SZOGR v Minister for Immigration - [2010] FMCA 511

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOGR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 511

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was required to consider relocation – whether the Refugee Review Tribunal should have investigated the applicant’s claims – whether the Refugee Review Tribunal’s decision is affected by bias or apprehended bias.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 91R(2)(a); 91R(3); 424A(1); 424A(3)(a); 424A(3)(b); 424A(3)(ba); 424AA; 474; pt.8 div.2

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) FCR 220 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Applicant:	SZOGR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 626 of 2010

Judgment of:

Emmett FM

Hearing dates:

16 June 2010 & 1 July 2010

Date of Last Submission:

1 July 2010

Delivered at:

Sydney

Delivered on:

20 July 2010

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent:

Mr R. Baird, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 626 of 2010

SZOGR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 February 2010.
The applicant claims to be a citizen of India and of Hindu faith (“the Applicant”).
The Applicant arrived in Australia on 6 April 2009, having departed legally from Chemai Airport on a passport issued in his own name and a Subclass 456 Temporary Business visa issued on 30 March 2009.
On 8 April 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 3 July 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 30 July 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 26 February 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 23 March 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

The Applicant’s written claims in support of his protection visa application are accurately summarised in the written submissions of the solicitor for the First Respondent as follows:
“3.The applicant is a citizen of India who arrived in Australia on 6 April 2009 and applied for a Protection (Class XA) visa on 8 April 2009. In a statement submitted in connection with his protection visa application, the applicant claimed that:
(a)he is a Hindu from Kerala in India. His village is dominated by Roman Catholic families. His family has always had good relations with the Christian community;
(b)over time, he and his brother became more involved with their Christian neighbours and took an interest in the Christian faith. This caused suspicion amongst the Hindu community in his village and his family became isolated from the Hindu community;
(c)his family owns some agricultural farmland and a grocery store. “Disturbing activity” by the Hindu community forced his father to close the store. The support given by the Christian community to his family at that time provoked the Hindu community to act more aggressively by destroying the store and attacking his family’s house;
(d)his family was forced to flee from their village and to settle in another part of a neighbouring state. Six months later, they returned to their village;
(e)one day, whilst he was returning from the hospital after having fallen ill, a group of Hindu extremists attacked his vehicle. He had a narrow escape from serious injury;
(f)he joined a welfare association run by Christians. The popularity of the association’s welfare activities irritated the Hindu group, whose members suspected him of converting the “backward community” to Christianity. The Hindu group attacked him one day when he was returning home with the Christian association;
(g)the following week, he was returning home after a wedding reception when he was again attacked. He was admitted to the nearest government hospital but, when his friends tried to take him to a medical college for further treatment, the hospital doctor denied them permission to move him because the doctor was a supporter of the Hindu group. His brother argued with the doctor over the medical expenses, which provoked the doctor to attack his brother with a sharp instrument;
(h)he and his brother were admitted to another hospital. After returning home, the Hindu group became more violent and forced them to leave Kerala. He and the Christian association then travelled around India. In their absence, the family’s income dried up;
(i)his brother and the doctor argued on a second occasion and the doctor threatened his brother with dire consequences;
(j)he and his brother reported these incidents to the authorities but were unable to obtain justice because the Hindu group had strong political connections;
(k)he and his family became the targets of public nuisance and vulgar comments;
(l)his family’s economic circumstances forced them to sell some of their land to the Christian association, which intended to build a community and prayer hall on the land. However, the Hindu community and political organisations protested against the project and stopped construction of the hall; and
(m)he decided to leave India in order to live peacefully. His family continues to receive phone calls from people making threats and enquiring about his whereabouts.”

The Delegate’s decision

On 25 June 2009, the Applicant attended an interview with the Delegate.
On 3 July 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate refused the Applicant a protection visa on the basis of comprehensive adverse credibility findings based on inconsistencies in the Applicant’s written statements and what he told the Delegate at the interview, as well as his lack of knowledge about the Christian association to which he claimed to have belonged since 2005 and the lack of any documentary evidence in support.
The Delegate also found that the Applicant’s travel to Singapore, Indonesia and Malaysia and his return to India in 2008 demonstrated that he had no subjective fears about returning to India. The Delegate also had regard to the Applicant’s failure to seek an Australian visa until 2009 in circumstances where his passport was issued in 1990. The Delegate found this cast doubt on the Applicant’s need to leave India because it found that it would be reasonable to expect a person harbouring a genuine fear of persecution to leave India as soon as possible. The Delegate was not satisfied that the Applicant had a genuine fear of persecution if he were to return to India. Further, the Delegate found that the Applicant’s claim at the interview to have converted to Christianity was an embellishment made in order to enhance his refugee claims.

The Tribunal’s review and decision

On 30 July 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of his review application. These documents included:
1)A letter dated, 2 March 2007, purportedly from the Applicant’s father addressed to the Inspector of Police in Kerala stating that he had “launched a complaint recently regarding an attack on my son and family members”. The letter went on to say that the Applicant’s father and family members “are being threatened regularly by the miscreants.” The letter then sought police protection.
2)A document headed “Agreement”, dated 24 April 2008, allegedly signed by the Applicant’s father agreeing to sell land to the director of the association, Akashaparavakal, “charitable institution”. The agreement did not appear to have any other signature.
3)A copy of a letter headed “Muller Hospitals (PVT) Ltd, Mangalore – Kerala”. The document was described as a “certificate” and was dated 2 April 2007. The “certificate” stated that the Applicant was admitted on 4 March 2007, treated and advised to have physiotherapy for 15 days as a result of bruises on his head and a ligament tear of his right ankle joint.
4)A copy of a baptism and confirmation record, dated 27 August 2009, in the name of the Applicant attesting to his baptism and confirmation on 28 August 2009.
On 11 August 2009, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 17 September 2009 to give oral evidence and present arguments. By letter dated 9 September 2009 this hearing was postponed. On 29 September 2009, the Tribunal wrote to the Applicant inviting the Applicant to the rescheduled hearing on 28 October 2009.
On 28 October 2009, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“9. On 26 February 2010, the Tribunal affirmed the delegate's decision. The Tribunal found that:
a) on the basis of inconsistencies and contradictions in the applicant's claims, which are of such a magnitude that they indicate that those claims are not truthful, the Tribunal did not find the applicant to be a credible witness;[1]
[1] At [128], CB 136.3 to 5.
b) the applicant's brother had also filed a protection visa application and given evidence at an interview with a delegate of the Minister in relation to the events claimed by the applicant. On the basis of contradictions between the evidence given by the applicant and his brother, inconsistencies in the applicant's evidence given at different times, the vagueness of the applicant's evidence given at the hearing and the Tribunal's adverse credibility finding, the Tribunal found that:
i) the applicant had not been attacked whilst returning from hospital[2] or whilst returning from a wedding reception;[3]
[2] At [129] to [130], CB 136.6 to 8.
[3] At [131] to [134], CB 136.9 to 137.7.
ii) the applicant's brother had not been attacked by the doctor whilst the applicant was in hospital[4] and had not argued with the doctor on a second occasion;[5]
[4] At [131] to [134], CB 136.9 to 137.7.
[5] At [138], CB 138.4 to 5.
iii) the applicant's family's home had not been attacked, they had not been abused, their grocery store had not been closed or destroyed and they had not fled from their home village;[6] and
[6] At [139] to [141], CB 138.6 to 9.
iv) the applicant had not been attacked whilst returning home with the Christian association;[7]
[7] At [142] to [144], CB 139.1 to 6.
c) the applicant had provided to the Tribunal a medical certificate and a letter from his father to the police.[8] On the basis of deficiencies in those documents and the Tribunal's adverse credibility finding, it declined to place any weight on those documents as supportive of the applicant's claims. The Tribunal also found that, even if it were to accept that the applicant had been admitted to hospital on the basis of the medical certificate, it would not find that the applicant had been hospitalised for the reason that he had been attacked whilst returning from a wedding reception;[9]
[8] CB 104 to 106.
[9] At [135] to [137], CB 137.8 to 138.3.
d) for these reasons, there was no plausible evidence before the Tribunal that the applicant had suffered any persecution in India in the past;[10]
[10] At [148], CB 140.2.
e) on the basis of the Tribunal's rejection of the applicant's claims to have experienced any persecution in India in the past and its adverse credibility finding, the Tribunal found that:
i) the applicant had not been involved with the Christian association since 2005 and had not travelled around India with them;[11]
[11] At [145], CB 139.6 to 7.
ii) the applicant's family had not sold some of their land to the Christian association to set up a community and prayer hall;[12]
iii) the Tribunal received evidence from the applicant's supporting witness in relation to the applicant's attendance at the Church of Jesus Christ of Latter-Day Saints at Harbord, his attendance at bible study and his baptism. The applicant also provided the Tribunal with a copy of his baptism and confirmation record.[13] The Tribunal found that that conduct had been engaged in for the purpose of strengthening the applicant's claims to be a refugee and, accordingly, disregarded it pursuant to s.91R(3) of the Migration Act 1958 (Cth) (Act);[14]
iv) the applicant's family had not received any threats after his departure;[15]
v) the applicant's family had not been banned from marriages and other activities by the Hindu community in their village;[16] and
vi) if the applicant were to return to India, he would not practice Christianity, be involved in the Christian association or be perceived to be a Christian;[17]
f) even if the Tribunal were to accept that the applicant would practice Christianity if he were to return to India, independent country information indicates that he would be able to do so safely in his village in Kerala;[18]
g) even if the Tribunal were to accept that the applicant would practice Christianity if he were to return to India, and if it were to accept that the applicant would experience difficulty in practising Christianity in his village, it would be reasonable in the applicant's circumstances for him to relocate to another part of Kerala;[19] and
h) for these reasons, the Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to India in the foreseeable future.[20]”
[12] At [146] to [147], CB 139.8 to 140.1.
[13] CB 108 to 110.
[14] At [149] to [150], CB 140.3 to 5.
[15] At [151], CB 140.6.
[16] At [152], CB 140.7 to 8.
[17] At [153], CB 140.9 to 10.
[18] At [154], CB 141.1 to 3.
[19] At [155] to [157], CB 141.4 to 10.
[20] At [158], CB 142.1 to 3.
Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

The Applicant was unrepresented before this Court, although had the assistance of a Malayalam interpreter.
On 6 May 2010, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit and submissions in support. At that time, the Applicant was directed to ensure that if he wished to rely on a transcript of the Tribunal hearing he would need to have the transcript prepared and verified by affidavit. On that occasion, I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I explained that it was not for the Court to reconsider his claims and make different factual findings or reach different conclusions.
At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in the application filed on 23 March 2010 as follows:
“1. The Tribunal failed to consider properly the test whether the applicants(sic) would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
3. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not a converted Christian in India was at risk of harm from radical Hindus, and not able to access effective protection.
4. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicants circumstances and the consequence of the claim.
5. The applicant satisfy (sic) 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.
6. The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 1 March 2010 was effected by actual bias constituting judicial error.”

Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The Applicant confirmed that he had not filed an amended application, evidence or submissions in support of his application.
Following completion of the Applicant’s oral submissions and the submissions of the First Respondent, the matter was adjourned for the following reason. It was not clear from the Tribunal’s decision record the manner in which the Tribunal had purported to comply with s.424AA of the Act. By consent, leave was granted once again to the Applicant to file and serve an amended application giving complete particulars to raise the issue of whether or not the Tribunal had complied with s.424AA of the Act in respect of any information that may be the reason or part of the reason for affirming the decision under review. The Applicant was also directed to file and serve any evidence in support of any amended application by way of affidavit. The Court’s order made clear that if the Applicant intended to rely on a transcript of the Tribunal hearing, that transcript must be prepared and verified by affidavit. The order also advised the Applicant that if he intended to rely on a recording of the Tribunal hearing, he must give notice to the First Respondent and the Court stating the issue to which any part of the recording was relevant and the approximate duration of the relevant recording. The Applicant was also directed to file and serve written submissions in support of any amended application. The Applicant was again provided with the contact details of legal services providers and translating and interpreting services in documents headed in the Applicant’s own language. The hearing was then stood over to 1 July 2010.
At the recommencement of the hearing on 1 July 2010, the Applicant confirmed that he had not filed any documents in accordance with the Order made by the Court on 16 June 2010 and had no further documents to provide to the Court to rely upon. Neither did the Applicant seek any further adjournment.
The Court invited the Applicant to say anything further in support of any of the grounds of his application or in support of his application generally. The Applicant declined to say anything further. The grounds had already been fully explored by the Court with the Applicant at the hearing on 16 June 2010 and the First Respondent had made submissions in response. At the further hearing on 1 July 2010, the First Respondent also confirmed that the First Respondent had no further submissions to make in support of their Response or in answer to anything said by the Applicant.
The submissions made by the Applicant in support of the grounds of the application are addressed below in each of the grounds. I should note that the grounds are in almost identical terms to grounds seen before by this Court.

Ground 1

Ground 1 of the application asserts that the Tribunal failed to consider properly the tests of whether the Applicant would suffer serious harm if he were to relocate in India.
In support of this ground the Applicant told the Court that he had a very limited knowledge of the Hindi language and that he otherwise knew only the Malayalam language, whereas other states spoke other dialects. He also stated that his family had no income and he would be responsible for supporting his family and parents. The Applicant said that relocation was impossible because of those constraints and that he did not have enough money to relocate and that it would be difficult to find a job.
The short answer to the Applicant’s complaint in Ground 1 is that, having regard to the comprehensive rejection by the Tribunal of all the Applicant’s claims of past harm and persecution in India for any Convention related reason, it was not necessary for the Tribunal to consider relocation. The Tribunal’s findings were not attenuated by any real doubt and, in the circumstances, there was no need for the Tribunal to consider the possibility of relocation (Minister for Immigration & Multicultural Affairs v Rajalingam (1999) FCR 220 at [67]; SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 (“SZMCD”) at [118]-[124]).
The Tribunal commenced its consideration of relocation with the following statement:
“Further, if the Tribunal was to accept that the applicant would practise Christianity if he returned to India, which it does not, and the Tribunal was to accept that the applicant would experience difficulty in practising Christianity in his home village, which it does not, the Tribunal is satisfied that the applicant would be able to be economically viable in another area of Kerala and would relocate successfully.” (Emphasis added)
The Tribunal then went on to give consideration to the particular circumstances of the Applicant in considering whether it would be reasonable for the Applicant to relocate. In particular, the Tribunal was satisfied that the Applicant is “able to speak Hindi or at least understand Hindi.” In making that finding, the Tribunal had regard to the inconsistent evidence given by the Applicant about his knowledge of Hindi. Before the Delegate, the Applicant said that he spoke Hindi. At the Tribunal hearing, the Applicant agreed that he had studied Hindi at school but could not speak Hindi. The Tribunal noted that it put to the Applicant at the hearing that he had told the Delegate that he could speak Hindi and noted the Applicant’s response that what he had told the Delegate was incorrect.
In any event, even if the Tribunal was obliged to consider the issue of relocation, it did so according to law. The Tribunal considered whether it was “reasonable” in the sense of “practicable” in the Applicant’s particular circumstances and concluded that it was (See SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]; SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51; SZMCD at [124]).
Otherwise, the decision record makes clear that the Tribunal considered carefully and in great detail every claim made by the Applicant in support of his protection visa application. The Tribunal had regard to the Applicant’s written claims in support of his protection visa application, what the Applicant told the Delegate at an interview with the Delegate, the evidence given by the Applicant to the Tribunal at the hearing and the Applicant’s written response post-hearing to matters of concern raised by the Tribunal with the Applicant during the hearing.
Ultimately, as stated above, the Tribunal comprehensively rejected all the Applicant’s claims. The Tribunal found the inconsistencies and contradictions in the Applicant’s claims, statements and evidence to be “of such a magnitude that they indicate that the applicant’s claims… are not truthful”. In addition, the Tribunal found the Applicant’s evidence to be internally inconsistent with evidence given by the Applicant’s brother to the Refugee Review Tribunal in support of the brother’s protection visa application and inconsistent with country information before the Tribunal.
The Tribunal also noted that, in his written response post-hearing dated 11 November 2009, the Applicant asserted that there were many inaccuracies in interpretation. The Tribunal considered that allegation and noted that the Applicant did not identify any particular mistranslations, other than those relating to the alleged attack upon his brother by the doctor and which of them was injured as a result. The Tribunal noted that several times it confirmed with the Applicant who was injured so that any interpretation mistake could be corrected. The Tribunal noted that the Applicant confirmed three times who he stated was injured in that scuffle between the doctor and the Applicant’s brother.
Further, the Tribunal noted that the Applicant did not explain the contradiction between the Applicant’s evidence that his brother visited him while he was in hospital and his brother’s statement in the brother’s protection visa application made at interview that he and the Applicant were visiting another person in hospital when the scuffle took place.
The Tribunal also found that the Applicant answered the Tribunal’s questions in context and that the Tribunal allowed the Applicant a number of opportunities to provide further detail in relation to each of his claims which would have allowed any interpretation mistakes to be corrected.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 6 May 2010, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. As stated above, the Applicant was given a further opportunity on 16 June 2010 to file a transcript of the Tribunal hearing and rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence.
In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing. The Tribunal considered each of the documents provided by the Applicant in support of his review application. In relation to the documents, the Tribunal made the following findings:
1)The Tribunal did not place any weight on the medical certificate on the basis that the certificate did not state the Applicant’s surname and that the Applicant was not a credible witness. The Tribunal noted that even if it was to accept that the Applicant was admitted to hospital “in light of the medical certificate”, the Tribunal was not satisfied that the Applicant was admitted for any Convention related reason.
2)In relation to the alleged agreement to sell the Applicant’s father’s land to the association, the Tribunal did not find that the document was genuine, having regard to the fact that it was not signed by the purchaser and in light of the comprehensive adverse credibility findings in respect of the Applicant.
3)In relation to the Applicant’s father’s letter allegedly written to the Inspector of Police in Kerala, the Tribunal noted that it did not identify the attackers who were referred to as “miscreants”. Further, the Tribunal found that there was nothing in the letter to indicate it was actually provided to the police and confirmed that the Applicant did not know who had attacked him. Again, having regard to the Tribunal’s adverse credibility finings in respect of the Applicant, the Tribunal placed no weight on the letter as supporting the Applicant’s refugee claims.
4)The Tribunal was prepared to accept that the Applicant had been baptised in Australia. However, the Tribunal was not satisfied that the conduct was engaged in other than for the purpose of strengthening the Applicant’s refugee claims. For that reason, the Tribunal disregarded that conduct in considering whether or not the Applicant had a well-founded fear of persecution for a Convention related reason. In the circumstances, the Tribunal correctly applied s.91R(3) of the Act.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In the circumstances, the Tribunal’s comprehensive rejection of the Applicant’s claims and its adverse credibility findings supported the Tribunal’s decision to affirm the decision under review. Those findings and conclusions are not affected by any error in the Tribunal’s consideration of whether it was reasonable in the sense of practicable for the Applicant to relocate. Further, as stated above, there was no obligation on the Tribunal to consider the issue of relocation at all.
Accordingly, Ground 1 is not made out.

Ground 2

Ground 2 asserts that the Tribunal had no jurisdiction to make its decision because its “reasonable satisfaction” had not been arrived at in accordance with the Act. In support of that assertion the Applicant stated that the Tribunal “did not take a reasonable decision”. Otherwise, Ground 2 was unsupported by particulars, evidence or submissions.
As stated above, the Applicant was invited to come to a hearing to give evidence and present arguments. The Applicant did so. As stated above, the Tribunal explored in great detail the Applicant’s claims at the hearing and put to him concerns that it had about the Applicant’s evidence. It is conceded by the First Respondent that some of the information that the Tribunal gave to the Applicant orally at the hearing would have enlivened obligations under s.424A(1) of the Act.
However, the Applicant does not assert that any of that information was not given in accordance with s.424AA of the Act despite being given two opportunities on 6 May 2010 and 16 June 2010 to file an amended application. As stated above, the hearing before this Court was adjourned to give the Applicant a further opportunity to raise that specific ground should he choose to do so. Again, he was also provided with the contact details legal service providers and translating and interpreting services in documents in his own language.
In the circumstances, I am satisfied that the information given to the Applicant about what his brother may have said in his protection visa application or to the Delegate at interview, were given to the Applicant as clear particulars in accordance with s.424AA. The Applicant was invited to comment. The Applicant responded at the hearing. The Tribunal gave the Applicant a further 2 weeks post-hearing to address in writing any of the concerns it had raised with the Applicant at the hearing. The Applicant’s written response post-hearing did not refer to the inconsistency in the evidence given by the Applicant with the information provided by his brother in support of the brother’s protection visa application.
Otherwise the information that was the reason or part of the reason for affirming the decision under review was information given by the Applicant to the Tribunal for the purposes of the review application or information given by the Applicant to the Delegate in writing in connection with his protection visa application. Such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) and s.424A(3)(ba) of the Act. The Tribunal also gave to the Applicant information that was not specifically about the Applicant but was about a class of persons of which the Applicant claimed to be one. Again, such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(a) of the Act.
It is well settled that inconsistencies in evidence found to exist by the Tribunal are the subjective appraisals, thought processes and determinations in relation to the evidence before it and, therefore, do not enliven any obligation under s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]).
Moreover, the Applicant would have been on notice following the Delegate’s decision that his credibility was critically in issue. Indeed, the Applicant sought to address the lack of documentary evidence before the Delegate in providing documents to the Tribunal in support of his review application. In any event, the Tribunal clearly put to the Applicant its concerns about his credibility and independent country information that was inconsistent with his claims. Both the Delegate’s decision and the Tribunal’s exchanges with the Applicant during the hearing were sufficient to indicate to the Applicant that everything he said in support of his application was in issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at 35 and 47).
Further, as stated above, the Tribunal correctly carried out its obligations under s.91R(3) of the Act in disregarding the Applicant’s conduct in Australia, having found that it was not satisfied that such conduct was engaged in other than to strengthen the Applicant’s refugee claims.
In the circumstances, the Tribunal was entitled to find that it was not satisfied that the Applicant met the criteria for being a refugee.
Accordingly, Ground 2 is not made out.

Ground 3

Ground 3 asserts that the Tribunal failed to consider an integer of the Applicant’s claims, namely that a converted Christian in India would be at risk of harm from radical Hindus and would be unable to access effective protection. In support of Ground 3, the Applicant stated that there were attacks from extreme Hindus in respect of other religions and that the Tribunal had not considered those matters.
As stated above, the Tribunal comprehensively rejected the Applicant’s claims to be a Christian in India or to have been involved with any Christian association or to be perceived as Christian or to have suffered harm for that reason. In light of those findings, it was not necessary for the Tribunal to consider whether, if the Applicant had been a converted Christian in India, he would have been at risk of harm from radical Hindus and unable to access effective protection.
In any event, the Tribunal did consider whether the Applicant would be likely to practice Christianity if he returned to India or to be involved in the Christian association, Akashaparavakal, or perceived to be a Christian if he were to return to India. The Tribunal did not accept that the Applicant would practice Christianity if he were to return to India. In accordance with country information before it, the Tribunal went on to state that “as discussed with the applicant at the hearing country information indicates that a the applicant could practice Christianity in Kerala in relative safety.”
Otherwise, whether there were attacks on other religious members in India was no part of the Applicant’s claims, which were restricted to claims of attacks upon himself and his brother. The Tribunal addressed each of the Applicant’s claims and rejected each one. There was no other claim that was expressly made or clearly arose on the evidence and material before the Tribunal and which it failed to consider (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27).
As stated above, the Tribunal’s findings and conclusions in respect of the Applicant’s claims were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 3 is not made out.

Ground 4

Ground 4 makes the bare assertion that the Tribunal’s decision was “unjust and was made without taking into account the full gravity of the applicant’s circumstances and the consequence of the claim.” In support of Ground 4, the Applicant stated that the Tribunal had not considered the Applicant’s supporting evidence of his conversion and baptism from Hindu to Christian in Australia and that the attacks against him and his brother had not been taken into account.
As discussed in the grounds above, the Tribunal considered each of the documents provided by the Applicant in support of his review application and found none of them to be corroborative of the Applicant’s claims. In relation to the Applicant’s conversion and baptism in Australia, as stated above, the Tribunal was not satisfied that such conduct was engaged in other than for the purpose of strengthening the Applicant’s refugee claims. In those circumstances, the Tribunal was bound to disregard such conduct in accordance with s.91R(3) of the Act.
As is clear from the above consideration of the grounds, the Tribunal considered carefully and in great detail each of the Applicant’s claims of having been attacked in India for a Convention related reason and rejected each one of them.

As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Otherwise, Ground 4 is no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54).
Accordingly, Ground 4 is not made out.

Ground 5

Ground 5 makes the bare assertion that the Tribunal did not consider the four key elements of the Convention definition. The Applicant declined to make any submissions in support of Ground 5.
Ground 5 was not supported by particulars, evidence or submissions.
A fair reading of the Tribunal’s decision record makes clear that it understood “the four key elements of the Convention”. The Tribunal’s decision record identified each of those elements. Ultimately, the Tribunal was not satisfied that the Applicant met the criteria for being a refugee. Accordingly, pursuant to s.65(1)(b) of the Act, the Applicant must be refused a protection visa. The Tribunal was correct to affirm the decision under review in light of the findings and conclusions it made, having applied the correct law to its findings.
Accordingly, Ground 5 is not made out.

Ground 6

Ground 6 makes the bare assertion that the Tribunal failed to investigate the Applicant’s claims and its decision was therefore affected by actual bias. Again, the Applicant declined to make any submission in support of Ground 6 and the ground was not otherwise supported by particulars or evidence.
It is well established that it is only in certain circumstances that a tribunal may be obliged to investigate an applicant’s claims (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
In SZLGP v Minister for Immigration and Citizenship (2009) 112 ALD 501 Logan J uses the term “critical fact”. Logan J found that the tribunal fell into jurisdictional error by constructively failing “to exercise the review jurisdiction consigned to it by s 414 of the Migration Act because it failed to make an obvious inquiry about a critical fact” (see [51]).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There was no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which was easily ascertained and none was identified by the Applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
To the extent that Ground 6 alleges bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “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) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceeding, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
In the circumstances, the allegation of bias or apprehended bias is rejected.
Accordingly, Ground 6 is not made out.

Ground raised in Applicant’s affidavit

In an affidavit, sworn by the Applicant on 22 March 2010 and filed on 23 March 2010, in support of the initiating application for judicial review, the Applicant stated that the Tribunal Member failed to “analyse properly the “future harm”” that the Applicant may face if he were to return to India and therefore failed to “assess or carry out the ‘real chance’ test”.
Again, this complaint was not further articulated by the Applicant or supported by particulars, evidence or submissions.
Having regard to the consideration of the various grounds above, it is clear from the Tribunal’s decision record that it was aware of the statutory task it was required to perform in considering whether the Applicant had a well-founded fear of persecution for a Convention related reason if he were to return to India now or in the foreseeable future. The Tribunal considered specifically whether the Applicant would face harm in India if he were to practise as a Christian, despite finding that the Applicant would not engage in such practice. In light of its findings, it was unnecessary for the Tribunal to consider that issue further. However, in approaching its task with abundant caution, the Tribunal did so. There was no error that went to the Tribunal’s jurisdiction in that approach.
Otherwise, this complaint, again, is no more than a disagreement with the findings and conclusions of the Tribunal, thereby seeking merits review. As stated above, this Court has no power to consider the merits of the Tribunal’s decision.
Accordingly, this complaint is rejected.

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses, both oral and in writing. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:

Date: 20 July 2010