SZHFC v Minister for Immigration

[2005] FMCA 1922

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFC v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1922

MIGRATION – Refugee – applicant did not meet the criterion for the grant of a protection visa – no bias, apprehension of bias or bad faith – the decision was not made “contrary” to the definition in the Refugees Convention – Tribunal is not required to disclose its view on inconsistency between versions of claims made by the applicant – no error of law in the Tribunal making a wrong finding of fact – impermissible merits review – application dismissed.

Migration Act 1958, ss.424A(1), 424A, 65, 36(2), 424A(3)(a), 424A(3)(b)
Federal Magistrates Court Rules 2001, r.21.02(2)(a)

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215
NAST vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal Ex parte H [2001] HCA 28
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
NAOA vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
NADHof 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
Abebe v The Commonwealth (1999) 197 CLR 510
NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 423 [67]
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZHFC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2731 of 2005

Judgment of: Nicholls FM

Hearing date: 19 December 2005

Date of Last Submission: 9 December 2005

Delivered at: Sydney

Delivered on: 19 December 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. T. Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $3500, pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2731 of 2005

SZHFC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application filed in this Court on 26 September 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 September 2005 and notified to the applicant through his authorised recipient for correspondence (who was also his then migration advisor) by letter dated 19 September 2005 to affirm the decision of a delegate of the respondent Minister made on 16 May 2005 to refuse a protection visa to the applicant.

2. The applicant is a national India who arrived in Australia on 8 December 1998 and applied for a protection visa with the first respondent’s Department on 4 May 2005. His application for a protection visa is reproduced at Court Book (“CB”) 1 to CB 44, and in particular in a statutory declaration of 3 May 2005 at CB 32 to CB 34. The applicant was also represented by migration adviser throughout the period of the processing of his application for review before the Tribunal. The adviser made submissions on the applicant's behalf and these are reproduced at CB 71 to CB 76. The adviser also submitted independent information (reproduced at CB 77 to CB 236). Importantly, in his submission the adviser, on the applicant's behalf, repeats the key claims and information relating to the applicant's claims made in his application for a protection visa. In particular the information repeated relates to his fears from the Hindu majority in his home area due to his Muslim faith. He claimed on the applicant’s behalf that many of the applicant’s family members had been harmed by Hindus (CB 72.8) that he feared, as a Gujarati, if he were to return to India he would be persecuted for that reason. He also feared that if he returned to India he may be harmed because he applied for Australia's protection (CB 76.5).

3. The applicant attended a hearing before the Tribunal on 24 June 2005 and was accompanied by his migration adviser. The Tribunal's account of what occurred at the hearing is in its decision record at CB 348.8 to CB 352.5. The applicant’s adviser also made a subsequent written submission dated 1 July 2005 (CB 238 to CB 240, with attachments at CB 241 to CB 330). By letter dated 26 July 2005 (CB 331) the Tribunal provided the applicant with a copy of a relevant part of a UK Home Office Report on India relating to fraudulent documents, which asserts that these be easily obtained when sought. The Tribunal sought to remind the applicant that if there was an expectation that the Tribunal was to consider the information contained in a copy of a purported letter from the applicant's sister (sent by facsimile of 29 June 2005 to the adviser) the Tribunal required the original of the letter, and a translation by a qualified translator. Further, by letter dated 26 July 2005, the Tribunal wrote to the applicant, pursuant to s.424A(1) of the Migration Act 1958 (“the Act”), and put to the applicant that it had information which it identified as being the reason or part of the reason for deciding that the applicant was not entitled to a protection visa and sought the applicant's comments. Specifically, the Tribunal noted that this information was contained in the applicant's protection visa application and was relevant because it gave rise to serious concerns about the applicant's credibility. The applicant's response through his migration adviser is dated 1 August 2005 and is reproduced at CB 335 to CB 336.

4. In essence the applicant's claims before the Tribunal were that he  feared persecution in India from:

   1)Hindus

   2)The police

   3)The BJP State and Central governments

   4)Hindu perpetrators of a “violent incident in the 1994/95 riots”, which he claimed to have witnessed at the hands of the perpetrators of the 2002 Gujarati riots

   The claims were based on the applicant's claims to be a:

   1)Muslim

   2)Gujarati

   3)Member of a particular social group namely the Pathan (Bluchi) caste “family”

   4)Because he would be a “witness” against those who carried out and/or he would investigate, the deaths of his family

   5)Because he sought asylum in Australia

5. The Tribunal's “Findings and Reasons” are set out in its decision record at CB 356.3 to CB 361.6. The Tribunal found:

   1)That it had grave concerns about the applicant's credibility as he had made new and serious claims (for the first time) during the Tribunal hearing, and that other claims were misleading or exaggerated, leading it to the view that many of these new claims were “fabrications” to bolster his protection visa claims and/or made in response to information put to him during the hearing (CB 356.6).

   2)The applicant’s evidence at the hearing was “disjointed and confused” and he gave a strong impression of “improvising in his responses” (CB 356.7).

   3)It did not accept the applicant's explanation for his failure to put key claims forward at the first opportunity and provided reasons for this. In particular it found that the “new” claims were too central to his case to be forgotten even where he claimed to be under pressure or under time constraints (CB 356.9).

   4)That this was especially so given the applicant is a very well educated man who has lived in Australia for six years and had been assisted throughout by an experienced registered migration agent from a well-established company and that there was ample opportunity in all the circumstances for the applicant's key claims to have been presented at any time prior to the hearing before the Tribunal (CB 356.9 to CB 357.1).

   5)That it had some doubts about the applicant's claims relating to the death of family members, it was prepared to accept that the applicant’s parents and his sister were killed during the February 2002 riots in Gujarat state (CB 357.3).

   6)In relation to his claims of harm suffered by other family members, while the Tribunal considered the applicant's explanation for a key discrepancy put forward in written submissions (the facsimile put forward by the adviser) to be “implausible”, nonetheless the Tribunal did not make a finding adverse to the applicant on this point because it did not accept that these family members had been arrested and imprisoned in any event (CB 357.6).

   7)That it did not accept that the applicant’s brother in law was arrested and imprisoned and gave reasons for this (CB 357.7).

   8)That it was prepared to accept the applicant’s consistent claim that an uncle was detained in May 2000, but was not satisfied that, on the information before it, this gave rise to well founded fear of persecution by the police or the state or central government if the applicant were to return to India (CB 357.8).

   9)It did not accept that the applicant had a well founded fear of persecution because he was a member of the Pathan family caste, and/or of a particular branch of that caste, and it gave reasons for this. It noted that the applicant made this important claim for the first time in oral evidence before the Tribunal, and there was no independent country information located by the Tribunal, or indeed submitted by the applicant, to suggest that such persons were blamed for the train attack that preceded the anti-Muslim riots, or that people with the name “Pathan” have been targeted for anyone for any reason (CB 357.9).

   10)It could not accept the applicant’s claims put forward by his adviser in a submission of 1 July 2005 that the applicant's relatives had been threatened and illegally detained because they had become witnesses, and encouraged other witnesses to get “justice for victims”, and that the applicant would be similarly targeted. The Tribunal gave reasons for its rejection of this claim. In particular it noted that the applicant had done nothing about getting “justice” for his family in the 2 ½ years since he heard about their fate in early 2003, did not know the circumstances of the deaths, or who was responsible, and that he did not even asked his surviving sister for documents and photos (CB 358.4). Further, in relation to a crime that the applicant claimed to have witnessed in 1994/95 the Tribunal was not satisfied that the applicant would come forward now to give evidence, assuming that the case was still open, given that he did not do so at the time and did not do so when requested by a victim's family 18 months after the incident. Further, although he claimed that he would do so now he has not done anything about this in the last six years, even from the safety of Australia (CB 358.5).

   11)It could not accept, and rejected as speculative and without foundation, the applicant's claims that he may be of interest to the authorities for “something to do with the 1994/95 riots or something else”. Further, the Tribunal noted that these incidents were well over a decade ago. The applicant did not claim to have been of interest to the authorities while he was in India up until 1998, and that he had been out of India since that time (CB 358.6).

   12)It could not accept the applicant's new claim that an arrest warrant had been issued, or that he was wanted by authorities, or that he was of adverse interest to the Gujarat or Indian authorities for any reason. This claim, and the information relied on by the Tribunal, was the subject of the Tribunal's “s.424A notice”. The Tribunal considered the applicant's response to the matters raised in its notice, and rejected the submissions made on the applicant's behalf, with reasons given (CB 359.4).

   13)It could not accept the applicant's adviser’s assertion that because the Tribunal referred to independent material about the ease with which fraudulent documents could be obtained in India it had already decided that any warrant submitted by the applicant would be fraudulent. The Tribunal gave reasons for its rejection of this claim (CB 359.6).

   14)It was not satisfied that the applicant's fear of persecution was because he was of Gujarati ethnicity or from Gujarat state, because there was no independent country information before the Tribunal, and none was submitted by the applicant or his adviser, to suggest that Gujaratis are persecuted by anyone for these reasons (CB 359.7).

   15)Further, it was not satisfied that the applicant had a well founded fear of persecution for reason of his actual or imputed political opinion and/or his Muslim religion from the BJP and/or Hindu nationalist groups and it gave reasons for this (CB 359.9).

   16)It was also not satisfied that the applicant, as a returned or returning asylum seeker, had a well founded fear of persecution within the meaning of the Convention and gave reasons for this (CB 360.1).

   17)It was not satisfied with the applicant's claim to fear persecution because he is a Muslim. It found that this fear was not well founded, and gave reasons for this including reference to independent country information, and the applicant's own evidence about what had occurred to him in the past (CB 360.6).

   18)Further in this regard that it was satisfied that it would be reasonable, in the applicant’s circumstances, to relocate elsewhere in India if he feared persecution as a Muslim or a Gujarati or for any other reason on return to his home area (CB 360.7).

   19)That it was not satisfied that the applicant’s claimed problems from an ex-girlfriend's father were well founded within the meaning of the Convention if he returned to India, and gave reasons for this (CB 361.4).

   20)Having considered all of the material before it that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention, and that therefore the applicant did not satisfy the criterion set out in s.36(2) of the Act for a protection visa (CB 361.7).

6. In his application to this Court the applicant complains about the Tribunal decision and puts forwards the following grounds:

   “The decision made by the Refugee review Tribunal was with a preset mind.

   The decision was made contrary to the definition of the Refugee Convention.

   The tribunal made an legal error in my decision at RRT.

   The migration act of 1958 was not properly observed.”

   No particulars whatsoever are put forward.

7. In an affidavit sworn and filed on 28 November 2005. The applicant claims:

   “1.I have been detained Villawood IDC for more than seven (7) months. I am getting sick psychologically. I do not have any one here who can help me make the submission.

   2.I have a friend, who is trying to get me solicitor from outside. At this moment I do not have any lawyer.

   3.In my first application to the Federal Magistrates Court, I did not claim that there was a communication problem between the Tribunal member and me.

   4.The RRT Member was acting in very bad faith in making my decision.

   5.     The Tribunal failed to justify the evidence provided by me.

   6.The decision exceeds the limits set out in the Commonwealth Constitution.

   7.So therefore, I hope and pray that the Honourable Court will give me an extension time to submit my submission.”

8. The applicant was unrepresented before me. The respondents were represented by Mr. Reilly of Counsel. I took the applicant's assertions in his affidavit, and from some of what he said to me at the hearing before me, that he may be seeking an adjournment of the hearing so that he could obtain legal advice. Contrary to this however, at the hearing before me the applicant also confirmed that he was ready to proceed with the hearing and handed up further submissions. Mr. Reilly raised no objection to my looking at the submissions and the affidavit filed on 28 November 2005, despite the fact that the respondent had not been earlier served with these documents.

   I did consider however whether the applicant should be given more time, in circumstances where he indicated that he had new claims to put forward. Relevantly the history of the conduct of this matter before the Court is:

   1)The Tribunal decision was made on 14 September 2005 and notified to the applicant and his then adviser on 19 September 2005.

   2)The application to this Court was filed on 26 September 2005 at which time the applicant was detained by the first respondent in the Villawood Immigration Detention Centre.

   3)The applicant attended at the first Court date in this matter on 27 October 2005.

   4)On 16 November 2005 the applicant was advised by letter from a Registrar of this Court that he had been referred for legal advice to a lawyer on the panel of the Court's Legal Advice Scheme. The relevant lawyer was also advised by facsimile communication on the same date. (The Court Registrar acted with some speed because the applicant was in Immigration Detention).

   5)The parties appeared for further directions before me on 16 November 2005 where orders were made, by consent, that, amongst others, required the applicant to file and serve any affidavit containing additional evidence relied upon including a transcript of the Tribunal hearing by 30 November 2005, and that the applicant file and serve an amended application giving complete particulars of each ground of review relied upon by
   30 November 2005. The matter was set down for hearing before me today (19 December 2005).

   6)Other than the affidavit already referred to, the applicant has not filed any amended application or any other evidence or made any further written submissions.

9. Priority has been given to this case, and in particular in terms of setting a final hearing date, given that the applicant is being held in detention. The applicant claims to be “getting sick psychologically” while he has been detained. At the same time he appears to be seeking an adjournment of the final hearing in his matter. I refused the applicant's request for an adjournment. I note that the applicant has had the benefit of some legal advice. But further and importantly the applicant was not able to convince me that any further adjournment would provide any real opportunity for him to obtain any further legal advice. He claims to have been detained for more than seven months. He has put forward an application devoid of particulars. The affidavit and “written arguments” handed up today at best contain a reference to one possible factual error on the part of the Tribunal. The applicant was certainly on notice of the need to put forward evidence to support his broad assertions. The applicant was unable to provide me with any action, let alone details of any action that he has taken to obtain legal advice, beyond making a reference to a friend who is trying to “get me a solicitor from outside”. The applicant has been in Australia for seven years. He is not a recent arrival who could legitimately claim total unfamiliarity with an “alien” environment in Australia. I note that he may indeed be feeling the effects of having been detained for seven months and has the Court’s sympathy in this regard, however there was nothing before me to show that the length of detention prevented him from seeking legal advice. The applicant has not explained how he was prevented from arranging such advice from within the Detention Centre. There is nothing before me to explain the applicant's failure to obtain any further independent legal advice. Nor was I satisfied from what the applicant put to me at the hearing that there was any real prospect of obtaining this advice in the foreseeable future. Beyond the reference to the “friend” he put nothing forward by way of proposed action in this regard.

1. Further, in relation specifically to the claims set out in the affidavit, the applicant was unable to provide anything that would cause me to believe that an adjournment to obtain legal advice would be of assistance to the applicant. I specifically considered this issue in the context of whether any adjournment would be useful or would be futile in relation to progressing the matters alluded to in the affidavit. In particular:

   1)In relation to the claim that there was a “communication problem” between him and the Tribunal member, the applicant did not put anything further before me in this regard.

   2)The claim that the Tribunal acted in bad faith was again unsupported by any reference to any evidence.

   3)The applicant also claimed that the Tribunal failed to “justify” the evidence provided by him. This must be seen in the statutory context that applies. Section 65 of the Act makes it a requirement that (effectively) a decision maker, when deciding to grant a visa, must be satisfied as to certain criteria prescribed by the Act before a visa must be granted. In relation to a protection visa, this includes the matters set out in s.36(2) of the Act. Inter alia, to satisfy the decision maker that the applicant is entitled to a protection visa, an applicant must establish that they are a non-citizen in Australia in respect to whom there is a level of satisfaction that Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. This legislative scheme requires a positive state of satisfaction as to whether protection obligations are owed and if that level of satisfaction cannot be reached, a refusal decision is mandated; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215 at [15]-[16]:

   “[15] It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. A criterion for a protection visa specified in s.36(2) of the Act is;

   ‘...that the applicant for the visa is:

   (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

   (i) is mentioned in paragraph (a); and

   (ii) holds a protection visa.’

   [16] It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister:

   ‘The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. 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.’

   Moreover, the Tribunal was entitled, in assessing whether the appellant had a well-founded fear of persecution if he were returned to Sri Lanka to take account of the fact noted in the extract quoted at [6] above that "according to the Applicant’s own evidence he departed Sri Lanka legally and without difficulty.”

   See also NAST vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5]:

   “[4] In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.

   [5] In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.”

   On what was before it the Tribunal could not be satisfied that the applicant met the important criterion for the grant of a protection visa. On what was before it this was open to the Tribunal to find.

   4)The applicant's claim that the decision exceeds the limits set out in the Commonwealth Constitution was totally unexplained by him and nor could I see what this referred to in terms of assisting his complaint against the Tribunal’s decision.

   5)Similarly I could see nothing (other than a reference to one factual error which I deal with below) in the applicant’s written arguments that could be developed to assist the applicant. (See further below on the written submissions).

2. In all the circumstances I could see no utility in providing the applicant with any further opportunity. Had he been able to provide me even a brief outline of what his intentions were in relation to these complaints then I could have given further consideration to this issue.

3. The applicant complains in his application that the Tribunal approached the review with a “preset” mind. I saw this as a complaint that the Tribunal acted with bias, the apprehension of bias and acted in bad faith. However, the applicant has put nothing before the Court to go near to establish any of the relevant elements as set out in authorities on these grounds. For the applicant’s benefit in particular, I note that allegations of bias are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of actual bias carry with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more than just the conclusion reached by the Tribunal to support this claim.

4. Allegations of apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes. (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]). No particulars of bias or apprehended bias are alleged. I can see no basis for review of the Tribunal’s decision on the basis of actual or apprehended bias. The applicant has brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of the applicant's claims. It is rarely the case that bias can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872). Nor was the applicant able to assist in indicating what possible evidence could be brought forward.

5. Further, the application also fails the test of establishing bad faith as set out in Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, [18]-[20]. The allegation of bad faith is not clearly alleged, no attempt at proof is offered, and no personal fault or absence of honesty on the part of the decision maker has been made out.

6. Although not directly raised by the applicant, but to the extent that the applicant complains about the Tribunal’s credibility findings or more directly that the Tribunal was acting with a “preset” mind, I should also note the issue of information relating to fraudulent documents in India, and the applicant’s adviser’s “implication” about the Tribunal’s reference and use of this information. In its decision at CB 359.4 record the Tribunal makes reference to the adviser’s “implication” that because the Tribunal had referred to independent material about the ease with which fraudulent documents can be obtained in India that it had already decided that any warrant submitted by the applicant would be fraudulent. The Tribunal dealt with this issue. It rejected this suggestion on the basis that the Tribunal's purpose by sending the “s.424A notice” was to put the applicant on notice that any such document provided by the applicant would have to be assessed by the Tribunal in light of this other independent information. Clearly there was no suggestion by the Tribunal that all documents from India, were fraudulent, and the Tribunal itself pointed to the fact that it had accepted as genuine much of what the applicant had submitted by way of photographs, Indian newspaper clippings and other similar material. Further, the Tribunal had clearly indicated its willingness to consider a recent letter, and translation of this letter, from the applicant's sister. The Tribunal's action in drawing the applicant's attention to this independent material, was probably not strictly necessary in the context of it being information obliged to be put to the applicant pursuant to s.424A(1), because it was information that fell within the exception from such obligation pursuant to s.424A(3)(a). But in any event, it was if anything of advantage to the applicant that the Tribunal drew his attention specifically to independent information which it had, and on which it may rely, thereby giving him an opportunity to comment or act with this knowledge. The applicant could hardly complain when the Tribunal was acting out of motives of fairness towards the applicant that it had already made up its mind in relation to this one specific issue. This complaint does not succeed.

7. The applicant also complains in the application that the Tribunal’s decision was made contrary to the definition of the Refugee Convention. The Tribunal set out its understanding of the relevant definition in unexceptional terms in its decision record (CB 344.5 to CB 346.1). I cannot see on the material before me that its decision was made “contrary” to this definition. I will deal with the applicant’s remaining complaints – legal error and a failure to properly observe the Migration Act 1958 below.

8. I have already dealt with points 1, 2, 4, 5, 6 and 7 of the applicant’s affidavit of 28 November 2005. The applicant at the hearing before me able to explain what is meant by the “communication problem between the Tribunal” and him. No evidence by way of Transcript of the hearing before the Tribunal has been put before the Court (NAOA vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241), even though at the directions hearing in this matter, reference was made to the need to put forward such evidence to support any relevant claims. Further, the applicant was assisted by his migration adviser at the hearing before the Tribunal, as indeed he had been assisted by this same migration adviser from the time of making his application for a protection visa. Relevantly, following the hearing of 24 June 2005, up until the decision of 14 September 2005, neither the applicant nor his adviser made any reference to any concerns relating to any communication problem at the Tribunal hearing. This is in circumstances where the applicant's adviser did make further written submissions, and obviously had ample opportunity to have raised any concerns in this regard. Nor was the applicant before me today able to give any specifics as to what these communication problems were.

9. In written arguments, the applicant has raised a number of issues.  In this regard, these were discussed during the hearing today and again, other than for one matter, I could see no error on the part of the Tribunal. In relation to the complaint in the “written arguments” that the Tribunal found him not to be a credible witness, the respondent indicated that it was open to the Tribunal to form the view that the applicant was not a credible witness based on the inconsistencies in his evidence regarding the claim of being wanted on an arrest warrant. The applicant had said in his statutory declaration that if he:

   “returned to Gujarat the BJP will certainly gaol me too.”

   Although the applicant had mentioned previously that the BJP will gaol him if he were to return to India, he had not mentioned the issue of the arrest warrant until at the hearing before the Tribunal.

10. The applicant also complains that the Tribunal did not observe s.424A properly. In its “s.424A letter” the Tribunal properly put the applicant on notice and indicated to the applicant a specific part of his protection visa application that was inconsistent with its later claims. However, s.424A does not oblige the Tribunal to put every inconsistency or new claim that the Tribunal regards as relevant in its decision making process, because s.424A is concerned with information and not the Tribunal’s reasoning process. Section 424A(1) provides that the Tribunal must give to the applicant information that would be the reason, or part of the reason, for affirming the decision under review. But clearly s.424A is concerned with knowledge of a fact or circumstance communicated to, or received, by the Tribunal. It is not concerned with the thought processes of the Tribunal which appears to be the applicant's real complaint before me. In the case of Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 Sackville J. said at [54]:

    “It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1).  Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”

    Therefore s.424A does not require the disclosure to an applicant of the Tribunal's view of the material before it, including its view that the material he has put forward is insufficient or implausible and that there are gaps or problems with the applicant's evidence, such as an inconsistency between versions of claims told at various stages. Such views do not constitute information in the sense referred to in s.424A(1): Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [25], NADHof 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [127] and VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82.

11. In relation to one matter, it appears the Tribunal may have made a factual error. This was in relation to the Tribunal's reference in its decision record at CB 357.9 to people with the name “Pathan” from the Pathan caste. In particular its statement that there were no “Pathans” in the list of those killed, missing or made widows or orphans by the riots.  The applicant pointed to CB 279, and noted that this was a list of missing persons during communal riots. Three names contain either the descriptor, or the name “Pathan”.  Mr. Reilly for the respondents relied on the authority of Abebe v The Commonwealth (1999) 197 CLR 510 (“Abebe”) for the proposition that there is no error of law let alone a jurisdictional error in the Tribunal making a wrong finding of fact. I accept that submission. There is nothing to show that this factual error caused the Tribunal to ask itself the wrong question. In NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 at [66], Nicholson J. states:

    “In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB[2004] HCA 32 at [38] Gummow and Hayne JJ (with whom Gleeson CJ agreed) said:

    ‘The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 67[37], 71 [52], 98 [173]; 73 ALD 1 at 9, 13, 40; 77 ALJR 1165 at 1172 [37], 1175 [52], 1194 [173]; cf at ALR 62 [9]; ALD 4; ALJR 1168 [9]). If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.’

    In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 the Full Court, Black CJ, French and Selway JJ.) recognised that:

    “… an error of fact in the course of a decision is likely to be a jurisdictional error where the fact is a jurisdictional fact.”

12. In any event, I also note that the Tribunal in its decision record, in dealing with the issue of the applicant's claimed fear of persecution on the basis he claimed to be a member of a Pathan family caste, or a particular branch of that caste, in rejecting that claim, relied on a number of bases for doing this. As the Tribunal sets out, this is because the applicant made his claim for the first time in oral evidence and because there is no independent country information located by the Tribunal or submitted by the applicant to suggest that persons from the Pathan caste are blamed for the train attack.  The reference to the Lunawada Relief Camp booklet (the victims list) was relevant to support the alternative third basis for the Tribunal's finding, which was that people with the name Pathan are being targeted by anyone for any reason. The Tribunal also rejected the applicant’s claim in this regard on the basis that he made the claim for the first time at the oral hearing (in circumstances where an important claim such as this could have been made earlier), but also that there was no evidence to suggest that persons from the Pathan caste were blamed for the attack on the train that preceded the anti-Muslim riots. The reference to “no Pathan names” on the victims list was clearly an alternative basis for rejecting the applicant’s claim to fear persecution because he was a member of a Pathan caste. On the state of the law and in reliance on Abebe and on the basis that the Tribunal had a number of separate reasons to support its finding in that regard, I can see no jurisdictional error in relation to this complaint.

13. Given that the applicant was unrepresented before me I have carefully looked at the material before me with a view to seeing whether any ground for review further to what the applicant has claimed can be discerned. I can see no such ground for review. The Tribunal identified all of the applicant's various claims, made findings that were open to it, including findings on credibility, which are of course matters of fact “par excellance”: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 per McHugh J. at [67]. The Tribunal gave reasons for these findings.

1. To the extent that it relied on independent country information this was either information that was provided by the applicant himself, and therefore excluded from any obligation pursuant to s.424A(1) by the operation of s.424A(3)(b) of the Act, or information that fell within the exception provided for in s.424A(3)(a) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92).

2. Further, where the Tribunal sought to rely on information provided by the applicant in his protection visa application, and to the extent that this may have come within the scope of the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 and the obiter comments of the Full Federal Court in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679, the Tribunal specifically wrote to the applicant pursuant to s.424A(1). On the issue of the arrest warrant it provided the applicant with an opportunity to comment on this information and in particular drew his attention to its relevance as it went to his credibility. The Tribunal, while accepting some of the applicant’s claims, did not find his claims to be plausible or coherent in key particulars. In all the circumstances, the applicant's general complaints now appear to stem understandably from his dissatisfaction with the Tribunal's decision and do not appear to rise above a request for impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

3. I cannot see that there is jurisdictional error in the Tribunal's decision, even though, as I said before, in one particular area there has been a factual error.  But nonetheless, what the applicant was required to do to succeed today in order to obtain the relief sought, was to show jurisdictional error on the part of the Tribunal and this has not been done.  I cannot see any jurisdictional error in what the Tribunal has done, and the application is therefore dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 23 January 2006