SZMNS v Minister for Immigration
[2009] FMCA 256
•5 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMNS v MINISTER OF IMMIGRATION & ANOR | [2009] FMCA 256 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – written request for information from a third party – specification of period for provision of information – whether “breach” of s.424B – whether Tribunal erred in its consideration of applicant’s request for an extension of time to provide response to s.424A letter or further information – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.91R, 424, 424AA, 424A, 424B, 424C,425 |
| Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 SZKTI v Minister for Immigration and Citizenship and Another (2008) 168 FCR 256 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SZLWQ v Minister for Immigration and Citizenship and Another (2008) 172 FCR 458 | ||
| Applicant: | SZMNS | |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1848 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 5 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1848 of 2008
| SZMNS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal signed on 11 June 2008 and handed down on 1 July 2008. The applicant, a citizen of India, arrived in Australia in January 2008 and applied for a protection visa. The application was refused and he sought review by the Tribunal.
The applicant claimed that when he was a student and involved in the Kerala Students Union (KSU) he and his friends had been injured by Students Federation of India (SFI)-affiliated students. He feared that he would be killed by the Communist Party of India (Marxist) (the CPI(M)) whose thugs had attacked him and his brother at their home. He claimed that the CPI(M)-led Kerala government and its agents would deny him protection from his opponents for political reasons. He claimed that his persecutors could find him anywhere in India and that he would be unable to safely and reasonably relocate.
It is relevant to these proceedings to note that one of the reasons the delegate of the first respondent gave for refusing the application on 14 February 2008 was the lack of corroborative evidence (such as a hospital report or a newspaper article) to support the claim that CPI(M) members attacked the applicant and his brother.
The applicant sought review by application lodged with the Tribunal on 10 March 2008. The Tribunal acknowledged receipt of that application by letter of 10 March 2008. Among other things, it invited the applicant to immediately send any documents, information or other evidence he wanted the Tribunal to consider.
On 20 March 2008 the Tribunal invited the applicant to attend a hearing to be conducted on 22 April 2008. It again requested him to provide any additional information or new information he wished the Tribunal to consider.
The applicant attended the hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision and the material in the court book. The Tribunal recorded the issues discussed at the Tribunal hearing at some length, including the fact that it alerted the applicant to serious concerns it had about his refugee claims. It referred to the absence of documents or other independent evidence to substantiate the claim. It summarised its concerns as relating to inconsistencies in his evidence (in particular about the timing and number of adverse incidents he had been involved in); that his claim that the group of SFI students (referred to as the Nandath) had a motivation to silence potential witnesses in a criminal trial suggested that they were not pursuing a political agenda, but rather simply seeking to prevent him from giving evidence; that his conduct and circumstances such as his residency, employment and tardy departure from India (after obtaining his passport in October 2006) suggested that he did not fear persecution from the Nandath group or from the CPI(M)-led state authorities; and that his failure to seek protection in New Zealand (he visited on a student visa in September – October 2007) and his voluntary return to India (between October 2007 and January 2008) strongly suggested that he did not fear persecution in India at all.
This last factor was a reference to the fact that the applicant had obtained a passport in October 2006 and visited New Zealand in September/October 2007 to undertake studies. The Tribunal discussed with the applicant information it had obtained from New Zealand, a matter to which I will return.
After setting out these matters the Tribunal recorded that the applicant said that “he did not have anything to add or any further evidence.” The Tribunal advised that it would write to the applicant to put to him particulars of adverse information “as it considered it reasonable to set this out in a letter for him to consider carefully.” It also advised that he “could also submit any further information or evidence if he wished.”
After the hearing the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) by letter dated 23 April 2008 seeking his comments on information that may be the reason, or part of the reason, for affirming the decision under review. The Tribunal put to the applicant matters that it had raised at the hearing (including about his reasons for returning to India from New Zealand as recorded in information obtained from New Zealand), referred to the specific relevance of each of the items of information, and indicated that if it found that some of the claims were inaccurate it may infer that his refugee claims as whole were untruthful.
The s.424A letter advised that the applicant's comments or response should be received by the Tribunal by 19 May 2008, that if he could not provide his written comments or response by 19 May 2008 he may ask in writing for an extension of time before 19 May 2008, that the Tribunal would carefully consider any request for an extension of time and advise whether or not it was granted and also that if the Tribunal did not receive his comments or response within the period allowable as extended it may make a decision on the review without taking any further action to obtain his views on the information put to him in that letter.
By letter dated 17 May 2008 (sic) the applicant wrote to the Tribunal. The copy of that letter in the Court Book is marked as having been received by the Tribunal on 16 May 2008. The letter acknowledged receipt of the invitation to comment or respond and claimed that the applicant needed to submit “many evidence which are support my application, but at the moment I don't have any evidence to submit for my application”. He explained that his brother was collecting information such as newspaper, hospital and police reports and that the incident was two years earlier and claimed he could not submit the documents within the time. He asked for at least 30 days to submit all his evidence. The court book contains a Tribunal case note dated 19 May 2008 which records that on the Tribunal member's instructions a Tribunal staff member contacted the applicant by telephone and advised him that an EOT (which I take to be an extension of time) had not been granted although it had been considered carefully by the member. The case note continued:
I confirmed with the [applicant] that the due date for the response is today (19/5). I explained that the Tribunal will take into account any material provided before the handing down. The [applicant] explained that he is in the process of obtaining documents from India and that he will try to get them to the Tribunal as soon as possible.
By letter dated 19 May 2008 the Tribunal advised the applicant that his request for an extension of time to provide comments or to respond to the s.424A letter had not been granted and that his comments or response must be received by 19 May 2008 as previously advised.
On 26 May 2008 the applicant wrote to the Tribunal with “some evidence to support” his case, which he described as a newspaper report and hospital report. He claimed that he needed to submit some other documents and that he had not been given much time. He requested that he be given some time to submit the rest of his evidence. On 12 June 2008 the Tribunal wrote to the applicant inviting him to the handing down of the Tribunal decision on 1 July 2008.
In its reasons for decision the Tribunal summarised the applicant's claims made in connection with his protection visa application. It described events that he claimed had occurred at particular times prior to his departure from India, including the claim that he had been attacked, seriously injured and admitted to hospital during a 2004 college election campaign, that a friend had been killed, that he had been threatened after the CPI(M) came into power in May 2006 and that his house had been attacked and his brother injured. It referred to the s.424A letter and also to the information provided by the applicant with the letter of 26 May 2005 and to country information about the political situation in India generally and the state of Kerala in particular.
However, the Tribunal found, for reasons which it gave, that the applicant was not a person who had suffered past Convention-related persecution in India. It found that the applicant’s claims were not based on his direct personal experiences, but had been fabricated for the purposes of the application. It rejected his claim to have an adverse profile with the CPI(M) and its supporters and concluded that having considered his claims individually and cumulatively, there was no real chance that the applicant would face persecution for reasons of political opinion or for any other Convention-related reason if he returned to India.
In finding that the applicant had not suffered past Convention-related persecution in India, the Tribunal outlined a number of areas of concern for which it found that there was not an adequate explanation. It had regard to the applicant’s travel to New Zealand in late 2007 and his failure to raise any concerns there about his welfare in India or to seek refugee status. It found this to be compelling evidence that the applicant did not fear persecution in India at that time. The Tribunal noted that the applicant had said that he found his study course in New Zealand unsuitable for career and immigration-related reasons. It recorded that, as it had discovered from inquiries made to New Zealand, the applicant had told his New Zealand education provider that he found the course too difficult.
The Tribunal considered the applicant’s claim that he did not receive any advice regarding the availability of refugee protection in New Zealand. It accepted that the applicant was concerned about his studies after arriving in New Zealand, but found that this did not adequately explain his failure to voice any fears of persecution in India or to explore what protection might be available in New Zealand. The Tribunal considered that the applicant had had enough time and the requisite skills in areas such as language, education and friends, to make inquiries in New Zealand if he was at risk in India.
The Tribunal also found that the applicant's return to India for three months from October 2007 reinforced its view that he did not then fear persecution in India, observing that he had provided no persuasive reason for his willingness to return despite his claimed fears.
The Tribunal had regard to country information that was consistent with the applicant’s claims, but found that this did not show that the applicant had personally been involved in political activities and violence. The Tribunal accepted that newspaper clippings submitted by the applicant after the hearing were evidence that there was political violence at the applicant's college in October 2004 (notwithstanding some reservations about the provenance of the articles) and that some students who expected to give evidence against attackers had feared for their safety in February 2006. While it found that these reports were generally consistent with the applicant's claims, it also found that they were of limited value in determining whether he himself was personally affected by such incidents and whether they now gave rise to a well-founded fear of persecution.
The Tribunal also had regard to the hospital discharge note dated 26 May 2006 relating to the applicant's brother provided by the applicant after the hearing (despite reservations based on the fact that it was in English), but found that at face value it showed only that his brother had been injured by a knife wound and suffered head injuries. While this occurred at around the same time as the election of the CPI(M) in May 2006, the Tribunal observed that the note did not set out the circumstances of the incident or establish any link with the applicant and his claimed political profile.
The Tribunal accepted on the basis of the applicant's oral and documentary evidence and country information that he supported the Indian National Congress (the INC) and that his political affiliation was generally known on campus, but did not accept that he had any political profile either directly or through his association with other KSU students or that he was personally involved in any incidents of political violence that continued to motivate the Nandath group, or anyone else linked with the CPI(M), to pursue him.
The Tribunal had regard to the fact that while the applicant claimed to be an active member in the KSU, there had been no evident disruption to his studies as a result of any political commitments, any general unrest on campus or any actual or perceived threat to himself. It also had regard to the fact that he had worked in his chosen field, continued to live in the family home and that he obtained a passport in October 2006 (yet did not use it until late 2007). The Tribunal found little in the applicant’s studies, employment, place of residence and travel to suggest that he had any genuine political commitment or profile as claimed and that his oral evidence provided only “weak support” for his claimed involvement in KSU and Keralan politics, as most of his oral claims related not to his own activities but to those of friends and fellow students.
The Tribunal findings were reinforced by what it regarded as confused and unconvincing evidence from the applicant as to the Nandath group’s actions against him. It detailed inconsistencies in the evidence he had given about the number of attacks he had been subject to and contradictory evidence as to the circumstances of the killing of a named person. It also observed that the group did not appear to have inflicted any physical or other direct harm on the applicant from the time the conflict allegedly flared up in 2004 to the present. It found his explanations for concerns it had expressed at the hearing to be improvised. It found that if that group or anyone had been motivated to harm the applicant for any reason there had been ample opportunity for them to do so.
The Tribunal also found that the applicant’s evidence as to the availability of state protection from the Nandath group up to May 2006 was hesitant and unconvincing. It explained the manner in which it found his account of an alleged attack in February 2005 to be “particularly problematic”. It dismissed this claim and found that the alleged incident that he complained of was without foundation and truth.
The Tribunal did not accept the applicant's claims that there was a new and heightened level of danger after the CPI(M) government was elected in May 2006, having regard to the Nandath group's failure to take any decisive action, the applicant's delayed departure from India and his return to India from New Zealand.
The Tribunal found that the applicant's refugee claims were not based on his direct personal experiences, but were fabricated for the purposes of the application, in part based on his knowledge of campus politics and politics in Kerala.
Hence, while the Tribunal accepted that the applicant favoured the INC, was associated with the KSU at college and may have known some individuals involved in political clashes, it rejected his claim that he was a KSU activist or that he would be so perceived as a result of any friendships. It did not accept that while the applicant was at college the Nandath group targeted his friends in October 2004 and February 2005 as claimed and that they would have harmed him had he been present. It accepted that a named KSU student leader was killed, but not that the applicant had any close political or personal association with the person or that he witnessed the attack and was to give evidence in any subsequent criminal trial.
The Tribunal accepted that the applicant's brother was injured in May 2006 and that the timing of this attack could suggest a political aspect to the incident, but found “with confidence” that it was not a politically motivated act by the Nandath group aimed at intimidating or harming the applicant via his family or in any way linked to his dismissed claims about clashes and subsequent court action. It did not accept that the group would pursue the applicant from one place to another as claimed, yet fail to reinforce this attack with more direct action against him thereafter. It did not accept the applicant’s explanation that he took credible precautionary measures and it found his delayed departure from India and return there from New Zealand demonstrated that he did not have any subjective fear of harm from the group.
Nor did the Tribunal accept that the applicant faced any heightened risk from May 2006 after the CPI(M) came to power or that he had any political profile that would cause the State or any of its agents to deny him protection from harm that might befall him. While it accepted, based on a news article the applicant presented after the hearing, that a criminal trial was pending against students involved in political violence at the college the applicant had attended, it did not accept that the applicant had been involved in or a witness to such clashes. The Tribunal found that his conduct in India and New Zealand further supported the conclusion that the applicant did not fear harm as a result of any politically motivated intimidation or threats linked with such a trial, or any other non-Convention-related risks such as shortcomings in Kerala’s witness protection program.
The Tribunal found nothing else to suggest a real chance of Convention-related persecution. It found that the applicant did not have any political commitment or interest that would motivate him to become politically active in the future and that he was not involved in any prospective court case of a political nature. It found that he did not face a real chance of persecution simply because he generally favoured the INC and was sympathetic towards the KSU and associated with political groups. As the Tribunal found that the applicant did not face a real chance of Convention-related persecution in his home area or elsewhere in Kerala, it found that it was not necessary to consider whether he could reasonably relocate.
Considering the applicant’s claims individually and cumulatively the Tribunal found there was no real chance he would face persecution for reason of political opinion or other Convention-related reason if he returned to India now or in the reasonably foreseeable future.
The applicant sought review by application filed in this Court on 18 July 2008. He relies on an amended application filed on 17 October 2008. He did not file written submissions, but made oral submissions today.
The first ground in the amended application is as follows:
The tribunal failed to accord procedural fairness under s424 of the migration act 1958 as considered by the full federal court in NARV v MIMIA (2003) FCAFC 262 insofar as the Tribunal relied in (sic) independent evidence as to the prevalence of (sic) claim about political persecution. On the basis of that the Tribunal was not satisfied as to the genuineness of applicant's claims nor of the genuineness of applicant's statement about my (sic) harassment of systematic nature.
In written submissions counsel for the first respondent addressed a number of possible issues that might be raised by this ground, which is not expressed with clarity. Insofar as there is a general contention of a lack of procedural fairness, as discussed further below no failure to comply with any of the procedural requirements of the Migration Act1958 (Cth) has been established and neither actual or apprehended bias on the part of the Tribunal is made out (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982).
Insofar as it is suggested that the Tribunal erred by relying on country information, the Tribunal did not rely on country information in a manner adverse to the applicant. In any event, the relevance and weight of country information are matters for the Tribunal (see SZANK vMinister forImmigration & Multicultural & Indigenous Affairs [2004] FCA 1478 at [16] per Hely J and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]).
The application referred specifically to the decision in NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 which I take to involve a suggestion that the Tribunal was under an obligation to put to the applicant independent country information pursuant to s.424A of the Migration Act (presumably on the basis that such information was not within the exception in s.424A(3)(a) which provides that sub-s.(1) does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member).
However the approach to the interpretation of s.424A(3)(a) in NARV was not followed in subsequent decisions of the Full Court of the Federal Court: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572 at [66] – [74], [125] – [138]; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [43] – [46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20] – [30] and VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [12] – [14].
On the basis of the law as it now stands, independent country information of the kind referred to in the Tribunal's reasons for decision is within s.424A(3)(a) and hence is not information subject to the obligation in s.424A(1).
Ground one also refers to s.424 of the Migration Act although, as counsel for the first respondent pointed out, no particular breach of that section is pleaded. Section 424 provides:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A …
The first respondent's submissions addressed the possibility that the invitation which the Tribunal extended to the deputy campus manager of the academic institution in New Zealand which the applicant was to attend (Whitireia Polytechnic, Auckland Campus) was an invitation within s.424(2) of the Act (as considered in SZKTI v Minister for Immigration and Citizenship and Another (2008) 168 FCR 256 and Minister for Immigration and Citizenship v SZLFX [2008] FCAFC 125) and hence subject to the need to comply with s.441A and that it was an invitation in relation to which s.424B would be relevant.
The Tribunal’s request for information occurred over a number of contacts between the Tribunal and the Polytechnic in New Zealand. The Tribunal first obtained, by telephone and email, facsimile contact details for the deputy campus manager (perhaps with an eye to the obligation in s.441A(5) that an invitation within s.424(2) be transmitted by facsimile to the last facsimile number provided to the Tribunal by the recipient in connection with the review).
Then, by letter sent by facsimile of 14 April 2008, the Tribunal requested information (to be provided in writing by 18 April 2008) from the Polytechnic in relation to whether the applicant was a student in a particular course, whether he gave any reasons for his delayed return to New Zealand or if he made contact to explain his non-attendance in the course. It also sought clarification of his enrolment details.
The deputy campus manager responded to the Tribunal's facsimile of 14 April 2008, first by email of 14 April 2008 and then by a letter of confirmation faxed to the Tribunal dated 15 April 2008 advising that the applicant was a student in a particular program in October 2007 but that he only attended for one week and withdrew from his course. Documents were attached in relation to the applicant’s reasons for withdrawing and other matters.
While the first respondent formally and protectively submitted that SZKTI and SZLFX were wrong, those decisions of the Full Court of the Federal Court are, of course, decisions that are binding on this Court. On this basis, when the Tribunal sought information from the Polytechnic, prima facie s.424(2) was engaged. It gave that invitation by one of the methods specified in s.441A (see s.441A(5)) in a manner that complied with the mandatory requirements of s.424(3) (see SZKCQ v Minister for Immigration and Citizenship and Another (2008) 170 FCR 236).
Section 424B provides that where a person is invited to give additional information, the invitation is to specify the way in which the additional information or the comments or response may be given. In this case the invitation specified a response “in writing by 18 April 2008.” Sub-section 424B(2) states that if the response is to be other than at an interview, the response is “to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.”
Under regulation 4.35(5) of the Migration Regulations where the information or comment is to be provided from a place that is outside Australia, the prescribed period for giving the information or comments starts when the person receives the invitation (see s.441C(5)) and ends at the end of 28 days after the day on which the invitation was received.
The Tribunal did not specify such a 28 day period in its letter seeking information from the Polytechnic in New Zealand. Its facsimile letter of 14 April 2008 sought a response in writing by 18 April 2008. The Polytechnic responded by that date.
This is not a case in which there was a failure to respond on which the Tribunal relied under s.424C or in which s.425(2) or (3) was relevant. In circumstances such as these, consistent with the approach taken by Buchanan J in SZLWQ v Minister for Immigration and Citizenship and Another (2008) 172 FCR 458, no breach of s.424B occurs and, in any event, there is no jurisdictional error on the part of the Tribunal. As Buchanan J stated relevantly (at [52]) in SZLWQ:
Section 424B(2) on its face directs that “information or comments are to be given within a period specified in the invitation”. It does not, in terms, impose a direct obligation on the RRT about the terms of the invitation (cf s 424B(1) – “the invitation is to specify ...”). The consequence of any failure to specify a period is that the facility in s 424C of proceeding to a decision in the absence of the information might not be available but I do not see s 424B(2) as establishing the kind of obligation on the RRT which could lead to either statutory breach or jurisdictional error. A circumstance of this kind (failure to specify a period and consequent inability to rely on s 424C) does not fall within any of the reasoning in SZKTI, SZKCQ or SZIZO. As it happens the information was given. It was brought to the attention of the appellant. She had an opportunity to deal with it. It cannot be said that the information was not given before the time for it had passed (s 424C(1)(b)). In my view no ‘breach’ of s 424B(2) occurred and, in any event, any failure to comply with its strict terms did not, in the circumstances of this case at least, amount to jurisdictional error on the part of the RRT. …(emphasis added).
Such reasoning is applicable not only to a situation in which there has been a failure to specify a period for response, but also to a case such as this one, where the period specified was not the 28 day period provided for in regulation 4.35(5). I note that there is no suggestion that the New Zealand recipient of the letter was unable to fully deal with the request or needed more time. The information was brought to the attention of the applicant in the hearing and in the s.424A letter and he had an opportunity to respond. No jurisdictional error is established on this basis.
It was formally and protectively submitted by the first respondent that if the view taken by Buchanan J in SZLWQ was not binding and correct (which it was said to be), relief could and should be denied on discretionary grounds, as not allowing 28 days for the response from the Polytechnic could not have affected the Tribunal's decision. As submitted however, it is not necessary to consider the question of withholding of relief on discretionary grounds given my findings. As this suggestion was not pursued, I do not consider it is necessary to address this issue further.
Finally in relation to ground one, insofar as the applicant contends that the Tribunal did not accept the genuineness of his claims, such a contention seeks merits review which is not available in this Court. Ground one is not made out.
The second and third grounds can be considered together. The second ground takes issue with the Tribunal’s failure to “see” that the applicant satisfied the definition of "refugee" in the Refugees Convention and met the four key elements required under the Convention definition. The third is that the applicant gave adequate evidence to the Tribunal that he was physically assaulted on several occasions, but that the Tribunal failed to consider his genuine claim. These grounds seek merits review. As indicated, merits review is not available in this Court. Further, contrary to the applicant's claim that the Tribunal failed to consider his claims that he was physically assaulted on several occasions, the Tribunal addressed those claims, albeit it was not satisfied that he had in fact been assaulted as claimed. These grounds are not made out.
The fourth ground is as follows:
The Applicant requested to the Tribunal that he need (sic) more time to commend (sic) or respond to the letter wrote (sic) by the Tribunal on 23/4/2008, (sic) The applicant needed to get more evidence from his home country, but the tribunal does not allowed (sic) the applicant for (sic) sufficient time to comment or respond to the letter from RRT to applicant, this was a serious misdirection made by the Tribunal by denying the Applicant an opportunity to explain his claim to be a refugee, (sic).
Again there are a number of possible issues raised by this ground. In oral evidence the applicant explained that his contention was that the Tribunal did not give him enough time to collect and submit information to it. He said that this was the main reason he had sought review. He claimed that he had asked two or three times for further time to get information from India (from his brother) and took issue with the fact that the Tribunal had not acceded to his request.
The applicant also suggested that once he was informed by telephone that there would be no extension of time, he had “slackened” in proceeding with his endeavours to obtain further information. He claimed that he expected the Tribunal decision at any time and that that would be the end of his case. He also suggested that a letter came saying that if he had anything he should submit it, so he gave the Tribunal some documents, but that the Tribunal's telephone message had prevented him from actively proceeding to get further evidence.
The applicant contended that the confusion he experienced had prevented him from getting further evidence and that it should have been the obligation of the Tribunal to grant him the time he sought initially and to provide a letter, in black and white, as to the exact time he had to submit documents.
Insofar as this contention takes issue with the fact that the applicant was not given more time to respond to the Tribunal's letter under s.424A of the Act, as the first respondent submitted, it does not establish jurisdictional error. The Tribunal’s s.424A letter of 23 April 2008 sought a response by 19 May 2008. It appropriately notified the applicant that he could seek an extension of time. As indicated, the applicant wrote to the Tribunal by letter received on 16 May 2008, referring to the invitation to comment or respond and also to his need to submit evidence to support his application and seeking 30 days. It is not clear from the drafting of this letter whether the applicant was seeking 30 days to respond to the invitation to comment, or 30 days to provide further evidence in support of his application. In any event, both aspects were addressed, according to the case note of the telephone call made by the Tribunal staff member on 19 May 2008. It is apparent that the Tribunal member considered the applicant’s request for an extension of time (and this must, in context, be an extension of time to respond to the s.424A letter), but decided not to grant an extension. Importantly, the Tribunal also advised the applicant that the Tribunal would take into account any material he provided before the handing down of the decision.
The Tribunal confirmed in writing that there would be no extension of time to respond to the s.424A letter. Contrary to the applicant's claim that he assumed from this that he could not put anything further before the Tribunal, he wrote to the Tribunal on 26 May 2008 providing further information which, I note, was taken into account by the Tribunal in its reasons for decision. He again sought further time to submit the rest of his evidence. However the Tribunal wrote to the applicant on 12 June 2008 inviting him to the handing down of the decision on 1 July 2008. As the first respondent submitted, in light of the fact that the applicant had been advised that the Tribunal would take into account any material provided before the handing down, this alerted him to the fact that the Tribunal's response to his request for time to provide information generally had a definite time limit, in that it would consider material provided to it by 1 July 2008. I note that this meant that he ultimately had more than the initial 30 days that had been sought to provide further information.
I am satisfied that the action which the Tribunal took does not reveal any failure to comply with its obligations under s.424A. Insofar as the applicant sought an extension of time to provide information pursuant to s.424A, the Tribunal considered that request and responded. It did not extend the period for the response to the section 424A letter, but no jurisdictional error is established in this respect. The period provided for response to the Tribunal's s.424A letter met the legislative requirements as to the time of notice required.
Insofar as the applicant appears to contend generally that there was a lack of procedural fairness in the manner in which the Tribunal dealt with his requests, while the Tribunal advised the applicant at the hearing that it would write to him putting to him particulars of adverse information and also advised him at the hearing that he could submit any further information or evidence he wished, one cannot infer from that that the Tribunal was indicating that the applicant had an unlimited period of time in which to provide a response or further information in support of his application.
The Tribunal did not purport to rely on s.424C expressly, although it would have been open to it to proceed to make a decision on the review without taking any further action to obtain the applicant's views on the information in the s.424A letter. Moreover it took into account the information that was provided by the applicant by way of submission and articles and a hospital report after the time for response to the s.424A letter had passed, consistent with its indication to him that he could submit further information or evidence and the advice in the telephone conversation of 19 May 2008 that information he provided prior to the time of handing down would be considered by the Tribunal.
More generally in terms of procedural fairness, insofar as that might be applicable, I note the time that had passed since the delegate's decision had drawn to the applicant's attention the absence of corroborative information and the fact that in its acknowledgement of receipt of the application and invitation to the hearing the Tribunal had, on two occasions in March 2008, reiterated that the applicant should “immediately” send any documents, information or other evidence he wanted the Tribunal to consider.
There is no evidence that there were letters or communications between the Tribunal and the applicant other than in the court book. The only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The fact that the applicant, on his own account, “slackened” his efforts to obtain further information does not establish jurisdictional error on the part of the Tribunal. In particular, his contention that the telephone message in some way prevented him from actively proceeding does not establish any failure by the Tribunal to comply with statutory requirements or, insofar as it might be applicable, any failure to observe the requirements of procedural fairness, whether considered in terms of actual or apprehended bias. There is no evidence before the Court as to that telephone conversation other than the file note which records that it was made clear that while there would be no extension of time to respond to the s.424A letter, the applicant could provide material that would be considered it was received up to the time of the handing down of the decision.
The time that that encompassed was sufficiently made clear in light of the subsequent correspondence between the Tribunal and the applicant. I also note that notwithstanding the absence of an extension of time to respond to the s.424A letter, the applicant apparently thought that he could provide further information, in light of his letter of 26 May 2008 enclosing further information (which was well after the time for responding to the s.424A letter had passed).
In short, having considered the applicant's contentions in relation to the time he was allowed to make further information available to the Tribunal, it has not been established that the Tribunal fell into jurisdictional error either in relation to the s.424A letter or more generally. Ground four is not made out.
Ground five is again somewhat confusingly expressed. It is:
If the applicant seeks additional time to comment on or respond to the adverse information, (sic) The Tribunal adjourns the review if The Tribunal considers that the applicant would reasonably need that additional time… S359AA (b)(iv)/424AA(b)(iv) do not provide a minimum or maximum period for adjournment. In the light of the mandatory requirement that the Tribunal act in a way that is fair and just in applying the respective Divisions, Members should allow a minimum period that is reasonable in the circumstances of the particular case.
Insofar as this is a reiteration of the contentions made in ground four it is addressed by what is said in relation to that ground. It seems on its face that this ground asserts that the Tribunal sought to rely on s.424AA of the Act by giving the applicant oral particulars of information it considered would be the reason, or part of the reason for affirming the decision under review during the Tribunal hearing. It is in that context that, if an applicant seeks additional time to comment on or respond to the information, then under paragraph (b)(iv):
The Tribunal must adjourn the review if it considers that the applicant reasonably needs additional time to comment on or respond to the information.
However it appears from the only evidence of what occurred in the Tribunal hearing before the Court that while the Tribunal raised issues of concern with the applicant in the hearing, rather than relying on s.424AA, the Tribunal advised the applicant that it would write to him under s.424A of the Act as it considered it reasonable to set its concerns out in a letter.
By so doing the Tribunal afforded the applicant the time that is statutorily mandated in relation to s.424A to respond to that information. In those circumstances the obligation in s.424AA(b)(iv) did not arise. I note in any event that failure to comply with s.424AA merely means that the Tribunal is not excused from compliance with s.424A. In this case the Tribunal complied with s.424A. Ground five is not made out.
Ground six is that:
The Tribunal failed to consider properly the test whether the applicants (sic) would suffer serious harm as per sec. 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The tribunal (sic) failure to satisfy this sat to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
Section 91R(2) of the Migration Act sets out instances of serious harm, without limiting what is serious harm for the purposes of sub-s.(1). This ground appears to assert that the Tribunal failed to test whether the applicant would suffer serious harm. However, as set out above, the Tribunal was not satisfied with the truth of critical aspects of the claims of the applicant. The decision did not turn upon any distinction between harm serious enough to amount to persecution and harm that was not so serious.
In any event, as submitted by the first respondent, where such a distinction is made, that is a question of fact for the Tribunal (SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 at [19]).
Insofar as this ground refers to relocation, while the issue of relocation arose in the course of the review and at the Tribunal hearing, the Tribunal decision did not turn on relocation as it found that the applicant did not face a real chance of Convention-related persecution in his home area or anywhere else in his home state. This ground is not made out.
Ground seven is that:
The Tribunal did not use the Applicants (sic) country information however, the 1 (sic) information gathered by the Tribunal considered to weigh against the case in the final outcome, (sic) The Tribunal used all information for matter of reasoning and evaluation of Applicants (sic) case for the protection visa, (sic) The Tribunal was pre occupied (sic) and did not have a fresh look.
In fact the Tribunal did refer to country information provided by the applicant in support of some of his claims about incidents that had occurred in India, albeit this did not establish his involvement in such incidents. In any event, as set out above, the relevance and weight to be attributed to country information are matters for the Tribunal.
The applicant also claims that the Tribunal was preoccupied and did not have a fresh look. It is not clear what is meant by this aspect of the ground. The Tribunal set out at some length its reasons for its findings. This is not a clear or distinct allegation such as to establish that the Tribunal had a closed mind such amounting to bias. As the Full Court of the Federal Court stated in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at [15]:
In our view this is a thinly disguised attempt to have this Court take issue with the Tribunal's assessment of the merits of the appellant's claim. The Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards as appropriate. Even were the Tribunal to disbelieve every element of the appellant's claim (and it did not) it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker have prejudged the matter, and that he or she has a mind closed to any argument in support of a contrary conclusion; Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1997) 81 FCR 71 at 134. Such allegations must not be lightly made; Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36 per Brennan J. They also must be firmly and distinctly made and clearly proven; Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J. In this case the Tribunal carefully examined the claims made by the appellant and explained why it did not accept those claims. Whether this Court or the primary judge would have come to the same conclusion is not relevant. The reasons for its views given by the Tribunal are more than sufficient to rebut a claim of bias or lack of good faith. The primary judge also carefully analysed the Tribunal's decision and observed that, even if the alleged errors were made out, they would not demonstrate lack of good faith on the part of the Tribunal. We agree with that conclusion.
Nor is apprehended bias established from the objective perspective of the appropriately informed, fair-minded lay observer. See Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 and NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264. The Tribunal considered the applicant’s claims. The fact of adverse finding is not, in itself, indicative of bias (see SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 at [17]).
The final ground in the amended application is that:
Therefore the Applicant submit (sic) that this was a serious misdirection made by the Tribunal by denying the Applicant an opportunity to explain at this hearing and thereby was prejudiced against the applicants (sic) refugee claims.
The applicant did not elaborate on what he was not given an opportunity to explain at the hearing. As indicated, the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. Its account of what occurred is not such as to establish any failure to comply with s.425. On the contrary, it appears from its summary of the hearing that the Tribunal put its concerns to the applicant and raised dispositive issues with him and gave him an opportunity to address the issues arising in relation to the decision under review.
Insofar as this is a more general contention that the applicant was not given an opportunity to elaborate on his claims at the hearing, I note also that the Tribunal recorded that at the end of the hearing the applicant said he did not have anything to add or any further evidence. There is nothing in the material before the Court to indicate that at the hearing the applicant asked for more time or for a further opportunity to address further issues. Rather, the Tribunal raised with him its concerns, including the absence of independent supporting evidence. Nevertheless, the Tribunal indicated that it would write to the applicant under s.424A and also that he could provide further information and material to the Tribunal. The claim that the Tribunal was prejudiced against the applicant's claim, whether expressed in terms of bias or a reasonable apprehension of bias or bad faith, is not made out from the fact that the Tribunal was not satisfied with critical aspects of the applicant's claims or his credibility in that regard.
As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The first respondent seeks costs in the sum of $6,000 on the basis of the nature of this case and the extent of the issues raised. While I have some concern that it might be seen as a general principle that whenever counsel is required, costs in the order of more than $5,000 are appropriate, in the particular circumstances of this case, given the apparently far-ranging nature of the issues raised, I consider that the complexity and time involved is such as to warrant costs in the sum of $6,000.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 1 April 2009
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