SZNPB v Minister for Immigration
[2009] FMCA 946
•25 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNPB & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 946 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether s.425 requires that the applicant physically appear before the Tribunal – whether the Tribunal complied with s.424AA – whether Tribunal sufficiently indicated to applicant that his credibility was at issue – whether application invites Court to engage in impermissible merits review – whether Tribunal failed to inquiry and investigate claims – whether there was actual bias – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.425, 424, 424AA, 424A, 429A, 435 Migration Legislation Amendment Act (No.1) 2009 (No.10, 2009) (Cth) |
| SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 SZJYDv Minister for Immigration & Citizenship [2007] FCA 798 SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 SZLLY v Minister for Immigration & Citizenship [2009] FCA 185 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZLSM v Minister for Immigration & Citizenship [2009] FCA 537 SZKTI v Minister for Immigration & Citizenship [2008] FCAFC 83 Minister for Immigration & Citizenship v SZKTI [2009] HCA 30 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 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 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 Kopalapillaiv Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 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 Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 121 SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109 |
| Applicants: | SZNPB & ANOR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1153 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 27 July 2009 |
| Date of Last Submission: | 27 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | - |
| Appearing for the Respondents: | Ms M Jeong |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application made on 13 May 2009 is dismissed.
The applicants pay the first respondents costs set in the amount of $5600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1153 of 2009
| SZNPB & ANOR |
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 13 May 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 April 2009, which affirmed the decision of a delegate of the first respondent to refuse protection visas to the applicants.
Background
The applicants are citizens of India who arrived in Australia on 4 September 2008. They applied for protection visas on 30 September 2008 (Court Book (“CB”) – CB 1 to CB 39, with annexures). They are husband (“the applicant”) and wife (“the applicant wife”). The applicant submitted his own claims to be a refugee, and the applicant wife relied on his claims.
Claims to protection
The applicant’s claims were contained in a statement attached to the application for the protection visa. The applicant claimed to fear persecutory harm from Hindus of a higher caste, with links to the Bharatiya Janata Party (“BJP”), who had sold land to his family, and who subsequently wanted to recover the land because it had increased in value. He also claimed that he was “targeted” because he had founded a “Farmers Association”.
They accused the applicant of being associated with Muslims, attempted to seize his land, attacked him, threatened his farm workers, harassed him and his family, and prevented his farming. He claimed that police “interrogated” and “tortured” him, and that they asked him to “leave” his “birthplace”. He was fearful of the BJP, who had won a recent election, and inflicted more “problems” on him and his family. He claimed that he could not access the legal system to obtain redress.
The delegate
The application was refused on 21 December 2008 (CB 44 to CB 57). The delegate did not believe the applicant’s claims, citing: “a number of factors which raise significant doubt as to the veracity of the applicant’s claims” (CB 55). This was variously because of inconsistencies between his claims and relevant country information before it, implausibilities in his evidence, a lack of supporting evidence, vagueness, and a lack of detail (see CB 55 to CB 56).
The Tribunal
The applicants applied for review by the Tribunal on 16 January 2009 (CB 58 to CB 61).
They were invited to a hearing before the Tribunal by letter dated
9 February 2009 (and posted on that day, CB 64 to CB 65). The hearing was scheduled for 20 March 2009. Arrangements were made for the hearing to be conducted by video conference. The applicants were provided with a location closer to their home at which to attend the video conference facility. (They lived in Tooleybuc, NSW, and the facility was in Swan Hill, Victoria.)
The applicants responded by completing, signing and returning to the Tribunal a “Response to Hearing” form (CB 66 to CB 77). They indicated that they would attend.
A Tribunal “Case Note” is reproduced in the Court Book (CB 68). It reports on a conversation between the applicant and a Tribunal officer on 4 March 2009. The applicant is reported as confirming his attendance on 20 March 2009.
The hearing was conducted on that date. Both applicants attended. It was conducted by “video link” (CB 69 to CB 70). The only account before the Court of what occurred at the hearing is that contained in the Tribunal’s decision record (CB 73 to CB 87; see [37] at CB 80 to [62] at CB 84 for the hearing account).
The Tribunal found that because of “contradictions, implausibility and inconsistencies”, it did not believe that the applicant was “truthful or credible” (at [71] at CB 85). Because of this, it rejected the bulk of the applicant’s factual account in support of his claims to protection. That is, it was “not satisfied that the incidents described by the applicant, ever occurred” (at [72] at CB 86). It therefore found that Australia did not have protection obligations to the applicant. The applicant wife was unsuccessful, because her application depended on a successful outcome in her husband’s application. The Tribunal affirmed the delegate’s decision.
Application before the Court
The application before the Court contains the following grounds:
“1. The Tribunal failed to provide the applicant with an opportunity to appear before it, and thus failed to comply with the mandatory requirements of section 425(1).
PARTICULARS:
(i) Section 425 mandates an oral hearing at which both the Applicant and the Tribunal are physically present (giving the word ‘before’ its natural English meaning, in the context of ‘in front of’) in the one place, in order that the Applicant may present their case.
(ii) The Tribunal was not present at the hearing, because the Tribunal was in Sydney, and thus the Applicant did not ‘appear before’ the Tribunal.
2. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that applicant claims were implausible, being conclusion that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
3. The applicants satisfy the four key elements of the Convention definition … The Tribunal has not considered this aspect and therefore committed factual and legal error.
3. The RRT has failed to investigate applicant claims, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 20 April 2009 was effected by actual bias constituting judicial error.”
[Errors in the original]
Despite opportunity, the applicants have not put an amended application, or any written submissions, before the Court.
The Minister’s formal “Response” and written submissions are before the Court.
Hearing before the Court
At the hearing before the Court, the applicant appeared in person. He was assisted by an interpreter in the Gujarati language. Ms M Jeong appeared for the first respondent.
The applicant confirmed that he would represent his wife’s interests at the hearing. Unfortunately, the applicant was unable to assist the Court, as he then had nothing further to say.
During the course of the hearing three additional matters arose:
1. The application of the judgment in SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 (“SZNAV”) to the circumstances of this case.
2. The application of s.424 of the Act to this case, with reference to paragraphs [49] and [61] of the Tribunal’s decision.
3. The Tribunal’s engagement of s.424AA of the Act.
Orders were made giving the parties the opportunity to serve any further evidence and submissions in relation to these matters.
Written submissions were subsequently received from the respondent. Nothing further was received from the applicants. These issues are addressed below.
Consideration
Ground One
The applicant complains that the Tribunal failed to provide them with the opportunity to appear before it. The particulars complain that s.425 requires an “oral” hearing at which both the Tribunal and applicant are physically present. The argument is that the Tribunal was in Sydney and therefore not physically present with the applicant. Therefore, the applicant was said not to “appear before” the Tribunal (giving the word “before” what is said to be its “natural English meaning”).
It is a pity that whoever drafted the applicant’s grounds, while apparently going to the effort of looking up a dictionary, did not read further than s.425 of the Act.
S.429A of the Act provides:
“Oral evidence by telephone etc.
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.”
Simply, s.425, when read with s.429A, does not require a hearing where the Tribunal and the applicant are physically present in the same location (see SZJYDv Minister for Immigration & Citizenship [2007] FCA 798). No jurisdictional error is revealed in these circumstances. (See also SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 per Reeves J, who held that s.425 does not require an applicant to appear “in person”:
“23. As is apparent from its terms, this section requires the Tribunal to give an applicant an opportunity to appear before it, to give evidence and to present arguments. However, it does not require that the opportunity to appear before the Tribunal must be an apperance (sic) ‘in person’. In this day and age, it is quite common for courts and tribunals to have people appearing before them using modern technology such as video conference facilities. Most of the concerns of decades past about the use of such technology have disappeared: see McDonald v Commissioner of Taxation [2000] FCA 577; (2000) ATC 4271 at [21] to [22] per Finn J”).
I can only agree with the Minister that this complaint is disingenuous. The Tribunal plainly was moved to facilitate the giving of evidence “before” it in circumstances where the applicants lived some distance from Sydney. I note that in SZLLY v Minister for Immigration & Citizenship [2009] FCA 185, a matter on appeal from this Court, jurisdictional error was found in circumstances where the Tribunal had not acceded to a request that the hearing be conducted by video link given they claimed difficulty (that is, financial) in travelling to Sydney from Griffith.
In the current case, the applicants lived in Tooleybuc, New South Wales (CB 59) (near Deniliquin, past Wagga Wagga). The applicant was plainly concerned to obtain permission to work, because of financial pressures (CB 68). In my view, in these circumstances the Tribunal’s arrangement was not only reasonable, but clearly for the purpose of facilitating the giving of evidence.
Further, in the current case, there is no evidence before the Court that the applicants expressed any opposition to the Tribunal proceeding to conduct the hearing by “video link”. To the contrary, they responded that they would attend the hearing as had been arranged in those circumstances. The Tribunal’s letter specifically invited a response if there was a preference to physically attend in Sydney (see CB 64 to CB 67).
On the only account before the Court of what occurred at the hearing, there is nothing to indicate that the applicants encountered any difficulty, or were otherwise disadvantaged, because the hearing was conducted by video link.
Nor is any such complaint made now. The complaint merely seeks to inadequately rely on what is said to be the “natural English meaning” of the word “before”. In light of the clear provisions of s.429A, such a complaint cannot even be dignified with the description of a “technical” argument.
The applicants were provided with a proper and meaningful opportunity to make their claims and give their evidence to the Tribunal pursuant to s.425 of the Act.
The Tribunal’s account (unchallenged before this Court by any transcript to the contrary) reveals that the Tribunal clearly raised the relevant determinative and dispositive issues in this case. I note that given that the delegate rejected the application because he found adversely to the applicant’s credit in relation to the factual basis of his claims (see CB 55.3), there was probably no need for the Tribunal to “sufficiently indicate” to the applicants at the hearing what had been the determinative issue arising from the delegate’s decision, and that the same issue was dispositive before it. Namely, the credibility of the applicant’s factual account of what he said had occurred in India (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [47]).
Nonetheless, there is no jurisdictional error in the Tribunal having done so. The Tribunal raised all the relevant “matters” of concern with the applicants (see, in particular, [50] at CB 82 to [53] at CB 83). It specifically raised the “matters” of concern in the applicant’s factual account, and the inconsistencies in his evidence, as it said, pursuant to s.424AA (see [54] at CB 83 to [62] at CB 84).
Section 424AA: Hearing
Much of these “matters” were not “information” for the purposes of s.424AA and s.424A (see SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 (“SZMCD”) for the complementary relationship between those two sections – s.424AA is a facultative provision to enable compliance with s.424A). The Tribunal’s adverse view of the applicant’s evidence, of contradictions and implausibilities in his evidence, and its qualitative evaluation of the evidence, is not “information” for the purposes of s.424A (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] (“SZBYR”).
Further, and in any event, what the applicants provided to the Tribunal for the purposes of the review falls within the exception contained within s.424A(3)(b) from the obligations in s.424A(1), and did not require the engagement of s.424AA.
A similar situation applies to “information” provided for the purposes of the application leading to the decision under review, other than that provided orally (see s.424A(3)(ba)).
What the applicant told the delegate at the interview does not, of course, fall within the exception in s.424A(3)(ba).
To the extent that the Tribunal made reference to this at the hearing (see [55] at CB 83, and [58] at CB 84), I am mindful of the provisions of s.424AA(b)(i). There is no express statement in the Tribunal’s decision record to the effect of the matter set out in that provision. That is, to ensure, as far as reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences if the Tribunal were to rely on that information.
The legislation, however, does not require that the Tribunal record such a statement in its decision record (although such reference may make what it has done free from any doubt).
In the current case, I am prepared to infer that the Tribunal did comply with s.424AA(b)(i).
First, the Tribunal reports that it “explained s.424AA” (at [54] at CB 83). There is nothing to show that it explained only a part of s.424AA, or that it failed to explain s.424AA(b)(i). The Tribunal’s statement must, on a fair reading, be taken at face value.
Second, the Tribunal plainly complied with other parts of s.424AA(b). The applicant’s responses (recorded at [54] at CB 83) reveals that the applicant responded to an invitation that he comment orally during the hearing by saying that he wished to respond in writing (s.424AA(b)(ii)). The Tribunal gave the applicant until 1 April 2009, by which time the applicants could respond in writing to the “matters raised” (ss.424AA(b)(iii) and 424AA(b)(iv)). (See [61] at CB 85.) Nothing further was received from the applicants (see [62] at CB 84).
In any event, I agree with subsequent submissions by the Minister that the “matters” raised by the Tribunal, said to be in the context of s.424AA (as set out at [55], [56], [58] and [59] of the Tribunal’s decision record), were concerns that the Tribunal had which related to gaps, lack of detail and inconsistencies in the applicant’s written and oral evidence. As such, this is not “information” for the purpose of s.424A, nor s.424AA (see SZBYR at [17] to [18], and the reference there to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471).
I agree with the Minister that, in these circumstances, there was no need for the Tribunal to invoke s.424AA. But there was no error in the Tribunal doing so (SZLSM v Minister for Immigration & Citizenship [2009] FCA 537 at [41] per Cowdroy J).
Section 424
During the course of the hearing before the Court, the issue also arose as to whether what is recorded at paragraphs [49] and [61] (at CB 84) in the Tribunal’s decision record engaged the operation of s.424 of the Act. If so, whether error was revealed in light of SZKTI v Minister for Immigration & Citizenship [2008] FCAFC 83. That is, whether the applicants were invited to provide “additional information” as that term was understood in the context of s.424(2) at that time, without complying with the relevant statutory requirements.
The Minister subsequently relied on SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 at [110] to [114] to submit that what the Tribunal requested were “documents”, and that this was not a request for “information” falling within s.424.
Of course, in the intervening time the High Court handed down judgment in Minister for Immigration & Citizenship v SZKTI [2009] HCA 30.
In any event, in the current circumstances the answer is to be found in the terms of the current version of s.424, which became operational on 15 March 2009, and applied to the circumstances of this case.
At the hearing the Tribunal indicated to the applicants that, as well as providing comments or a response to the matters raised, they could provide “any other material” (see [61] at CB 84; see also [49] at CB 82). To the extent that the reference to “other material or documents” could be seen as an invitation for the applicants to give information pursuant to s.424, I note that the hearing (and therefore any such invitation) took place on 20 March 2009.
The current version of s.424 became operational on 15 March 2009 (Migration Legislation Amendment Act (No.1) 2009 (No.10, 2009) (Cth), Schedule 1, item 9). By way of transitional arrangement (Schedule 1, item 17), the present provision applies to such invitations made after 15 March 2009, irrespective as to when the application for review was made. As the invitation was made on 20 March 2009, s.424 now allows the Tribunal to make such an invitation orally. No error is therefore revealed in the current circumstances.
Ground Two
In ground two of the application, the applicants assert a breach of procedural fairness, because they say the Tribunal reached adverse conclusions that the applicant’s claims were implausible. This was said to not be obviously open on the known material. The applicant was not given the opportunity to be heard in respect of the above matters.
This complaint is obviously misconceived, given what is before the Court now.
First, it should be noted that this is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias). (See 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.)
As referred to above, the applicants were invited to a hearing. Plainly, as a result of the delegate’s decision, the applicant’s entire factual account of past events in India was in issue. Nonetheless, the Tribunal’s questions raised at the hearing did “sufficiently indicate” to the applicant that the credibility of his account was at issue (SZBEL at [47]). The applicant was given the opportunity to be heard on relevant “matters” at the hearing. He was given the opportunity to respond subsequently in writing. That he chose not to do so does not reveal jurisdictional error on the part of the Tribunal.
The Tribunal’s findings in relation to the applicant’s account, and his credit, were plainly open to it on what was before it, and for which it gave reasons. This was plainly an exercise within jurisdiction (Kopalapillaiv Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558 to 559 (“Kopalapillai”); Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1 at [67]; (2000) 74 ALJR 405 per McHugh J).
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” the applicant’s claims (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451).
Further, if what the applicants are saying is that the findings made by the Tribunal were not open to it on the “known material”, a plain reading of the Tribunal’s decision record reveals that the Tribunal’s findings were open to it on the material before it, and no error is demonstrated in this regard (Kopalapillai at 558 to 559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64] to [69] per Tamberlin and Nicholson JJ).
In pressing this ground, I cannot see that the applicants are asking this Court to engage in anything other than impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 (“Wu Shan Liang”).
This ground does not succeed.
The “First” Ground Three
The applicants assert that they satisfy the four key elements of the Convention definition. They allege that the Tribunal “has not considered this aspect and therefore committed factual and legal error”.
This ground is often started in identical terms before this Court. At best, it is an assertion that the applicants meet the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. Given that the Tribunal’s decision record plainly, and clearly, shows that it did consider what is described as “this aspect”, this ground, again, does not rise above a request for this Court to engage in impermissible merits review (Wu Shan Liang).
The “Second” Ground Three
This ground appears to have two limbs. The first asserts a failure to investigate claims. The second asserts actual bias as a result.
As the Minister submits, there is no general duty to inquire (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 121 at [21] to [22] per Gummow and Hayne JJ; see also SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [46] per Allsop J; WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24]).
Further, I note that the High Court has recently handed down Judgment in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”). I note what the Court said at paragraphs [18] to [24], and in particular, paragraphs [25] to [27].
The High Court noted that a failure on the part of the Tribunal to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could in some circumstances be sufficient to constitute a failure to undertake its core function, which is to review decisions (at [25]). However, in the circumstances of that case, there was: “no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error” (at [26]).
In the current case, apart from a general reference to investigating the claims of persecution in India, the applicants do not say what specifically the Tribunal allegedly failed to inquire about.
As stated, this ground appears to be a challenge to the Tribunal’s rejection of the applicant’s factual account of what he said had occurred in India.
The applicants were invited to, and attended, a hearing to give evidence and present arguments relating to the issues arising to the decision under review. On a plain reading of the decision record, which is the only account of what occurred at that hearing, it cannot be said that the applicants raised any specific issue or factual circumstance that could be said to have required the Tribunal to “make an obvious inquiry about a critical fact”, such that a failure to do so could give rise to jurisdictional error by constructive failure to exercise jurisdiction (see SZIAI at [25]).
Nothing arose from the hearing before the Tribunal, or on the material now before the Court, to show that there is any factual basis for the conclusion that the Tribunal’s alleged failure to inquire constituted a failure to undertake its statutory duty of review or that this was otherwise so unreasonable as to support a finding that its decision was infected with jurisdictional error (see SZIAI at [26]). The applicants have not been able to show, with any specificity, what the Tribunal allegedly failed to inquire about.
The Tribunal plainly considered the applicant’s claim to fear persecution in India. For reasons that it gave, the Tribunal was not satisfied that the applicant had suffered persecution, or that he was at risk of suffering “serious harm” if he were to return to India ([72] at CB 86).
In all, therefore, the complaint that the Tribunal failed to investigate the applicant’s claim does not succeed.
As to actual bias, I should note that this allegation is very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. An allegation of actual bias carries with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71] to [72], and [127]).
The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim.
I also note for the sake of completeness that allegations of an apprehension of bias must have regard to the standards of reasonableness, which are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] to [32]).
There is nothing before the Court to suggest bias, or the apprehension of bias, on the part of the Tribunal, let alone evidence to support such a serious charge. This complaint is not made out.
SZNAV
At the time of the hearing of this matter, this Court (per Raphael FM) had just handed down judgment in SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693. This matter involved an “acknowledgment letter” sent by the Tribunal to the applicant on receipt of the application for review. In that case, error was found on the part of the Tribunal, in that it was said that the Tribunal acted in breach of the provisions of ss.424 and 424B in inviting “additional information” without complying with relevant statutory provisions.
An “acknowledgment letter” in substantially identical terms was also sent by the Tribunal in the current case. I gave the Minister the opportunity to make supplementary submissions in writing (see CB 62 to CB 63).
In the meantime, the Full Federal Court has handed down judgment in Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109, which relevantly upheld the appeal against what was decided in SZNAV in this Court.
In applying the Full Court judgment to the circumstances of this case, therefore, no error can be discerned arising from the Tribunal’s “acknowledgement letter”.
Conclusion
For the applicants to succeed before the Court, jurisdictional error (at least) would need to be found in the Tribunal’s decision. I cannot see such error as it is said to arise from the grounds of the application, nor otherwise. This application is therefore dismissed.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Deputy Associate: C Jackson
Date: 25 September 2009
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