SZNMZ v Minister for Immigration
[2009] FMCA 653
•15 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNMZ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 653 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal considered all claims and integers of applicant’s claims – Tribunal considered claims arising from the material – findings open to Tribunal on what was before it – Tribunal “sufficiently indicated” dispositive issues – Tribunal complied with s.425 – “information” subject to exceptions in s.424A – Tribunal gave applicant opportunity to set out all claims at hearing – no obligation on Tribunal to investigate claims – no obligation on Tribunal to seek additional information pursuant to s.424 – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 425, 425A, 441A, 424A, 65, 32, 424, 427 Migration Regulations 1994 (Cth), reg.435D |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 |
| Applicant: | SZNMZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 959 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 9 July 2009 |
| Date of Last Submission: | 9 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Appearing for the Respondents: | Ms B Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 23 April 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 959 of 2009
| SZNMZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 23 April 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 March 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The Minister has put a bundle of relevant documents before the Court (Court Book – “CB”), which contains the following relevant background.
The applicant is a citizen of India who arrived in Australia on 26 August 2008. He applied for a protection visa on 9 October 2008 (CB 1 to CB 28, with annexure). His claims were initially set out in a document attached to the application (CB 27 to CB 28). His application was refused by a delegate of the respondent Minister on 8 January 2009 (CB 45 to CB 58). He applied for review by the Tribunal on 5 February 2009 (CB 59 to 62).
The applicant’s claims to protection
The applicant claimed to fear persecutory harm in India from “financial providers”, from a creditor with connections to the political party, Rashtreeya Swayamsevak Sangam (“RSS”), and from the “mafia gang”. He had been operating a business which came into financial hardship and was unable to pay his creditors. He was threatened, harassed, and physically attacked, an attack from which he had sustained serious injuries requiring surgery. He managed to escape other attempted attacks on him, but was “chased”. He claims that the “mafia gang” was “after” him, and had attacked his family. He moved to other places within India, but was followed by the “mafia”, had “no friends”, and faced difficulties in obtaining employment because of his “language problem”, his physical exhaustion, and fear. He sought assistance from the relevant authorities, but they failed to “take any action” in relation to his complaints.
The delegate
The applicant attended an interview with the delegate (CB 56.1). The delegate had difficulties with the “veracity” of the claims put forward by the applicant. This was because he provided the delegate with a document which was uncertified and had been “altered”, inconsistencies between his written claims and oral claims made at the interview, an inconsistency with country information, a lack of corroborative material, and implausibilities in his claims (CB 56 to CB 57). Consequently, the delegate, although accepting that the applicant’s business had faced financial difficulties, rejected the applicant’s other claims. The delegate went on to consider that relocation in India was “feasible” and that he would not be persecuted because of his religion as a Muslim, or for any other Convention reason.
The Tribunal
The applicant attended a hearing before the Tribunal on 19 March 2009 (see the Tribunal’s record of what occurred at the hearing at CB 80.7 to CB 82.5). The Tribunal accepted the applicant’s claims that he had operated a business, that he had borrowed money both from a bank and from private sources, that he became unable to repay his debts, and that his creditors now want to recover the money that he owes. In particular, it accepted that he had borrowed money from a leader of the RSS and that he owed the individual money. However, it did not accept that individuals in the RSS would harm debtors. Nor did it accept that the relevant authorities would not protect citizens against the RSS.
The Tribunal accepted that the applicant belonged to a social group described as “‘businessmen’ or businessmen who owe money to creditors’”, but that he did not face persecution because the harm feared was not motivated by a Convention reason. That is, he was not targeted by reason of his membership of this particular social group or for any other Convention reason, but was targeted because he could not repay his debts.
Further, as the Tribunal did not accept that the state and the relevant authorities would not, or could not, offer protection to the applicant, it found that the harm feared was not persecution because it lacked an “official quality”. It also found that the applicant did not meet the “subjective” element of fear of harm.
In all, although the Tribunal found that the applicant did leave India fearing harm of some kind, this harm that he feared was not “Convention related harm”. It then considered whether there were any other reasons that the applicant would face persecution in India in the reasonably foreseeable future. Finding that there were none, it concluded that he did not have a well-founded fear of persecution for a Convention reason, and that Australia, therefore, did not have protection obligations to him.
Application to the Court
The application to the Court puts forward four numbered grounds with some particulars, and complains as follows:
“1. The Refugee Review Tribunal decision was effected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant claims.
2. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particulars:
The Tribunal did not consider the applicant who had been under immense and intimidating pressure from RSS leader Mr Jayan and his associate.
3. The applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
4. The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a liberal Muslim (regardless of their specific claims of affiliation or past persecution) in India was at risk from radical Hindus, and not able to access effective protection.”
[Errors in the original]
Further to the grounds as set out in the application, the applicant puts forward the following complaint in his affidavit, sworn 21 April 2009:
“The Tribunal member failed to investigate my genuine claims, specially the grounds of persecution in India. Therefore, the Tribunal’s decision … was effected by actual bias constituting judicial error …”
Hearing before the Court
At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Malayalam language. Ms B Rayment appeared for the Minister. The Minister has also put written submissions before the Court. Despite opportunity, the applicant has not provided any written submissions.
The applicant told the Court that he wrote out the grounds of his application in the Malayalam language, and that a “friend” translated this into English. Despite this, the applicant was unable to assist further as to what was set out in the application.
The applicant also wanted the Court to take into account the complaints set out in his affidavit of 21 April 2009 which attached the Tribunal’s decision record and was filed at the same time as the application. (No objection was taken by the Minister.)
The Court sought clarity from the applicant as to the reference to “liberal Muslim” in ground four, and whether there was any evidence before the Court that he could point to showing that he made such a claim to the Tribunal. The applicant was unable to point to any evidence in this regard, but insisted that he had told the Tribunal (presumably at the hearing) that he was a “liberal Muslim” and that he feared harm from “radical Hindus”.
He further submitted that the Tribunal did not “investigate” properly. There was some difficulty in obtaining any particularity in relation to this complaint from the applicant. At best, he explained that he “told” his “story” to the Tribunal, the Tribunal “asked questions”, and “that [was] all”. He said that he did not write “a lot of things” in his “story” (presumably with reference to his statement attached to the protection visa application). He wanted his opportunity to tell his story to the Tribunal at the hearing, but that the Tribunal “was not ready to hear what [he] wanted to say.” The Tribunal “stopped him” from telling his “story”.
He also claimed that the Tribunal did not consider how “the financial crisis happened”. I saw this as a reference to his own financial difficulties arising out of the business loans that he had obtained in India.
When asked, towards the end of the hearing, if there was anything more he wanted to tell the Court, the applicant complained that the Tribunal made its decision “without understanding everything”. Ultimately, this was explained to mean that the Tribunal “was not ready to listen to [his] story.” This story (from what he told the Court) appeared to be that he and his father had “created a mosque” in his area and because he was a Muslim, the Hindu extremists wanted to harm him.
Consideration
Grounds one and two
The first two numbered grounds in the applicant’s application appear to be linked. In ground one, the applicant complains that the Tribunal failed to consider an integer of his claims, whereas ground two alleges that this caused it to fail in its “review function and to exercise its jurisdiction”, and provides “particulars”. The particulars being that the Tribunal failed to take into account that the applicant was “under immense and intimidating pressure” from the RSS leader and an associated person.
In conducting the review the Tribunal is, of course, required to consider an applicant’s claims, including each integer of those claims. However, the Tribunal is not required to deal with a case not stated by an applicant or not arising from the material put before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [49] to [49], VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [44], Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]).
On any plain reading of the Tribunal’s decision record, it is clear that the Tribunal did consider the applicant’s claim to fear harm from the leader of the RSS. It clearly understood his claim:
“The applicant states that he … fears that he will be harmed by the leader of a local prominent leader of … (RSS) and his associates. The applicant claims that he has been threatened, harassed and attacked by the RSS …” ([21] at CB 79).
It also gave the applicant the opportunity to elaborate on this claim at the hearing ([29] at CB 81). However, it ultimately did not accept that leaders of the RSS would harm debtors ([41] at CB 82). There is nothing in the Tribunal’s decision record to suggest that the Tribunal failed to consider this claim. Rather, the evidence is to the contrary.
As to the applicant’s other claims, the Tribunal accepted the bulk of his account. That is, the substratum of facts underlying his claimed fear (see [40] to [41] at CB 82, [44] at CB 83, and [50] at CB 84), but rejected other aspects (see [41] at 82, [45], [47] at CB 83, [49] at CB 84). It is clear that it considered those claims and each integer of those claims. It made clear findings, and gave cogent reasons for those findings.
The Tribunal did not accept that the applicant’s fear of harm was due to his membership of a particular social group (“businessmen who owe money to creditors” – see [38] to [41] at CB 82 to CB 83). It did not accept that the applicant had suffered harm in the past, or that he would suffer harm in the future because of his Muslim faith (see [52] at CB 83). It rejected the claim that the authorities would withhold protection from him because of his creditor’s political capacity with the RSS. It found that the applicant had access to a reasonable level of protection in India ([47] at CB 83). The Tribunal therefore concluded that the applicant did not have a well-founded fear of persecution for a Convention reason ([60] at CB 85).
As the Minister submits, these were all findings of fact open to the Tribunal on what was before it (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). No error is revealed.
If the applicant is also seeking to complain generally about the Tribunal’s failure to “carry out its review function and to exercise its jurisdiction”, in that it failed to accord him with procedural fairness, I note that this is a case to which s.422B of the Act applies. That section provides that Division 4 of Part 7 of the Act “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”, of course, absent bias (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [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) 237 ALR 64; [2007] HCA 35 at [48]). (See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83.)
The Tribunal invited the applicant to appear before it to give evidence and present arguments pursuant to s.425 (CB 63 to CB 64). He attended the hearing held on 19 March 2009. This invitation, in itself, complied with all the relevant statutory requirements for the provision of the invitation, the giving of notice, and relevant notice periods. I have in mind ss.425, 425A, 441A(4)(c), reg.4.35D(b). There was also the statement of the matter as set out in s.426A.
On what is before the Court (the Tribunal’s unchallenged decision record) the applicant was accorded procedural fairness at the hearing (with SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 in mind). The applicant was given the opportunity to set out his claims, evidence, and asked to elaborate on certain points.
The Tribunal’s account showed that it “sufficiently indicated” to the applicant the central issue arising in relation to the review, which was not the issue that was dispositive before the delegate (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [47]). That is, the lack of a Convention reason for the harm claimed:
1)“I put to the applicant that what he had described did not suggest that he suffered harm for a convention reason ie for his race, religion, nationality, membership of a particular social group or political opinion …” ([31] at CB 81).
2)“When I asked the applicant what was the relevance of Jayan being a member of the RSS, he responded ...” ([29] at CB 81).
It also put to him the aspects of his evidence that it did not believe. That is, that the police would not take steps to protect him:
1)“I put to the applicant that he did not know what the police did about his complaint after he departed …” ([33] at CB 82).
2)“I suggest he could have reported the inaction further …” ([31] at CB 81).
No error is revealed in this respect.
The Tribunal is obligated under s.424A to give to the applicant clear particulars of information that would be the reason, or part of the reason, for affirming the decision under review. The following exceptions apply in this case:
1)The independent country information relied on by the Tribunal (that is, the US State Department Report in relation to India and the Asian Human Rights Commission Statement at CB 84) comes within the exception contained in s.424A(3)(a) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (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], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]).
2)The information provided by the applicant for the purposes of the review (such as the information provided at the hearing) falls within the exception contained in s.424A (3)(b).
3)Information contained in the applicant’s protection visa application (which includes his statement extracted at CB 79 to CB 80) falls within the exceptions contained in s.424A(3)(b) to (ba) of the Act (SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751 at [22], SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693 at [15]).
4)The Tribunal’s “subjective appraisals, thought processes or determinations” or “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” is not “information” for the purposes of s.424A (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18], per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, citing what was said per Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 476 to 477).
I cannot see that the Tribunal failed to afford the applicant procedural fairness in any other way. I agree with the Minister’s submissions that, at least, these grounds seek impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Ground three
Ground three in the application alleges that the applicant meets the definition of “refugee” as set out in the Refugees Convention, and that the Tribunal did not consider this.
First, it must be noted that the relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out, relevantly, in s.36(2). That is, effectively, that the applicant meets the definition of “refugee” as set out in the UN Refugees Convention, such that in these circumstances, a 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], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
In doing this, the Tribunal is not required to uncritically accept any, or all, of the applicant’s claims. Nor is it required to find evidence to “disprove” an applicant’s claims (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451).
As the Minister submits, the Tribunal correctly set out the relevant principles in its decision record ([8] to [17] at CB 77 to CB 79). In my view, on a plain reading of the material before the Court, the Tribunal correctly understood the applicant’s claim to fear persecutory harm to be because he owed money to creditors, including one creditor who had political connections.
It was open to the Tribunal on what was before it to find that it could not be satisfied that the applicant’s fear of harm was for any of the reasons contained in the Convention. This specifically, and expressly, included a finding that encompassed the “third” element ([14] at CB 78) of the Convention definition, including consideration of his membership of a social group.
The Tribunal also considered whether the applicant would suffer harm because of his Christian faith or whether the state would withhold protection because of this reason (see further below at “ground four”).
In relation to ground three, the applicant is asking this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).
Ground four
In ground four the applicant asserts that the Tribunal failed to take into account an “integer” of his claims, namely, that as a “liberal Muslim” he would be at risk of persecution by “radical Hindus”, and that he would not be able to “access effective protection”.
As I have already stated above (at [20] of this judgment), the Tribunal is not obliged to consider a case not put before it or not arising from the circumstances presented.
Further, it is for the applicant to put forward his claims and evidence (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40], per the Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ)). Proceedings before the Tribunal are inquisitorial (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [58]). The Tribunal is, however, not in a position of a contradictor. It is for the applicant before the Tribunal to advance his case in support of the contention that he has a well-founded fear for a Refugees Convention reason (Abebe v The Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ) and it is not for the Tribunal to make out an applicant’s case for him or her (Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169 to 170).
First, as to the reference that the applicant is a “liberal” Muslim (whatever that may mean), there is no evidence before the Court that the applicant ever made any such claim. Clearly, he claimed to be a Muslim, but there is nothing in the material before the Court to show that he made any claim, or that it could be said that any such claim arises from the circumstances, that he feared harm as a “liberal” Muslim as distinct from a Muslim.
The applicant told the Court that he had told the Tribunal (I understand this to have been at the hearing) that he was a “liberal” Muslim. As Ms Rayment submitted, despite opportunity (see order (1) made by the Court on 27 May 2009) the applicant has not provided any evidence to substantiate this claim. He certainly told the Tribunal that he was a Muslim, but there is no reference, either explicit or implicit, that he feared harm as a “liberal” Muslim.
In relation to the claim now to fear harm as a Muslim from radical Hindus, no such claim is evident in the material before the Court. What was before the Tribunal was that he was a Muslim and a businessman who borrowed money from a person, amongst others, who had political connections. That is, that this person was a member of a political party, the RSS.
The Tribunal’s unchallenged (by evidence to the contrary) account of what occurred at the hearing reveals that the Tribunal gave the applicant a specific opportunity in relation to the relevance of this person’s political connection to the applicant’s claims ([29] at CB 81):
“… When I asked the applicant what was the relevant of Jayan being a member of the RSS, he responded that he cannot stay in Kerala as they are chasing him for the money. Jayan is trusted by people, because of his position and through Jayan people borrow money.”
Despite the general opportunity, and the specific opportunity to advance the claim that as a Muslim (let alone a “liberal” Muslim) he feared harm from “radical” Hindus, the applicant made no such claim.
What the Tribunal did properly consider, given that the applicant had said that he was a Muslim, was whether he would suffer harm as a Muslim, as distinct from a “Muslim businessman” if he were to return to his state of Kerala (see [52] at CB 84). It was open to the Tribunal to find, based on the claims before it and independent country information available to it, that state protection would be available to the applicant as “a Muslim from Kerala” (see [53] to [56] and, in particular, [57] at CB 85).
The Tribunal, therefore, did deal with the claims as made by the applicant, or as arising from the circumstances that he presented. The Tribunal did not have to deal with the claim now made to this Court, that he feared harm from radical Hindus as a liberal Muslim. It did deal with the aspect of any feared harm, as a Muslim, referring to Kerala, or as a Muslim businessman.
As to his claim made before this Court that the Tribunal did not consider “how his financial crisis happened”, this complaint is contradicted by the material before the Court. The Tribunal accepted that the applicant had entered into certain arrangements with “Jayan” and that he owed “Jayan” money. It accepted the applicant’s claim that this person was a “leader of RSS in his town” ([41] at CB 82). I cannot see how this complaint can assist the applicant now.
The applicant’s ground four is not made out.
Other Complaints
Before the Court, the applicant also complained that he was not given the opportunity before the Tribunal to tell his “story”. From what the applicant told the Court, his “story” appears to relate to the matter raised in ground four. That is, that he was active as a Muslim and that he feared harm from “radical” Hindus as a result. It was in this sense that the applicant submitted that the Tribunal should also have properly “investigated” why he came to Australia.
There is no evidence before the Court to show that the applicant was prevented from telling his full “story” to the Tribunal at the hearing, or otherwise.
The only account of what occurred at the hearing before the Court (the Tribunal’s own account) shows that, contrary to the applicant’s claims now, he was given both specific and general opportunities to fully set out his claims. For example, after giving the applicant the opportunity to set out some biographical background and make reference to his difficult business and financial situation, the Tribunal reports the following question and answer:
“When asked why he left India he responded that he cannot pay back the money.”
Even when the Tribunal had put him on clear notice earlier that his claims did not appear to suggest a Convention link ([31 at CB 81), when asked at the conclusion of the hearing ([34] at CB 82), “why he cannot return to India,” the applicant responded that “he cannot go back home as he owes money. He cannot pay it back.”
The material before the Court shows that the applicant was given the opportunity at the hearing to set out his claims. There is no evidence that the Tribunal prevented him from doing so. Making claims to fear harm now for reasons that were not put to the Tribunal or even arising from the circumstances put to the Tribunal, does not assist the applicant before this Court.
It is, as Ms Rayment submitted, up to the applicant to make out his claims, not for the Tribunal to “investigate” claims not made (with reference VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 and NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300).
On the possibility that the applicant’s complaint infers some general obligation for the Tribunal to make some investigation beyond questions at the hearing, no such statutory duty applies (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [43] and SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 at [26]).
Complaint in Affidavit
There are two parts to the complaint in the affidavit. The first is that the Tribunal “failed to investigate” the applicant’s “genuine claims” with particular emphasis on his “grounds of persecution”. This has already been dealt with above. The second part to this ground asserts that, because of this alleged failure to investigate, the Tribunal was biased.
Dealing further with the first part of the complaint, that is, the applicant’s assertion that the Tribunal failed to investigate his claims, I note, again, that this is a case to which s.422B of the Act applies, making the provisions that are set out in Division 4 of Part 7 of the Act 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]).
I note while s.424 of the Act (part of the procedural fairness code) confers power on the Tribunal to seek additional information that may be relevant to the determination of an application before it, the exercise of such power is discretionary and, in any event, only requires the Tribunal to have regard to such information if it seeks and obtains it.
Section 427(1)(d) permits the Tribunal to require the Secretary to the Minster’s Department to arrange for any further investigation. However, as in the case of s.424, the exercise of such a power is discretionary.
In all, while it may be said that there is a duty to enquire in some circumstances (see, for example, W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432), in the absence of any such particular reason, as in this case, there is no general obligation for the Tribunal to make further enquiries (see, for example, VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27], WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [24] to [25], and NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300 at [18] to [21]).
Further, there is no obligation on the Tribunal to conduct its own independent enquiries, such as to make out the applicant’s case for him (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [43] and SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 at [26]).
Ultimately, it was for the applicant to put forward any evidence or material that he wished the Tribunal to take into account in support of his claims, and it was for the Tribunal to decide whether the claim was made out (see Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 578 ([187]) per Gummow and Hayne JJ and Re Ruddock & Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437; [2003] HCA 60 at [57] per Gummow and Heydon JJ).
As to the allegation of bias pressed before the Court by the applicant with his reference to the Tribunal not letting him tell his “story”, presumably revealing, amongst other things, a closed mind, it is well settled that allegations of bias, or the apprehension of bias, are serious charges to make against any decision maker. They must be clearly made and distinctly proved (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
As Ms Rayment submitted, it is rare that such an allegation can be made out with reference to the decision record alone (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], per von Doussa J).
Further, granted that there was no obligation on the Tribunal in the circumstances of this case to conduct further inquiries or investigations, the very fact that it did not do so does not support a finding of bias, either actual, nor apprehended.
The applicant’s assertion that his claims were “genuine” seeks, again, impermissible merits review. The Tribunal accepted some of his claims, and rejected others. As the finder of fact par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J), it was entitled to do so.
Conclusion
The Tribunal gave the applicant the opportunity to set out his claims and give evidence in support. It properly dealt with each aspect of his claims. It made findings open to it on what was before it. There is no evidence before the Court to show the Tribunal did not deal with what had been put before it, or that it denied procedural fairness to the applicant.
For the applicant to succeed, the Court would need to discern jurisdictional error in the Tribunal’s decision. As I cannot see such error, the application is dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 15 July 2009
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