SZNNI v Minister for Immigration
[2009] FMCA 600
•1 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNNI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 600 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – findings open to Tribunal to make – determinative issue sufficiently indicated – no illogicality – findings not attendant with doubt – Tribunal entitled to accept some claims while rejecting others – all claims and integers considered – Tribunal not obligated to make further enquiries – s.424 not engaged in circumstances – s.427 discretionary – no bias – Tribunal properly applied legal principles – Tribunal engaged and complied with s.424AA – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 425, 65, 36(2), 424A, 424AA, 424, 426, 427(3) |
| W148 /00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 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 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46 NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1 VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 SZMBS v Minister for Immigration and Citizenship [2009] FCAFC 65 W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 432 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 Re Ruddock & Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437; [2003] HCA 60 Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 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 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 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZNNI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 982 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 25 June 2009 |
| Date of Last Submission: | 25 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 24 April 2009, and amended on 9 June 2009, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 982 of 2009
| SZNNI |
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 24 April 2009, and amended on 9 June 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 1 April 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 background.
The applicant is a citizen of India who arrived in Australia on 9 July 2008. He applied for a protection visa on 18 August 2008 (CB 1 to CB 38, with annexures). His claims were initially set out in a document attached to the application (CB 32 to CB 38). His application was refused by a delegate of the respondent Minister on 3 December 2008 (CB 44 to CB 55). He applied for review by the Tribunal on 30 December 2008 (CB 56 to 59).
The applicant’s claims to protection
The applicant claimed to fear persecutory harm in India on the basis of his religion as a Catholic and his involvement with the “Kerala Catholic Youth Movement” (“KCYM”), his position as President of the KCYM Church Committee, of his local Church, membership of his “Church Executive Council”, membership of the “Commission of the Rights of the Minorities”, membership of a local parish church, and membership of “Pradhinidhi Yogam”.
He claimed to have been threatened and physically assaulted on three separate occasions (twice in 2002 and once in 2008) and to have been seriously injured by people who were associated with the Communist Party of India (Marxist) (“CPI(M)”), specifically, the youth wing of that party, the “Democratic Youth Federation of India”. He claimed to have been arrested, detained and tortured on two separate occasions – in 2004, because a father of the Church was murdered and he protested against the police for failing to make an arrest, and in 2007, because of his participation in a protest against the publication of a book opposed to religion. He also claimed that certain Catholic priests were assaulted and killed. He claimed to be fearful that “false cases” would be brought against him, that he would be imprisoned, tortured, and possibly killed, and that the State would not protect him.
The delegate
The applicant attended an interview with the delegate (CB 53.5). The delegate found that because of the applicant’s “vague and evasive responses to the questions posed and lack of documentary evidence,” inconsistencies between his written claims and oral claims made at the interview, and because of an inconsistency between the country information and what the applicant had said about no suspects being arrested for the murder of a Catholic priest, he could not be satisfied that the applicant’s claims were true. He comprehensively rejected all of his claims to protection (CB 52.8 to CB 55).
The Tribunal
The applicant attended a hearing before the Tribunal on 23 February 2009 and on 12 March 2009 (see the Tribunal’s record of what occurred at the hearing at CB 130 to CB 136). The applicant asked the Tribunal to take evidence from two priests by telephone from India (CB 103). Ultimately, the Tribunal was only able to contact one witness ([58] at CB 135).
While the Tribunal accepted that there had been incidences in India of violence against Christians, and while it accepted the applicant’s claims to have been a Catholic in India, to have held positions in organisations associated with his church, and to have participated in a “procession” in 2008, it did not otherwise find him to be a “witness of truth” ([93] to [94] at CB 146.9 to CB 147.3).
It did not accept that the applicant was ever attacked in 2002, or that such an attack caused him to be hospitalised. Nor did it accept that he had ever been arrested and detained at the various times claimed. Nor that he was harmed in 2008, or that he was targeted by the CPI(M), its youth wing, or anyone else. Flowing from its finding that he had never been detained by the authorities, it did not accept that the police refused to assist him (CB 147 to CB 149).
The Tribunal also did not accept that he took a “leading role” in “organising the youth” and in seeking redress for the deaths of, and injuries sustained by, Catholic priests (CB 149.4). Nor did it accept that fabricated cases would be brought against him, or that he would be harmed by the CPI(M) because he was a Christian (CB 152.4).
In considering the applicant’s claims that arrests occur illegally in India, the Tribunal found, based on independent information before it, that although the Indian government machinery is in part affected by corruption, it did not find that such corruption was “for a Convention reason” (CB 150.10 to CB 151.1). In relation to the applicant’s claim that he would not be protected by the State, the Tribunal found that India had implemented “reasonable measures to protect the lives and safety of its citizens, including an appropriate criminal law, and the provision of a reasonably effective and impartial police force and judicial system …” (CB 152.2).
In relation to the applicant’s claims to have been hospitalised as a result of an attack, the Tribunal placed no weight on the evidence of the applicant’s witness. This was because of the adverse view which it had taken of the applicant’s credibility, but also because the witness changed his evidence ([110] at CB 150). Also because of its adverse credibility finding, the Tribunal placed no weight on a medical certificate provided by the applicant ([112] at CB 150).
In all, therefore, it concluded that the applicant did not have a well-founded fear of persecution for a Convention reason in India and that Australia, therefore, did not have protection obligations to him.
Application to the Court
The amended application to the Court puts forward five numbered grounds with particulars, and complains as follows:
1)The Tribunal:
i)denied the applicant procedural fairness by reaching adverse conclusions that led it to not find the applicant to be a “credible or reliable witness”.
ii)made findings, including the adverse credibility finding, that were not “obviously open on the known material”.
iii)did not give the applicant the “opportunity to be heard” in relation to these matters.
iv)accepted that the applicant had held various positions in the Catholic Church and related organisations.
2)It was open to the Tribunal to find on the evidence before it that the applicant “was a refugee within the meaning of the Act”, and that the applicant should have been: “given the benefit of the doubt”, because it entertained the possibility that his claims were plausible.
3)The Tribunal did not give the applicant “independent information” about Kerala and India at a time “before the hearing”, and that this constituted a failure to comply with s.424A.
4)The Tribunal failed to take into account a “relevant consideration”. Namely, his well-founded fear of persecution arising from the fact that he was a “Christian activist”. This was in circumstances where the Tribunal accepted that he was a member of the church and took part in a procession in 2008.
5)The Tribunal did not “investigate [his] claims” relating to “the grounds of persecution in India” and that this showed bias.
The amended application also contains two unnumbered “grounds” or submissions, which are:
1)The Tribunal “failed to analyse properly the ‘future harm’ the applicant may face” if he were to return to India.
2)The Tribunal did not apply the “real chance” test.
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. Mr H P T Bevan of Counsel 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 stated that:
1)The Tribunal had “not taken everything into consideration.” He explained this with reference to the CPI(M).
2)He had not been able to submit “all [his] evidences”. He said that he had a further (medical) certificate in relation to his hospitalisation, and an “FIR” from the “police station” (a “First Information Report”, which I understood to be associated with the claim that false cases were made).
3)He had told the Tribunal that he had other documents to submit.
Consideration
Ground one
In the first ground, the applicant complains, in part, about the Tribunal’s “adverse conclusions” in that it did not find him to be a “credible or reliable witness.” The applicant complains that it was not open for it to so find on the evidence before it.
First, I note that the Tribunal gave reasons as to why it considered the applicant not to be a “witness of truth”. This finding was based on:
1)An omission in his protection visa application relating to his claim to have suffered an attack with injuries requiring hospitalisation, and the Tribunal’s inability to accept his explanation. The explanation being his “nervousness” and that what he wrote in the protection visa application was only “general” (CB 147.5).
2)Omissions in his protection visa application and in his interview with the delegate of his claim to have been arrested in 2007, the Tribunal’s inability to accept his explanation that this was due to “nerves”, and the implausibility of failing to put “such an important integer” because of “nerves” (CB 148.1).
3)Country information which did not report that any arrests were made at the “procession” in 2007, contrary to the applicant’s claim to have been arrested there (CB 147.8).
4)The lack of independent evidence to support his claim that he was arrested at the protest against the murder of a Catholic priest in 2004, or that there was an additional protest held before the arrest of the person charged with the murder, or that he was “unofficially arrested”, and that the news article provided by the applicant did not support his claim that unofficial arrests occurred (CB 148.5 to CB 148.9).
5)Its inability to accept that the authorities in India arrest people “just for the sake of arresting them” based on the lack of evidence to support such a claim (CB 148.10).
6)Its general inability to accept the applicant’s explanations for the inconsistencies due to “nervousness”, including the lack of medical evidence to support a finding that he had a condition that would impact on his ability to remember (CB 147.3)
On a plain reading of the Tribunal’s decision record, it is clear that the applicant’s claim that the adverse credibility finding was not open to the Tribunal is misconceived. Clearly, the Tribunal gave cogent reasons for its finding that he was not a witness of truth. This was based on inconsistencies, omissions in his evidence, a lack of independent evidence to support his claims, and the inability of his explanations in overcoming such problems. The Tribunal’s findings were open to it. No error is demonstrated in these circumstances. (See, for example, W148 /00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 at [64] to [69] per Tamberlin and Nicholson JJ). The applicant’s complaint, in this regard, is simply not made out.
It is, as the Minister submits, that the applicant seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259). Ultimately, findings of fact which involve findings as to credibility are for the Tribunal to make as the decision maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J).
Second, in relation to the applicant’s complaint that the Tribunal, in effect, denied him procedural fairness, I note that s.422B 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]).
This is a case to which s.422B applies.
The applicant claims that he was denied procedural fairness in the making of the adverse credibility finding because he was not given an opportunity to be heard. In context, therefore, this must be taken to be a failure of procedural fairness with regard to s.425 of the Act. In this regard, I refer to what the High Court said in relation to that provision and procedural fairness in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”). In that case, the High Court explained the Tribunal’s procedural fairness obligations in relation to the conduct of a fair hearing pursuant to the obligation in s.425, including what was said by the High Court at [33]:
“The applicant is to be invited ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’. The reference to ‘the issues arising in relation to the decision under review’ is important.”
The High Court went on to explain that unless the Tribunal takes steps to identify some other issue (other than the issue that the delegate considered dispositive): “the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review.’...” (SZBEL at [35]). In that case, the High Court found that the Tribunal did not accord the applicant procedural fairness because it did not give the applicant: “a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review” (SZBEL at [44]).
The applicant was invited to a hearing before the Tribunal pursuant to s.425 (CB 62 to CB 63). He attended the hearing held on 23 February 2009 (CB 70 and CB 130 at [25]), which was completed, following an adjournment on 12 March 2009 (CB 100, CB 103, and CB 132 at [38]).
The determinative issue before the delegate that disposed of the protection visa application in the current case was that it rejected some of his claims to protection because of his vagueness and evasiveness at the interview, a lack of documentary evidence, an inconsistency with country information, an inconsistency between written claims and oral evidence, and implausibilities. Rather than making an overall adverse credibility finding against him, the delegate addressed each claim and provided the reason as to why he did not accept it, ultimately concluding that the applicant did not face a real chance of persecution if he were to return to India for his political opinion or for any other reason (CB 53 to CB 54).
The determinative issue before the Tribunal was that the applicant was not a witness of truth (for the reasons outlined above) and it did not believe his material claims to fear persecution.
In SZBEL the High Court said (at [47]):
“… there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying , that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
The applicant has had the benefit of some legal advice. He consulted a lawyer on the panel of the Court’s Legal Advice Scheme. He has also had an opportunity, specifically provided by orders made at the first Court date, to put a transcript of the Tribunal hearing before the Court. He has not done so. The only account before the Court, therefore, of what occurred at the hearing is that which is contained in the Tribunal’s decision record.
On a plain reading of the Tribunal’s decision record, the Tribunal did (at least) “sufficiently indicate” to the applicant that his credibility was at issue in relation to his omission in his protection visa application and interview with the delegate. It: “informed the applicant that this information … was relevant as it suggested he was creating his claims” (CB 135.2).
In relation to the remainder of his claims, the Tribunal certainly invited the applicant to “expand upon” the parts of his claims that it had difficulty accepting and gave him the opportunity to explain why his account should be preferred. For example, in relation to the applicant’s claim that there was a protest in 2004 occurring at a particular time, contrary to independent information that it occurred at another time, the Tribunal reports: “I put to him that there was no protest on 4 September 2004 … I put to him that it was implausible that … church authorities would take part in a protest march against police inactivity only 7 days after the murder …” (CB 131.6).
On the material before the Court, I cannot see that there was a failure of procedural fairness with reference to s.425. (Other aspects of Division 4 are dealt with below.)
Third, in relation to the applicant’s complaint that the Tribunal accepted that he “held a number of position[s] in the Catholic Church, president of the KCYM, a member of the Church Executive Council and member of the commission of the rights of the minorities”, yet still did not believe his claims to protection, I note that while the applicant may not accept the Tribunal’s view of his truthfulness, it is not for this Court to interfere with the findings of fact made by the Tribunal simply on the basis that the applicant does not accept such findings. As I have already said, findings of fact, including findings on credibility, are for the decision maker “par excellence”.
In submissions before the Court, Mr Bevan raised another possible complaint which could be said to arise from ground one as stated. It could be that the applicant complains that it was illogical of the Tribunal to accept that he was a member of various Church organisations, yet still find that the remainder of his claims were not credible.
I agree with Mr Bevan that illogicality on its own, as possibly asserted here as a complaint, would not amount to jurisdictional error. In any event, the Tribunal’s findings and its ultimate conclusions as to credibility were, in my view, logical. On what was before it, it was clearly open to the Tribunal to accept that the applicant was a (Catholic) Christian and a member of relevant organisations (as it did), but to then reject, with cogent reasons, the factual basis of the remainder of the applicant’s claims. Just because it accepted that he was a Christian, and even accepted that he was a member of church organisations, does not mean that it was illogical for it to accept, or that it was bound to uncritically accept, the remainder of the applicant’s claims.
In all, ground one is not made out.
Ground two
In the second ground the applicant complains that the Tribunal should have found that the applicant was a refugee because it failed to give him the “benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims [were] plausible.”
In relation to “benefit of the doubt”, the applicant may be taken to rely on what is set out at paragraphs [203] to [204] of the United Nations High Commissioner for Refugees’ “Handbook on Procedures and Criteria for Determining Refugee Status”.
These paragraphs are as follows:
“203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above …, it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statement must be coherent and plausible, and must not run counter to generally known facts.”
I note that the Handbook does not have binding force in Australian law, but may be a useful reference for those whose task it is to determine whether or not a person is a refugee. That is, relevantly, the Tribunal (Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 392, per Mason CJ, Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 302, per Kirby J. Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [8] to [9], per Finn J).
Where the Tribunal’s finding as to a claim, or an aspect, or integer of a claim, is attendant with any real doubt, the Tribunal is required to consider the alternative, that is, that its finding may be incorrect, and to then determine whether an applicant may have a well-founded fear of persecution for a Convention reason in those circumstances (Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ – endorsed in Abebe v Commonwealth [1999] HCA 14; 197 CLR 510, and further explained by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719, per Sackville J, with whom North J agreed).
In light of the above authorities, the applicant’s ground is misconceived. The Tribunal plainly did not entertain the possibility that the bulk of the applicant’s claims were plausible. The Tribunal’s view of the applicant’s claims can be split into two distinct categories. It accepted the claims that the applicant was a Christian and a member of related organisations.
As to the remainder, being the bulk of the applicant’s claims, the Tribunal made a series of clear findings leading to a conclusion that the applicant’s account of these claims was not truthful. As Mr Bevan submitted, the Tribunal was not required to uncritically accept these claims either because it accepted some other claims, or otherwise (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437).
Sections 65 and 36(2) of the Act require that the decision-maker must be satisfied that the applicant is a person to whom Australia owes protection, and in the absence of such satisfaction, a refusal decision is mandated (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 of2003 [2005] FCAFC 73).
Simply, the Tribunal comprehensively disbelieved the applicant as to the bulk of his claims. In the circumstances, there was no real doubt as to this conclusion and the findings which informed it. The Tribunal was not required to enquire as to the alternative. Its acceptance that he was a Christian and a member of related organisations would not of themselves, in the circumstances, be sufficient to found a fear of persecution for a Convention reason. This ground does not succeed.
Ground three
In ground three to the applicant’s amended applicant it is asserted that the Tribunal should have given the applicant certain independent information about “Kerala and India” prior to the hearing. This is said to be a breach of s.424A.
Section 424A(1) obliges the Tribunal to put to an applicant (in writing: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162) information that it considers would be the reason or part of the reason for affirming the decision under review. However, the independent country information relied on by the Tribunal about Kerala and India (see CB 136 at [64] to CB 146 at [88]) comes within the exception contained in s.424A(3)(a) of the Act from the obligation in s.424A(1) (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]).
In any event, I note that the Tribunal did put certain country information to the applicant at the hearing (see CB 133.10 to CB CB 134.2).
I further note that even if there was an obligation to put certain information pursuant to s.424A, such an obligation is not limited to the pre-hearing stage of the review as asserted in the application (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 at [71], [154], [202], SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [13] and [14]).
To the extent that the applicant may claim that the Tribunal failed to comply with s.424A in any other respect, I note that the Tribunal did put to him information that it considered would be the reason or part of the reason for affirming the decision under review at the hearing pursuant to s.424AA. I note the complimentary nature of s.424A and s.424AA in that engagement, and that the application of the latter relieves the obligations of the former (s.424AA(2A) and SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46 per Tracey and Foster JJ).
This ground is not made out.
Ground four
In ground four the applicant alleges that the Tribunal failed to take into account the “well-founded fear of [his] persecution” which he claims he had in India.
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]).
The Tribunal considered each claim made by the applicant, and considered each aspect of those claims. Simply, it accepted some of his claims, including the claim to have been a Catholic who held certain positions on bodies associated with the Catholic Church, but it rejected (the bulk of) his other claims as outlined above. The result of rejecting those claims was that it could not be satisfied that the applicant feared the persecution as claimed with the consequence that it could not be satisfied that the applicant would have a well-founded fear of persecution for a Convention reason upon return to India. I emphasise (for the applicant’s benefit) that in discharging its obligations, the Tribunal is required to assess the applicant’s well-founded fear of persecution in the reasonably foreseeable future. It did this.
As Mr Bevan submits, the applicant’s complaint does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259). This complaint is not made out.
Ground five
The first part of the fifth ground complains that the Tribunal failed to “investigate” the applicant’s claims.
If this is an assertion that the Tribunal should have made further enquiries in relation to the claims made by the applicant, such as the seeking of other independent information, which presumably may have supported the applicant’s claims in some way, 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 any event, the Tribunal did agree to make further enquiries. At the applicant’s request, it spoke to a person during the course of the hearing ([58] at CB 135). I do not see any action as falling within s.424 of the Act (SZMBS v Minister for Immigration and Citizenship [2009] FCAFC 65 at [37]). The person was the subject of a request made by the applicant that the Tribunal take oral evidence from two witnesses (CB 102). The applicant’s request complied with s.426(2) (see also CB 26). That the witness does not appear to have given “evidence” under oath does not reveal any breach of the statutory code. The requirement to give evidence under oath (s.427(3)(c)) is clearly at the discretion of the Tribunal (s.427(3): “the Tribunal in relation to a review may …”). Nor, in the circumstances, does it mean that the “discussion” between the Tribunal and the “witness” fell within the provisions of s.424 (an invitation to given information).
I also note that no error is revealed in the Tribunal not taking evidence from the other witness nominated by the applicant (“Father Joseph”). The Tribunal plainly had regard to the applicant’s request, but was not required to obtain any evidence (s.426(3)). In the circumstances set out at [60] (CB 135), and explained at [109] (CB 149), it was plainly open to the Tribunal to proceed in the manner that it did. Further, and in particular, it was open to the Tribunal to find that the witness was, in any event, not able to corroborate the applicant’s claim to have been attacked in 2008. This being the purpose that the applicant sought for the witness to give evidence.
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).
I note that the applicant had been given a reasonable opportunity to have done so and that he did provide the Tribunal with documents that he wanted it to consider to which it made specific reference (see CB 130).
I cannot see any error in this regard.
This ground also asserts bias on the part of the Tribunal because it failed to investigate the applicant’s claims. First, it should be noted that the Tribunal did not fail to “investigate” the applicant’s claims in the sense of considering those claims. A plain reading of its decision record reveals that the Tribunal dealt with each aspect of the applicant’s claims.
But it is more probable that this ground seeks to complain that the Tribunal’s failure to further investigate the applicant’s claims to fear persecution in India reveals bias on its part.
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).
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).
The short answer to the applicant’s complaint is, as Mr Bevan submits, that given that there was no obligation on the Tribunal to conduct any further investigation, no bias can therefore be revealed simply on this basis.
But further, and in any event, the applicant does not say what further investigation the Tribunal should have conducted. If this is a reference to the Tribunal’s decision not to pursue the taking of evidence from Father Joseph, then this has been dealt with above. It does not form the basis on which any allegation of bias, or the apprehension of bias, can succeed.
In all, there is nothing in the material before the Court to even suggest that such a complaint can be made out. As Mr Bevan correctly submits, the Tribunal’s unchallenged account of the hearing and the other material before the Court in the Court Book reveal that the Tribunal explored the applicant’s claims in some detail. The Tribunal accepted some of the applicant’s claims. That it rejected the truthfulness of the bulk of his claims does not reveal bias or the apprehension of bias. This ground does not succeed.
“Grounds” “six” and “seven”
The applicant also asserts that the Tribunal did not properly address the risk to the applicant of experiencing harm in the future, and that it failed to apply a “real chance” test. I cannot see that the Tribunal did not discharge its duties properly in this regard. It understood that the question of whether a person is owed protection obligations by Australia is to be answered by having regard to what will happen in the reasonably foreseeable future (see CB 125.9), and understood the test that it was required to apply in terms of assessing whether the applicant’s fear was “well-founded” (see CB 125.8). A plain reading of its decision record does not reveal any failure to correctly identify and properly apply relevant legal principles.
During the hearing before the Court the applicant complained that the Tribunal did not take “everything into account”. As best as he was able to particularise this complaint, it was that the Tribunal did not consider the harm that he feared from the CPI(M).
As I explained to the applicant, the term “consider” has another meaning to the one that I understood him to be raising. The Tribunal plainly did “consider” the claim to fear harm from the CPI(M). The applicant claimed to fear such harm because he said that his activities brought him into conflict with the CPI(M) and related organisations. Having rejected the factual basis underlying this aspect of the applicant’s claims, it was open to the Tribunal to find that the stated fear of harm from the CPI(M) was not well-founded ([105] to [108] at CB 149).
Further, there was independent evidence before the Tribunal that made no suggestion that the police in Kerala took no action when Christians were harmed as he had alleged ([119] at CB 151) and that the legal system was not as ineffectual as claimed by the applicant in offering protection ([120] to [121] at CB 151). There was also evidence before the Tribunal that: “Christians and the Communists … share a united defense against the ideology of Hindu nationalism (Hindutva) and a concern for the poor” ([122] at CB 152).
The applicant’s complaint, however, sought to use the word “consider” as meaning that the Tribunal did not accept that he would be harmed by the CPI(M). The Tribunal, of course, did not have to uncritically accept such a claim. Having rejected much of the factual basis of the applicant’s claims in this regard, and on the basis of extensive independent information available to it (CB 136 to CB146), it was clearly open to the Tribunal to find that there was not a well-founded fear of persecution for a Convention reason. A finding which included “consideration” of the applicant’s claims of the applicant’s claims in relation to the CPI(M).
The applicant also stated before the Court that he had not been able to submit all his evidence to the Tribunal. In particular, that he had further documents relating to his claimed hospitalisation and an “FIR” from the police station.
Before the Court the applicant also claimed that during the hearing with the Tribunal he told the Tribunal that he had other documents to submit, but did not have sufficient time to do so.
The applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing. He was unable to point to any part in the Tribunal’s account that showed any reference to his having raised this issue at the Tribunal hearing. In short, there is no evidence before the Court to support the applicant’s complaint in this regard.
The applicant would have been on notice from at least the time of the Tribunal’s letters of 30 December 2008 (CB 60 to CB 61) and 27 January 2009 (CB 62 to CB 63) of the capacity to submit documentary material to the Tribunal. In fact, he did so (see CB 77 to CB 99 and CB 105 to CB 121). He submitted a wide range of material.
There is no evidence before the Court that he told the Tribunal that he had other documents to submit or that he sought any further adjournment of the hearing or any further time to lodge such documents.
To the contrary, the Tribunal’s account reveals that in engaging s.424AA the Tribunal specifically told the applicant that he could have more time to comment on information put to him by the Tribunal or to seek an adjournment to give him additional time ([61] at CB 135 to CB 136). One of these matters was specified in relation to his hospitalisation ([62] at CB 136). The Tribunal’s account also reports that it asked the applicant “if there was anything further.” His reported response made no mention of the additional documents or that he sought extra time ([63] at CB 136). This complaint does not assist the applicant.
Conclusion
For the applicant to succeed, the Court would need to see jurisdictional error (at least) in the Tribunal’s decision. I cannot see such error. The application is dismissed.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 1 July 2009
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