SZJLL v Minister for Immigration

[2008] FMCA 1119

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLL v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1119

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal made a material finding in the absence of evidence, failed to consider a material claim or failed to take into account a relevant consideration – whether apprehended bias.

Migration Act 1958 (Cth), ss.36, 57, 91R, 424A, 430

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Attorney General for the Sate of New South Wales v Quin (1991) 170 CLR 1
Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321
Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747
Craig v The State of South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24
Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51
QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
SBBS v Minister for Immigration and Multicultural Affairs (2002) 194 ALR 749
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402
Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152
SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659
SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824
SZFDV v Minister for Immigration and Citizenship (2007) 81 ALJR 1679
SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661
SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
SZLSW v Minister for Immigration & Anor [2008] FMCA 498
Tickner and Others v Chapman and Others (1995) 57 FCR 451
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965

Applicant: SZJLL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP  

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2806 of 2006

Judgment of: Barnes FM

Hearing date: 9 May 2008

Delivered at: Sydney

Delivered on: 11 August 2008

REPRESENTATION

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the Respondent: Mr M Cleary

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That a writ of certiorari issue directed to the second respondent, quashing the decision of the Refugee Review Tribunal made on 28 August 2006 in matter 060529850.

2. That a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 18 May 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2806 of 2006

SZJLL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 7 September 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of Nepal, arrived in Australia in December 2005 and applied for a protection visa on 27 January 2006.

   
   

   The application was refused and he sought review by the Tribunal.

   
   

   He attended a Tribunal hearing.

3. In a statement provided in connection with his protection visa application the applicant claimed that he had run a guesthouse in Myagdi in Nepal. He claimed that as a result of internal problems and terrorism in Nepal after 2000 “a number of foreign tourists to visit Nepal have substantially fallen.  I could not run the Guest House as good as before”. 

4. The applicant claimed to be a convert from Hinduism to evangelical Christianity. He claimed that while running the guesthouse he had the opportunity to learn about the Christian religion from foreign tourists, and that an American tourist had given him a bible and that he had tried to read and learn about Christianity “day by day”. He claimed that it had been nearly two years since he converted to Christianity, that he was committed to being an evangelical Christian and that he feared persecution for reason of his religion by operation of a Nepalese law banning proselytising.

5. The applicant also claimed to fear harm or ostracism from Hindu extremists as a result of his conversion to Christianity and that the authorities would not or could not protect him. He claimed that he could not freely practise his religion in Nepal and that he was ostracised by his parents, relatives, neighbours, the authorities and the Maoists because of his conversion to Christianity. He claimed that if forced to return to Nepal he would be exposed to ostracism and persecution due to his religion.

6. On 6 April 2006 the applicant's then solicitor/migration agent made a further submission to the Department claiming that the applicant had converted from Hinduism to Christianity “two years ago while he was in Nepal”, that as an evangelical Christian he was “committed to sharing his faith with and proselytising to non-Christians”, but that he feared that he would be seriously harmed or killed for sharing his faith with non-Christians.

7. It was submitted that the applicant had a well-founded fear of persecution in Nepal for three reasons: first religion, on the basis he was an evangelical Christian who was committed to sharing his faith and the gospel with non-Christians; second, on the basis of imputed political opinion described as follows: “As a Christian the applicant would be perceived by Maoists as belonging to a foreign NGO (see detailed submission below)”; and third, as a member of a particular social group being “persons who have returned from a Western Country”.

8. The solicitor/migration agent submitted that given the human rights situation in Nepal there was no meaningful option of obtaining effective protection from the authorities and enclosed a large number of documents relating to Christians in Nepal and India and the situation in Nepal.

9. The submission referred to aspects of country information (such as the US Department of State Reports on Nepal) in relation to the situation in Nepal. Reference was made to evidence of an increase in persecution of Christians in Nepal, “especially converts who are actively involved in sharing their faith”. The adviser claimed that the Maoists in Nepal were opposed to “Churches, Christianity and persons who share the Christian faith” and referred to a Tribunal decision in which a member found that an applicant “who was also an evangelical Christian, had a well founded fear of persecution from the Maoists in Nepal because of his imputed political opinion, as he would be seen by the Maoists as belonging to a foreign NGO”.

10. It was claimed that the practice of the applicant’s religion specifically included proselytizing, which under Nepalese law could result in imprisonment and that internal relocation was not an option as it ignored the “reality of Nepal” which was said to be a small country in which people did not generally “migrate around the country” so that “the presence of an outsider would immediately create notice”.

    
    

    The dominant role played by caste was said to be particularly significant. It was also said that given the state of political chaos and police corruption in Nepal the applicant could not obtain effective protection.  

11. The applicant attended an interview with the Departmental delegate in May 2006. The only evidence before the Court of what occurred in that interview is the account in the delegate’s reasons for decision and the description in the Tribunal decision.

12. In his reasons for decision the delegate recorded that in the interview the applicant had stated that he first became interested in Christianity “one year ago” after being given a bible by a guest and having this translated into Nepali. There was no church in his village, although he had gone to church twice elsewhere in Nepal. He did not join a Christian organisation in Nepal and was not able to name any Christian organisations operating there. The applicant told the delegate that he had evangelised in Nepal “only in his own village, but not actively”.

    
    

    He had told people about Jesus but no one had been converted to Christianity because of this evangelism.  A rebel army group, known as the ‘Shiva Sena’ had warned him to stop spreading Christianity or he would be gaoled. He had been baptised in Australia in April 2006. 

13. The delegate recorded the applicant's responses to questions about the bible and Christianity (which for the most part he was unable to answer).

14. When asked if he feared persecution for reasons other than his Christianity, the applicant said he feared Maoists because in the past he had to pay them money or risk having his hotel business shut down and that his hotel had closed down a year earlier because of the Maoists.

    
    

    He said he had not realised he should have put this claim in his original statement.

15. A letter from Senior Pastor Boyd from the Jesus Family Centre in Cabramatta dated 9 May 2006 was submitted in support of the applicant's claims. Pastor Boyd claimed that the applicant had become an active member of the Jesus Family Centre, having recently come to Australia from Nepal where:  “he became a Christian and was an active Christian in Nepal.  He was involved in sharing the gospel message in Myagdi Nepal.”

16. Pastor Boyd claimed that because of the lack of a church in his home district the applicant had had limited opportunity to “grow in depth in the Christian faith” but that it was clear to him that the applicant was “very bold to share what he has experienced and learnt”, that he was sharing his faith with friends and acquaintances and that he had brought to the church several young men who were not yet Christians. Pastor Boyd noted: “that the amount of knowledge a person has about Christianity has little bearing on their effectiveness in reaching the lost.  The real issue is a person's willingness to share what they have experienced and learnt.  [The applicant] is one that is involved in this activity.”

17. The delegate found that the applicant was unable to answer basic questions about the bible and the resurrection of Christ and that given his claims of having been a Christian for over a year, who had tried to read and learn about Christianity and who was committed to Christian evangelism, his lack of basic knowledge about his chosen religion was “completely implausible”. He found that the applicant’s statements at the interview led to the conclusion that he had no commitment to Christianity.

18. The delegate was of the view that the applicant’s baptism and membership of the Jesus Family Centre in Australia had been engaged in entirely for the reason of strengthening his claim to be a refugee and that it should be disregarded under s.91R(3) of the Migration Act 1958 (Cth).

19. The delegate gave little weight to the letter from Pastor Boyd, given that the applicant had not been able to demonstrate a commitment to Christianity and that the letter did not explain how a person such as the applicant was able to “bring people into the Christian religion without appearing to know any of the major themes or messages usually associated with Christianity”. The delegate was of the opinion that the applicant had attempted to portray himself as a Christian evangelist to take advantage of the application of the Nepalese law outlawing proselytising.

20. The delegate also addressed the applicant’s claim at the interview to fear the Maoists who had shut down his hotel a year ago forcing his wife and children to live with his sister in Kathmandu. The delegate found his explanation for his failure to include this claim in his protection visa application was not plausible and that it contradicted his claim that he and his wife had been ostracised by his family for converting to Christianity. The delegate was not of the opinion the applicant had been persecuted by the Maoists in Nepal or feared the Maoists.  He concluded that the applicant's claims were “fictional” and created solely with the aim of being granted a protection visa.

The Tribunal review

1. The applicant sought review by the Tribunal. On 3 July 2006 the Tribunal wrote to the applicant under s.424A of the Migration Act 1958 (Cth) inviting him to comment on information which consisted of almost verbatim extracts from the delegate's decision. This information was said to be relevant because the Tribunal “could form an opinion that the applicant's protection claims are fictional and have been created solely with the aim of being granted a protection visa in Australia, and that the applicant is not in fact a Christian evangelist.  The Tribunal might therefore find that the applicant would not be persecuted for reason of religion in either Nepal or India”. 

2. In response to the s.424A letter the applicant suggested that no weight should be placed on the record of interview with the delegate as it seemed to be inaccurate for a number of reasons, including interpretational errors. He claimed to be a sincere Christian and that his proselytising activities were as much a part of his religious practice as prayer, worship and bible study, although he was still dependent on other Christians to share the gospel with non-Christians. He took issue with the delegate’s finding that his conversion to Christianity was a recent invention and submitted that his lack of basic knowledge of Christianity was not a reason to assume that he was not an evangelical Christian. He submitted that the knowledge expected of him should not be equated to that of a person from a Christian family background.

   
   

   He explained that he was from a poor, rural, non-Christian background with a low level of education and that he depended on information from other people, so he could not be expected to know the historical details of Jesus Christ's life or of other religions. He also claimed that the questions used to test his knowledge of Christianity and the birthplace of Jesus Christ were not fairly put and that his answers were not treated fairly.

3. In a letter dated 12 July 2006 Pastor Boyd provided further information. While stating that he could not comment on whether the applicant was an evangelistic Christian before he came to Australia because he had not known him before he started to attend the Australian church, Pastor Boyd commented on some of the “assumptions and conclusions” drawn by the delegate based on the applicant's lack of knowledge and the suggestion that without this knowledge he was unable to evangelise.

4. The pastor acknowledged that the applicant lacked knowledge, but stated that if a person with no mentor or teacher who was reading the bible in a foreign language, having only twice gone to a church, knew more than the applicant did he would be suspicious of his claim. Pastor Boyd suggested that the applicant’s knowledge level was consistent with the information he had provided. The pastor also suggested that the decision-maker's expectation that a person claiming to be a Christian would have knowledge of the story of the resurrection of Jesus Christ was unrealistic given what a “monumental” task it was for a person with little English to read the bible in English from the beginning.

5. Pastor Boyd also submitted that the concept of the New and Old Testament (which the applicant had been unable to explain in the interview) would have no meaning to the applicant who may not even have read as far as the New Testament. In relation to his lack of knowledge of the names of people in the bible it was suggested that it would be difficult for him to understand such names as he had read them in English and not Nepalese and would not know their pronunciation. The applicant’s lack of knowledge of the gospels, the miracles and the New Testament stories was said to be consistent with a person reading the bible with no guidance.  

6. Nonetheless Pastor Boyd submitted that the applicant could be considered an evangelistic Christian despite his limited knowledge. Pastor Boyd suggested that the delegate's conclusion that the applicant’s lack of knowledge was completely implausible given his claim to be an evangelist was a reflection of the limited knowledge and understanding the primary decision-maker had of the evangelism of Christianity in Nepal. 

7. The pastor provided information about the religious knowledge of the “common people” in Nepal and other South East Asian countries, assessed the applicant's grasp of basic Christian values as expressed in response to the delegate’s questions at interview and stated that from his “experience of travelling and ministering in Nepal” he would conclude that the applicant's message of Christian values was “quite profound and radical” given that he was talking to people from the Hindu caste system which was said to produce a fatalistic attitude towards other people and which involved a completely different concept of a holy man.

8. Pastor Boyd also stated that in his experience the level of biblical understanding in the Nepalese church was very low. He reiterated that the amount of knowledge a person had about Christianity had little bearing on their effectiveness in “reaching the lost”. He offered to provide further information and provided contact details.

9. The pastor provided another letter dated 26 July 2006 as he was unable to attend the Tribunal hearing in which he stated that the applicant had been attending the Jesus Family Centre and was committed to the church, attending both Sunday services and the Nepalese fellowship when possible although, "His work commitments do not allow him to come every time".  The pastor stated that the applicant had been sharing his new faith with “her (sic) friends and acquaintances in the Nepalese community”, although his limited English “means that he is limited in what he understands of the Sunday sermon” conducted in English. 

10. The applicant attended the Tribunal hearing. After the hearing the Tribunal sent the applicant a further s.424A letter referring to the fact that in oral evidence the applicant had told the Tribunal that he worked “housekeeping” in Australia, but that he did not work on Sunday and that when the information from Pastor Boyd was put to him, he had stated that he had not attended Church because he had been sick for three or four weeks, but that he had not told Pastor Boyd who had probably “guessed” that his absence was due to work commitments.

11. The s.424A letter also put to the applicant for comment that in his oral evidence he claimed he had not tried to convert anyone in Australia, but that he was "thinking to convert other people” although he had not started because when he arrived he did not have enough money, he had to borrow money and so he did not “have enough time”.

1. The Tribunal also put to the applicant that when it had asked him what Pastor Boyd meant by stating, "he is sharing his new faith with her (sic) friends and acquaintances in the Nepalese community" he had replied that he had converted to Christianity, believed in God and according to God was to have friends in the community and learn from them.

2. This information was said to be relevant because it might be taken by the Tribunal to show that Pastor Boyd's letter could not be relied on in evaluating the applicant's claims and the Tribunal could find that the applicant's alleged conversion to evangelising Christianity had been engaged in solely for the reason of strengthening his claim to be a refugee and that s.91R(3) of the Migration Act would be applicable.

3. In his response to this letter of 18 August 2006 the applicant explained that at the Tribunal hearing he had said that he was sick on two Sundays (not for three or four weeks) and that he may have been misinterpreted and that Pastor Boyd would have referred to work “commitments" because he may have heard a rumour from other Nepalese members in the community many of whom work, even on Sundays.

4. The applicant claimed that as he was new to the country and from a non-Christian background with a low level of education and dependent on information from other Nepalese Christians, it would be unreasonable for him to try and convert anyone in Australia while he was learning the overview of his religion and also that in order to live he had to find a job and that he had concentrated on employment. He claimed that his lack of basic knowledge of Christianity did not frustrate him in spreading the word of Jesus Christ despite the risk of harm in Nepal. 

5. He also claimed:

   Maoists demanded unaffordable money simply because I was a Christian, and made me sell my hotel business to pay them so I had to sell it in order to be unharmed by the Maoists.  I came to Kathmandu with my wife and two children for security reason (sic) even though we did not feel safe even in Kathmandu.

6. The applicant's adviser provided a further statement from Pastor Boyd dated 25 August 2006, clarifying that he had referred to the applicant’s non-attendance at church due to "work commitments" because he had noticed his absence for a couple of weeks and had been told by one of the Nepalese that the applicant had to work. Pastor Boyd also explained that he had noticed that the applicant had brought some Nepalese friends to the service one Sunday and he considered that to be part of sharing one's faith.

The Tribunal decision

1. In its reasons for decision under the heading “claims and evidence”, the Tribunal set out in full each of the s.424A letters, the responses from the applicant and the letters from Pastor Boyd.

2. In a brief account of the hearing (which the hearing record indicates took 45 minutes) the Tribunal indicated that it asked the applicant about the questions posed by the delegate and why the applicant might have said that Christ was born in the US. The applicant responded that he had not understood the question properly and thought he had been asked where his bible had come from. The Tribunal recorded that the applicant still did not know of Moses or Adam or Eve, but said that Christ died “because of our sins on the cross”. 

3. When asked if he had helped to convert anyone in Nepal the applicant had responded that he unsuccessfully tried to convert a neighbour.  He was recorded as stating that:

   … he left Nepal because he had problems living in his village where he used to have a hotel.  He said when the Maoists demanded "donations" and he refused, they warned him and he moved to Kathmandu after selling his house in the village.  He said his family was still in Kathmandu but he had come to Australia. 

4. The Tribunal recorded that it asked the applicant about his work in Australia and put to him the information from Pastor Boyd and discussed his reasons for recent non-attendance at church.  It also asked him why he had not started trying to convert people in Australia and what Pastor Boyd meant by stating he was sharing his new faith with friends and acquaintances in the Nepalese community.

5. The Tribunal stated that it indicated to the applicant that in evaluating his evidence it might come to the conclusion that his “conversion to evangelising Christianity” had been engaged in solely for the reason of strengthening his claim to be a refugee. 

6. In its findings and reasons the Tribunal set out independent country information about the current political situation in Nepal. The Tribunal findings in relation to the applicant's claims are expressed relatively briefly, as follows:

   The applicant claims to fear harm for reason of his religion as a Christian evangelist. 

   The Tribunal is unconvinced for the reasons stated below, of the genuineness of the applicant's claim of having converted to Christianity and of having now become a Christian evangelist.  The Tribunal finds that the applicant has associated with an evangelical Christian group in Australia entirely for the reason of strengthening his claim to be a refugee within the meaning of the Refugee Convention and that, pursuant to s.91R(3), the Tribunal disregards this conduct.

   In assessing all the evidence before it, the Tribunal finds the applicant has shown minimal knowledge of Christianity and that he has not shown himself to be engaged in the kind of dedication to, and knowledge of, Christianity that one might expect from someone who has become an evangelical Christian.  In the absence of corroborative evidence, the Tribunal does not accept that sickness has prevented his attendance at Sunday services, the type of conduct that one would expect to be fundamental to an evangelical Christian.  Despite his final submission, the Tribunal also found Pastor Boyd to be unconvincing in his submissions.  The Tribunal finds on the basis of his submissions that Pastor Boyd would appear to have minimal contact with the applicant.  Further, Pastor Boyd's use of the pronoun "her" when referring to the applicant appears to the Tribunal to be indicative of his use of a pro forma letter written in support of applicants in general and to be additional evidence of a less than close relationship with the applicant.

   The Tribunal also considered the applicant's claims with regard to why he relocated to Kathmandu.  The Tribunal notes that in his primary application, he stated that his guest house became less successful due to the fact that the Maoist uprising had led to a decline in the tourist industry.  However, in his last submission to the Tribunal, he claims that the Maoists "demanded unaffordable money simply because I was a Christian, and made me sell my hotel business to pay them so I had to sell it in order to be unharmed by the Maoists.  I came to Kathmandu with my wife and two children for security reason (sic) though we did not feel safe, even in Kathmandu."  In the light of the differences in the applicant's evidence over time, the Tribunal is not satisfied that he was ever threatened by Maoists for reason of his religion or for any other reason.

   The Tribunal notes that an advisor has, earlier, also claimed that the applicant fears harm for reason of his imputed political opinion through being perceived by Maoists as belonging to a foreign NGO, and of being a member of a particular social group "persons who have returned from a western country."  The Tribunal has no evidence before it that the applicant belongs to a foreign NGO that is being targeted by Maoists, nor that people who return from a Western country are perceived as belonging to a particular social group nor that they are so targetted (sic) for harm.

   The Tribunal notes that the applicant lived in Katmandu with his family prior to coming to Australia and does not claim he suffered any harm while living there.  The Tribunal finds that the applicant can return to Kathmandu and live there safely as he has before.

   In light of these findings, the Tribunal finds the applicant's fear of serious harm for reason of religion, political opinion, or for any other Convention reason, not to be well-founded.

This application

1. The applicant sought review by application filed in this Court on 29 September 2006. He now relies on a further amended application filed on 10 April 2008.

2. There are four grounds in the further amended application filed on 10 April 2008. Ground four and particular three of ground one were not pressed.

“No evidence” issue

1. The first ground in the further amended application is that the Tribunal made a material finding in the absence of evidence. The applicant relies on two particulars to this ground which I have considered separately (as addressed in submissions) and in combination.

2. The first particular to this ground is as follows:

   The RRT found that there were differences in the Applicant's evidence why he had relocated to Kathmandu between

   a) what accompanied his application lodged with DIAC on 27 January 2006 and

   b) his submission to the RRT dated 21 August 2006, when there was no probative evidence to support that finding.

3. Relevantly, in its findings and reasons the Tribunal had stated: 

   The Tribunal also considered the applicant's claims with regard to why he relocated to Kathmandu.  The Tribunal notes that in his primary application, he stated that his guest house became less successful due to the fact that the Maoist uprising had led to a decline in the tourist industry.  However, in his last submission to the Tribunal, he claims that the Maoists "demanded unaffordable money simply because I was a Christian, and made me sell my hotel business to pay them so I had to sell it in order to be unharmed by the Maoists.  I came to Kathmandu with my wife and two children for security reason (sic) though we did not feel safe, even in Kathmandu."  In the light of the differences in the applicant's evidence over time, the Tribunal is not satisfied that he was ever threatened by Maoists for reason of his religion or for any other reason.

4. The applicant pointed out that in the statement accompanying his protection visa application he had merely stated that after the Maoists became active the number of tourists declined and that he could not run his guesthouse "as good as before". This was said to be in contrast to the time before terrorism started when he had earned a good profit.

   
   

   He had provided no information with his protection visa application as to why he moved to Kathmandu. Hence there was said to be no probative evidence to support the Tribunal’s finding about differences in his evidence about “why he relocated” to Kathmandu before leaving Nepal.

5. It was acknowledged that in his statement dated 18 August 2006 provided to the Tribunal on 21 August 2006 the applicant had claimed that he risked being harmed or killed by the Maoists and Hindu extremists for spreading the word of Jesus Christ in Nepal and also: 

   Maoists demanded unaffordable money simply because I was a Christian, and made me sell my hotel business to pay them so I had to sell it in order to be unharmed by the Maoists.  I came to Kathmandu with my wife and two children for security reasons though we did not feel safe even in Kathmandu.

6. However it was submitted that it could not be inferred from the statement accompanying the protection visa application that the applicant had relocated to Kathmandu for a reason other than what was put in his statement of 21 August 2006 to the Tribunal. There was said to be no evidence to support the finding that there was a difference between the two statements in relation to internal relocation to Kathmandu. The first statement simply noted as a matter of fact that the applicant’s business had dropped off, while the other referred to Maoist extortion and a move to Kathmandu for security reasons. It was contended that there was nothing inconsistent between these two statements so that the Tribunal made a finding of fact or drew an inference without any probative evidence. This was said to amount to an error going to jurisdiction as there was no evidence at all to support such a finding (see Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 and QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918, per Collier J at [22] and cases discussed therein).

7. The first respondent submitted that the Tribunal's finding that it was not satisfied that the applicant was ever threatened by the Maoists by reason of his religion or for any other reason was a factual finding based on inconsistency in his evidence, in particular as to why he relocated to Kathmandu, that was open to it on the material before it for the reasons it gave (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559), bearing in mind that credibility findings are matters for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405). It was contended the applicant’s initial claim that he had moved because his guesthouse became less successful as a consequence of the Maoists and his subsequent statement that the Maoists had demanded money because he was a Christian and made him sell his business were plainly inconsistent so it could not be said that there was no evidence to support the finding of inconsistency.

8. Moreover the first respondent submitted that insofar it was argued that there was no evidence at all to support the Tribunal's finding in relation to differences in the applicant's claims with regard to why he relocated to Kathmandu, it was relevant to have regard not only to the statement attached to the protection visa application but also to the evidence of the interview conducted by the delegate, recorded in the delegate's decision as follows:

   At interview the applicant also stated that he feared Maoists in Nepal and that the Maoists had shut down his hotel one year ago, forcing his wife and children to now be living in Kathmandu with the applicant's sister.

9. It was submitted that given that there was no record of the applicant claiming at interview that the Maoists demanded money or did so because he was a Christian or that the Maoists made him sell his hotel to pay them, it was open to the Tribunal to find that there were differences in the applicant’s evidence over time. 

10. It was conceded that, as the solicitor for the applicant pointed out, there was no reference at all in the statement attached to the protection visa application in relation to the applicant's move to Kathmandu. Rather this came up at interview. However it was contended for the first respondent that when the Tribunal made its decision on the credit of the applicant it had regard not only to the protection visa application and the submission to the Tribunal in isolation, but more generally compared the evidence that was before the delegate in connection with the primary application and the evidence the applicant gave to the Tribunal. It was said to be clear from the generality of the Tribunal’s description of the applicant's claims in connection with his primary visa application that it had regard to all the evidence given to the delegate, including the applicant’s oral evidence at the interview. This was consistent with the fact that the Tribunal referred to differences in the applicant's evidence “over time” and stated that it had considered the applicant's claims “with regard to why he relocated to Kathmandu”.

11. It was also said to be consistent with the Tribunal’s statement in its reasons for decision that it had before it the Departmental file relating to the applicant and had had regard to the material referred to in the delegate's decision as well as other material available to it from a range of sources. It was submitted that reading the Tribunal decision as a whole there was evidence upon which its adverse credibility finding could be made and hence it could not be said that there was a jurisdictional error in the sense contended for by the applicant.

Reasoning

1. While the Tribunal referred specifically to the two items of evidence in issue, it did so in the context of considering the applicant’s “claims” about why he relocated. It noted the claims in the protection visa application and the last submission to the Tribunal, although its finding was a more generally expressed finding that “In the light of the differences in the applicant’s evidence over time”, it was “not satisfied that he was ever threatened by Maoists for reason of his religion or for any other reason”.  Clearly the Tribunal had regard to the absence of any claim in the protection visa application about threats or demands addressed to the applicant from the Maoists, in contrast to the later claim.

2. As the Full Court of the Federal Court stated in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [19] – [20]:

   … If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357 ….

   On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a “jurisdictional fact”, there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. It is for the tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a “bright line”, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

3. The Tribunal did not misstate the evidence of the applicant on this issue. Nor did it make a material finding in the absence of evidence in the manner contended in the first particular to ground one. In his protection visa application of 27 January 2006 the applicant did not claim that the Maoists demanded money from him and made him sell his hotel or that he came to Kathmandu for security reasons. Indeed at that time he made no claim that he had been threatened in the past by the Maoists. Rather, his original claim was that he feared harm or ostracism by Hindu extremists, that there was an absence of state protection and that he was “ostracised by … parents, relatives, neighbours, the authorities and the Maoists because of [his] conversion to Christianity” (emphasis added).  Nor was any claim of past harm from the Maoists (as distinct from a risk of future harm) made in the subsequent submission of his adviser of 6 April 2005. Relocation was addressed in general terms, but there was no reference to the applicant relocating to Kathmandu. 

4. It is the case that at the subsequent interview on 9 May 2006 when the applicant was asked if he feared persecution for any reason “other than his Christianity”, he “said that he feared Maoists because in the past he has had to pay them money or risk having his hotel business shut down.  He said that his hotel had actually been closed down a year ago because of the Maoists.  He was asked why he hadn’t written this in his original statement to which he replied that he didn’t realize he had to put it in”.  The delegate also recorded that the applicant claimed this forced “his wife and children to now be living in Kathmandu with [his] sister”.  It is notable that the applicant did not claim at this time that the Maoists threatened him because of his religion. 

5. In any event, notwithstanding that the applicant did refer to past demands from Maoists in the interview with the delegate, it cannot be said that there was no probative evidence to support the Tribunal’s finding as to differences in the applicant’s evidence in his protection visa application of 27 January 2006 and his submission to the Tribunal of 21 August 2006 or, indeed, its finding that there were differences in the applicant’s evidence over time in the context of rejecting his claim that he was ever threatened by the Maoists for reason of his religion or for any other reason. Such findings were open to the Tribunal on the material before it. 

1. As Greenwood J stated in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [25] a strict view has been taken of the “no evidence” ground of challenge to a factual finding on the basis of illogical or irrational reasoning which involves “the need to demonstrate no material before the decision-maker which tends logically to show the existence or non-existence of facts or to show the likelihood or not of some future event occurring, relevant to the state of satisfaction to be formed. If there is some evidence (perhaps slight) to support a finding, a Court exercising judicial review ought not to interfere with the decision-maker’s assessment of the material” (and see Quin at 35 – 36 per Brennan J). In this case, there is some evidence to support a finding that there were differences in the applicant’s evidence over time, particularly given the absence of any reference to a threat or demand by the Maoists in the protection visa application. No jurisdictional error is established on the basis contended for in the first particular to ground one in the further amended application.

“Foreign NGO” issue

1. The second particular to the first ground that the Tribunal made a material finding in the absence of evidence is that:

   The RRT found that there was no evidence that the Applicant ‘belongs to a foreign NGO that is being targeted by Maoists’, relating to the Applicant's claim that he had a well-founded fear of persecution for reason of political opinion (being imputed political opinion) when there was no evidence that the Applicant had ever claimed that he did belong to such an NGO. 

2. In the written submission to the Department from the applicant’s adviser one of three bases on which he was said to have a well-founded fear of persecution in Nepal was described as follows:

   Imputed political Opinion: As a Christian the applicant would be perceived by Maoists as belonging to a foreign NGO. 

3. It was submitted that the applicant's claim was always based on imputed political opinion as a perceived member of an NGO and not on actual membership of an NGO. However it was contended that the Tribunal had addressed a different claim in its findings that it had “no evidence before it that the applicant belongs to a foreign NGO that is being targetted (sic) by Maoists”. This was said to be relevant to the Tribunal’s decision, insofar as it formed an adverse view of the applicant's general credibility and as part of that process rejected a claim that he had ever belonged to a foreign NGO.

4. The applicant submitted that this Tribunal finding essentially implied a fabrication of the claim that he had been targeted by Maoists because he belonged to a foreign NGO and also that in fact foreign NGO's were not targeted. It was said that this finding cast a shadow over the applicant’s credibility in relation to a claim that the Tribunal thought he had made and in relation to the substance of that claim.

5. It was submitted that as the Tribunal had to make findings in relation to the applicant's conduct in Australia and the credibility of his claims in that respect, its findings about claims that he never raised were relevant to the manner in which it assessed his credibility generally.

   
   

   The rejection of the claim that he never made was said to go to the Tribunal’s overall approach in the way it judged his credibility so that ultimately it could be seen to have an influence (whether subconsciously or consciously) on the Tribunal’s determination under s.91R(3). The solicitor for the applicant conceded that this was a relatively novel approach to the “no evidence” ground of jurisdictional error.

6. Counsel for the first respondent contended that, contrary to the submissions of the applicant, the Tribunal’s finding in relation to imputed political opinion did not somehow feed through and affect its credibility finding.  Rather the Tribunal's credibility finding was said to be based upon its rejection of the applicant's claim of having converted to Christianity because the Tribunal was unconvinced about the genuineness of that claim and its findings in relation to differences in the applicant's claims about why he relocated to Kathmandu. 

7. It was submitted that other claims, including this one, were dealt with at the conclusion of the Tribunal decision (prior to the finding on relocation which was said to have been made for completeness) and that the Tribunal was simply making an observation that there was no evidence about these matters. It was submitted that the Tribunal did not find that it did not believe the applicant about these claims or that it did not believe the evidence in relation to these issues. Rather it made a finding that there was no evidence that the applicant belonged to a foreign NGO targeted by Maoists. Such a finding was said to be open to the Tribunal on the material presented to it by the applicant and in response to the adviser’s submission. It was contended that no jurisdictional error was established on this basis, as the Tribunal was correct in stating that there was no evidence before it that the applicant belonged to a foreign NGO.

Reasoning

1. Immediately before the finding in issue, the Tribunal correctly described the adviser’s claim that the applicant “fears harm for reason of his imputed political opinion through being perceived by Maoists as belonging to a foreign NGO”.  This claim was put by the adviser on the basis that “as a Christian” the applicant would be perceived by Maoists as belonging to a foreign NGO, albeit it was said to be a claim based on the Convention ground of imputed political opinion.  The Tribunal’s observation that the applicant belonged to a foreign NGO targeted by Maoists was factually correct, although had the Tribunal purported to deal with the claim of imputed political opinion merely by finding that there was no evidence that the applicant belonged to a foreign NGO targeted by Maoists that would be a failure to address the claim as put. However it is apparent from the whole of the Tribunal reasons for decision that the Tribunal addressed the claim of fear of Maoists having regard to the fact that the applicant did not in fact belong to an NGO targeted by Maoists and the fact that he had not claimed to have suffered any harm while living in Kathmandu and could safely live there. On this basis it found the applicant’s fear of serious harm for reasons of “religion, political opinion” or for any other Convention reason was not well founded.

2. The fact that the Tribunal dealt with the imputed political opinion claim without reference to its basis in the applicant’s claimed Christianity is consistent with the fact that it either misunderstood or overlooked the applicant’s claim to have become a Christian evangelist in Nepal, as discussed further below. However, even if the Tribunal misunderstood or failed to consider this aspect of the applicant’s claims or erred in its consideration of relocation as discussed below, this does not establish that the Tribunal’s factual statement that it had “no evidence before it that the applicant belongs to a foreign NGO that is being targetted (sic) by Maoists” was itself a material finding made in the absence of evidence such as to give rise to a jurisdictional error of the nature considered in QAAA at [22]. This aspect of ground one is not made out.

Whether the Tribunal failed to consider and make findings on a material claim made by the applicant

1. The second ground in the further amended application is that the Tribunal failed to consider and make findings on a material claim made by the applicant.  There are three particulars:

   (i)  The RRT failed to consider and to make findings on the Applicant's claim that because he was perceived by Maoists as belonging to a foreign NGO he had a well-founded fear of persecution for reason of political opinion (being imputed political opinion).

   (ii)  The RRT failed to consider and to make findings on the Applicant's claim that internal relocation in Nepal was not a viable option for him.

   (iii)  The RRT failed to consider and to make findings on the Applicant's claim that he converted to Christianity in Nepal.

2. In relation to the first particular, it was said to be clear that the applicant had through his adviser claimed to the Department that he feared being persecuted for reasons of imputed political opinion and that the Tribunal had failed to address this clearly articulated claim, finding instead that there was no evidence that the applicant belonged to a foreign NGO that was targeted by Maoists. It was submitted that this finding did not address the claim put to the Tribunal as it was not sufficient for the Tribunal to look at whether a person who actually belonged to a foreign NGO would be targeted by the Maoists or not.  It was submitted that the Tribunal also had to consider whether a person who did not belong to a foreign NGO but would be perceived as belonging to a foreign NGO would have a well-founded fear of persecution. 

3. The solicitor for the applicant submitted that the Tribunal had to determine this issue from the perspective of a perceived member of the foreign NGO who was in fact not a member and consider what protection, if any, would be available for such a person. (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [27] and [89]).

4. Counsel for the first respondent contended first that the Tribunal directly addressed the applicant's claim of imputed political opinion and found there was no evidence to support it. It was observed that the only time this claim was raised was in the adviser’s written submission of 6 April 2006 to the Department. The Tribunal's finding was said to be open to it, as it did not misunderstand an integer of the applicant's claim but rather dealt directly with it in its reasons (cf Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [39]).

5. In oral submissions counsel for the first respondent submitted that this claim (and the claim based on a particular social group) was not pressed in the Tribunal review where the focus was on the claim of conversion to Christianity, but that for completeness the Tribunal had dealt with such claims. This was said to indicate that it understood what the claims were, albeit it noted that it had no evidence before it concerning those claims. 

Reasoning

1. As set out above, the claim in question was not a claim that the applicant belonged to a foreign NGO but rather that he would be perceived by the Maoists as belonging to a targeted foreign NGO.

   
   

   This was based on his claim to have become an evangelical Christian, as was made clear in the adviser’s reference (in the context of discussing Maoists targeting Churches and Christians) to a Tribunal decision in which the Tribunal found that an applicant who was an “evangelical Christian” had a well-founded fear of persecution from the Maoists in Nepal because of his imputed political opinion “as he would be seen by the Maoists as belonging to a foreign NGO”.

2. The factual statement in the Tribunal reasons for decision that there was no evidence of membership of a targeted foreign NGO did not address or dispose of the claim as put in the basis of imputed political opinion, although it clarified that there was no evidence of actual membership of a foreign NGO targeted by Maoists.

3. I am not persuaded by the first respondent’s suggestion that this claim was not pressed and hence did not have to be addressed. The fact that the Tribunal focussed its questions at hearing (so far as is apparent from its brief description of the hearing) and its s.424A letters on other issues does not establish that this claim was “not pressed” on review. Moreover it is contrary to the fact that the Tribunal dealt with the claim about membership of a particular social group (which was put by the adviser in the same submission to the Department) in finding that there was no evidence “that people who return from a Western country are perceived as belonging to a particular social group nor that they are so targetted (sic) for harm”.

4. The Tribunal did not address the claim of “imputed” political opinion. The finding about the absence of past threats by Maoists did not deal with the claim that the applicant had a well-founded fear of future harm as he would be seen to the Maoists as belonging to a foreign NGO. Insofar as it might be said that this claim could be addressed by appropriate relocation findings, as discussed below, the Tribunal fell into error in making such finding. Moreover as the Tribunal misunderstood or failed to consider the nature of the applicant’s claim to have become an evangelical Christian in Nepal it cannot be said that the claim based on imputed political opinion was addressed by a finding at a higher level of generality not affected by jurisdictional error.

5. Hence the Tribunal fell into jurisdictional error in the manner contended for in the first particular to ground two.

Relocation issue

1. The second particular to ground two is that the Tribunal failed to consider and make findings on the applicant's claim that internal relocation in Nepal was not a viable option for him.

2. It was contended for the applicant that the Tribunal did not undertake the enquiry required by law as to what might reasonably be expected of the applicant with respect to his relocation (see SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659 per Gummow, Hayne and Crennan JJ at [32], Callinan J at [105] and Kirby J at [94]) and failed to consider and to make findings on the applicant's claim made by his adviser to the Department that internal relocation in Nepal was not a viable option for him.

3. The Tribunal found that the applicant “can return to Kathmandu and live there safely as he had before” and that in light of its findings the applicant’s fear of serious harm for a Convention reason was not well founded. However it was submitted for the applicant that the evidence was that the applicant did not come from Kathmandu, where he lived temporarily before coming to Australia. There was said to be no consideration of whether internal relocation was reasonable or of the obstacles to relocation raised in the submissions of the adviser to the Department: that relocation ignored the reality of Nepal, which was a geographically relatively small country in which people did not generally migrate except on marriage or when sent to different places for employment; that the presence of an outsider would immediately be noticed; that the dominant role played by caste was particularly significant; and that the applicant should not be expected to suppress the exercise of his inalienable human rights.

4. Counsel for the first respondent contended that it was clear that after rejecting the applicant's claims the Tribunal made a separate and independent finding that the applicant could return to Kathmandu and live there safely. It was not disputed that this constituted a relocation finding. It was submitted that while there was no express reference in the Tribunal reasons to notions such as the “reasonableness” and “practicability” of relocation, it was nonetheless apparent that the Tribunal had considered the issue of relocation properly and in accordance with the authorities (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659 and SZFDV v Minister for Immigration and Citizenship (2007) 81 ALJR 1679). This was said to be demonstrated by the fact the Tribunal had considered and found that the applicant could live in Kathmandu safely, based upon the fact that he and his family had been able to do so before he came to Australia.

5. In the alternative, it was submitted for the first respondent that if the Tribunal had erred in not considering the obstacles to relocation referred to in the adviser’s submission in a manner constituting jurisdictional error (which was not admitted), there was nonetheless an alternative independent basis for the decision, being the Tribunal's rejection of each of the applicant's Convention-based claims (see VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [25]).

Reasoning

1. In addressing the issue of relocation the Tribunal was under an obligation to consider whether it was reasonable in the sense of practicable for the applicant to relocate and in that context to address the practical realities facing the applicant should he seek to relocate, as considered in Randhawa and SZATV.

2. While the Tribunal addressed the fact that the applicant had lived in Kathmandu with his family before coming to Australia and the absence of any claim that he had suffered harm while there, it did not refer to the obstacles to relocation referred to in the applicant’s claims and in the adviser’s submission to the Department.

3. In Randhawa Black CJ (with whom Whitlam J agreed) referred (at 442 – 443) to the need to ask not merely whether an applicant could relocate but also whether “he could reasonably be expected to do so.” His Honour also stated that “the practical realities facing a person who claims to be a refugee must be carefully considered” (at 442).  As Branson J stated in NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22] “the Tribunal was required to give consideration to how, in a practical sense” the applicant “could reasonably be expected to relocate”.  

4. In SZATV the High Court made the point that in determining whether it was “reasonable” in the sense of “practicable” for an applicant to “relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution” (at [23] per Gummow, Hayne and Crennan JJ), what was “"reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality” (ibid. at [24]). 

5. In his protection visa application the applicant claimed he could not freely practise his religion in Nepal. He claimed to fear he would be killed by Hindu fundamentalists and the Maoists. He claimed he would be persecuted by operation of the Nepalese law banning proselytising. He claimed to fear harm or ostracism by Hindu extremists and that the authorities would not or could not protect him. He also claimed he was ostracised by parents, relatives, neighbours, the authorities and the Maoists because of his conversion to Christianity.

6. The adviser’s submission to the Department expressly addressed obstacles to relocation as set out above, claiming that it was not a “viable option” for the applicant, referring to the size of the country, the fact that people do not generally migrate internally, that the presence of an outsider would be noticed and the relevance of the dominant role played by caste. The adviser also submitted that the applicant could not reasonably be expected to suppress the exercise of his human rights to avoid being subject to persecution.

7. It is relevant to have regard to what the applicant’s evidence was in relation to his practice of Christianity in Nepal and his move to Kathmandu. He told the delegate that he had only evangelised in his own village in Nepal, and that a rebel army group the “Shiva Sena” (i.e. not the Maoists) wanted him to stop spreading Christianity or he would be gaoled. He said his hotel had closed down a year before the April 2006 interview, because of the Maoists “forcing his wife and children to now be living in Kathmandu with [his] sister” (emphasis added). 

8. The Tribunal recorded that when the Maoists demanded “donations” and the applicant refused “they warned him and he moved to Kathmandu after selling his house in the village” (emphasis added). There is no reference in the Tribunal decision as to when this move occurred or as to how long the applicant lived in Kathmandu. He said his family was still in Kathmandu. There is no evidence that the Tribunal otherwise discussed the issue of relocation in the Tribunal hearing.

1. In a post-hearing written submission in response to a s.424A letter about Pastor Boyd’s evidence, the applicant claimed the Maoists demanded money “simply” because he was a Christian and made him sell his hotel business to pay them, that he sold it so that he would not be harmed by them and “I came to Kathmandu with my wife and two children for security reason though we did not feel safe even in Kathmandu”.  He also claimed that he could not stop spreading the word of Jesus Christ “wherever I move on” and that he feared being harmed both by the Maoists and by Hindu extremists. 

2. These issues were not addressed by the Tribunal in reaching its conclusion that “the applicant can return to Kathmandu and live there safely as he had before”. The only practical reality referred to by the Tribunal was the fact that the applicant had lived in Kathmandu with his family before coming to Australia and did not claim to have suffered harm there. There was no consideration of the time the applicant spent in Kathmandu or of the fact that the applicant claimed not to feel safe there.  Nor was there any consideration of the fact that he did not claim to have evangelised there. 

3. The Tribunal did not address the specific obstacles to relocation raised by the adviser, which cannot be said to be subsumed in the finding about Kathmandu. The Tribunal was obliged to consider such suggested obstacles to relocation. 

4. Indeed, insofar as the effect of the Tribunal consideration of relocation may be taken to involve an expectation that the applicant would not engage in evangelising activities in Kathmandu that would, as in SZATV at [32], “sidestep” consideration of what might reasonably be expected of the applicant with respect to his relocation in Nepal given that, notwithstanding the s.91R(3) finding about conduct in Australia, the applicant had also claimed to have evangelised in Nepal.

5. As the Tribunal did not consider the reasonableness or practicability of relocation by reference to the obstacles raised by the applicant it made an error of law in misapplying or misconceiving the elements of the test for determining whether the applicant’s fear of persecution was “well-founded” in a Convention sense such that he was a person to whom Australia owed protection obligations under the Refugees Convention within s.36 of the Migration Act (see SZATV at [32]).

6. It is necessary to consider whether there is an alternative independent basis for the decision not affected by any such error. Counsel for the first respondent submitted that there was an alternative independent basis for the decision, namely the Tribunal’s rejection of each of the applicant’s Convention-based claims. However, as discussed further below, as well as failing to address the claim based on imputed political opinion the Tribunal failed to consider and make findings on the applicant’s claim to have converted from Hinduism to evangelical Christianity in Nepal. 

Christianity in Nepal issue

1. The third particular to ground two relates to the applicant's claim that he converted to Christianity in Nepal.  The applicant submitted that the Tribunal failed to consider and make findings on this claim. 

2. In the findings and reasons part of its decision the Tribunal stated:

   The Tribunal is unconvinced, for the reasons stated below, of the genuineness of the applicant's claim of having converted to Christianity and of having now become a Christian evangelist.  The Tribunal finds that the applicant has associated with an evangelical Christian group in Australia entirely for the reason of strengthening his claim to be a refugee within the meaning of the Refugee Convention and that, pursuant to s.91R(3), the Tribunal disregards this conduct.

3. However in the statement accompanying his protection visa application the applicant had stated he converted to Christianity "nearly two years beforehand", which was clearly a claim that he converted in 2004 when he was in Nepal. The applicant submitted that he consistently maintained the claim that he converted in Nepal. He also claimed to have evangelised in his village in Nepal. Hence it was said to be clear on the material before the Tribunal that the applicant had claimed to have been a convert to Christianity while in Nepal and also to have been a proselytising Christian in Nepal (not simply to have become a Christian evangelist in Australia). 

4. It was submitted that the Tribunal had failed to consider and make findings on the applicant’s claim that he converted to Christianity in Nepal. It was said that the Tribunal either did not address this claim or was under a misconception that the applicant’s claim was a claim that he converted in Australia and found that his conduct in Australia should be disregarded under s.91R(3) of the Act.

5. It was pointed out that in its s.424A letter the Tribunal referred to a possible finding that the applicant's “alleged conversion to evangelising Christianity has been engaged in solely for strengthening his claim to be a refugee and that s.91R(3) would be applicable” (emphasis added).  In its reasons for decision it referred to the applicant having “converted to Christianity and … having now become a Christian evangelist” (emphasis added).  This was said to indicate that the Tribunal was under a misconception that the applicant claimed to have converted in Australia and engaged in proselytising activities only in Australia, notwithstanding that the applicant's claim was that he became a Christian in Nepal and indeed that he had tried (albeit without success) to convert people in his village. The applicant contended that the Tribunal failed to consider this claim in a meaningful way because it misconstrued the claim itself. (See Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244). This was said to be of importance, because had the Tribunal looked at the applicant's evidence that he had converted in Nepal, it may not have so readily drawn the conclusion that his activities in Australia were basically contrived to enhance his chances of staying in Australia. However the Tribunal did not consider whether the applicant’s activities in Australia were a natural consequence of his activities in Nepal, because it had either formed an incorrect view of his claims or failed to address his claims about conversion and proselytising in Nepal.

6. It was also submitted that had the Tribunal addressed the applicant’s claim to have converted to Christianity in Nepal in a meaningful way, this would have required consideration of the evidence of Pastor Boyd in relation to the level of knowledge of Christianity to be expected of a new convert in Nepal. While the Tribunal had rejected Pastor Boyd's evidence in relation to the applicant personally, such rejection did not address the pastor’s evidence in relation to the situation for Christian converts and evangelists in Nepal which was said to be based on his first-hand experience as a religious leader, not on his knowledge of the applicant.

7. Counsel for the first respondent contended that there was nothing in the reasons for decision to suggest that the Tribunal had limited its consideration of the applicant's claims based on religion to events in Australia. 

8. It was submitted that the Tribunal addressed the claim that the applicant was an evangelical Christian, but was unconvinced as to the genuineness of his claimed conversion from Hinduism to Christianity in Nepal. It was said that on a fair reading of the Tribunal's reasons it was clear the Tribunal did not limit itself to considering this claim in the manner alleged by the applicant. It was apparent from the reasons for decision that in the hearing the Tribunal had questioned the applicant about whether he had converted anyone in Nepal. The s.424A letter of 3 July 2006 set out the delegate's account of the applicant's claim that he converted to Christianity from Hinduism some two years prior to the protection visa application and both the s.424A letter and Tribunal decision set out the letter from Pastor Boyd which referred to the applicant’s claim to have become an active Christian in Nepal. This was said to support the contention that the Tribunal did not misunderstand the applicant’s claim about conversion to Christianity in Nepal.

9. It was also submitted that nothing in the findings and reasons part of the decision dealing with the applicant's Christianity suggested positively that the Tribunal misunderstood the claim in the manner suggested by the applicant. The Tribunal did not positively make a finding that the applicant claimed to have converted to Christianity in Australia and while it referred to s.91R(3) it was submitted that this obviously related only to the applicant’s conduct in Australia. It was contended that this was a separate finding to the Tribunal's finding that it was unconvinced about the applicant’s other claims. Hence it was said that if one looked at the way the Tribunal dealt with the applicant's evidence and what preceded the decision, it was open to the Court find that the Tribunal did understand and address the claim relating to the applicant's conversion to Christianity whilst in Nepal.

Reasoning

1. It is well established that if a Tribunal makes a decision without having considered all the claims of the applicant it “fail[s] to complete the exercise of jurisdiction embarked on” (as Allsop J stated in Htun at [42]). In this case the applicant clearly claimed to have converted to Christianity while in Nepal. In the statement accompanying his protection visa application (made on 27 January 2006 within a month of his arrival in Australia) he claimed he had converted to Christianity nearly two years earlier (that is, while he was in Nepal). He then explained that he had converted “from Hinduism to evangelical Christianity and [was] committed to being an evangelical Christian”.  This claim was confirmed in the first supporting letter from Pastor Boyd dated 9 May 2006 which referred not only to the applicant having become an active member of the Jesus Family Centre in Australia but also to the fact that he became a Christian in Nepal and was an active Christian “involved in sharing the gospel message in Myagdi Nepal”.

2. While the applicant told the Departmental delegate that he had been baptised in Australia, he also claimed that he had converted to Christianity in Nepal and had evangelised (albeit unsuccessfully) in Nepal.

3. The Tribunal account of the Tribunal hearing is brief, but the Tribunal recorded that it asked the applicant if he had helped anyone convert in Nepal and he said he had tried with a neighbour but was not successful. It is not apparent that the applicant abandoned or altered his claim to have become an evangelical Christian in Nepal.

4. However the Tribunal also recorded that it indicated to the applicant in the hearing that in evaluating the evidence it “might come to the conclusion that the applicant’s conversion to evangelising Christianity has been engaged in solely for the reason of strengthening his claim to be a refugee” (emphasis added), and in its subsequent s.424A letter of 7 August 2006 the Tribunal referred to aspects of the evidence about the applicant’s activities in Australia and stated that this information might be taken to show not only that Pastor Boyd’s letter could not be relied on in evaluating the applicant’s claims but also that “the Tribunal could find that the applicant’s alleged conversion to evangelising Christianity had been engaged in solely for the reason of strengthening his claim to be a refugee and that s.91R(3) would be applicable” (emphasis added). 

5. The suggestion that the Tribunal misunderstood or overlooked the applicant’s claims about when he became a Christian is consistent with the s.424A letter from which it appears that the Tribunal considered that there was a claim that the applicant converted to evangelising Christianity in Australia (and hence that the “conversion” could be disregarded under s.91R(3)). However it is necessary to consider the actual findings and reasons.

6. Section 91R(3) relates only to “conduct engaged in by the person in Australia” (although once such conduct in Australia is disregarded it must be disregarded for all purposes in determining whether an applicant has a well-founded fear of persecution: see SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 at [24]). If the Tribunal purported to disregard a conversion to Christianity in Nepal as conduct engaged in solely to strengthen a claim to be a refugee pursuant to s.91R(3), that in itself would constitute jurisdictional error. Neither party suggested that this was the approach taken by the Tribunal.

7. While the Tribunal decision must be read fairly and as a whole and without an eye too keenly attuned to the perception of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 and Htun at [36]) it is clear that while the applicant claimed to have converted to Christianity in Nepal the Tribunal did not make express findings on this claim.

8. In its findings and reasons the Tribunal recognised (correctly) that the applicant claimed to fear harm for reason of his religion as a Christian evangelist. However it then stated that “for the reasons stated below” it was unconvinced of the genuineness of the “claim of having converted to Christianity and of having now become a Christian evangelist” (emphasis added) and that his association with an evangelical Christian group in Australia must be disregarded under s.91R(3). Its finding about the “genuineness” of the applicant’s “conversion”, when read in light of the subsequent reasons for that finding can be seen to be a finding in relation to the genuineness of his conduct in Australia.

   
   

   The Tribunal stated that the applicant had associated with an evangelical Christian group in Australia entirely for the reason of strengthening his claim to be a refugee and disregarded this conduct under s.91R(3) which is as follows:

   For the purposes of the application of this Act and the regulations to a particular person:

   (a)  in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b)  the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

9. The reasons for the s.91R(3) finding are to be found in what followed in the findings and reasons part of the decision. The Tribunal stated that the applicant had “shown” minimal knowledge of Christianity and had not “shown himself” to have the kind of dedication to and knowledge of Christianity “one might expect from someone who has become an evangelical Christian”. In considering the applicant’s conduct it addressed only his association with and attendance at church in Australia. This is consistent with the fact that it was addressing why the applicant had not satisfied it that he had engaged in such conduct in Australia otherwise than for the purpose of strengthening his claim to be a refugee within s.91R(3).

10. This part of the findings and reasons must have provided the basis for the Tribunal to disregard the applicant’s conduct in Australia under s.91R(3). However, notwithstanding that the decision must be read fairly and as a whole as discussed in Wu Shan Liang, it is not apparent that these findings also addressed the applicant’s claim of having become an evangelical Christian in Nepal. The Tribunal did not address the material put to it about the knowledge to be expected of a person who had converted to evangelical Christianity in Nepal using an English bible, as distinct from what might be expected of a person who became an evangelical Christian in Australia or the applicant’s claims about his past activities in Nepal.

11. While the Tribunal stated that it found Pastor Boyd to be “unconvincing” in his submissions, this was on the basis that he appeared to have “minimal contact” and “a less than close relationship” with the applicant and provided what appeared to be a “pro-forma” letter. Such findings addressed Pastor Boyd’s submissions about the applicant’s activities in Australia. Indeed the pastor acknowledged in his letter of 25 August 2008 that his ability to communicate directly with the applicant was limited because of his low level of English. The Tribunal’s reference to Pastor Boyd’s use of the pronoun “her” is a reference to one incorrect reference to the applicant’s gender in the letter of 26 July 2006. These findings do not address Pastor Boyd’s other submissions (in three other letters) about matters such as activities and knowledge of Christians in Nepal which, as the pastor stated, were based on his experiences in Nepal, not on his knowledge of the applicant. I note in passing that, as set out above, such other letters (and the balance of the letter of 26 July 2008) correctly identified the applicant’s gender and related specifically to aspects of his claims that he became an evangelical Christian in Nepal.

12. Moreover, the conclusion that the Tribunal failed to address the applicant’s claim about having become a Christian in Nepal is consistent with the manner in which the Tribunal then addressed the applicant’s claim to fear the Maoists. The Tribunal rejected the applicant’s claim that he had experienced past threats from the Maoists for reason of his religion or for any other reason, but did not do so on the basis that he was not a Christian in Nepal. Rather it was not satisfied that he was ever threatened by Maoists because of differences in his evidence with regard to why he relocated to Kathmandu.

13. The Tribunal did not expressly address the claim the applicant had become an evangelical Christian in Nepal.  Read in light of the reasons for the finding that the Tribunal was “unconvinced” about the genuineness of his claim of having converted to Christianity and of having now become a Christian evangelist it is not apparent that its lack of conviction about the “genuineness” of his claim of conversion extended to his claims about having become a Christian evangelist in Nepal.  The finding that it was unconvinced that he had “now become” a Christian evangelist clearly related to what the Tribunal regarded as a claim about conduct in Australia.  

14. Insofar as it might be said that the Tribunal may have left open the possibility that the applicant was a Christian in Nepal, on the basis that he could avoid harm by relocation, it is relevant that the applicant had also claimed to fear Hindu extremists and that he would be persecuted by operation of the Nepalese law banning proselytising – based on his evangelical activities. Neither of these issues was addressed by the Tribunal.

15. As the applicant submitted, the Tribunal’s failure to consider this aspect of the applicant’s claims had potential relevance to its finding about his activities in Australia and amounted to a jurisdictional error as considered in Htun. Hence the Tribunal decision should be set aside and the matter remitted to the Tribunal for reconsideration according to law.

16. These conclusions mean that no issue arises as to whether, if the Tribunal’s findings and reasons did address the applicant’s claim to have converted to evangelical Christianity in Nepal, the Tribunal fell into error in the manner considered in the recent decision of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105, insofar as it could then be said to have had regard to the applicant’s conduct in Australia (in particular the extent of his attendance at Sunday services) in determining whether or not he had a well-founded fear of persecution, notwithstanding that such conduct was disregarded under s.91R(3).

Relevant considerations issues

1. The third ground is that the Tribunal failed to take into account a relevant consideration.  The particulars are as follows: 

   (i)   The RRT failed to take into account:

   a) the explanations given by the Applicant in relation to his level of knowledge of Christianity; and

   b) the submissions from his legal representatives in relation to the Applicant's level of knowledge of Christianity; and

   c) the explanations given by Pastor Boyd in relation to the level of religious knowledge of ‘common people’ in Nepal, the difficulty in understanding the bible (especially in English if one is not a native English speaker), the low level of knowledge of Christianity in the Nepalese church generally, and that a high level of understanding is not required before one can evangelise.

2. The Tribunal found that the applicant had shown “minimal knowledge of Christianity” and had “not shown himself to be engaged in the kind of dedication to, and knowledge of, Christianity that one might expect from someone who has become an Evangelical Christian”. It was contended that in making this finding the Tribunal failed to take into account not only the statements and explanations given by the applicant in relation to his level of knowledge of Christianity, but also those parts of the letters from Pastor Boyd in relation to the relatively low-level of knowledge amongst Christians in Nepal. For example, the Tribunal did not address Pastor Boyd's evidence that "the amount of knowledge a person has about Christianity has little bearing on their effectiveness in reaching the lost" or the claim that in a Nepalese Hindu context the applicant's message would be profound and radical. 

3. It was acknowledged that the Tribunal did not have to mention every item of evidence or set out its reasons for rejecting a piece of evidence before it, but it was contended that where there was no mention of evidence it was open to a court to find that it was not taken into consideration (see Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747 at [37] – [41]).

4. While the Tribunal rejected Pastor Boyd’s submissions, finding that he was “unconvincing”, this finding was based on his minimal contact with the applicant and hence said to relate to the applicant’s activities in Australia and the pastor’s personal knowledge of the applicant. This was said to be apparent from the Tribunal’s reliance on the fact that a “pro forma” letter used the word "her" instead of "him". However it was submitted that the Tribunal erred in that it did not deal with the quite separate material points put by Pastor Boyd based on his first hand experience as a Christian leader of the level of knowledge required to be a proselytiser and how much knowledge a person would have as a Nepalese Christian.

5. Reliance was placed on the fact that as Callinan J stated in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [163], “…the Tribunal must exercise the jurisdiction of reviewing the Minister's decision: that is to say, it must make a decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction” (also see Gaudron and Gummow JJ at [42].)

6. Reference was made to NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 in which the Full Court of the Federal Court considered whether a delegate had “had regard”  to information in a letter.  Madgwick J stated at [212]: “…A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’.  In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter – yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.”  

7. Similar reasoning was said to be applicable in this case in relation to the Tribunal's treatment of the submission from the applicant's advisers and the pastor's explanations in relation to the applicant's level of knowledge of Christianity and his difficulty in understanding the bible as a Nepalese evangelical Christian.  

8. Counsel for the first respondent submitted that Bhardwaj was not relevant as it related to the issue of whether the Tribunal had committed jurisdictional error by holding two hearings on the one review application. There was no issue in this case about a second hearing being held or promised and not held by the Tribunal.  It was also suggested that Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 was not relevant as that case concerned the operation of s.430 of the Act and that section was not in issue in the present case and that the reference to NAGT was misplaced because that case considered statutory obligations on the Minister’s delegate to have regard to certain material under s.57 of the Migration Act.

9. More generally, counsel for the first respondent contended that the Tribunal did have regard to the matters in evidence referred to by the applicant in its written reasons, so that it could not be said that it remained silent about such matters. It was submitted that given the Tribunal references to the evidence in support of the claim it could be said that it applied its mind fairly and properly to the evidence and ultimately rejected it, including rejecting the submissions and evidence of the applicant, his adviser and Pastor Boyd. The factual finding that Pastor Boyd's evidence was unconvincing was said to be a finding open to the Tribunal and not open to review in this Court (see SZHZT v Minister for Immigration and Citizenship [2007] FCA 1661 at [10] per Allsop J).

10. While Yusuf concerned the operation of s.430 of the Migration Act, as McHugh, Gummow and Hayne JJ stated at [73] the Tribunal has a “well-known duty to take account of all relevant considerations.”  However, as their Honours continued “The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider.” 

11. The applicant’s contentions in relation to ground three highlight the impact of the Tribunal’s failure to consider the applicant’s claim that he converted to evangelical Christianity in Nepal. However of itself the Tribunal’s failure to grapple with specific items of evidence does not establish jurisdictional error.

12. As the first respondent submitted, authorities in relation to s.57 of the Act are not in point. The Tribunal was not obliged in its findings and reasons to address specifically all the evidence in support of the applicant’s claims, provided it considered the integers of the applicant’s claims.

13. In this instance while the Tribunal’s failure to make findings on the particular matters raised under ground three does not establish a failure to have regard to relevant considerations (Craig v The State of South Australia (1995) 184 CLR 163) or integers of the applicant’s claims, it is consistent with and demonstrative of the fact that the Tribunal failed to take into account and make findings on the applicant’s claim to have converted to evangelical Christianity in Nepal which does constitute a jurisdictional error as discussed above (see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 and Yusuf at [69]).

Apprehended bias

1. The last ground relied on in the further amended application is that there was apprehended bias in relation to the Tribunal. The particulars are that:

   There is apprehended bias in relation to the RRT because the RRT had a preconceived view of:

   (a) the level of knowledge of Christianity that a person must have in order to be believed by it as being an evangelical Christian; and

   (b) the conduct that a person must display in order to be believed by it as being an evangelical Christian. 

2. It was contended that a lay person properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question in the manner considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27] – [33] per Gleeson CJ, Gaudron and Gummow JJ (and also see NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14] per Allsop J with whom Moore and Tamberlin JJ agreed).

3. The Tribunal found that the applicant had shown minimal knowledge of Christianity and had not shown himself to be engaged in the kind of dedication to and knowledge of Christianity that one might expect from someone who had become an evangelical Christian.  It was contended that the Tribunal appeared to have “set the bar” based on its own personal views of what the level of dedication and knowledge should be for a person who was an evangelical Christian.  It was contended that there was no other evidence on which it relied to set the bar at the height it did (which was higher than the level of knowledge and activity described, for example, by Pastor Boyd in his assessment in the context of Nepal generally and in relation to the applicant personally).  It was submitted that the Tribunal had approached this issue from the perspective of knowledge in the Australian context rather than by assessing the applicant's level of knowledge and conduct from the perspective of a person in Nepal.

4. Counsel for the first respondent submitted that apprehended bias was not demonstrated, bearing in mind that allegations of bias are serious allegations that must not be lightly made (Attorney General (NSW) v Quin (1991) 70 CLR 1 at [36] per Brennan J) and that the Tribunal is entitled to assess evidence and attach such weight to it as it considers appropriate. It was pointed out that bias was an allegation that must be firmly and distinctly made and clearly proven (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 530 per Geeson CJ and Gummow J) and that it was rare for bias to be established based only on the reasons for decision of a decision-maker (SBBS v Minister for Immigration and Multicultural Affairs (2002) 194 ALR 749).

5. It was contended for the first respondent that there was nothing in the Tribunal's consideration of the evidence of the applicant's alleged Christianity to suggest that the Tribunal member closed his mind to any evidence.  It was submitted that the Tribunal member had regard to the applicant's evidence, the applicant's agent's submissions and the submissions of Pastor Boyd on this issue, albeit it ultimately rejected those submissions.  It was said that the adverse findings by themselves did not prove that the Tribunal had closed its mind to the evidence before it (SZLSW v Minister for Immigration & Anor [2008] FMCA 498 at [47] per Smith FM).

6. As expressed, the particulars to this ground appear to merge the concepts of actual and apprehended bias, insofar as it is contended that the Tribunal in fact had a preconceived view.  However actual bias is not pleaded.  In any event, apprehended bias from the perspective of the appropriately informed lay observer is not made out. In that respect I note that no reliance is placed on what occurred in the Tribunal hearing (see SBBS). As to the reasons for decision, in the part of the reasons relied on under this ground the Tribunal was addressing the applicant’s conduct in Australia and whether the applicant had satisfied it that such conduct was engaged in otherwise than for the purposes of strengthening his claim to be a refugee within s.91R(3). Hence there was a discussion of what the applicant had “shown” in relation to his knowledge of and dedication to Christianity. The Tribunal found that he had “shown” minimal knowledge of Christianity and dedication. It was not satisfied on the evidence presented by the applicant that sickness had prevented his attendance at Sunday services in Australia. In that context, on the basis that the Tribunal was not addressing whether the applicant had become an evangelical Christian in Nepal, no apprehension of bias is established in the manner in which the Tribunal considered the level of knowledge of Christianity and the conduct it expected from an evangelical Christian in Australia. 

7. Had the Tribunal in fact been addressing the applicant’s claim as put, disquiet of the nature considered by Logan J in SKLK v Minister for Immigration [2008] FCA 1125 at [56] might well be aroused in relation to the Tribunal’s consideration of the applicant’s knowledge of Christianity in light of its rejection of Pastor Boyd’s evidence partly by reference to what might be regarded as a single typographical error, given that elsewhere in that letter and in all the other letter from Pastor Boyd to the Tribunal the pastor had not mistaken the applicant’s gender and had referred to his particular circumstances, including the specific evidence he gave in the interview with the delegate. However the fact that the Tribunal overlooked or misunderstood and hence failed to consider the claim about conversion to evangelical Christianity in Nepal or to address the applicant’s conduct in Australia from that perspective is not of itself such as to establish apprehended bias in the manner contended for by the applicant.

8. Nonetheless, as jurisdictional error has been established in other respects the Tribunal decision should be set aside and the matter remitted for reconsideration according to law.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  11 August 2008