SZNIU v Minister for Immigration

Case •

[2009] FMCA 573

•

23 June 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNIU v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 573
MIGRATION – Review of decision of Refugee Review Tribunal – finding that applicant could safely and reasonably relocate – no failure to put information pursuant to s.424A – information fell within exceptions – no temporal limitation of s.424A – information not information that “would be” the reason or part of the reason for affirming the decision under review – findings open to Tribunal on material before it – Tribunal considered applicant’s claims – no bias – no bad faith – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.36(2), 65, 91R(1)(b), 91R(1)(c), 424A
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572
VHAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11
Kopalapillai v Minister for immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister tot Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Randhawa v Minister for Immigration and Ethnic Affairs (1994) FCR 437
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Ram v Minister for Immigration and Ethnic Affairs and Anor (1995) 57 FCR 565
Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor (1997) 190 CLR 225; [1997] HCA 4
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1; [2000] HCA 55
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
Applicant: SZNIU
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 629 of 2009
Judgment of: Nicholls FM
Hearing dates: 7 May 2009 & 15 June 2009
Date of Last Submission: 27 May 2009
Delivered at: Sydney
Delivered on: 23 June 2009

REPRESENTATION

Appearing for the Applicant: In person
Solicitors for the Applicant: Nil
Appearing for the Respondents: Ms Warner Knight
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The application made on 16 March 2009, and amended on 27 April 2009, is dismissed.   

  2. The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 629 of 2009

SZNIU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made on 16 March 2009 under the Migration Act 1958 (Cth) (“the Act”), and amended on 27 April 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 February 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

  1. The respondent Minister has filed a bundle of relevant documents in this matter (Court Book – “CB”) from which the following background may be discerned.

  2. The applicant is a citizen of India who arrived in Australia on 18 June 2008. He applied for a protection visa on 31 July 2008 (reproduced at CB 2 to CB 32, with annexures). On 27 October 2008, a delegate of the respondent Minister refused to grant this protection visa (CB 44 to CB 51). On 21 November 2008 the applicant applied to the Tribunal for review (CB 52 to CB 55). By letter dated 16 December 2008, he was invited to a hearing before the Tribunal on (CB 58 to CB 59). He ultimately attended the hearing on 27 January 2009. The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 74 to CB 80).

Applicant’s claims to protection

  1. The applicant claimed to have been a member of the Indian National Lok Dal Party (“INLD”) in his home state of Haryana. He feared that members of the “Congress party” might “kill him”. In particular, he feared harm from a local Congress party MP, “Harmohinder Singh”, and his followers. He claimed that he was a youth party leader and was of interest to the Congress Party because he was well liked and respected.

  2. He also claimed that there was an “incident” in 2005 where “Congress thugs” “warned” him in relation to “false votes”. He also claimed that the leader of the “Congress party” threatened to kill him and that thugs came to his home and “threatened” his family.

  3. The applicant claimed to have continued his activities, unhindered, until 2007, when the leader of the “Congress party” asked him to become a member. The applicant declined the invitation and stated that the leader of the “Congress party” became “very angry” because of the refusal.

  4. After he had organised a rally against corruption in the Congress Party, he was approached by a member of the “Congress party,” who advised him that the leader had issued an “order” to have the applicant killed.

  5. He moved to another town for about a year. He subsequently came to Australia. The applicant claimed to have “panic” and “psychological effects” when considering returning to India.

The Delegate

  1. The applicant attended an interview with the delegate (CB 45). The delegate found that the applicant’s evidence caused him to “doubt the credibility” of his claims (CB 49). The delegate did not accept that the applicant would face: “a real chance of persecution on return to India for reasons of his political opinion”.

The Tribunal

  1. The Tribunal expressed concerns about various inconsistencies and implausibilities arising from the applicant’s evidence (CB 83). But it appears to have accepted some aspects of his account. At [86] (CB 83) the Tribunal stated:

    “While the Tribunal had concerns about various inconsistencies and implausibilities arising from the applicant’s oral evidence to the Tribunal and that evidence contained within his protection visa application, it is prepared to accept, for the sake of argument, the following evidence of the applicant as truthful:

    …”

  2. When read fairly, I took the words: “for the sake of argument” to mean: “for the purposes of the review.” In essence, therefore, I read the Tribunal’s analysis as having given the applicant the benefit of the doubt and having accepted that certain evidence was truthful.

  3. The Tribunal found, however, that the risk of harm to the applicant was “localised” (that is, confined to the “limits of Haryana State”) and that he could reasonably and safely relocate to other parts of India (CB 85 to CB 86).

  4. On this basis, the Tribunal found that the applicant did not have a well-founded fear of Convention related persecution, and it therefore affirmed the decision under review.

Application before the Court

  1. By way of amended application filed on 27 April 2009 the applicant puts forward, in the form of “submissions”, five (not sequentially numbered) grounds:

    “(1)The Tribunal did not give to the applicant before the hearing the independent information it had about INDL. The Tribunal used this information while making the decision. This was against section 424A of the Migration Act 1958.

    (3)[sic – (2)] The Tribunal made jurisdictional error by not applying the convention definition properly to the applicant’s fear of prosecution [sic – persecution]. The key element of the convention definition is that the applicant must fear [persecution]. Under s.91R(1) of the Act states that [persecution] must involve ‘serious harm’ to the applicant. In applicant case he not only seriously harm but also systemic and discriminatory conduct at the hand of Indian authorities as explained in s.91R(1)(b) & (c) of the Act. The applicant fear threat to his life, liberty or significant physical harassment or ill treatment if he goes back to India, for no reason, other than his associate with INLD.

    (4)The second key elements of the convention definition are further explained that persecution implies an element of motivation on the part of those who persecute for the infliction of harm. Further more, that people are persecuted for something perceived about them or attributed to them by their persecutors. The Tribunal failed in its duties not fully understanding the motivation behind the applicant’s persecutor[’]s systematic and discriminatory conduct.

    (5)Tribunal member failed to understand or ignored knowingly that the applicant was an active member of INLD. He has been involved with others in political activities, therefore he has come to the adverse attention of Congress party members.

    (7)[Sic – (6)] Despite the severity of the ‘privative clause’, an opportunity for review can lie under section 39B OF [sic] the Judiciary Act (Cth) 1903, which rely on the original jurisdictional Of [sic] the Court. However, review under s.39B is gained the decision of the Refugee Review Tribunal dated 18 February 2009 can be reviewed, if the following four factor[s] are observed.

    (a)The decision maker acted in good faith.

    (b)     The decision is reasonably capable of reference to the power granted to the decision maker- this is unlikely to be an issue given that, to argue to the contrary, it would have to be shown that the decision maker did not have the authority to make the decision concerned, for example, had not had authority delegated to him or her Minister for Immigration and Multicultural Affairs or had not been properly appointed to the Tribunal

    (c) The decision relates to the subject matter of the legislation (i.e the Migration Act) this again is highly to be an issue, given that a major purpose of the Migration Act is the making of visa decisions.

    (d) Constitutional limit[s] are not exceeded- given the clear constitutional basis for visa decision making in the Migration Act. [T]his is highly unlikely [to] arise

    From the above factors the only one of any real significance is the first, the Tribunal did not act in good faith. My claim is that the decision maker acted in bad faith.”

    [Errors in original]

Hearing before the Court

  1. When the matter came on for final hearing on 7 May 2009 the applicant stated that he had not had the opportunity to consult the lawyer on the panel of the Court’s Legal Advice Scheme. In the circumstances, it was appropriate to adjourn to allow him to do so. The final hearing was set down for 15 June 2009.

  2. The applicant filed written submissions on 27 May 2009. They appear, in part, to address matters not raised in the amended application. The Court has the Minister’s formal Response and written submissions directed to the grounds of the amended application.

  3. At the hearing before the Court the applicant appeared unrepresented. He was assisted by an interpreter in the Hindi language. Ms Warner Knight appeared for the first respondent. At the resumed hearing, the applicant said that he had nothing further to say.

Consideration

Ground “1”: Country information about the INLD and section 424A

  1. Ground “1” complains that the Tribunal failed to give the applicant independent information about the INLD prior to the hearing and that the Tribunal therefore breached s.424A.

  2. The exception set out in s.424A(3)(a) states, in effect, that non-in personam and general country information need not be put to the applicant pursuant to s.424A(1) (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12] to [14], and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]).

  3. This is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48]). Section 424A falls within the procedural code set out in Division 4 and is the exhaustive statement on the issue of the principles of procedural fairness to be applied to this ground in this case.

  4. To the extent that the applicant complains that he should have been given the information about INLD before the hearing, s.424A does not impose such a temporal limitation. (See SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 at [71], [154] and [202]. See also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [13]. To the extent that what was said in SZBYR at [19] may suggest a position contrary to that proposition, the proposition drawn from SAAP that the “temporal effect of section 424A” was not limited to the pre-hearing stage did not determine the outcome in SZBYR.)

  5. In any event, as the information falls within the exception set out in s.424A(3)(a), the ground as stated does not succeed.

  6. Paragraph [1] of the applicant’s written submissions merely repeats the complaint regarding the information about the INLD and does not advance the applicant’s complaint.

  7. However, the applicant also complains in this paragraph that the Tribunal did not, pursuant to s.424A, give him information about the Congress Party.

  8. In its decision record under the heading: “Congress Party and Harmohinder Singh” (CB 81) the Tribunal sets out certain information. At [76] (CB 81) the information is about the Congress Party in India. As such, this is non-in personam information that falls within the exception contained in s.424A(3)(a). This complaint does not assist the applicant for the reasons already set out above.

  9. However, on its face, the information about “Harmohinder Singh”, being specifically about “another person” would not fall within the exception in s.424A(3)(a).

  10. In SZBYR the High Court stated (at [17]):

    “The use of the future conditional tense (‘would be’) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal’s particular reasoning on the facts of the case.”

  11. The applicant has not provided any evidence to support the complaint that the “information” about the Congress Party (and to the extent that this may also be said to be a reference to Harmohinder Singh), is to be seen as “information” that “would be” the reason or part of the reason for affirming the decision under review as at some time in advance of the Tribunal’s reasoning of the case.

  12. Without such evidence (for example, a transcript of the hearing conducted by the Tribunal) the applicant’s complaint cannot be made out. As SZBYR requires, the determination of what “would be” the reason, or part of the reason, for the Tribunal’s decision is to be determined in advance of the Tribunal’s reasons for decision. The applicant has not provided evidence to say that any such information came within the ambit of the obligations in s.424A(1) at a time prior to the Tribunal’s particular reasoning on the facts of the case.

  13. In MZXBQ  v Minister for Immigration & Citizenship [2008] FCA 319 (per Heerey J), a matter in which information relating to a “bond” was referred to by that Tribunal at the hearing that it conducted, but in which there was no reference to this issue in a “section 424A letter” sent by the Tribunal, the Court said at [30]:

    “... Post-SZBYR the correct approach would have been for the Tribunal to consider whether the $20,000 bond information, if true, would be the reason, or part of the reason, for affirming the decision to refuse the appellant’s protection visa application ...”

  14. I understood this to mean that this should be done without reference to the Tribunal’s decision record. However, other recent Federal Court authorities allow that it is permissible to look at the Tribunal’s published reasons for the purpose of drawing inferences as to the proper characterisation of what “would be” “information” for the purposes of s.424A. That is, regard may be had to the Tribunal’s decision record so long as such an examination is done with reference to a point in time prior to the Tribunal having conducted its final consideration, and for the purposes of informing what “would be” the reasons at some anterior point in time. (In this regard, see: SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 (“SZMFZ”) per Siopsis J at [36], SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 (“SZMPT”) per Jacobson J at [14] to [17], and SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721 (“SZLPJ”) per Perram J at [15] to [16].)

  15. Looking, therefore, at the Tribunal’s published reasons for decision, and confining consideration only to the Tribunal’s account of what occurred at the hearing with the applicant, first, it should be noted that this account is the only account before the Court and remains unchallenged by other evidence from the applicant.

  16. Second, it may be said that this account referring to events anterior to “the Tribunal’s particular reasoning on the facts of the case,” that is, its “Findings and Reasons”, is entirely consistent with what was said in SZBYR at [17].

  17. This account of what occurred at the hearing shows that at the time of the hearing the “information” set out at [77] and [78] (at CB 81) of the Tribunal’s decision record was not information that: “would be” the reason or part of the reason for affirming the delegate’s decision.

  18. While the Tribunal made reference to the Congress Party “information” at the hearing (see [51] at CB 77), the information that Harmohinder Singh won an election in 2005 by a particular margin, or that he held posts in the government, does not feature at the hearing such that it could be said that this “information” “would be” the reason for affirming the decision under review.

  19. A reference to the Tribunal’s “Findings and Reasons” (consistent with what was said in SZMFZ, SZMPT, and SZLPJ – that is, to inform as to what “would be” the reason at some anterior point in time) reveals that the Tribunal accepted the applicant’s evidence in relation to Harmohinder Singh. An acceptance which is consistent with what it said occurred at the hearing.

  20. In all, therefore, this aspect of the applicant’s complaint is not made out.

  21. To a large extent, paragraph [3] of the written submissions appears to also complain about the Tribunal’s use of country information. It must be said that this paragraph is in terms and expression often seen in submissions or grounds in matters of this type. The frequency of its use by applicants does not alter the difficulty in understanding the complaint.

  22. In any event, to the extent that it asserts anything beyond what has been addressed above, the weight to be given to country information is a matter for the Tribunal, as is the choice and use to which such information is put (NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11] to [13], Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson CJ, NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 (FC) at [81] to [84]). This complaint does not assist the applicant.

Ground “3”: Section 91R

  1. This ground asserts that the Tribunal failed to consider the application according to s.91R, with reference to sub-ss.91R(1)(b) and (c) specifically.

  2. As best as the complaint can be understood, it is that the Tribunal misunderstood, or failed to properly apply, the Convention definitions of “persecution” or the statutory reference to “serious harm”.

  3. The relevant statutory scheme (s.65 and s.36(2)) of the Act provides that a protection visa must be granted if the Tribunal reaches a requisite level of satisfaction such that, in effect, the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. For Australian purposes, this definition must be read as qualified by s.91R of the Act.

  4. If such a level of satisfaction is not reached, then a refusal is mandated (See SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

  5. In the circumstances, the Tribunal’s decision did not turn upon any matter which could give rise to any doubt as to whether the Tribunal correctly understood, or applied, the effect of sub-ss.91R(1)(b) and (c) of the Act – the parts of the Act specifically referred to in this ground.

  6. The applicant’s complaint is either misconceived as the Minister submits, or purposefully seeks to ignore the Tribunal’s findings. The Tribunal accepted the applicant’s claims as they related to his home state of Haryana. But it found that any risk of persecution or serious harm was limited to Haryana, and that he could safely relocate to other parts of India.

  7. The definition of “refugee” set out in Article 1A(2) of the Refugees Convention is a person who is unable or unwilling to avail himself/herself of the protection of his home country because of a well-founded fear of persecution for one of the five Convention reasons. Relevantly, it is accepted that for an applicant to be owed protection by Australia, he or she must have a well-founded fear of persecution for one or more of the Convention reasons in relation to the country of claimed persecution as a whole.

  8. The situation, therefore, is that if the well-founded fear of persecution is localised, then the relevant decision-maker (such as the Tribunal) is required to consider the availability of protection in the remainder of an applicant’s home country. It is not necessary, however, to consider relocation where the Tribunal makes a finding that there is no well-founded fear of persecution (see, for example, Sabaratnasingam v Minister for Immigration Multicultural Affairs [2000] FCA 261 per Whitlam, Lehane and Gyles JJ at [13]).

  9. The finding by the Tribunal that a fear of localised persecution is well-founded still requires the Tribunal to consider the availability of protection in another part of the country of claimed persecution. There are a number of authorities for the proposition that the focus of the Refugees Convention is not upon protection in particular regions of the country of claimed persecution, but more particularly concerns the general notion of protection by the country as a whole. See Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 411 per Black CJ:

    “If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.”

  10. Further, as the Minister submits, a finding that the applicant could avoid a real chance of harm by relocating outside his home State to another part of India, and that it was reasonable for him to do so, is a finding that the applicant does not have a well-founded fear in his country as a whole (SZATV v Minister for Immigration andCitizenship [2007] HCA 40).

  11. In paragraph [2] of his written submissions the applicant also complains that the Tribunal failed to properly consider whether the applicant would suffer “serious harm” as set out in s.91R(2)(a) if he were asked to relocate elsewhere in India. That is, that the Tribunal failed to properly consider the threat to the applicant’s life and/or liberty if he were asked to relocate.

  12. The Tribunal reasoned that on the evidence before it, that is, the independent country information and, in particular, the applicant’s own evidence, the applicant’s claims centred on the fear of harm from a “Congress Party individual” in his home town ([97] at CB 85). This and other evidence before it ([98] to [100] at CB 85) led the Tribunal to consider ([101] at CB 86) that: “On the evidence before it, the Tribunal thus concludes that the applicant could relocate and live safely in other parts of India.” The Tribunal then went on to consider if it would be reasonable to expect the applicant to do so ([101] to [103] at CB 86).

  13. The Tribunal’s findings were open to it on the material before it. The Tribunal gave reasons for its findings. In these circumstances, the applicant’s complaint does not rise above a challenge to the Tribunal’s factual findings and asks this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259).

  14. I also agree with the Minister’s reliance on SZATV v Minister for Immigration and Citizenship [2007] HCA 40 for the proposition that the finding that the applicant could avoid a real chance of harm by relocation, and that it was reasonable to do so, is a finding that the applicant does not have a well-founded fear of persecution in India as a whole. This complaint does not succeed.

  15. Paragraph [4] of the applicant’s written submissions complains that it was “illogical” for the Tribunal to conclude that the applicant did not have a well-founded fear of persecution for a Convention reason if he were to return to India because it failed to “weigh properly” that he was a member of the INLD, that he faced stiff resistance from the Congress Party and that “the Congress Party leader” gave orders to kill him.

  16. The applicant’s complaint does not succeed. The Tribunal accepted the applicant’s evidence that he was a member of the INLD, that he was threatened by Congress Party people, and that an order was given to kill him (see [86] at CB 83 to CB 84). As already referred to above, the Tribunal, however, found that the applicant’s fear was localised and that he could safely and reasonably relocate elsewhere in India.

  17. This finding, therefore, is a finding that he does not have a well-founded fear of persecution for a Convention reason. The Tribunal’s conclusion was not “illogical” – it was consistent with current authority.

Ground “4”: Tribunal failed to consider the motivation for the applicant’s persecution

  1. Ground “4” appears to assert that the Tribunal failed to consider the motivation behind the applicant’s “persecutor[’]s systematic and discriminatory conduct.” I agree with the Minister’s submissions that it is difficult to understand the complaint.

  2. In any event, it may be that in considering the issue of “persecution” for the purposes of the Refugees Convention, and that this contains some element of motivation for the infliction of harm, the applicant is seeking to direct the Court to what was said by the Federal Court in such cases as Ram v Minister for Immigration and Ethnic Affairs and Anor (1995) 57 FCR 565 (“Ram”), and the High Court in Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor (1997) 190 CLR 225; [1997] HCA 4.

  3. In Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1; [2000] HCA 55 McHugh J, stressed that the Refugees Convention obliges the Tribunal to ascertain the motivation for the allegedly persecutory conduct which the “refugee applicant” fears. 

  4. In Ram, Burchett J said (at 568):

    “Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors … That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim’s membership of a particular social group. He is persecuted because he belongs to that group.”

  5. The applicant’s complaint does not succeed. There is no question that the Tribunal accepted that the applicant’s “persecutors” were motivated by a Convention reason, specifically: political opinion. The applicant’s claims in this regard were accepted (see [86] at CB 83 and following).

  6. The Tribunal’s ultimate conclusion, however, which was open to it on what was before it, was that the applicant was not at risk of harm outside of his home State. This ground does not succeed.

Ground “5”: Tribunal failed to consider the applicant is a member of the “INLD”

  1. Ground “5” complains that the Tribunal failed to “understand”, or “ignored” that the applicant was an active member of the “INLD” and had come to the adverse attention of the Congress Party.

  2. Again, the applicant fails to comprehend the Tribunal’s central finding. The Tribunal accepted (despite some misgivings) that he was an active member of the INLD and that he had come to the adverse attention of certain Congress Party people. It found, however, that any risk of harm for that reason was limited to his home State. This ground does not succeed.

Ground “7”: Bad faith

  1. Ground “7” asserts that the decision maker acted in bad faith. Paragraphs of the applicant’s written submissions may also be, in part, an assertion of bad faith, or bias, or the apprehension of bias (“… did not have a fresh look” – paragraph [3] of written submissions).

  2. As has been often said, an allegation of bad faith, bias, or the apprehension of bias is a serious matter and must be clearly proved (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17). Such allegations challenge the integrity of the decision maker.

  3. In conducting the review, which it is jurisdictionally charged to conduct, the Tribunal is required to consider each claim put forward by an applicant, each aspect of those claims, and to address the question as to whether the applicant is owed protection by Australia. As already referred to above the relevant statutory regime requires the Tribunal, in effect, to reach the requisite level of satisfaction that the person meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. In which case, the protection visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

  4. To achieve this, it is necessary for the Tribunal to make findings of fact, including findings on credibility. These are for the Tribunal to make (ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407) and are not susceptible to review by the Court on their merits (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259). Simply because the Tribunal makes findings, or reaches a conclusion with which the applicant does not agree, does not (on its own) go anywhere near to establishing that it acted in bad faith, was biased, or that the well-informed lay observer would reasonably apprehend that it was biased.

  5. There is nothing in the material before the Court to support the applicant’s allegations. In the absence of any particulars, I cannot see that such a complaint has any substance. In fact, it was the case that the Tribunal, despite its clear misgivings, gave the applicant the benefit of the doubt and accepted his claims as they related to his home state.

  6. The applicant’s grounds and submissions to the Court appear to ignore the determinative issue in his application to the Tribunal. A plain reading of the Tribunal’s decision record reveals that while it harboured doubts about the applicant’s credibility (as did the delegate – see, in particular, CB 49.4 and CB 50.4), it accepted the applicant’s account of past events and, importantly, that these were an indicator of future persecutory harm if he were to return to India.

  7. The issue which determined the review, and which was ultimately dispositive of it, was that he could safely and reasonably relocate outside his home State to another part of India. There is no bad faith, bias, or any apprehension of bias demonstrated in the Tribunal’s reasoning in this regard.

  8. I should just note that, for the purposes of s.425 and procedural fairness (when seen in light of what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”)), while this issue was not determinative before the delegate, it was clearly raised and discussed with the applicant at the hearing. The Tribunal’s unchallenged report of the hearing states (at CB 79.8):

    “The Tribunal then discussed the issue of relocation in Indian with the applicant: It asked why he could not live in another state of India.”

  9. The applicant was given the opportunity to respond to, and the Tribunal squarely brought to his attention, the “independent country information” relevant to the issue of the reasonableness of relocation. It was squarely put to him (let alone “sufficiently indicated” to him – SZBEL at [47]) that it was considering whether he could safely and reasonably relocate (CB 80). The applicant could not have been in any doubt as to the Tribunal’s thinking in this regard.

Conclusion

  1. In all, for the applicant to succeed before the Court, jurisdictional error in the Tribunal’s decision would need to be found. The application does not reveal jurisdictional error on the part of the Tribunal. Nor can I otherwise see such error. The application is therefore dismissed.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  23 June 2009

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Cases Citing This Decision

1

SZNIU v Minister for Immigration and Citizenship [2009] FCA 1270