SZLOG v Minister for Immigration - [2008] FMCA 223

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLOG & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 223

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – whether breach of s.424A of the Act – procedural fairness – fact finding not function of judicial review – whether prejudgment of claims – benefit of the doubt.

Judiciary Act 1903, s.39B
Migration Act 1958, ss.5, 36, 65, 91R, 91S, 424A

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63
NADR v Minister of Immigration & Multicultural &Indigenous Affairs [2003] FCAFC 167
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth (1998) 197 CLR 510
Re Minister for Immigration;Ex parte Applicant S 154/2002 (2003) 201 ALR 437
NADH v Minister for Immigration [2004] FCAFC 328
Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR
Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
Re Minister for Immigration & Ethnic Affairs: Ex parte Durairajasingham [2000] 168 ALR 407
Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported)
SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749
Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155

First Applicant:

SZLOG

Second Applicant:

SZLOH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3335 of 2007

Judgment of:

Orchiston FM

Hearing date:

30 January 2008

Date of last submission:

30 January 2008

Delivered at:

Sydney

Delivered on:

29 February 2008

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application filed on 29 October 2007 and the amended application filed on 17 January 2008 are dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $3,600 payable within four (4) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3335 of 2007

SZLOG

First Applicant

SZLOH

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 19 September 2007 and notified to the applicant by letter dated 9 October 2007 which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to refuse to grant a protection visa to the applicant.

Background

The first named applicant, was born on 26 March 1969 and was aged 38 years at the time of his application for a protection visa. Both before the Tribunal and this Court, the first named applicant appeared on behalf of his wife who is included in the application. For convenience, the first named applicant will be referred to as “the applicant” in these proceedings.
The second named applicant, the wife of the applicant, was born on 1 June 1970 and was aged 36 years at the time of her application for a protection visa.
The applicants claim to be nationals of India and of Hindu faith.
The applicants arrived in Australia on 22 March 2007 on Indian passports issued in their names.
The applicants lodged an application for Protection (Class XA) visas on 1 May 2007 on the basis that they were subject to persecution by various persons in India and had been refused protection.
On 19 May 2007 the delegate refused to grant the applicants’ protection visas on the basis that the applicants were not persons to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 8 June 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 42).

Legislative framework

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

The Tribunal proceedings

On 17 July 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 17 August 2007 to give oral evidence and present arguments (Court Book (CB) 49-50).
On 15 August 2007, the applicant applied for a postponement of that hearing (CB 53-54). On 16 August 2007, the Tribunal wrote to the applicant rejecting the application for the adjournment of the hearing (CB 57). The applicant was also informed by mobile phone of the decision to proceed with the hearing (CB 56).
The applicant attended the hearing on 17 August 2007. The applicant’s wife did not attend (CB 82).

The applicant’s claims and evidence (CB 82-87)

The Tribunal summarised the applicant’s claims in his protection visa application in terms of his response to the question why he left his country, as follows:
Applicant claims subject to persecution in the hand of non-private agents, "criminals, thugs, extortionists" as a result being "businessman" and the State refused protection as a result of unwillingness to comply with the unlawful demand of bribes (CB 82).
At the hearing, the applicant provided a two-page written statement (CB 74-75), claiming that he feared persecution from Muslims because his father is a well known leader of the Bharatiya Janta Party (“BJP”); after 2002, Hindu-Muslim riots spread all over Gujarat; in the last riots, his family members suffered because of his and his family’s involvement in the BJP; he took an active organising role in the last elections in which the BJP won, but he became a target of the local Muslim leader; he was attacked and got seriously injured; he complained to the police but they sought money for protection which he could not afford; in the last year the situation became critical again with riots close by so “we decided to leave the country for the safety of our life”; he will be killed by local Muslim leaders if he is compelled to go back to India.
The Tribunal asked the applicant a series of questions and the applicant gave oral evidence and made submissions relevant to the issues arising out of these claims, as summarised at CB 82- 87.

The Tribunal’s findings and reasons (CB 87- 88)

The Tribunal found that the applicant lacked credibility and his material claims could not be accepted based on inconsistencies between his written statement and oral evidence, including whether he was a member of the BJP, his father's involvement with the BJP and why the father had not left India, and the nature of the persecution the applicant claims to have suffered in India. The Tribunal was not satisfied that the applicant’s family was involved with the BJP, or that the applicant and his family were targeted by Muslim groups. Further, the Tribunal did not accept the applicant’s evidence that the police demanded money in exchange for protection.
For these reasons, the Tribunal was unable to find that the applicant had a well founded fear of persecution for a Convention reason.

The proceedings before this Court

The applicant filed the application in this Court on 29 October 2007 setting out three grounds for review of the Tribunal’s decision. The applicant filed an amended application on 17 January 2008 setting out two grounds for review of the Tribunal’s decision.
The applicant appeared in person before this Court on 30 January 2008 with the assistance of a Gujarati interpreter. Ms Johnson appeared for the first respondent. The second applicant did not attend.

Grounds of application

The grounds of the application are:
1) That the Tribunal’s decision was in breach of s.424A(1) of the Migration Act 1958 [Cth]
Particulars:
a) The tribunal did not disclose the information in accordance with s.424A (1)
2) That the tribunal made error of law and lack procedural fairness and therefore committed Jurisdictional error.
3) That the tribunal made denial of natural justice. Because the tribunal was wrong in concluding that the applicant’s claims were not convention related.

Ground 1 of the application.

The first ground of the application is that the Tribunal did not disclose information, in breach of s 424A(1) of the Act. I note that the applicant has not provided particulars of what information he alleges the Tribunal has not disclosed in breach of s 424A.
Section 424A requires the Tribunal to give an applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision of the delegate that is under review; to draw the relevance of that information clearly to the attention of the applicant; and to give the applicant an opportunity to comment on or respond to the information, before any decision is made by a Tribunal. The section contains certain exceptions to this requirement under s.424A(3).
The Tribunal's decision, as set out in its Findings and Reasons (CB 87-88), was based on its finding that the applicant lacked credibility and its unwillingness to accept his material claims, given the inconsistencies between the information in the written statement he had given the Tribunal and what he subsequently said orally at the Tribunal hearing.
It is clear that a proper construction of the word information in s.424A(1) does not extend to the Tribunal’s subjective appraisals, thought processes or determinations on the evidence, including its disbelief of the applicant’s evidence. As recently observed by the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s 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. (and see SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 at [5] (and cases cited therein); SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63, 231 ALR 592 at [48]).
In the present case, the credibility of the applicant’s evidence was equally at the forefront of the Tribunal’s thought processes.
Furthermore, in regard to information provided by the applicant in his answers to questions put to him at the hearing, the Tribunal is not required to explain to him the express relevance to the review of every question it asks. Neither SZBEL nor the statutory requirements of s.424A(1)(b) impose such an obligation on the Tribunal.
I also consider that both the applicant's written statement and his oral evidence constitute information that the applicant gave for the purpose of the application to the Tribunal for review of the delegate's decision, thereby falling within the statutory exception in s 424A(3)(b).
I therefore detect no breach of s.424A in this case and consider that the Tribunal has accorded the applicant procedural fairness in accordance with the provision.
Accordingly, for the reasons stated above, Ground 1 of the application is rejected.

Ground 2 of the application.

The second ground of the application states that the Tribunal ‘made error of law and lack of procedural fairness and therefore committed Jurisdictional error’.
The applicant has provided no particulars of what the error of law and what is the lack of procedural fairness that the Tribunal is alleged to have breached under this ground, nor has he sought to place the transcript of the Tribunal proceedings before the Court. To the extent to which this ground implies some breach of s.424A, I rely on my reasoning under ground 1 above.
In his oral submissions in support of this ground, the applicant states that ‘he didn’t get a proper chance to express what he wanted to [say]’ to the Tribunal as the Tribunal had refused his request to postpone the date of the hearing and he had not had a chance to look at the documents as he had only received them on the day before the hearing (transcript, 30/1/08, p4-5).
The applicant’s letter to the Tribunal requesting an adjournment (CB 53-54) was received by the Tribunal on 15 August 2007, two days before the scheduled hearing on 17 August 2007. The applicant states in his letter that he had no relevant documents, in particular the protection visa application forms and the delegate’s decision from which he could prepare oral and written submissions for the hearing. He states that the letter to him from his migration agent did not attach a copy of the delegate’s decision and that he had tried unsuccessfully by going to his migration agent’s place and ringing him “more than 20 times to get my file and copy of the Application Forms which I lodged for the Protection Visa. Later on I lodged request application for access to the Department of Immigration and RRT (FOI). I received 24 Pages documents from the RRT but I did not get any relevant Documents from Department of Immigration. The Department told me that it would take 30 days” (CB 53-54).
I consider that the it was a matter within the exercise of the Tribunal’s discretion for it to determine whether it should grant the adjournment in the circumstances where the matter had been set down for hearing one month previously, where the applicant had a migration agent assisting him to whom the relevant documentation had been sent, and where the applicant has not sought to bring any concerns in the preparation of his case to the attention of the Tribunal until two days before the hearing.
I note in this regard that the Tribunal decision record states that :
I asked the applicant why he requested an adjournment of his hearing. He replied that he had not received what his story was and his adviser had not sent him any documents. He stated that he had no documents from his country. I asked the applicant what documents he had received. The applicant handed up to the Tribunal the documents he received and those included a copy of the Tribunal file and a copy of the Departmental file. I mentioned to the applicant that he had been provided with all of the documents that were available. I informed the applicant that it was the Tribunal’s intention to discuss his application with him.
The applicant then handed up a two-page statement signed by the applicant and his wife. He stated the document contained his claims for protection. I asked the applicant if the document contained all the information regarding his claims and he replied “yes” (CB 82).
Further, at the end of the hearing the Tribunal asked the applicant if he had any further documents he wished to give to the Tribunal, and he answered ‘no’. The Tribunal also asked the applicant whether his statement was a full account of his claims and he replied ’yes’. The Tribunal further asked if he wished to add anything further and he replied ‘no’ (CB 87).
I consider that the Tribunal decision record shows that the Tribunal carefully checked that the applicant was in receipt of the available documentation before proceeding with the hearing. Also, in this regard, the applicant expressly stated in his statement to the Tribunal that he had “no documents in support of my claims except my oral evidence and this statement. When I was coming to Australia, I had no knowledge to bring any necessary documents to support my claim for the protection visa.”
Secondly, the Tribunal accepted and fully considered the statement of claims from the applicant and his wife which was handed up at the hearing, the full text of which is set out by the Tribunal at CB 83-84.
I consider that the applicant was given a sufficient opportunity to express to the Tribunal what he wanted to say. I also note that there is nothing on the face of the decision record to indicate that the applicant expressed any difficulty with the hearing or sought further time to submit documents. In these circumstances, I consider that there is no procedural unfairness demonstrated in the Tribunal’s refusal to grant the adjournment application, nor the manner in which it conducted the hearing.
Accordingly, for the reasons stated above, Ground 2 of the application is rejected.

Ground 3 of the application

The third ground of the application states that the Tribunal denied the applicant natural justice because it was wrong in concluding that the applicant’s claims were not Convention related.
It is not the case that the Tribunal found that the applicant’s claims of persecution did not have a Convention nexus. Rather, the applicant was unsuccessful because the Tribunal did not believe his claims of fear of persecution, per se. The Tribunal stated in its findings and reasons that:
… the applicant lacks credibility and his material claims cannot be accepted…the applicant is not truthful or credible (CB 87).

On that basis, the Tribunal was not satisfied that the applicant, or any member of his family, had been targeted by Muslims in India by reason of his actual or imputed political opinion:
The Tribunal is not satisfied that the applicant has suffered any serious harm. There is not credible evidence upon which the Tribunal could find that the applicant stands at risk of suffering serious harm in the reasonably foreseeable future if he returns to India. Accordingly, the Tribunal is unable to find that the applicant has a well founded fear of persecution for a Convention reason (CB 88).
The Tribunal’s conclusion that the applicant was not a witness of credit was a finding of fact open to the Tribunal on the evidence before it, and is not open to review by this Court. As the Full Federal Court observed in NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]:
The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration &Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review.
I therefore detect no denial of natural justice on this basis.
Accordingly, for the reasons stated above, Ground 3 of the application is rejected.

Grounds of the amended application

The grounds of the amended application are:
The Refugee Review Tribunal erred in law in making findings of well founded fear.
(1)The RRT erred in adopting an unduly harsh approach to the well-founded fear. The Tribunal is required to assess the harm from the perspective of the persecutor instead assessing the harm from the perspective of the putative persecute.
Particulars: The Tribunal adopted a line of questioning designed to establish harm from perspective of the Applicant persecute asking why he would be harmed rather than addressing as to motive.
The applicant in his submission to the Tribunal explained to the Tribunal about the motive of the extremists Muslims and their organisations to harm the Hindus. The Applicant in his submission wrote that most of the Hindu people living these areas are the supporters of Hindu parties and Hindu Organisations such as Bajrang Dal, Rastryia Swang Sevak Sangh and Shiv Sena. These Hindu organisations protect their life of the Hindus at the time of Hindu-Muslim riots. Gujarat was very peaceful state before Godhara Incident of 2002. My area (Somou) where we live was very safe and peaceful.
After 2002, Hindu-Muslim riots spread all over Gujarat. My area (Sumou) was badly affected by Muslim-Hindu riots. In that Muslims-Hindu riots of 2002, more than sixty people injured. Nearly 15000 Muslims live around my area. They are very violent, aggressive and united. They have latest weapons. Whenever the hear any news of riots in any area, they become ready and equipped with weapons to fight with the Hindus.
In the last riots, our family members suffered because of my and my family members involvement with the BJP party. I am member of the BJP. In the last election of Legislative Assembly of Gujarat I took active part in organising meetings and gathering people in support of BJP candidate Kanti Bhai Patel.
I became target of the local Muslim leader Talud Bhai. In the last election, the BJP candidate won the election. After election the Muslims who were supporting Congress Party candidate became more violent and aggressive towards us and gave warnings and threatening. They wanted to kill our village leader Baldev Bhai.
They (Muslim-Group) attacked on many Hindu leaders. Their family members were stabbed to death on the roads. I was also attacked. I got serious injury. We complained to the local police but we could not get any reliable protection from them.
The police always asked money first to give any protection. Only the rich people could afford to get some sort of protection. My family members and myself left our village after riots of Godhara for some time and when situation became calm we returned back to home. But in the last year, situation became again critical when Hindu-Muslim riots occurred just 20 kilometres from my village. We became scared. We could not sleep in the night.
Then we decided to leave the country for the safety of our life. Like me hundreds of Hindu people left the country for the safety of their life. The Tribunal totally ignored the facts mentioned in the Applicant's submission and made decision prior to the hearing.
(2)The Refugee Review Tribunal erred in law in asking and relying only on the material the perspective of the putative prosecutors.
The Tribunal did not realise the difficulties in getting any documents from the relevant country. The Tribunal in his finding of reasons has quoted that “when assessing credibility, it is important to be sensitive to the difficulties often faced by the asylum seekers” (Green Book page 87)
The applicant claims that the asylum seekers always face difficulties in providing oral and written evidence. In some cases they cannot provide any written documents in their claims and in this situation benefit of doubt should be given to the asylum seeker. In the Applicant's situation the Tribunal completely ignored the statements of the applicant and he was declared totally untruthful witness, which is not a procedural fairness.
The applicant in his submission wrote “I had no documents in support of my claims except my oral evidence and this statement. When I was coming to Australia, I had no knowledge to bring any necessary documents to support my claim for the protection visa. The Migration Agent lodged application without any statement on the Application form. This statement should be accepted as my written statement for my claims.”
The Applicant claims that he has genuine fear from the Muslims of that area. If he were compelled to go back to their country he would face persecution. The local Muslim leader is after him and they can kill him any time. Theses people once decided to kill, they will kill.
There are hundreds of incidents happened in India when the Muslim extremists have killed their opponents and the Government did not provide any protection. Even Government Officials and top leaders are not safe from their attacks. The Applicant appeals to the Court to consider all aspects of the fear of persecution and their cumulative effects.

Ground 1 of the amended application

The first ground of the amended application has multiple parts, most of which are found in the particulars. The particulars also repeat various claims of persecution in India that the applicant made at the Tribunal hearing.
“adopted an unduly harsh approach…”
The applicant claims that the Tribunal erred in adopting an unduly harsh approach to his well-founded fear.
The applicant has not provided the Court with clear particulars, nor has he sought to put the transcript of evidence before the Tribunal to indicate in what respects the Tribunal is said to have adopted an unduly harsh approach.
The Tribunal set out the relevant law, including the Convention requirement that the applicant must hold a well-founded fear in order to be a person to whom Australia holds protection obligations (CB 80-82). The Tribunal then considered the claims and evidence of the applicant as to whether he had a well-founded fear of persecution (CB 82-87).
In its findings and reasons, the Tribunal rejected the applicant’s claims to fear harm if he returned to India on the basis of its adverse credibility findings (CB 87-88). The Tribunal found that there was not credible evidence upon which it could be satisfied that the applicant stood a risk of suffering serious harm in the reasonably foreseeable future if he returned to India. The Tribunal concluded that it was unable to find that the applicant had a well-founded fear of persecution for a Convention reason (CB 88).
Contrary to the applicant’s assertion, I consider that there is nothing disclosed on the face of the decision record to demonstrate that the Tribunal conducted the proceedings other than in a proper manner and accorded the applicant procedural fairness in accordance with the statutory framework.
Merely because the applicant disagrees with the outcome of the Tribunal hearing does not mean that it conducted the hearing in an unfair manner, nor that its findings of fact, in particular as to the applicant’s credibility, were not reasonably open to it on the evidence before it. It is not part of the function of this Court to engage in impermissible merits review of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558], NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. As relevantly stated by the High Court in SZBEL at [25]:
what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].
Overall, I am satisfied that the Tribunal made clear and well reasoned findings which were open to it on the evidence before it, in reaching its conclusion that the applicant lacked credibility and that his material claims could not be accepted, and that therefore he was not a person to whom Australia has protection obligations.
For the above reasons, I reject the applicant's claim that the Tribunal adopted an unduly harsh approach to his application.

“adopted a line of questioning…”

The particulars to the first ground assert that the Tribunal adopted “a line of questioning designed to establish harm from perspective of the Applicant persecute asking why he would be harmed rather than addressing as to motive”.
The applicant has not properly particularised what is the “line of questioning” which the Tribunal adopted to which he objected, nor has he sought to place the transcript of the evidence at the Tribunal hearing before the Court in support of his contention.
The proceedings before the Tribunal are inquisitorial, not adversarial: Re Minister for Immigration;Ex parte Applicant S 154/2002 (2003) 201 ALR 437 at [57]. The Tribunal can control the direction of its hearing, including by asking questions in order to satisfy itself of the merits of the application: NADH v Minister for Immigration [2004] FCAFC 328 at [124]-[125]. Also, the Tribunal does not have to accept uncritically any claims made by the applicant: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451, 124 ALR 265 at 278; Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at 76.
I note that at the hearing, the Tribunal discussed the applicants’ written claims with him, put to him a series of questions, drew to his attention various inconsistencies in his evidence, (for instance, that his statement indicated that he had been attacked and seriously injured, yet he told the Tribunal that he was never assaulted or attacked (CB 86)), and gave him an opportunity to clarify his evidence (CB 84-87).
I consider that the Tribunal adopted a proper and fair line of questioning, and that it accorded the applicant procedural fairness in this regard.
“The Tribunal ignored the facts…”
The particulars to the first ground also allege that the Tribunal “totally ignored the facts mentioned in the Applicant’s submission".
Without proper particulars and the transcript of the Tribunal hearing to point to which facts are said to be ignored, it is difficult to make a proper assessment of the applicant’s contention.
The applicant provided a written statement to the Tribunal (CB 83-84) and also oral evidence at the Tribunal hearing, both of which were closely considered by the Tribunal in questions put to the applicant at the hearing (CB 84-87), and in its Findings and Reasons (CB 87-88).
As previously indicated, the Tribunal’s adverse view of the applicant’s credibility was formed on the basis of inconsistencies between the applicant’s written statement and his oral evidence to the Tribunal. The Tribunal was not required to accept uncritically the applicant’s claims contained within that statement: Randhawa at 451, at 278; Lay Lat at 76.
Far from ignoring the applicant’s claims, I am satisfied that the Tribunal rejected his claims after considering all the evidence. The Tribunal’s conclusion that the applicant was not a witness of credit was a finding of fact par excellence:
“If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.” (Re Minister for Immigration & Ethnic Affairs: Ex parte Durairajasingham [2000] 168 ALR 407 at [67]).
As stated above, it is no part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: (Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24]).
“The Tribunal made a decision prior to the hearing…”
The particulars to the first ground further allege that the Tribunal "made a decision prior to the hearing”.
As previously indicated, the Tribunal reached its decision on the basis of the applicant's lack of credibility, formed on the basis of inconsistencies between his written statement handed up at the Tribunal hearing and the oral evidence he gave at the Tribunal hearing. It is clear that the Tribunal reached its decision on the basis of what occurred at the hearing, not anything prior to the hearing.
To the extent that the applicant is asserting that the Tribunal has prejudged the matter, or was biased or acted in bad faith, he has not provided particulars to identify the precise nature of such an allegation. Further, as has already been noted above, the applicant has not provided the transcript of the Tribunal hearing before the Court.
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has not been done in the present case.
I also 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 not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any claim of actual bias on its part.
I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record in this case. I therefore reject any claim by the applicant that the Tribunal prejudged the case or made its decision prior to the hearing.
Accordingly, Ground 1 of the amended application must fail.

Ground 2 of the amended application

Ground 2 of the amended application states that the Tribunal “erred in law in asking and relying only on the material the perspective of the putative persecutors”. As with ground 1 of the amended application, ground 2 has multiple parts, most of which are found in the particulars.
“Getting documents from another country…”
In regard to this particular, the applicant arrived in Australia on 22 March 2007 and lodged his application for a Protection (Class XA) visa on 1 May 2007. The Acknowledgement of Application letter from the Tribunal to the applicant of 12 June 2007 (CB 46-47) invited the applicant to provide documentary or other evidence in support of the application. At the 17 August 2007 Tribunal hearing, the applicant stated that he had “no documents from his country” (CB 82). Also, in this regard, as referred to earlier, the applicant expressly stated in his statement to the Tribunal that he had “no documents in support of my claims except my oral evidence and this statement. When I was coming to Australia, I had no knowledge to bring any necessary documents to support my claim for the protection visa.”
The Tribunal also asked the applicant whether the statement he handed up at the hearing contained all the information regarding his claims, to which he replied "yes". (CB 82).
I consider that the Tribunal properly gave the applicant an opportunity to provide any documents in support of his application, including documents from another country. The applicant had a number of months since arriving in Australia, and also since receiving the Acknowledgment of Application letter from the Tribunal, to obtain any overseas documents to support his case. I consider that in these circumstances, the Tribunal was entitled to proceed and to reach a decision on the basis of the documentary and other evidence before it. I therefore detect no unfairness by the Tribunal on this basis.
“Benefit of the doubt…”
In regard to this particular, the role of a Tribunal is to make findings of facts in relation to claims by an applicant that he or she has a well-founded fear of persecution for a Convention reason. In assessing a claim, a Tribunal should be mindful of the difficulties that may face an applicant, and should give the applicant the benefit of the doubt if his or her claim is generally credible, even though the applicant cannot substantiate every aspect of the claim. As observed by the High Court in Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [191]:
…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.

While a Tribunal should be sensitive to these considerations, equally, it is not required to accept uncritically any allegation made by the applicant, nor is it necessary for it to have rebutting evidence before it can find that a particular factual assertion by the applicant has not been made out: Randhawa at 451, at 278.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A Tribunal is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70. As observed by the Federal Court in Lay Lat at 76:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
The Tribunal’s Findings and Reasons (CB 87) indicate that it was aware of the difficulties faced by asylum seekers and the relevant case law in relation to the making of adverse credibility findings. The Tribunal also noted that the “benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims” (CB 87).
In this particular case, however, the Tribunal did not consider the applicant’s claims to be generally credible. After considering all of the material before it, the Tribunal referred to what it considered were a series of inconsistencies and contradictions, which in turn "lead the Tribunal to conclude that the applicant is not truthful or credible" (CB 87).
I consider that the Tribunal correctly stated and applied the relevant principles regarding giving the benefit of the doubt to an applicant. The Tribunal's decision was supported by specific reasons why the applicant could not be believed, and therefore why he should not be given the benefit of any doubt in this case (CB 87-88).
“statements ignored and …denied procedural fairness…”
The applicant claims that:
·his statements were completely ignored by the Tribunal, and that
·the Tribunal declared him a totally untruthful witness and accordingly denied him procedural fairness.
These matters have already been dealt with under the grounds of review above, (in particular under ground 1 of the amended application in regard to the former claim, and under grounds 1 and 2 of the application in regard to latter), and I rely on my reasoning therein in the present context.
Accordingly, Ground 2 of the 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 before this Court is dismissed.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 29 February 2008