SZLUE v Minister for Immigration
[2008] FMCA 779
•13 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLUE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 779 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether breach of s.430 of the Act – merits review not function of judicial review – credibility – whether breach of s.424A of the Act – procedural fairness – whether international standards of protection applied – whether questioning of applicant oppressive – apprehended bias – whether Convention definition of “refugee” properly applied. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 474 |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 SZDWR v Minister for Migration & Indigenous Affairs [2006] FCAFC 36 SZGHC & Anor v Minister for Immigration & Citizenship [2007] FMCA 570 S1573 of 2003 v Minister for Immigration [2005] FMCA 47 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 |
| Applicant: | SZLUE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3898 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 21 April 2008 |
| Date of Last Submission: | 21 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
The application filed on 20 December 2007, and the amended application filed on 19 March 2008, are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,300 payable within four (4) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3898 of 2007
| SZLUE |
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) handed down on 29 November 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 12 February 1968. He claims to be a national of India, of Sunni ethnicity, and of Muslim faith.
The applicant arrived in Australia on 28 March 2007 on an Indian passport issued in his own name.
The applicant lodged an application for a protection visa on 7 May 2007 on the basis that he was beaten, persecuted and false accusations were made against him due to his political activities. The applicant claims that his life would be in danger if he returned to India (Court Book (CB) 21-25).
On 19 July 2007 the delegate refused to grant the applicant’s protection visa on the basis that he was not a person to whom Australia had protection obligations under the Refugees Convention (CB 35) (see Legislative framework).
On 14 August 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 40).
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 27 August 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 2 October 2007 to give oral evidence and present arguments (CB 46).
The applicant attended the hearing on 2 October 2007 and gave evidence in support of his claims.
The applicant's claims and evidence
The applicant claimed to have a well-founded fear of persecution arising from his political opinion as a member of the National Development Front (NDF). He made the following claims in his original application for a protection visa (CB 21-25):
·in 1998, the applicant became secretary of the NDF in Malattur Thana
·as a result of his political activities, members from opposing parties filed false cases against him and beat him up
·in April 2006, the CPI(M) party was elected to government in Malattur Thana
·after the CPI(M) party came to power, the applicant’s business was ransacked by CPI(M) members. The applicant reported this to the local police who failed to take action
·in November 2006, the applicant made a formal complaint to the District Commissioner regarding the actions of the police
·one week after his formal complaint, the applicant was forcibly taken to the police station where he was interrogated, beaten and accused of being a terrorist
·the police are looking for him as he broke his bail conditions by leaving India to come to Australia.
The Tribunal’s findings and reasons (CB 71–74)
On 29 November 2007, the Tribunal handed down its decision affirming the decision of the Minister’s delegate not to grant a protection visa to the applicant (CB 60).
I accept that the first respondent accurately summarises the Tribunal's findings and reasons as follows:
·the Tribunal accepted that the applicant was aware that a CPI(M) candidate won the April 2006 election and that the applicant had some knowledge of the IUML and supported the IUML
·however, due to the applicant’s lack of knowledge regarding the election results and inconsistencies in the applicant’s evidence, the Tribunal did not accept that:
i)the applicant was involved in supporting Master Hamid, the IUML candidate in the 2006 elections
ii)the applicant was harmed as a result of his support for the IUML or his support and association with the National Development Front (NDF) as a secretary
iii)the applicant was harmed or threatened by the CPI(M)
iv)the applicant was accused by the police of making false accusations and of being involved with terrorists or suffered any harm by the police as a result of his involvement with the NDF
v)the applicant was threatened with death and told to leave India; nor that
vi)the applicant had any false charges against him in India
·the Tribunal also was not satisfied that there was a real chance that the applicant would be targeted by CPI(M) members or the police in the future simply for his support or association with the IUML
·the Tribunal accepted that the applicant was associated with the NDF, was a secretary in his local area and was known for his involvement with the NDF. However, the Tribunal did not accept that the applicant had been or would be harmed for his role and association with the NDF in the future
·the Tribunal noted that although there was independent evidence that indicated NDF’s association in some violent incidents in India, the NDF’s aims were to assist economically and socially disadvantaged persons in India. The Tribunal did not accept that there was any evidence indicating that NDF supporters or members were targeted merely for their involvement in assisting disadvantaged persons
·the Tribunal accepted that the applicant’s business had suffered in India and that he had lost business contracts, however did not accept that this had occurred for any of the reasons claimed by the applicant, including involvement with the IUML or the NDF as a result of pressure exerted by the CPI(M) or the police
·the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason and affirmed the decision of the Minister's delegate not to grant the applicant a protection visa.
The Tribunal made the following finding in regard to the credibility of the applicant’s evidence:
The Tribunal’s concerns regarding the applicant’s lack of knowledge of the election results and the credibility of his evidence in relation to his claims regarding the events in India which led to him seeking protection, is compounded by the inconsistent nature of his claims between his written statement to the Department and oral evidence to the Department in relation to the events both prior to and following the 2006 elections (CB 72).
For these reasons, the Tribunal found there was not a real chance the applicant would suffer serious harm from political groups or the police in India. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if he were to return to India for reasons of being a member of the NDF, a member of a particular social group, or for any other Convention reason, now or in the foreseeable future.
The proceedings before this Court
The applicant filed the application in this Court on 20 December 2007 setting out 2 grounds of review of the Tribunal’s decision. The applicant filed an amended application on 19 March 2008 setting out 7 grounds of review.
The applicant appeared in person before this Court on 21 April 2008 with the assistance of a Malayalam interpreter. Ms Wong of counsel appeared for the first respondent.
Grounds of application
The grounds of the application are:
(1)The Refugee Review Tribunal failed to consider whether there was a failure of effective state protection in respect of the appellant for a convention ground, and therefore failed to consider an essential integer of his claim.
(2)The Tribunal did not treat this matter as a s.424A issue as I brought the statement submitted connection with application.
Grounds 1 and 2 of the application were not pressed.
Grounds of amended application
The grounds of the amended application are:
(1)The Tribunal in making its determination failed to record its decision in accordance with section 430 of the Migration Act.
Particulars:
(a)The Tribunal made no finding as to the extent or nature of persecution suffered by the applicant.
(b)The Tribunal however found any persecution suffered was not for any convention reason but did not give reasons for the finding.
(c)The Tribunal failed to record the material factors for the reasons referred to above.
(2)The Tribunal failed to accord procedural fairness under s.424 of the Migration Act 1958 as considered by the full Federal Court in NARV v MIMIA (2003) FCAFC 262 insofar as the Tribunal relied on Independent evidence as to the prevalence of claim about political persecution. On the basis of that the Tribunal was not satisfied as to the genuineness of my claims nor of the genuineness of my statements about my harassment of systematic nature.
Section 424A of the Migration Act provides:
Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies-by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention-by a method prescribed for the purposes of giving documents to such a person.
In accordance with the above section the delegate and the Tribunal would give me particular of the Independent Information as to claims based on ‘adequate state protection to me’ though I raised the issues of the poor law and order situation in India and such information formed part of the reason for the Tribunal decision. The Tribunal mention to me the adverse information to decide my case neither at the time of review nor afterwards.
(3)I have given adequate evidence to the Tribunal that I was accused of being involved in local terrorism and dragged to Malattur Police station and brutally tortured and interrogated for being Muslim and NDF member, but the Tribunal member failed to consider my claims.
(4)The Tribunal failed to ask a question that was, in the circumstance of this case legally required to ask.
Particulars:
(a)Whether the Indians authorities provided a standard of protection comparable with international standards.
(5)That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to the applicant's claims; because I spent long time being questioned without a break and felt stressed and intimidated.
(6)The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particular Ground:
(a)The Tribunal did not consider the applicant who had been under immense and intimidating pressure from CPI (M) toughs and goons.
(b)In relation to above the Tribunal did not consider the applicant's claim that his NDF and IUML activities resulted in threats by CPI (M) members. The Tribunal also failed to acknowledge that my family members also suffered in communal riot.
(7)The Refugee Review Tribunal a failed to act that the applicant satisfy the definition of ‘Refugee’ as defined in Article 1A (2) of the Convention. To go further the Tribunal failed to see that the applicant satisfy the four key elements that are required to satisfy the Convention definition. The applicant states that the Tribunal refers to four key elements and since they satisfy them they are entitled to protect visa.
The first element – applicant must be outside his country
The second element – the applicant must fear persecution. If the applicant return to his country his life his life would be in danger
The third elements – the persecution that the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The applicants fulfil this.
The fourth element – the fear of persecution for a Convention must be a “well founded” fear. The applicant fulfil all four elements.
The Tribunal, which has described these in its decision, have failed to take note of this.
LAW RELATING TO EXERCISE OF THE TRIBUNAL POWERS:
91R (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
414 Refugee Review Tribunal must review decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an Tribunal‑reviewable decision, the Tribunal must review the decision.;
415 Powers of Refugee Review Tribunal
(1) The Tribunal may, for the purposes of the review of an Tribunal‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
420 Refugee Review Tribunal's way of operating
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
Therefore the applicant submits that the Tribunal failed to analyse properly the “future harm” the applicant may face if he has to go back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant's claim.
Ground 1 of amended application
The applicant claims that the Tribunal breached its obligations under s.430 of the Act in that it:
·failed to make any finding as to the extent or nature of persecution suffered by the applicant;
·did not give any reasons for the finding that any persecution suffered was not for a Convention reason;
·failed to record the material factors for the reasons referred to above.
Section 430(1) provides that:
Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
I am satisfied that the Tribunal complied with the requirements of s.430(1). It set out its decision on the review, giving lengthy reasons for its decision to refuse to grant the applicant a protection visa. In so doing, it set out its findings on all material questions of fact and referred to the evidence and other material on which its findings of fact were based. The Tribunal carefully reviewed each of the applicant’s claims, and rejected them due to inconsistencies within the applicant’s evidence, and between the applicant’s evidence and the independent country information.
I accept the submission by the first respondent that:
the Tribunal did make findings as to whether or not the applicant suffered persecution and gave detailed reasons as to why it concluded that those claims were not made out. So in these circumstances, there can be no breach of s.430 (transcript 21/4/08, p 8).
I thus consider that there was no failure on the part of the Tribunal to make findings or to give reasons. In any event, I note that the High Court has held that any failure to make findings or give reasons generally does not give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [1], [34]-[35], [68], [217].
Furthermore, where the Tribunal, as in the present case, has made adverse findings as to the credibility of the applicant’s evidence, no detailed reasons need be given. Such findings are findings 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 & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67].
Merely because the applicant disagrees with the Tribunal’s adverse finding of credibility does not amount to an error of law. It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
Also, the weight the Tribunal accords the material before it is ultimately a factual matter for it. 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.
Accordingly, Ground 1 of the amended application is rejected.
Ground 2 of amended application
The applicant claims that the Tribunal breached s.424A of the Act by failing to provide him with particulars of the independent country information relied upon by it and seemingly denied him procedural fairness by not giving him the opportunity to comment or respond to such information upon which it would otherwise have made an adverse finding.
Subsection 424A(3), however, provides certain statutory exceptions to the Tribunal’s obligation under s.424A(1). It is well-established in this regard that independent country information falls within the exception stated in s.424A(3)(a), being information which is not specifically about the applicant: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572.
Equally, information provided by the applicant with the protection visa application to the Department, and evidence given by the applicant at the Tribunal hearing fall within the exceptions stated in s.424A(3)(ba) and s.424A(3)(b), respectively.
In any event, it is also clear that a proper construction of the word “information” in the context of s.424A and hence what information must be given to an applicant for comment, does not extend to the Tribunal’s subjective thought processes or appraisals of the evidence before it, including its disbelief of an applicant’s evidence: 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.
Equally at the forefront of the Tribunal’s thought processes and appraisals of the evidence in the present case, was the credibility of the applicant’s evidence. I consider therefore that the Tribunal was not obliged to notify the applicant pursuant to s.424A(1) of its concerns about his credibility.
Likewise, in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27], the Full Federal Court commented that:
The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of sub 424A(1) does not fit easily into the structure of s.424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review … The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of sub 424A(1).
For the above reasons, I detect no breach of s.424A of the Act and am satisfied that the applicant was accorded procedural fairness in this regard in compliance with the statutory regime.
Accordingly, Ground 2 of the amended application is rejected.
Ground 3 of amended application
The applicant argues that the Tribunal failed to consider his claims to have been “accused of being involved in local terrorism and dragged to Malattur Police station and brutally tortured and interrogated for being Muslim and NDF member.”
I am satisfied that the Tribunal specifically and sufficiently dealt with these claims in that it:
·did not accept that the applicant was accused by the police of making false accusations and of being involved with terrorists or that he suffered harm from the police (CB 72.9-73.1)
·did not accept that the applicant was harmed by police because of his support for the IUML candidate; nor that the police refused to take his First Information Report and refused to support him; nor that he was bailed and had breached bail conditions in India; nor that he was required to sign in with the police on a weekly basis (CB 73.2-73.3)
·did not accept that the applicant had ever suffered any harm as a result of his membership and support for the NDF (CB 73.8)
·held that the applicant’s evidence did not establish that he had been targeted for reasons of his race or religion or that he had ever suffered harm for this reason or for any other Convention reason in India (CB 74.3).
For the reasons set out above under ground 1 of the amended application, these finding of fact by the Tribunal, including as to the credibility of the applicant's claims, are not open to judicial review.
Accordingly, Ground 3 of the amended application is rejected.
Ground 4 of the amended application
The applicant claims that the Tribunal failed to ask whether the Indian authorities provided a standard of protection comparable with international standards.
The Tribunal held in this regard that the applicant had failed to establish that he had suffered persecution for a Convention reason or that he had a well-founded fear that he would suffer persecution in the reasonably foreseeable future. Given these conclusions, the Tribunal was not required to go further and consider whether the Indian authorities would provide the applicant with adequate protection against persecution if he returned to India.
I accept the submission by the first respondent that:
once the Tribunal had determined that the applicant did not have a well founded fear of persecution … it was not required to consider whether the Indian authorities were providing adequate protection to the applicant (transcript 21/4/08, p 11).
In any event, this ground appears to pick up the wording of the High Court in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [27] and [28] concerning whether the Ukraine provided its citizens with “the level of state protection required by international standards”.
S152/2003 has been the subject of judicial consideration by the Full Federal Court in SZDWR v Minister for Migration & Indigenous Affairs [2006] FCAFC 36, in particular at [18]-[21]; and in SZGHC & Anor v Minister for Immigration & Citizenship [2007] FMCA 570 at [25]-[28] per Driver FM who cited with approval the decision of S1573 of 2003 v Minister for Immigration [2005] FMCA 47 per Smith FM, in particular at [27]-[34].
In SZGHC, Driver FM reached the following conclusion with regard to the relevance of the reference to “international standards of protection” in S152/2003:
… properly understood, the observations of the High Court in S152 were not intended to establish a new test for determining the effectiveness of State protection. It would be wrong to conclude from those observations that a reference to international standards in any case is either a necessary or a sufficient consideration. The obligation on decision makers is to consider whether, at a practical level, effective State protection will be available to particular applicants. International standards of protection, if known, may inform that assessment but they cannot replace it.
I agree with the above reasoning of Driver FM on these matters. There is therefore no requirement for a Tribunal faced with a state protection issue to try to identify international standards and pronounce on whether the particular state in question meets those standards or not.
Accordingly, Ground 4 of the amended application is rejected.
Ground 5 of the amended application
The applicant claims that the Tribunal did not take into account that at the Tribunal hearing he had spent a long time being questioned without a break and felt “stressed and intimidated.”
The applicant has not provided the transcript of the Tribunal hearing or any evidence to establish that he was unable to give evidence, or to continue to give evidence at the Tribunal hearing for any medical or other reason.
The Tribunal Hearing Record establishes that the duration of the Tribunal hearing was one hour fifty minutes (from 12.30 pm to 2.20 pm) (CB 49). I do not consider that this hearing period is unduly prolonged.
Also, there is nothing disclosed on the face of the Tribunal decision record to indicate that the applicant requested a break during the course of his giving evidence, nor that he complained about the length of the hearing either at the time or at any time thereafter, prior to the handing down of the Tribunal decision.
Furthermore, there is nothing to suggest that any questioning of the applicant was unduly repetitive, oppressive, harassing, intimidating, or that the applicant was in any way confused, intimidated or overborne, which could otherwise have constituted procedural unfairness or bad faith on the part of the Tribunal. As relevantly observed by the High Court in Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [30]-[31]:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
I am thus satisfied that there is nothing disclosed on the face of the decision record concerning the manner and form of the questions asked of the applicant, from which “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 applicant was in any way intimidated or overborne by the approach adopted by the Tribunal and from which an inference might otherwise have been available that the Tribunal did not bring an impartial mind to the task of the decision making process: ex parte H & Anor (at [28]).
Accordingly, Ground 5 of the amended application is rejected.
Ground 6 of the amended application
The applicant argues that the Tribunal did not consider that he had been under “immense and intimidating pressure from CPI(M) toughs and goons” and that the applicant’s NDF and IUML activities resulted in threats by CPI(M) member. The applicant also claims that the Tribunal did not consider that his family members had also suffered in the communal riot.
The Tribunal made the express finding that it did not accept that the applicant was ever harmed or threatened by the CPI(M) (CB 72.10). The Tribunal gave detailed reasons for its refusal to accept this aspect of the applicant’s claims (CB 72).
In regard to claims of harm to family members, the applicant at the Tribunal hearing asserted that:
The Marxists then came to the applicant's home. The applicant's father and wife and children were home. The applicant's father was traumatised and went to a mental hospital for two days (CB 69).
The Tribunal expressly referred to this claim in its Findings and Reasons. It concluded that it did not believe the assertion by the applicant that his father was threatened and was forced to go into a mental hospital (CB 73.2).
For the reasons set out above under ground 1 of the amended application, these finding of fact by the Tribunal, including as to the credibility of the applicant's various claims, are not open to judicial review.
Accordingly, Ground 6 of the amended application is rejected.
Ground 7 of amended application
The applicant claims that the Tribunal failed to ask itself whether the applicant satisfied the four key elements of the definition of “Refugee” stated in the Convention.
In this regard, the Tribunal set out in its decision the four key elements of the Convention definition of ‘Refugee’ under the Relevant Law and the High Court authorities on the point (CB 64-66). The Tribunal then proceeded to apply that definition to the evidence provided by the applicant in support of his claims.
The Tribunal decision demonstrates that it was not satisfied on each of the second, third and fourth elements. Indeed, once it concluded on the second element that the applicant’s credibility could not be accepted and that the applicant did not have a genuine subjective fear of persecution, elements 3 and 4 could no longer be satisfied. The Tribunal’s finding on this second element was ultimately a matter for it in its fact finding role. As stated above, it is not the proper function of this Court to engage in impermissible merits review.
I thus detect no jurisdictional error in the manner in which the Tribunal undertook this task.
Accordingly, Ground 7 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 and the amended application before this Court are dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 13 June 2008
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