible witness in relation to some of her claims, and accepted much of what the applicant said.

   i)The Tribunal's decision on race turned on its finding that the harm was not Convention related (CB 159.5):

   “The Tribunal is satisfied that the applicant has been targeted as an individual but Mr Simon Buthelezi out of in human cruelty. The Tribunal therefore cannot be satisfied that the applicant has a well founded fear being persecuted for reason of her membership of a particular social group.”

   Further, based on independent evidence available to it, that the evidence makes it clear that although South Africa has a crime problem, Indians are not being targeted because they are Indians (CB 158.3):

   “The Tribunal therefore cannot be satisfied that the applicant has a well founded fear of being persecuted the reasons of her race.”

   ii)In relation to political opinion:

   “The applicant has provided no evidence to support her claims [in relation to political opinion] and they amount to nothing more than unsupported speculation. The Tribunal is satisfied that the applicant’s fear of being persecuted for reason of political opinion are not well founded.” (CB 157.3).

   2)Ground 4 asserts that the Tribunal asked itself the wrong question regarding her “persecution”, and did not take into consideration the oral evidence that was given at the Tribunal hearing. There is absolutely nothing from the applicant as to what was the wrong question asked by the Tribunal, and nothing is evident in this regard from the material before me. The Tribunal clearly focused on whether the applicant had a well founded fear of persecution for a Convention reason should she return to South Africa in the foreseeable future. There is nothing before me to show that the Tribunal did not consider the applicant’s oral evidence, in fact it accepted much of this evidence.

   3)Ground 5 asserts a denial of natural justice, and that the Tribunal was biased or that there was the apprehension of bias. This is possibly linked to the assertion on page three of the amended application that the Tribunal was preoccupied and did not have a “fresh look”. I cannot see on what is before me that any denial of natural justice can be made out. The application to the Tribunal was made on 7 May 1997. The applicant was invited to a hearing before the Tribunal by letter dated 22 December 1997 (CB 91), which was scheduled for 21 January 1998. Although the applicant wanted to attend, this hearing was postponed at the applicant’s request due to the husband's ill health (CB 97). The hearing was rescheduled for 6 February 1998. But on 4 February 1998 the applicant sent in a medical certificate relating to herself and her inability to attend the hearing (CB 98). Although having reservations about the medical certificate the Tribunal nonetheless rescheduled the hearing for 10 February 1998.
   The hearing took place on that date and the Tribunal's record of what occurred at the hearing is set out in its decision record at CB 151.3 to CB 152.10. The applicants have not put any other evidence before the Court to contradict the Tribunal's account of what occurred either in the lead up to, or at, the hearing.
   This account shows that the Tribunal gave the applicant every opportunity to set out her case. It put to her independent country information on which it relied (CB 152.8) and considered documents submitted by the applicant (CB 153) going to the medical issues relating to the claim of being raped. This claim was accepted by the Tribunal. I cannot see that there was any denial of natural justice. In relation to the claims of bias or the apprehension of bias the applicant has put forward no evidence to support such claims nor is anything of this nature evident in the material before me.

   4)Ground 6 has already been dealt with, and to the extent that any specificity can be derived from what is stated, in that the Tribunal failed to investigate their genuine claims, the material before the Court now reveals that the Tribunal fully considered the claims put forward. In fact, the Tribunal accepted much of what the applicant said.

   5)Ground 8 is another example of a generic and formulaic claim.
   To the extent that any sense can be made of it, the Tribunal was entitled to use the country information to which it referred. Further, the applicant does not say what “Amnesty International” report she put before the Tribunal which the Tribunal did not consider. Nor is any evident. Further, it is trite to say that the weight to be attributed to such information is a matter for the Tribunal. I cannot see that the applicant's reference in the application to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 or “Plaintiff 157 v Commonwealth of Australia” can assist the applicant's case before this Court now.

1. I can see no error in what the Tribunal has done, let alone jurisdictional error. For the reasons set out above the application to the Court is, in all the circumstances, an abuse of the process of the Court. In any event, no jurisdictional error is evident and the application is dismissed on that basis. It is not necessary therefore to consider the issue of delay.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  26 September 2006