SZKSU v Minister for Immigration - [2008] FMCA 77

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKSU v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 77

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – two RRT hearings and two s424A letters – procedural fairness – repeated questioning – bias – merits review – weight.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1), 36(2), 65(1), 91R, 91S, 422B, 424A, 424A(1), 424A(1)(b), 424A(1)(c), 425(1)
Evidence Act1995 (Cth), s.41

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC
Abebe v Commonwealth of Australia (1998) 197 CLR 510
SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
SCAA v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCA 668
SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749
Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 referred to
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC)

Applicant:

SZKSU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1764 of 2007

Judgment of:

Orchiston FM

Hearing date:

14 November 2007

Date of last submission:

14 November 2007

Delivered at:

Sydney

Delivered on:

31 January 2008

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents:

Sparke Helmore

Counsel for the Respondents:

Ms Sirtes

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1764 of 2007

SZKSU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeing review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 16 April 2007 and notified to the applicant by letter dated 10 May 2007 which affirmed the decision of a delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.

Background

The applicant was born on 12 July 1965 and claims to be a citizen from Hyderabad, India.
On 31 May 2006, the applicant arrived in Australia, having legally departed from India on a passport issued in his name and a visitor’s visa.
On 20 June 2006, the applicant lodged an application for a Protection (Class XA) visa (CB 1-28) with the Department of Immigration & Multicultural Affairs (the Department) under the Act, together with a statement dated 20 June 2006 outlining his claims (CB 27-28).
In his statement attached to the protection visa application, the applicant claimed that he joined the Telegu Desam Party (the TDP) as a youth leader from Yakutpura in Hyderabad. He claimed to have become a target of the Congress youth groups, and on one occasion in the library he was almost beaten to death. He claims that he grew famous in political circles, and had to run away from his state and live a low profile to save his life. He claims that his comments and ideas against the Congress government were published in the newspapers (CB 27).
He further claims that when the TDP lost the elections in 2004 and the Congress Party came to power, “factionalist went on a spree to hack TDP supporters to death.” He refers to two top leaders of the TDP who were brutally killed by Congress members. He claims that he “escaped death from the factionalists several times”, since the Congress Party came to power and that he “faced hard times during those years to save my life and property”. He claims “unnecessary police harassment, fake encounter and partiality has increased within this government to avenge when they were not in power.” He claims that he feared persecution because of his previous political connections, that he escaped from India, and fears returning “to be prosecuted by the partial government, fake encounter or death in the hands of factionalist.” (CB 27-28)
On 16 September 2006, the delegate refused his application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, (the Convention), (see Legislative framework).
The applicant applied to the Tribunal on 13 October 2006 for review of the delegate’s decision (CB 39).

Legislative framework

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

The Tribunal proceedings

By letter dated 23 October 2006, the Tribunal invited the applicant to attend a hearing of the Tribunal informing him that it was not able to make a favourable decision based solely on the information before it (CB 43 - 44).
On 6 December 2006, the applicant attended a hearing of the Tribunal, (the first hearing), at which he gave oral evidence and presented arguments (CB 84 – 86).
On 15 December 2006, the Tribunal wrote to the applicant in accordance with s.424A of the Act, (the first s.424A letter), inviting him to comment on information that, subject to any comments made by him, would be the reason or part of the reason for deciding that he was not entitled to a protection visa (CB 59 – 61).
The applicant’s response to the first s.424A letter was received by the Tribunal on 21 December 2006 (CB 62-65).
By letter dated 5 February 2007, the Tribunal invited the applicant to attend a further hearing of the Tribunal, (the second hearing), (CB 66 67). The applicant attended the second hearing on 2 March 2007 (CB 87–89).
Following the second hearing, the Tribunal invited the applicant by further letter dated 9 March 2007 to comment on information in accordance with s.424A of the Act, (the second s.424A letter), (CB 72–75). The applicant responded on 4 April 2007 (CB 76–77).
On 10 May 2007, the Tribunal handed down its decision (CB 81–97) which affirmed the decision of the delegate not to grant the protection visa.

The applicant’s claims and evidence

The Tribunal summarised the applicant’s claims in the protection visa application (CB 84); at the first and second Tribunal hearings; and in his responses to the first and second s.424A letters (CB 84-93).

The first hearing (CB 84-86)

The Tribunal noted that the applicant confirmed his fear of returning to India because he is a member of the TDP (since 1984, and actively involved since 1986), and the Congress Party was in power and had the police under its influence.
The applicant stated that he had been attacked twice in the past. He claimed that on one of these occasions the Congress Party entered the college he was attending and attacked him, but he was saved by some of his friends. He claims that that he lodged a complaint with the police who failed to take any action. On another occasion, in 1989, he claimed his house was attacked.
He claimed that the Congress Party used to stop him on his way home from his work in the city. He stated that he had a thriving real estate business until two years ago when they came to his property and made up a dispute and used false documents to say the property was theirs. He stated that his car was also damaged. He said he ceased that business and started a new business, but after two or three months, they began stopping him again on his way home from his business. He stated he was frightened returning home late at night.
The applicant further claimed that he was attacked with an iron rod and robbed when returning home. He thought the Congress Party were responsible even though he could not see them. He said he reported the incident to the police but that they took no action.
The applicant claimed to be the Vice-President of a particular faction of the TDP which assists poor people. He said he became Vice-President from 1986 to the present. The applicant further claims there are articles in the Saiyat and Musif newspapers quoting him from 1986 and 1987.
The applicant stated that he had no difficulty getting his passport in 2005 or his visa to travel to Australia. He said that he had previously travelled to Singapore and Thailand for a holiday.

The first s.424A letter (CB 86)

In the first s.424A letter, the Tribunal pointed to the vague nature of the applicant’s claims, the lack of detail, and certain inconsistencies in his evidence which it found unsatisfactorily explained by the applicant at the first hearing. It advised the applicant that this information may lead it to make adverse findings of fact concerning whether the applicant had been attacked and targeted by members of the Congress Party; whether he has faced, or would face targeting and persecution in the future because of his involvement with the TDP, as claimed; and to doubt his credibility more generally:
Taken together, these issues may indicate you have not given a truthful account of your past experiences in India, your fear of harm or the reasons for it should you return (CB 60).
In response, the Tribunal noted that the applicant submitted to it on 21 December 2006, a photograph of injuries to him and two newspaper articles dated 8 April 1997 and 15 April 1997 with regard to public meetings of the TDP (CB 62-65). The Tribunal further noted that it attempted unsuccessfully to confirm through DFAT the authenticity of these newspaper articles and contents so far as the applicant’s identified role in the TDP was concerned.

The second hearing (CB 87-89)

At the second hearing, the Tribunal explained at the outset that it had been unable to verify the applicant’s membership of the TDP or the authenticity of the newspaper articles he had submitted. It referred to the further oral evidence given by the applicant and the exchanges that the Tribunal had with the applicant about various aspects of his claims, including:
·    requesting the applicant to summarise his claims and to go back over the incidents where he stated he was targeted and why he feared returning to India now;
·    asking him about the relevance to his claims of the distribution of some land in 1984;
·    to explain what it meant to be Vice President of the TDP;
·    whether there was an age limit on, and joining fee for, membership of the TDP;
·    why he feared returning to India now when the last incident was in 1998;
·    inconsistencies in his evidence with the first hearing, particularly in relation to the incident that led to him coming to Australia;
·    what had happened to him in India.
The Tribunal pointed out to the applicant that these inconsistencies may lead the Tribunal to conclude that his evidence was not credible (CB 88).
The Tribunal further noted that the applicant provided it with the original of the newspaper articles earlier submitted by him and an explanation in regards to the photographs submitted.

The second s.424A letter (CB 89-91)

In the second s.424A letter, the Tribunal:
· informed the applicant that it had been unable to find the newspaper articles provided by the applicant and verify any connection with the TDP as claimed;
· pointed to inconsistencies in his evidence in regard to:
§ the number of incidents of attack on him
§ his places of residence prior to his arrival in Australia
§ the minimum joining age of, and membership joining fees for, the TDP
§ his involvement in the 1984 land distribution.
The Tribunal indicated to the applicant the relevance of this information to conclusions that may be drawn by it:
The inconsistencies in your evidence are so significant that they may lead the Tribunal to conclude you have not been attacked by members of the Congress Party as claimed … that you have not been targeted by the Congress Party nor that you faced persecution because of any involvement with the Telegu Desam Party … that you will not be targeted or face any persecution in the future because of any involvement with the Telegu Desam Party …
This information is also relevant because the significant inconsistencies in your evidence … may lead the Tribunal to doubt your credibility more generally; that is, whether you can be believed. If so,it may lead the Tribunal to doubt your claims as set out in your protection visa application and the attached statement and your claims as espoused in your evidence to the tribunal at hearing on 6 December 2006 and 2 March 2007.
Taken together, these issues may indicate you have not given a truthful account of your past experiences in India, your fear of harm or the reasons for it should you return.
The Tribunal outlined the applicant’s response of 4 April 2007 (CB 76–77) to the second s.424A letter, including his comments on the earlier submitted newspaper articles; TDP membership age and joining fees; his places of residence in India; the omission from his protection visa of the attack and bag snatch incident due to “mental stress”; and his submission of a further newspaper article.

Independent information

The Tribunal referred to relevant country information concerning the TDP, the Indian National Congress and factional fighting between the two in Andrha Pradesh and to relevant newspaper articles from the Indian media.

The Tribunal’s findings and reasons

The Tribunal found the applicant was not a credible witness based on “significant inconsistencies” in his evidence which he had either not explained or where his explanations were not credible. The Tribunal did not accept that the applicant was actively involved or prominent in the TDP, as claimed. It found his evidence about his involvement to be inconsistent and that he demonstrated limited knowledge of the Party, given his stated involvement at the level of Vice-President from 1986. In addition, the Tribunal was unable to verify any connection the applicant claimed he had with the TDP.
The Tribunal did not accept that the applicant had been or will be targeted by the Congress Party, nor that he had faced, or would face in the future, any persecution because of any involvement with, or connection to, the TDP. It stated that:
He has not explained why his evidence about when and how frequently he was targeted and attacked by the Congress Party differs so significantly, except to state that he suffers from memory problems. The applicant has provided no evidence in support of his assertion and the Tribunal does not accept this explanation (CB 95).
The Tribunal was not satisfied that there is a real chance that the applicant will face Convention-based persecution if he were to return to India in the foreseeable future, and was not satisfied that the applicant has a well-founded fear of persecution in India. Accordingly, the Tribunal affirmed the decision of the delegate.

The proceedings before this Court

The applicant filed the application and affidavit in support of his application in this Court on 5 June 2007 setting out 5 grounds for review of the Tribunal’s decision. On 1 November 2007, he filed an amended application setting out 5 grounds of review which closely repeat the grounds of the original application, but providing particulars of each, save as to amended ground 4.
The applicant appeared in person before this Court on 14 November 2007 with the assistance of an interpreter. Ms Sirtes appeared for the first respondent.
The applicant was invited to say anything he wished to in regard to each of the grounds, and generally, after each of the grounds was translated for him.

Grounds of amended application

1.The applicant claims that the Refugee Review Tribunal (the Tribunal) did not consider the applicant’s claim properly and the Tribunal [was interested to reject his claim: ground 1. of application] rejected his claim without proper assessment and the applicant did not understand why the Tribunal conducted two hearings on 21 December 2006 and on 2 March 2007.
Particulars
The Tribunal first invited for hearing on 23 October 2007 (CB 43), the Tribunal invited for second hearing on 5 February 2007 (CB 66).
2.The Tribunal made a jurisdictional error when it did not explain properly in its decision why it is not going to accept the applicant’s claim and it also did not consider the evidence of the applicant.
Particulars
The Tribunal does not accept that the applicant was actively involve with the Talegu Desham [sic] Party as claimed. The applicant’s evidence about his involvement was inconsistent and he demonstrated limited knowledge of the party.
3.The applicant submits that he answered all the questions asked by the Tribunal, the applicant did not understand the requirement to ask some question which the applicant was confused to answer.
Particulars
Questions at hearing on 6 December 2006 and Questions on 2 March 2007 (CB 95)
4. The Tribunal made a jurisdictional error when the Tribunal did not explain the applicant why some questions and information is important to assess his claim.
5.The applicant also claims that the Tribunal did not act fairly and properly to give the applicant justice and the applicant’s claim was not properly assessed.
Particulars
The applicant was given the opportunity to explain these significant inconsistencies but the Tribunal is not satisfied that he has done so (CB 95).

Ground 1 of amended application

Ground 1 of the amended application repeats the various assertions made by the applicant in ground 1 of the application, save for some possible assertion of bias on the part of the Tribunal. Each of the applicant’s assertions under this ground, including bias, will be dealt with separately.

Whether the Tribunal considered the applicant’s claims properly

In his written submissions in support of Ground 1, the applicant claims that the Tribunal did not give any reason in its letter of 5 February 2007 for conducting another “rescheduled hearing” on 2 March 2007. He states that he did not understand why he was asked to attend two hearings and why he received two letters from the Tribunal. He states that he was thereby “very confused”. He submits that the Tribunal was not able to make clear to him or explain why he was being invited to attend a second time and that the Tribunal’s failure in this regard constitutes jurisdictional error by the Tribunal.

In his oral submissions to this Court on 14 November 2007, the applicant reiterated his claim that the Tribunal repeated all the same questions from the first hearing at the second hearing. He also says that the Tribunal stated that he said something in the first hearing different from what he said in the second hearing. He said that the Tribunal member thereby confused him and told him that he was not giving the right answer. The applicant further submits that he was “scared, I thought that they would call me third time.”
He said he was also confused by the Tribunal’s rejection of his case, telling him he was “not a big leader”, that “his name could not be found on the internet”, and that there was “no problem in his going back to India” despite his explanation to the Tribunal that the Congress Party is against all members of the TDP and killing all people involved with it.
In summary, the applicant submits that there was no reason for the Tribunal to call him twice for a hearing, and to ask him the same questions on both occasions.
Ms Sirtes submits that the Tribunal was essentially trying to assist the applicant by having two hearings, and that whilst it was not required to hold two hearings, it elected to do so in order to give the applicant an opportunity to explain parts of his answers that it did not understand.
She submits that the applicant gives the impression in his submissions that he felt the Tribunal kept repeating the same questions to try to catch him out with different answers. She submits that there is no evidence to support this.
She further submits that the inconsistencies the Tribunal considered were more between the protection visa application and the hearings, rather than between the two hearings as the applicant appears to be asserting. I accept there is some merit in the submission.
She further submits that the Tribunal explained, at the outset of the second hearing, that it was trying to give the applicant the opportunity to prove to it certain things that he claimed, (eg. his membership of the TDP and the authenticity of the newspaper articles submitted by him), which it had been unable to verify itself and to give him the opportunity to establish the criteria for his protection visa.
Ms Sirtes submits therefore that there is no error in law in the Tribunal asking the applicant the same questions even if to see if it got the same answers, as it was entitled to be satisfied as to whether the applicant was telling the truth.
I note at the outset that the transcript of the two Tribunal hearings has not been put before this Court by the applicant. The Court is therefore not in a position to assess the applicant’s state of mind and any alleged confusion on his part as claimed by him. Certainly, on the face of the decision record, there is nothing to suggest that the Tribunal’s attention was drawn to any problem in this regard and no unfairness is thereby detected.
I am satisfied that the Tribunal has carefully summarised the claims made by the applicant at various stages of the review process and has given explicit regard to the material the applicant provided to it (in his protection visa application, and attached statement; his oral evidence at both the first and second Tribunal hearings; and the material provided by the applicant in response to the first and second s.424A letters); as well as the independent country information.
I am further satisfied that a fair reading of the Tribunal’s decision demonstrates that it carefully considered each of the applicant’s claims in the light of all the evidence and material before it. Indeed, the Tribunal gave the applicant very considerable opportunities (through two hearings and two s.424A letters inviting his response) to provide further information, to further explain, to present oral submissions and to support and verify his claims. It cannot be said that the Tribunal did not extend to him the opportunity to fully present his case, and accorded him procedural fairness in this regard.
I am also satisfied that the Tribunal clearly put the applicant on notice of potential adverse findings it might make against him in the two s424A letters sent to him. The Tribunal put to the applicant the inconsistencies upon which it ultimately relied and invited the applicant to comment on this information.
However, given the recent decision of the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18], I accept the submission by the first respondent that it would seem that the Tribunal was not required to put these inconsistencies to the applicant for comment at all:
…if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
I am further satisfied that the Tribunal gave proper consideration to the explanation and material provided by the applicant in response to the first and second s.424A letters.
Merely because the Tribunal was not convinced to accept the applicant’s claims (that he was a member of the TDP; that he was targeted and persecuted by the Congress Party; and that he would be targeted and persecuted in the future because of his involvement with the TDP if he were to return to India), is a matter of fact finding for the Tribunal. In this regard, the Tribunal clearly articulated its reasons for rejecting the applicant’s claims, based on its findings of “significant inconsistencies” in the applicant’s evidence, which it found he had either failed to satisfactorily explain or which were found not to be credible.
The Tribunal’s conclusion that the applicant was not a witness of credit was a finding of fact par excellence: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC at [10]. Furthermore there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealthof Australia (1998) 197 CLR 510 at 560 [137]. I am satisfied therefore that the applicant is, in effect, inviting the Court to undertake impermissible merits review of the Tribunal’s decision, which is not the function of this Court.
I am further satisfied that the Tribunal rejected the applicant’s claims after considering all the evidence, including the independent evidence, in reaching its conclusions concerning internal inconsistencies and lack of credibility in the applicant’s evidence. I consider that the Tribunal’s findings in this regard were open to it on all the evidence before it and that it performed the task required of it in accordance with law.

Whether the Tribunal was interested to reject [the applicant’s] claim.

It is unclear exactly what the applicant is alleging in this regard. If the applicant is alleging bias or pre-judgment on the part of the Tribunal, there are no particulars provided by him to identify the precise nature of the allegation. Further, as has already been noted above, the applicant has not provided the transcript of the Tribunal hearings before the Court.
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has simply not been done in the present case.
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias or bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56-59]. Again, this has simply not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any assertion of actual bias on its part.
I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28], (and see further under ground 3 below).
I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record. Indeed, far from demonstrating bias on the part of the Tribunal, the procedure adopted by the Tribunal in this case, of inviting the applicant to two hearings and sending two s.424A letters to the applicant after each hearing and then considering the applicant’s response to each, mitigates against any claim of pre-judgment on the part of the Tribunal.

The applicant did not understand why the Tribunal conducted two hearings on 21 December 2006 and on 2 March 2007

If the applicant is suggesting some unfairness or irregularity from the fact alone that he was invited to attend two Tribunal hearings, I do not accept this suggestion. There is nothing in the Act, which precludes the Tribunal from conducting more than one hearing with an applicant. Indeed, the applicant’s claims were thereby given very careful consideration, and the applicant amply given the opportunity to be heard and respond to matters put to him. I detect no unfairness or irregularity on this basis.
I accept that on the face of the second letter inviting the applicant to a re-scheduled hearing, no explanation is provided to the applicant as to why the Tribunal has decided to embark on this course. However, there is no statutory requirement to provide such an explanation (in contrast, for example, to the obligation on the Tribunal under s.424A(1)(b), when giving relevant information to the applicant in a s.424A letter, to ensure “as far as is reasonably practicable, that the applicant understands why it is relevant to the review”). I do not consider therefore that the applicant can make any complaint in this regard.
As has already been noted above, the applicant has not put the transcript of the second hearing into evidence to demonstrate that he was “confused” at the time and that this confusion affected his capacity to give evidence, present argument and respond to questions put to him by the Tribunal.
The further allegations by the applicant that the Tribunal “repeated all the same questions”; told him he “was not giving the right answers”, that “you can go back to India. There is not any problem”; and that “you are not a big leader and we could not find your name on the Internet”, are equally matters which require the applicant to put the transcript of the first and second hearings into evidence before this Court. The Court cannot therefore make any assessment of these allegations, other than what is disclosed on the face of the decision record.
In this regard, the Tribunal decision record demonstrates that the Tribunal explained clearly to the applicant, at the very beginning of the hearing, the reason why it had invited the applicant to the second hearing:
The Tribunal explained to the applicant that it had been unable to verify his membership of the TDP or the authenticity of the newspaper articles he had submitted (CB 87).
There is no doubt on the face of the decision record that the Tribunal traversed much of the same ground at the second hearing and that there was clearly repetition of matters. I detect no unfairness, however, in the Tribunal so doing and its giving the applicant a further opportunity to justify his claims and be heard, in particular, where it had been unable to independently verify the applicant’s involvement with the TDP, following the applicant’s response to the first s.424A letter.
I accept therefore the submission by the first respondent that there is no denial of procedural fairness by the Tribunal giving the applicant two hearing opportunities. In fact, I find to the contrary.
For the reasons stated above, ground 1 of the application and amended application, is rejected.

Ground 2

The Tribunal did not explain why it did not accept the applicant’s claims

In his oral submissions, the applicant submits that he provided all documents, newspaper cuttings and photos, yet the Tribunal still did not give him the right answer.
I consider that the Tribunal sets out very clearly for the applicant through the review process its concerns regarding the applicant’s claims, from the first hearing, and the first s.424A letter, through to the second hearing and the second s.424A letter.
These concerns and potentially adverse findings, are set out in the Tribunal decision, which I consider summarises very fully each of these steps in the Tribunal reaching the conclusion that there were inherent inconsistencies in the applicant’s evidence and that he lacked credibility and on what bases.
I further accept the submission by the first respondent that the Tribunal is not required to explain to the applicant the express relevance to the review of every question it asks and that neither SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592, nor the statutory requirements of s.424A(1)(b) impose such an onus on the Tribunal.
In this regard, the applicant was clearly on notice from his receipt of the delegate’s decision that the veracity of his claims was in issue:
“The applicant’s claims are vague and unconvincing. He does not state when, where or how the threats and attacks occurred, or to whom they occurred other than himself and the two high profile individuals … I accept that some high profile TDP members have been targeted for harm. However, I do not accept that the applicant fits this profile and would be subject to this harm on his return to India … In the absence of any supporting evidence, I am not convinced that the applicant is anything more than a TDP supporter …(CB 36).
I consider that the applicant’s voluntary return [following his travelling to Thailand and Singapore, Malaysia and Sri Lanka, and then returning to India] to the very place of claimed persecution undermines the veracity of his claim to be persecuted at this time” (CB 37-38).
Furthermore, a fair reading of the Tribunal’s decision demonstrates that it properly identified to the applicant the issues arising in relation to the decision under review pursuant to s425(1) of the Act, both at the first and second hearings (and further in its first and second s.424A letters). Indeed, I consider that it was most thorough in this regard and carefully identified each of the issues which concerned it, including the applicant’s involvement and role in the TDP; the number of attacks on him by the Congress Party; the authenticity of certain newspaper articles; his involvement in the 1984 land distribution; TDP membership joining fees and age limits; his places of residence; and inconsistencies therein. I am satisfied that the Tribunal explained to the applicant at each stage of the review, the relevance of these identified issues to the conclusions it may draw therefrom, in particular in relation to his credibility (see CB 89 – 91).
I further consider that the Tribunal gave the applicant ample opportunity at each stage of the review process to give evidence and present arguments in relation to them. I am therefore satisfied that no breach of s.425(1) of the Act is disclosed, in the light of the matters raised by the High Court in SZBEL at [33]-[48].
Far from the Tribunal not considering the applicant’s evidence as the applicant asserts, his evidence was clearly pivotal to its findings that he lacked consistency and credibility.
I accept the submission by Ms Sirtes that the applicant’s unhappiness or disappointment with the Tribunal’s decision and its finding as to his credibility is not a matter that this Court should be concerned with. Again such a course would have the Court engage in impermissible merits review which is not the function of this Court (see Ground 1 above).
I do not accept therefore that the Tribunal failed to properly explain in its decision why it rejected the applicant’s claims, nor that it failed to consider the evidence of the applicant.
Accordingly, Ground 2 of the application and amended application, is rejected.

Ground 3

In his written submissions, the applicant states that the Tribunal failed to adopt a fair procedure by its comparing the evidence given by him at the first and second hearings and then rejecting his claims.
The applicant also submits that he did not understand the procedure adopted by the Tribunal and points to the same questions repeatedly being asked by the Tribunal concerning why he feared returning to India (see CB 85; again at CB 85; and again at CB 89).
He also points in his oral submissions to his being asked the same questions again and again, that he was replying correctly, and was thereby confused. He gave the specific example of the repeated questions asked of him concerning TDP joining fees.
Ms Sirtes submits that, without the transcript, there is nothing on the face of the Tribunal decision record to suggest that the applicant was confused by his being asked the same questions again, nor that he brought any alleged confusion to the attention of the Tribunal.
She further submits that the second s.424A letter again makes it clear to the applicant that the Tribunal has not been able to verify any connection between him and the TDP and puts to him independent information concerning the joining fee of the TDP.

Ms Sirtes submits that any suggestion that the second hearing was used by the Tribunal as an opportunity to create inconsistencies is not borne out. In particular, a careful reading of the second s.424A letter demonstrates that its focus was upon broader inconsistencies between the protection visa application and each of the first and second hearings, rather than between the first and second hearings themselves, and with matters not previously raised by the applicant. In any event, even if the Tribunal had sought to see if there was a consistent story between the first and second hearings, she submits that this was a valid exercise that the Tribunal was allowed to do to test the applicant’s version of events.
The Court has already addressed most of the matters raised in the submissions of the parties under Grounds 1 and 2 above. I rely on my reasoning therein.
As to any general assertion that the applicant has been denied procedural fairness by the way in which the Tribunal conducted the review, I note first that the applicant is not entitled to common law procedural fairness: s.422B. I see no unfairness in the Tribunal comparing the evidence of the applicant at the two hearings to see if there are inconsistencies. This is a legitimate exercise that it was entitled and indeed required to undertake in this case, given its concerns over the credibility of the applicant’s claims. Further, it was entitled to reject the applicant’s claims on this basis.
I also reject any suggestion that the Tribunal deliberately used the forum of a second hearing to catch out, entrap, or indeed destabilise or confuse the applicant into giving different versions of events.
Furthermore, some repetition of questions on matters raised by the applicant, which is not unduly repetitive or oppressive and which otherwise does not amount to undue harassment or intimidation or where the applicant is not overborne, does not constitute procedural unfairness or bad faith on the part of the Tribunal. As relevantly observed by the High Court in Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [30]-[31]:
Where, as in the present case, credibilility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.
I am satisfied that there is nothing disclosed on the face of the Tribunal decision record concerning the manner and form of the questions asked of the applicant in this case, from which a fair-minded lay observer or a properly informed lay person might say that the applicant was thereby intimidated or overborne and from which an inference might otherwise have been available that the Tribunal prejudged the case or acted in bad faith.
As already discussed under Ground 2 above, I am further satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act by giving the applicant the opportunity at the first and second hearings to given evidence and present arguments relating to the issues arising in relation to the decision under review. In this regard, the Tribunal identified for the applicant the determinative issues and gave the applicant ample opportunity to give evidence and make submissions at the two hearings, and to respond to two s.424A letters concerning adverse information in relation to these determinative issues, before the Tribunal reached its conclusions: SZBEL at [33]–[48]. I am therefore satisfied that the Tribunal accorded the applicant procedural fairness pursuant to s.425(1) and s.424A of the Act and that no breach of the Act is thereby disclosed.
Accordingly, Ground 3 of the application and amended application, is not made out.

Ground 4

In his written submissions the applicant asserts that the Tribunal asked unnecessary questions at the second hearing, for example, the minimum age for membership and the joining fee for the TDP (membership particulars).
The applicant, in his oral submissions, also points to a question and answer dialogue between himself and the Tribunal member. Again, without a transcript of the proceedings, the Court cannot make any assessment of this assertion. In any event, these are clearly matters which go to the fact finding role of the Tribunal and it is not for this Court to interfere where those findings are open to the Tribunal on evidence before it. As I have stated in relation to Ground 1 above, I consider that the findings by the Tribunal were open to it on the evidence and were made in accordance with the law.
I consider that the Tribunal was entitled to find, in this regard, that the membership particulars were matters going to the applicant’s credibility and to compare his evidence with the TDP website. I am satisfied that the Tribunal fully identified to the applicant its concerns on these issues, both at the second hearing and in its second s.424A letter and gave the applicant the opportunity to response in regard to each (SZBEL at [44]).
The weight the Tribunal gave to either or both of these membership particulars, is ultimately a factual matter for itself. As observed by the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Furthermore, the Tribunal’s choice and assessment of relevant country information, (in this case, being the TDP website), is a purely factual matter for it: (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84]). Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]).
Other issues raised under ground 4 repeat matters already dealt with under grounds 1, 2 and 3 above. I adopt my reasoning therein in the present context.
Accordingly, Ground 4 of the application and amended application, is not made out.

Ground 5

In his written submissions the applicant asserts that “the applicant was given the opportunity to explain the significant inconsistencies, but the Tribunal is not satisfied that he has done so (CB 95). Otherwise, the applicant concedes that Ground 5 deals with the same matters raised in ground 1 above.
To the extent that this submission seeks merit review, this is not part of the function of this Court. As previously stated, merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law. I rely on my reasoning, in particular under ground 1 above, on these matters.
The applicant further submits that he was in fear of being called before the Tribunal on a further occasion and “all this thinking made the applicant very upset and the applicant became mentally stressed.”
Again, there is no transcript before the Court upon which it can make any assessment of the applicant’s mental state at the second hearing. Otherwise, any issue of procedural fairness arising from this submission has been dealt with previously above, in particular under Ground 1.
The applicant further submits that the Tribunal sent him “almost the same invitation to comment on information” in the two s.424A letters.
There is nothing in the Act to preclude the Tribunal from sending more than one s.424A letter. The Tribunal made it eminently clear in each of the letters what information it was concerned about and why it was inviting the applicant to comment on this information which it considered may result in an adverse finding against him. Each of its concerns were clearly and specifically stated and the conclusions that may follow therefrom. I am satisfied that the Tribunal ensured, as far as was reasonably practicable, that the applicant understood why the information was relevant to the review: s.424A(1)(b) and invited the applicant on two opportunities to comment on it: s.424A(1)(c).
Merely because the information identified in the first s.424A letter was very much reflected in the second s.424A letter does not constitute any breach of procedural fairness on the part of the Tribunal. Indeed, it thereby gave the applicant a further opportunity to be aware of, and to address, the concerns raised by it. I detect no procedural unfairness therefore in the Tribunal adopting the procedure it did in this regard.
Accordingly, Ground 5 of the application and amended application, is rejected.

Conclusion

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

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Christine Cargill

Date: 31 January 2008