SZIRS v Minister for Immigration
[2008] FMCA 258
•7 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIRS & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 258 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – consideration of refugee claims – procedural fairness – fact finding not the function of judicial review – weight – bias – whether threats constitute serious harm under s.91R of the Act – whether conduct of questioning oppressive – country information – whether breach of s.424 of the Act. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424, 424A, 425, 426, 427, 474 |
| VBAO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 60 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Chen Xin He v Minister for Immigration & Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) Abebe v Commonwealth (1998) 197 CLR 510 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 NAOA v Minister for Immigration & Indigenous Affairs [2004] FCAFC 241 Attorney General (NSW) v Quin (1990) 170 CLR 1 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 WAEE v Minister for Immigration & Indigenous Affairs (2003) 75 ALR 630 NADH v Minister for Immigration [2004] FCAFC 328 Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 Re Minister for Immigration;Ex parte Applicant S 154/2002 (2003) 201 ALR 437 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 |
| First Applicant: | SZIRS |
| Second Applicant: | SZIRT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2072 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 6 February 2008 |
| Date of Last Submission: | 6 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 March 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms Hooper |
ORDERS
The Application filed 5 July 2007 and the Amended Application filed 16 October 2007 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4000 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2072 of 2007
| SZIRS |
First Applicant
| SZIRT |
Second 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) signed on 29 May 2007 and notified to the applicant by letter dated 30 May 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.
Background
The first applicant was born on 27 September 1964 and was aged 40 years at the time of his application for a protection visa. Both before the Tribunal and this Court, the first named applicant appeared on behalf of his wife who is included in the application. For convenience, the first named applicant will be referred to as “the applicant” in these proceedings.
The second named applicant, the wife of the applicant, was born on 1 June 1966 and was aged 39 years at the time of his application for a protection visa.
The applicants claim to be citizens of India and of Hindu religion.
Both applicants arrived in Australia on 1 August 2005 on valid Indian passports issued in their own names.
The applicants applied for Protection (Class XA) visas on 8 September 2005 on the basis that the applicant is from Gujirat in India and is an active member of the Shiv Sena political party which is a supporter of the Bharatiya Janata Party (BJP), the former ruling party. After the BJP was removed as the central government, the applicant claims that he was threatened several times by Congress Party supporters and an attempt was made to kill him. He fears that if he returns to India, he and his wife could be threatened and killed by the fanatic supporters of the Congress Party, government authorities and police, who cannot or will not protect him as they support the present ruling government (Court Book (CB) 19 – 21, 40).
On 16 November 2005 the delegate refused to grant the applicants’ protection visas on the basis that the applicants were not persons to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 19 December 2005 the applicants applied to the Tribunal, differently constituted, (the first Tribunal), for review of the delegate’s decision (CB 43–46). On 23 February 2006 the first Tribunal affirmed the delegate’s decision. The applicants sought review of the first Tribunal’s decision, and on 16 March 2007, the Federal Magistrates Court set aside its decision and remitted the matter to the Tribunal to be determined according to law.
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 24 April 2007, the Tribunal sent a letter to the applicants inviting them to appear before it on 24 May 2007 to give oral evidence and present arguments (CB 83 – 84).
Also on 24 April 2007 the Tribunal sent a letter to the applicant pursuant to s.424A of the Act inviting him and the second named applicant to comment on information that might be the reason, or part of the reason, for deciding that he is not entitled to a protection visa (CB 89-90). The applicant did not respond to the Tribunal’s s.424A letter of invitation.
The applicant’s claims (CB 108-109)
The Tribunal summarised the applicant’s claims in the protection visa application (at CB 108-109). It further summarised the applicant’s claims and oral evidence at the Tribunal hearing (CB 109-115), including that:
·the applicant is a leader of Shiv Sena
·the Congress Party is the ruling party nationally. The BJP is the ruling party at state government level
·Shiv Sena is related to the BJP
·Shiv Sena’s main motive is to protect Hinduism and the Indian culture. It does not get support from the ruling government because their aims are different. Under pressure from the Congress Party, the BJP is no longer supporting Shiv Sena
·in July 2005 the applicant was physically beaten by Congress supporters. They made threats that he had to give up his social work. He informed the police but they did nothing.
The Tribunal’s findings and reasons (CB 118-119)
The Tribunal found that the applicant was not a credible witness, that he was evasive and often did not respond to questions posed by it, and that much of his evidence was given after prompting by it.
The Tribunal did not accept that the applicant had been actively involved in Shiv Sena and its work, or that the he was a leader of Shiv Sena. It accepted that he may have been involved in some social work which may have been, or perceived to have been, affiliated with Shiv Sena, but that his level of involvement would not have brought him to the attention of the Congress supporters and rejected his claim that he was targeted by them.
It found the applicant’s description of the alleged attack on him in July 2005 to be “highly vague and despite the prompting of the Tribunal the applicant has been unable to describe the attack” and hence found him to be untruthful on this matter.
The Tribunal did not accept that the basis for the applicant’s claimed fear of physical harm arising from threats by Congress supporters is anything more than mere speculation. The Tribunal did not accept that the threats constitute a likelihood of harm and that there is a current or prospective likelihood of harm to the applicant’s life or liberty. The Tribunal was not satisfied that the threats constituted ‘serious harm’ within the meaning of s.91R of the Act.
The Tribunal found that there is no real chance that the applicant will be persecuted due to his political involvement in Shiv Sena or any other Convention reason if he returns to India now or in the reasonably foreseeable future.
The Tribunal did not accept that the applicant is genuinely committed to the work or the ideology of Shiv Sena, nor that he will resume active work for it if he returns to India now or in the reasonably foreseeable future, given his apparent lack of interest in the Indian political and social work in Australia.
For these reasons, the Tribunal found there was not a real chance the applicant would suffer serious harm for any Convention reason, if he returned to India now or in the foreseeable future.
The proceedings before this Court
The applicants filed the application in this Court on 5 July 2007 setting out 3 grounds for review of the Tribunal’s decision. On 16 October 2007 the applicant filed an amended application setting out two grounds of review.
The first applicant appeared in person before the Court on 6 February 2008 with the assistance of a Gujarati interpreter. Ms Hooper appeared for the first respondent.
Grounds of application
The grounds of the application are:
(1)The RRT make decision on 30 May 2007. The RRT handed down decision on 19 June 2007.
(2)The decision of the Refugee Review Tribunal involved an error of law being incorrect application of the law to the facts as found by the person who made the decision.
(3)I was denied procedural fairness when the Tribunal member did not believe in my submissions and oral evidence. The applicant feels that the Tribunal did not give weight to the statements made by him in particular harassment
…The member based his whole decision on one sided information prepared for denying the application for the people coming from Gujarat, India.
Ground 1 of the application
Ground 1 is merely a statement of fact and does not disclose any ground of review.
Accordingly, Ground 1 of the application must fail.
Ground 2 of the application
Without particulars, it is difficult to know what is the incorrect law which the applicant asserts has been applied to the facts. In his written submissions, the applicant submits that the Tribunal has:
…misapplied the express and implied meaning of term “well founded fear” and “refugee” from the UN Convention especially in relation to the applicant’s fear of persecution from the ruling government supporters, the police and the Government authorities and BJP supporters…
The Tribunal did not consider that the definition of refugee required that consideration be given to each separate aspect of a claim of fear of persecution made by the applicant for refugee status. It failed to assess the cumulative effects of the separate incidents related with his claim for the protection visa.
In this regard, the Tribunal sets out in its decision the four key elements of the Convention definition of ‘Refugee’ under the Relevant Law and the High Court authorities on the point (CB 107).
Its decision demonstrates that it was not satisfied on each of the second, third and fourth elements. Indeed, once it concluded on the second element that the applicant’s overall credibility could not be accepted and that the applicant did not have a genuine subjective fear of persecution, elements 3 and 4 could no longer be satisfied. The Tribunal’s finding on this second element was ultimately a matter for it in its fact finding role. It is not the proper function of this Court to engage in impermissible merits review (see below under ground 3 of the application).
Under s.91R of the Act, “persecution”, in the circumstances of this case, must involve “serious harm” which includes a threat to life or liberty, or significant physical harassment or ill-treatment: s.91R(2). In this context the Tribunal considered whether the threats received by the applicant, per se, could constitute serious harm. It was not satisfied that the basis for the applicant’s claimed fear of physical harm arising from the threats is anything more than mere speculation. The Tribunal did not accept that the threats constitute a likelihood of harm and that there is a current or prospective likelihood of harm to the applicant’s life or liberty and referred to the High Court decision in VBAO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 60 in support of the proposition. The Tribunal was not satisfied that the threats constituted ‘serious harm’ within the meaning of s.91R of the Act.
In VBAO, Gleeson CJ and Kirby J observed that in deciding whether a person has a well founded fear of persecution if returned to a particular place, s.91R provides that Art 1A(2) of the Convention does not apply in relation to persecution unless the persecution involves serious harm to the person. Section 91R (2)(a) gives as an instance of serious harm, a threat to the person’s life and liberty:
Depending upon the context, the word “threat” can mean a communication of an intention to harm, or it can mean a likelihood of harm … The serious harm in question, by hypothesis, is future harm … both the immediate and the wider context make it plain that, in s.91R(2)(a), “threat” is used in the second sense. A past communication of an intention to harm a person may, or may not, be some evidence that there is a likelihood of future harm to the person’s life and liberty, but the question for the decision-maker is whether there is such a likelihood. The decision-maker is required to consider future persecution that involves serious harm, and one instance of such serious harm is a threat to life and liberty. The decision-maker is to decide the risk of future harm, not the risk of future communications (at [1]-[3]).
And per Callinan and Heydon JJ:
We come then to s.91R(2). No one would doubt that what has occurred in the past may provide a good indication of what might, but not always necessarily will, happen in the future. Section 91R is not concerned exclusively with, or applicable to events in the past, rather than current or future circumstances … If any threat or relevant risk is not current or prospective, then there can be no well-founded fear of persecution. Neither the Convention nor s 91R of the Act can be read as if a threat of sufficient gravity which has passed, has not been renewed or revived, and is unlikely to be renewed or revived for a Convention reason, will suffice to give rise to the requisite well-founded fear. Accordingly the Federal Magistrate erred in holding that the fact that a threat for a Convention reason to life or liberty, made in the past, but neither current nor prospective, satisfied the requirements of s.91R of the Act (at [50]; and see Gummow J at [20]-[22]).
I am satisfied that the Tribunal properly applied the principles in VBAO to the circumstances of the applicant’s case. In this regard, it found that the threats claimed by the applicant were not evidence of “a likelihood of harm” to the applicant, and that by themselves, they were not sufficient to amount to serious harm.
Contrary to the applicant’s submission, I therefore detect no incorrect application of the law to the facts of the case.
Accordingly, for the reasons stated above, Ground 2 of the application is not made out.
Ground 3 of the application
“I was denied procedural fairness when the Tribunal member did not believe my submissions and oral evidence”
This subground seeks that the Court engage in merits review. It is well-settled that it is not a function of this Court to interfere in the fact finding role of the Tribunal. The Tribunal’s conclusion that the applicant was not a witness of truth was a finding of fact par excellence: (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]); Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558], NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: (Chen Xin He v Minister for Immigration & Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24]). There is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].
The requirements of procedural fairness deal with the process of decision-making, not the merits of the decision. As indicated by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 25:
what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
I therefore detect no denial of procedural fairness on this basis.
“The Tribunal’s decision is totally contrary to the quote in Professor Hathaway’s text, The Law of Refugee Status, (Butterworths, Canada, 1991) that it should not take an overly stringent approach to questions of credibility. An applicant should not be impugned simply because of vagueness or inconsistency in recounting peripheral details…”
I find no merit in this sub ground. The Tribunal’s findings were based on its lack of belief of the fundamental tenet of the applicant’s claim that he was a leader of Shiv Sena, was targeted, threatened and attacked by Congress supporters for his political involvement and social work with Shiv Sena and that police had not acted on his complaint and he had been forced to flee to Australia following persecution by them. On any view, these matters cannot be construed as “peripheral details” but rather central to his claim.
I also do not detect any “overly stringent approach” by the Tribunal to questions of credibility, as the applicant asserts. The Tribunal’s findings relating to the credibility of the applicant are matters of fact for it to determine and it is not for this Court to interfere or substitute its own findings in this regard, as indicated above.
I consider that the Tribunal’s finding that the applicant was not a witness of truth was open to it on all the evidence before it and that it performed the task required of it in accordance with law.
“the Tribunal did not give weight to the statements made by him, in particular harassment …”
In his written submissions the applicant asserts that the Tribunal made a jurisdictional error when it could not afford sufficient weight to the oral evidence at the time of hearing.”
What weight the Tribunal gives to statements made by the applicant, including as to harassment, is ultimately a factual matter for it and it is not for this Court to interfere in this regard: (NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]. As relevantly observed in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]):
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
“the member based his whole decision on one-sided information prepared for denying the application for people coming from India”
The applicant submits in his written submissions that the Tribunal “made decision to affirm the decision of the Delegate of the Minister for Immigration before hearing conducted” …and that “he was denied procedural fairness when the Tribunal member had made up mind before hearing.”
The applicant has not provided particulars to identify the precise nature of what this alleged ‘one-sided information’ or prejudgment of his claims is said to be. Further, the applicant has not placed the transcript of the Tribunal hearing before the Court.
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has simply not been done in the present case.
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias or bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56-59]. Again, this has simply not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any assertion of actual bias on its part.
I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record. Indeed far from demonstrating bias on the part of the Tribunal, the repeating of questions and the prompting by the Tribunal to try to get responsive answers to its questions at the Tribunal hearing (given the paucity of detail provided in the protection visa application and to the first Tribunal, and with no response to the s.424A letter), militate against any such conclusion of prejudgment or procedural unfairness on its part: (and see further below under ground 2 of the amended application; and under Applicant’s written submissions: Whether unfair, oppressive questioning).
Accordingly, for the reasons stated above, Ground 3 of the application is rejected.
Grounds of the amended application
The grounds of the amended application are:
(1)The purported decision of the Tribunal does not reflect that it was made in good faith and according to the rules of natural justice.
(2)The Applicants attended the hearing and gave oral evidence with the department.
The reasoning adopted by the Tribunal was misapplied when the Tribunal member stated “…I consider that relocation on return to India is a viable option for the applicant”.
In Randhawa v MIMIA, Davies J observed that the issue the country of the applicant “is a citizen is not Gujarat but India and the question was whether the applicant was… unwilling to avail himself of the protection of India”.
Again the importance of looking to the protection available from the country of nationality was emphasised by the Supreme Court of Canada in Attorney-General of Canada v Ward. La Forrest J held (citing the reasoning of Prof James C. Hathway) that the refugee scheme of “surrogate or substituted protection” is activated upon failure of national protection.
The consideration of the “internal flight principle” was therefore not palpably appreciated by the Tribunal member. I was a citizen not of Madras but of India and therefore the option of relocation was not available to me. This was a constructive failure to exercise jurisdiction in a manner constituting jurisdictional error.
The Applicant's case is that even if he returns to India he will nevertheless fear persecution because of the political problems. In Gujarat they have two political parties called BJP and Congress. Shiv Sena supported BJP, I became a member of Shiv Sena party. I was leader of Shiv Sena party. My main duties are public service as well as social work. The Congress party opposed my work. Congress parties were attacked me many times. They threatened me to join the party if not they would kill me soon. I scared to live in my place. I decided move from my country. They target me and that there is a high risk to my life if he returns to India.
Particulars:
1.The Tribunal member failed to give proper and adequate reasons which he was required by the Act to do, therefore the Tribunal failed to exercise its jurisdiction.
2.The RRT erred in failing to consider all claims and issues put forward by the applicant.
Ground 1 of the amended application
The issue of any alleged bad faith or bias on the part of the Tribunal has already been dealt with under ground 3 of the application. For the same reasons, I reject any suggestion by the applicant that the Tribunal decision was not made in good faith.
The applicant further contends that the rules of natural justice were not properly applied by the Tribunal in his case. However, the applicant is not entitled to common law procedural fairness: s.422B of the Act. The Tribunal must observe the statutory expression of natural justice in Part 7, Division 4 of the Act: (Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 at [8].
In this regard, the Tribunal invited the applicant to a hearing before it and put the determinative issues arising under the review fairly to the applicant, in particular the plausibility of his claims (CB 84 – 85), and gave him an opportunity to comment thereon in accordance with the principles in SZBEL at [33]-[48]. There is nothing disclosed on the face of the Tribunal decision record to demonstrate that the Tribunal was motivated by factors extraneous to its jurisdiction: SBBS v Minister for Immigration & Migration & Indigenous Affairs (2002) 194 ALR 749 at [43] ff; NAOA v Minister for Immigration & Indigenous Affairs [2004] FCAFC 241 at [21].
The question of the fairness of the Tribunal’s findings in relation to the applicant’s claims are matters of fact for it and the fairness of its findings should not be reviewed by the Court: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-37, (and see ground 3 of the application, above).
I am also satisfied that the applicant complied with its obligations under s.424A of the Act by inviting the applicant to comment on information upon which it might, subject to his response, make an adverse conclusion, and indicating the relevance of that information to the review. In this case, the applicant declined to comment. Otherwise, no statutory obligation arose as the Tribunal decision was based on information obtained from the applicant’s oral evidence to which s.424A(3)(b) of the Act applies. Furthermore the Tribunal was not obliged to put to the applicant its subjective thought processes, appraisals and determinations, including its disbelief of the applicant’s credibility: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18].
Accordingly, I detect no breach of s.425(1) and s.424A of the Act in this case. I am satisfied therefore that the applicant was accorded procedural fairness by the Tribunal as an “essential condition of the exercise of the decision-making power”: Abebe at [113] and in accordance with the statutory framework of the natural justice hearing rule under the Act.
Accordingly, Ground 1 of the amended application is rejected.
Ground 2 of the amended application
“The reasoning adopted by the Tribunal was misapplied by stating that relocation on return to India was a viable option for the applicant …the consideration of the “internal flight principle” was therefore not palpably appreciated by the Tribunal member. I was a citizen not of Gujarat but of India and therefore the option of relocation was not available to me”.
I reject this assertion. Firstly, the Tribunal accepted that the applicant was a citizen of India and assessed his claims against India. Secondly, the Tribunal did not make any finding in regard to relocation of the applicant in India. Whilst relocation was raised with the applicant at the Tribunal hearing, the Tribunal was not required to make a finding on the matter, given that it did not accept that the applicant had a well founded fear of persecution in his home state of Gujarat.
“The Tribunal member failed to give proper and adequate reasons …”
The Tribunal is not required to make findings on every factual contention made by the applicant in circumstances where it rejected the central factual premise on which all of his claims rested. I refer to the remarks of the Full Federal Court in WAEE v Minister for Immigration & Indigenous Affairs (2003) 75 ALR 630 at [47] on this point:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
In this case, the Tribunal rejected the applicant as a witness of truth. As relevantly observed in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.
On these bases, I consider that a fair reading of the Tribunal’s decision demonstrates that it made clear and well reasoned findings on each of the applicant’s claims in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations.
“The Tribunal failed to consider all the claims and issues put forward by the applicant”
This matter is largely dealt with in the sub ground above. I consider that the Tribunal carefully considered each of the applicant’s claims as is demonstrated by its summary of his claims in the protection visa application (CB 108-109), and its summary of his oral evidence at the Tribunal hearing (CB 109-115).
The Tribunal noted that the applicant stated that he would be providing more details later to the delegate, but that no further information or documents were provided by him in this regard. The Tribunal also noted that the applicant did not provide any written material to the first Tribunal.
Furthermore, the Tribunal expressly drew the paucity of his claims to the applicant’s attention in the s.424A letter:
When you applied for a Protection visa in September 2005, you provided only general and limited information about your activities in India, your political involvement and the persecution you claimed to have suffered. You have provided very limited details with respect to any of your claims. You stated that you will provide more details later. You have not provided any further information or details since making the application.
This information is relevant because it may cause the Tribunal to question your credibility and the authenticity of your claims (CB 89).
As stated above, the applicant provided no response to the Tribunal.
As has already been stated under ground 3 of the application, merely because the applicant does not accept the findings of fact made by the Tribunal on all the evidence before it, does not amount to an error of law, let alone jurisdictional error.
A fair reading of the Tribunal’s decision discloses that the Tribunal understood the claims made by the applicant; explored those claims with him at the hearing; gave to the applicant in writing the concerns and information it had that may be part of the decision for affirming the decision under review; and made findings based on the evidence and material before it.
As previously stated, I consider that those findings of fact were open to the Tribunal on the evidence and material before it, that it provided proper and adequate reasons for its decision, and that it therefore performed the task required of it in accordance with law.
Accordingly, Ground 2 of the amended application is rejected.
Applicant’s written submissions
Some of the matters raised in the applicant’s written submissions are directly relevant to, and have been addressed under the substantive grounds above, or raise general assertions, (including that the Tribunal misunderstood or confused the facts or made wrong findings of fact, or that it generally denied him natural justice or procedural fairness), which again have been addressed in the substantive grounds. The applicant’s written submissions raise the further following matters:
Whether unfair, oppressive, questioning
The applicant submits that the Tribunal:
repeated the same questions … the Tribunal conducted the whole proceeding as a Police interrogation the questions were designed and asked from the applicant to discredit the whole credibility of oral evidence … asked several times same questions The Tribunal member insisted again and again and asked same questions in a different manner … the Tribunal member always asked irrelevant questions and intentionally designed the questions to make him untruthful witness.
I reject any suggestion that the Tribunal deliberately used the hearing to conduct a quasi-police interrogation or that this was indeed the effect of the manner of questioning adopted by it.
The applicant has not provided the transcript of the Tribunal evidence at the hearing before the Court. Furthermore, there is nothing disclosed on the face of the Tribunal decision record to provide any support for such an allegation.
I further reject any suggestion that any repeating of questions was designed in any way to catch out, manipulate, entrap, destabilise or confuse the applicant. Indeed the Tribunal expressly drew to the applicant’s attention in the s.424A letter the “general and limited information about [his] activities in India”, and that he “provided very limited details with respect to any of [his] claims” in the protection visa application (CB 89). The Tribunal noted that the applicant stated that he would be providing more details later to the delegate but that no further information or documents were forthcoming in that regard. The Tribunal also noted that the applicant did not provide any written material to the first Tribunal. The applicant further provided no response to the s.424A letter.
In these circumstances, it can hardly be expected that the Tribunal would not seek to legitimately probe and to press the applicant at the hearing for more specificity concerning his claims, as is in fact evident from a fair reading of the Tribunal’s summary of the interchange between it and the applicant under Claims and Evidence (CB 109-115).
However, as observed by the Tribunal in its Findings and Reasons (CB118):
The applicant was evasive and often did not respond to the questions posed by the Tribunal. Much of the applicant’s evidence was given after prompting by the Tribunal …
The Tribunal found the applicant’s description of the attack on him in July 2005 to be highly vague and despite the prompting of the Tribunal the applicant has been unable to describe the attack.
The Tribunal is entitled to control the direction of the hearing, including by asking questions in order to satisfy itself of the merits of the application: NADH v Minister for Immigration [2004] FCAFC 328 at [124]-[125]. Also, the Tribunal does not have to accept uncritically any claims made by the applicant: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451, 124 ALR 265 at 278; Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at 76.
Repeated questioning, especially in the particular context of this case, even with some degree of persistence does not in itself amount to procedural unfairness. In general, some repetition of questions on matters raised by the applicant, which is not unduly repetitive or oppressive and which otherwise does not amount to undue harassment or intimidation or where the applicant is not overborne, does not constitute procedural unfairness or bad faith on the part of the Tribunal. As relevantly observed by the High Court in Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [30]-[31]:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view (and see also Re Minister for Immigration; Ex parte Applicant S 154/2002 (2003) 201 ALR 437 at [57]).
I am satisfied that there is nothing disclosed on the face of the Tribunal decision record concerning the manner and form of the questions asked of the applicant in this case, from which a fair-minded lay observer or a properly informed lay person might say that the applicant was thereby intimidated or overborne and from which an inference might otherwise have been available that the Tribunal acted unfairly or in bad faith.
Whether misuse of country information
The applicant submits that the Tribunal “misunderstood and undermined the gravity of the fear from the Congress Party” … “fail[ed] to examine all other sources of available country information…”, and “did not understand that political situation in Gujarat not same as it was ten years before … is not aware of the current situation of Gujarat and made decision based on information provided by the respondent to refuse the applicant’s application for the protection visa.”
The Tribunal referred to country information at CB 115-117. There is no obligation, however, on the Tribunal to consult country information and it is for the applicant to provide the Tribunal with the material he wishes it to consider.
The Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84]). 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: NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]).
What weight the Tribunal gave to any country information, is ultimately a factual matter for it: (NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]). As observed by the Full Federal Court in NAHI at [14], in the context of considering country information:
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.
In any event, the Tribunal’s findings in this case did not turn on its assessment of the country information, rather on its assessment of the applicant’s credibility. I therefore detect no jurisdictional error on this basis.
Whether breach of s.424 of the Act
The applicant submits that the Tribunal “failed to follow the provisions and Regulations of Section 424 of the Migration Act and made a jurisdictional error.”
Section 424(1) of the Act provides that:
Tribunal may seek additional information
(1) 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.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or
(b) if the person is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
The applicant has not provided particulars of how he says the Tribunal has fallen into jurisdictional error under s.424. To the extent that the applicant is asserting that the Tribunal had a positive or proactive duty to investigate the applicant’s claims, the applicant has not indicated precisely what inquiries he says the Tribunal has been deficient in embarking upon in regard to his alleged persecution in India.
Whilst the Tribunal has the power under s.424 to “get any information that it considers relevant” and to “invite a person to give additional information”, these powers are permissive not prescriptive. As recognised by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]:
If his Honour meant that the Tribunal should have sought information from other sources available to it under s.424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].
Whilst the Tribunal may choose to exercise this information-gathering powers (as well as its other investigative and information-gathering powers under s.426 and s.427 of the Act), it has no obligation to do so. It is well settled that a decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73].
Indeed, an applicant will have to supply the relevant facts of his or her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. 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 further 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.
Having properly considered the evidence before it, the Tribunal in this case was thus under no obligation to conduct any further investigation or inquiry, or to invite any person to give additional information, before concluding that the applicant did not have a well-founded fear for a Convention reason. I therefore detect no jurisdictional error on this basis.
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 before this Court is dismissed.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 7 March 2008
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