SZOTK v Minister for Immigration
[2011] FMCA 451
•23 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOTK v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 451 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to take evidence into account, failed to take public interest criteria into account, failed to take the particular circumstances of the applicant’s family into account, did not bring an independent mind to the review, breached s.425 of the Migration Act 1958 and was biased. PRACTICE & PROCEDURE – Application to set aside interlocutory dismissal of proceedings – relevant considerations. |
| Migration Act 1958, s.425 Migration Regulations 1994, cl.866.2 of sch.2 Federal Magistrates Court Rules 2001, rr.13.03C, 16.05 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZOTK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2404 of 2010 |
| Judgment of: | Cameron FM |
| Hearing dates: | 9 May 2011, 3 June 2011 |
| Date of Last Submission: | 3 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 23 June 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applications in a case dated 19 April 2011 and 9 May 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2404 of 2010
| SZOTK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India where, he claims, he was an active member of the Babbar Khalsa party. He claims that he took part in various activities in support of an independent Sikh state and travelled to Pakistan to receive military training against the Indian government. He claims that the Indian authorities learned of his activities and placed his name on a surveillance list. He claims that he was arrested many times and that the police have fabricated a false case against him.
The applicant claims to fear persecution in India because of his political activities.
The applicant arrived in Australia most recently in 2003. On 1 March 2010 he lodged an application for a protection visa which was refused by a delegate of the first respondent (“Minister”) on 24 June 2010. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and on 8 November 2010 he applied to this Court for judicial review of the Tribunal’s decision.
This matter was listed for its first court date on 6 December 2010 at which time it was set down for hearing on 22 March 2011. There was no appearance by the applicant on 22 March 2011 although a friend of his was present and placed before the Court two doctors’ certificates, neither of which said that the applicant was not well enough to attend Court. The adjournment which the applicant sought through his friend was refused and, on the Minister’s application, the proceedings were dismissed pursuant to r.13.03C(1)(c) by reason of the applicant’s non-attendance.
On 19 April 2011 the applicant filed an application in a case pursuant to r.16.05 of the Rules seeking an order that the Court set aside the order of 22 March 2011. A further version of this application was filed on 9 May 2011 in relevantly identical terms. In deciding whether to grant the current application, I must consider whether the applicant’s explanation for his non-attendance on 22 March 2011 is a satisfactory or adequate one and whether he has an arguable case on the principal application.
For the reasons which follow, the application will be dismissed.
Reasonable explanation
As to whether the applicant has provided a reasonable explanation for his non-attendance, I note the medical certificate of Dr Bishay dated 18 April 2011 stating that the applicant was unfit to attend court on 22 March 2011. Further, the Minister accepted that the applicant was sick on that occasion. In the circumstances, I find that the applicant has satisfied this criterion for an order setting aside the dismissal ordered on 22 March 2011.
Arguable case
Next it is necessary to consider whether the applicant has an arguable case that the Tribunal’s decision is affected by jurisdictional error. It is only if the Tribunal’s decision is affected by jurisdictional error that it may be set aside by this court. However, before considering the allegations made in the application commencing these proceedings, and whether they disclose an arguable case of jurisdictional error, the claims made by the applicant to the Minister’s department and to the Tribunal must be set out.
Immigration history
According to the Tribunal’s summary of the applicant’s claims and evidence, set out on pages 4-12 of its decision record, the applicant first arrived in Australia in October 1999 as the holder of short stay business visa. In November 1999 he lodged an application for a protection visa in which he alleged the following:
a)between 1984 and 1986 he took part in rallies in support of an independent Sikh state and was arrested many times;
b)he had no problems with the police between 1986 and 1998;
c)in 1998 he was arrested again after someone “gave his name” to the police. The police proceeded to fabricate a case against him, accusing him of supplying arms and ammunition to anti-Indian nationals. He was released after three months because the police could not find the evidence they needed;
d)his name was put on a surveillance list. As a result, the police were able to detain him at any time;
e)whilst living in Bombay he was detained two to three times a month so he decided to move to Assam. However, when the police could not find him in Bombay they harassed his family which caused his wife to disclose his address. The police raided the house in Assam, took his belongings and arrested his friend;
f)he moved to another place to avoid arrest; and
g)he had difficulties leaving India but managed to obtain travel documents through bribery.
The applicant’s 1999 protection visa application was refused by a delegate of the Minister in December that year. That decision was affirmed by the Tribunal in September 2001. The applicant then sought judicial review of the Tribunal’s decision with the Federal Court but in January 2002 he withdrew his appeal and departed Australia.
The applicant returned to Australia in February 2003 as the holder of a dependent long stay business visa, the principal visa holder being his wife. However, their visas were cancelled in September 2004 after the applicant’s wife was found to be working in breach of a visa condition. In January 2006 the Migration Review Tribunal (“MRT”) affirmed the department’s decision to cancel their long stay business visas. The applicant and his wife sought judicial review of that decision with the Federal Court, the Full Federal Court and the High Court but they were unsuccessful at each stage, the latter application having been dismissed in November 2007.
According to the delegate’s decision record, the applicant then lodged an application for a child visa in December 2007. That application was refused by the department in March 2008, which decision was affirmed by the MRT in August 2008. The delegate’s decision record states that this was followed by two requests for ministerial intervention in September 2008 and June 2009, both of which were unsuccessful. On 1 March 2010 the applicant lodged his protection application visa the subject of these proceedings.
Department
At a departmental interview on 23 June 2010 in respect of his protection visa application filed on 1 March 2010, the applicant made the following claims:
a)he had been involved in the Babbar Khalsa party;
b)in 1984 he participated in demonstrations and distributed leaflets. Many Sikhs were killed by the police that year and the applicant “was involved”. He also distributed leaflets in 1991 or 1992;
c)he was arrested twice for distributing pamphlets and was tortured by the police;
d)he could not relocate to another part of India because the police have his name and will be able to chase and arrest him wherever he goes. This happened after he returned to India in 2002; and
e)he did not apply for protection until now because, previously, there had been “small hope”. However, his wife is now his enemy and if she calls the police they will be able to threaten him easily.
He said that his claims were the same as in his previous application.
Tribunal
The applicant attended a Tribunal hearing on 24 September 2010. At the commencement of that hearing he submitted a written statement outlining his personal background. He also submitted a number of documents in support of his application as well as “medical evidence”.
In his statement submitted to the Tribunal, the applicant claimed to be applying for protection for two “fundamental reasons”:
a)first, as a member of Babbar Khalsa International (“BKI”) during the 1980s and early 1990s, he travelled to Pakistan on a false passport to receive military training against the Indian government. However, the Criminal Investigation Department (“CID”) “found out about him” and sought to arrest him after he returned to India. He went into hiding in New Delhi, leaving his wife and children in Mumbai, and eventually obtained a business visa to travel to Australia. He was stopped at Mumbai airport but bribed a visa officer and was therefore able to depart India. He has been receiving information from a friend in India that the CID police are still looking for him; and
b)secondly, his wife (from whom he is apparently estranged) knows about his activities, including his travel to Pakistan on a false passport. As revenge, she will inform on him to the Indian CID if he returns to India.
At the Tribunal hearing, the applicant also made the following additional claims:
a)his first protection visa application was made on the same basis as his current application although now “there is more” because he has since had problems with his wife and she can call the authorities and inform on him;
b)he returned to India in 2002 because he thought that the situation was “normalising”. His mother was also very ill;
c)he did not apply for protection until 2010 because he and his wife were appealing the cancellation of their business visas and they were hopeful of a successful outcome;
d)the police knew that he had received training in Pakistan;
e)he was first arrested in September 1986 and was detained for a month. He was arrested again in 1987 or 1988 and many times thereafter. He was also interrogated in 1993 and 1994;
f)he had to pay to get his passport;
g)he was allowed to leave India twice because the computers malfunctioned on both occasions and he had paid “the money”;
h)the authorities are still interested in him because his name is still “on the list” and BKI members are still active in India; and
i)his memory was not good because of his depression.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal considered the medical evidence presented by the applicant but formed the view that his medical condition did not preclude him from being able to participate meaningfully in the hearing or from giving evidence and presenting arguments. The Tribunal noted in this connection that the applicant appeared to have had no difficulty understanding and addressing the questions posed to him at the hearing;
b)the applicant’s 1999 protection visa application contained claims which were similar to the claims being considered by the Tribunal in 2010, namely, that he feared persecution in India because there were false cases against him, a warrant for his arrest and the authorities were searching for him. However, despite these claims, the applicant voluntarily returned to India in January 2002 and the fact that he did so suggested to the Tribunal that he had not been truthful in his claims and that he did not have a genuine fear of persecution in India. The applicant explained to the Tribunal that he thought the situation in India would normalise but he did not elaborate on why he thought this would be the case. Also, his explanation that his mother was ill and that he wished to visit her did not, in the Tribunal’s view, justify his return to a country where he claimed to fear for his life and safety;
c)the applicant returned to Australia in February 2003 but did not apply for a protection visa until March 2010. In the Tribunal’s view, if the applicant had had any fear of persecution he would have made an application for protection much earlier and as soon as it became apparent to him that the reinstatement of his business visa, which in any event was a temporary visa, would not succeed. Further, whatever hope the applicant may have held of being able to remain in Australia did not prevent him from engaging in the protection visa application process at the same time, a process which he was very familiar with given his previous application in 1999. The fact that the applicant waited until March 2010 to apply for protection suggested to the Tribunal that he did not have a genuine fear of persecution and that he had not been truthful in his claims;
d)the applicant claimed that he had been able to travel from India to Australia twice using a passport in his own name because, at the time of his departures, the computers had malfunctioned and he had paid a bribe. However, in the Tribunal’s view, the more plausible explanation was that the applicant was of no interest to the authorities and was therefore allowed to enter and leave India freely;
e)the applicant claimed in relation to his first protection visa application that he had had no difficulties with the authorities between 1986 and 1998. However, at the Tribunal hearing he claimed that he had been arrested and detained in September 1986; that he had been arrested several times afterwards for brief periods; and that he had been interrogated in 1993 or 1994. He also claimed in relation to his first protection visa application that he had been arrested and detained for three months in 1998. However, when asked by the Tribunal to describe what had happened to him in 1998, the applicant appeared to have no recollection of this event;
f)the statement from the superintendent of police declaring the applicant to be a “most wanted criminal” was dated March 1995, yet the applicant was issued with a passport three years later in 1998. The Tribunal did not accept that the applicant would have been issued with a passport – even by paying extra for it – if he had been on a wanted list or if there were outstanding cases against him;
g)the Tribunal did not accept that the applicant had received training in Pakistan, noting in this connection that:
i)it was unclear why the applicant would fear being reported to the authorities by his wife, given his claim that the authorities were already aware of his past activities and involvement in the BKI and were searching for him as a result; and
ii)in his protection visa application form the applicant indicated that he had never travelled outside his home country before coming to Australia. This contradicted what the Tribunal described as his last-minute claim to have travelled to Pakistan for training;
h)the Tribunal noted that many of the documents submitted by the applicant pre-dated his protection visa application by several years yet he did not present them to the Tribunal until the day of the hearing, some six months after he lodged his application. Further, several of the documents purportedly issued by officials in India lacked all official markings. In light of these issues, the Tribunal formed the view that the documents had been fabricated for the purposes of the applicant’s protection visa application. The Tribunal therefore gave the documents no weight;
i)the Tribunal found that the applicant was not a credible witness and rejected his claims concerning the events in India. It did not accept that he had been an active member of the BKI or of the Sikh separatist movement, or that he was otherwise involved in political affairs. Consequently, the Tribunal did not accept that the applicant had been detained or tortured or was of any interest to the Indian authorities; and
j)the Tribunal did not accept that there was a real chance that the applicant would be persecuted in India because of his religion, noting in this respect that, according to country information, there was no evidence to suggest that Sikhs have historically been subject to systematic mistreatment by the police or other security forces in Maharashtra since 2002.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.Member failed to take evidence into account.
2. Micourage [sic] of justice.
At the hearing the applicant submitted that the Tribunal had been biased and also impliedly submitted that the Tribunal had breached s.425 of the Migration Act 1958 (“Act”).
Tribunal failed to take evidence into account
In his oral submissions the applicant identified the following as the evidence which the Tribunal had failed to take into account:
a)his medical report;
b)his psychologist’s report;
c)the statement received from Germany concerning his membership of the BKI;
d)the situation of his children;
e)the activation in India of the list of people who went to Pakistan for militant training; and
f)the fact that his wife would inform upon him to Indian authorities in order to take her revenge.
Importantly, the applicant has not suggested that the Tribunal’s summary of the evidence before it was in any way incorrect or deficient. Consequently, when turning to the specific matters particularised by the applicant in connection with the allegation that the Tribunal failed to take evidence into account, it can be found that the Tribunal had express regard to the medical evidence which he provided when it said, at para.65, that it had considered that evidence but formed the view that his condition did not preclude him from being able to participate meaningfully in the hearing or from giving evidence or from presenting arguments. I infer that this consideration should also be taken to have included the report of the psychologist, Dr Lennings, dated 6 June 2010.
Similarly, although the Tribunal’s findings and reasons did not expressly refer to the statement from the BKI in Germany which appears to imply that the applicant was associated with that organisation, in para.78 of its reasons the Tribunal expressly stated that it had considered the documentary evidence submitted by the applicant but, for the reasons it expressed, accorded that evidence no weight. Given the way in which the documents submitted by the applicant, including the BKI statement, had originally been identified in some detail by the Tribunal at para.32 of its decision, I conclude that the BKI statement was amongst those documents referred to by the Tribunal in para.78 of its reasons and had been taken into account.
The particular concerning the “activation” of the list of people who went to Pakistan for militant training was not the subject of evidence which the applicant gave to the Tribunal and appears to refer to more recent events. If so, it was not material which was available to the Tribunal to consider. However, the applicant did submit a letter from a friend dated 30 November 2009 which said that the police were “still after” the applicant and that people who went to Pakistan were put on a list and “their names will stay on that list forever”. It may be that the applicant implicitly refers to that letter. If so, the Tribunal expressly considered it in para.76 of its decision. If the applicant is not referring to that letter, the Tribunal’s summary of the evidence includes reference to the applicant saying that he was on “the list” or “the wanted list” and that his name was still with the authorities. The Tribunal referred to this evidence at para.66 of its decision, under the heading “Findings and Reasons” where it referred to the applicant’s claims that the Indian authorities were “searching for him”. Indeed, later in its reasons it concluded that the applicant had not, in fact, travelled to Pakistan for training as he alleged and at para.79 rejected his claim to be on a list and sought by the Indian authorities.
As to the situation of the applicant’s children, this is more an allegation that the Tribunal failed to take a relevant consideration into account than that it failed to consider evidence which might have affected the outcome of the review. In this regard, nothing which the applicant said or put to the Tribunal suggested that his children had any relevance to the issue of whether he had a well-founded fear of persecution for a Convention reason in India. It is possible that the dispute between the applicant and his wife concerning, amongst other things, parenting issues may possibly have formed some part of the alleged motivation of the applicant’s wife to report him to the Indian authorities. However, the applicant’s alleged concerns regarding his wife were addressed by the Tribunal when it stated that it did not accept the correctness of the factual premise upon which such concerns were said to be based, namely, that the applicant had undergone militant training in Pakistan. Consequently, by reference to the only apparent basis on which the applicant’s children might have had some relevance to his claim to have a well-founded fear of persecution in India for a Convention reason, it must be concluded that the issue was nevertheless disposed of by way of the finding that the applicant was not on the list of wanted persons. As was said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630:
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. (at 641 [47])
As to the particular concerning the applicant’s wife, not only was its substantive importance effectively addressed in the way described above at [25], but the applicant’s claim in this respect was discussed by the Tribunal in para.76 of its decision where it observed that the significance of the perceived threat from the applicant’s wife was unclear given that she would only be informing the Indian authorities of matters of which they were, allegedly, already well aware.
More generally, the evidence relied upon by the applicant in support of his claim for a protection visa arose out of his 1999 protection visa application, his subsequent and currently relevant protection visa application of 2010, his interview with the Minister’s department, the Tribunal hearing together with the documents which he submitted to the Tribunal in support of his review application. The Tribunal’s reasons for its decision refer to all of these, with the exception of the interview with the Minister’s department. However, the relevant evidence canvassed in that interview concerning the applicant’s claimed political involvement, his harassment by the police, his inability to relocate within India and the status of his wife as his enemy were all traversed in his evidence to the Tribunal with the result that it was not necessary for the Tribunal to expressly refer, in its findings and reasons, to what the applicant had said to the department.
As to the substance of the applicant’s evidence, this turned on the support he gave to the cause of an independent Sikh state, the consequential attention he had received from the Indian authorities, his travel to Pakistan to get military training, the hostility that his wife now had for him and the risk that she would inform on him to the police, the reasons for his return to India after the failure of his first protection visa application, the delay in lodging a second protection visa application although by that time he had already been in Australian for a number of years, his explanation for his ability to leave India notwithstanding the police interest in him and his inability to relocate within India. In one form or other, all these matters were dealt with by the Tribunal in its findings and reasons.
For these reasons, the applicant has not made out the first allegation in his application, that the Tribunal failed to take evidence into account.
Miscarriage of justice
The applicant has not identified the miscarriage of justice to which the second allegation of the application refers. However, in written submissions filed on 2 June 2011 he asserted that:
a)the Tribunal erred by finding that, notwithstanding the statement from the BKI in Germany, he did not belong to the Babbar Khalsa party;
b)the Tribunal failed to take public interest criteria into account, particularly the distress caused to the applicant’s children were he to be required to leave Australia;
c)the Tribunal erred by not bringing an independent mind to the review such that it did not take into account his fear that his wife would take revenge on him by informing on him to “Indian Security Agency”;
d)the applicant should be granted a visa on humanitarian grounds in the interests of his children; and
e)deportation would have a detrimental impact on the applicant’s health and he should be granted residence on humanitarian grounds or the Minister’s department directed to permit the applicant’s son to sponsor him for residence in Australia.
He submitted that a finding of fact would manifest an error of law if there was no evidence to support it, the evidence was inconsistent with and contradictory of the decision or the true and only reasonable conclusion on the evidence contradicted the decision.
The first of the particulars of the second allegation in the application really does no more than allege that the Tribunal should have arrived at a conclusion on the facts different from the one which it did reach. Were there to have been no evidence for the Tribunal’s conclusion regarding the applicant’s political involvement then that would have amounted to jurisdictional error but that is not the case here. In its findings and reasons the Tribunal set out in some detail why it rejected the applicant’s claims of political involvement and in doing so it referred to the documents which the applicant submitted to it, expressing the view that they were not genuine. As noted earlier in these reasons, it is apparent from the Tribunal’s discussion of these documents at para.32 of its decision that they included the statement from a spokesman for the BKI in Germany to the effect that the applicant had fled India to save his life and if deported would be in danger of being forcibly implicated or executed.
There was ample evidence from which the Tribunal could infer that the applicant’s allegation of political involvement had not been truthful. As a finding which was open on the evidence, it was not affected by jurisdictional error for the reason asserted by the applicant in his written submissions.
Turning to the second particular of the allegation, the criteria for the grant of a protection visa are set out in cl.866.2 of sch.2 to the Migration Regulations 1994. Relevantly, they are:
866.2 Primary criteria
866.21 Criteria to be satisfied at time of application
866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:
(a) makes specific claims under the Refugees Convention; or
(b) claims to be a member of the same family unit as a person who:
(i) has made specific claims under the Refugees Convention; and
(ii) is an applicant for a Protection (Class XA) visa.
866.22 Criteria to be satisfied at time of decision
866.221 (1) The Minister:
(a) is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention; or
(b) is satisfied that:
(i) the applicant is a member of the same family unit as an applicant mentioned in paragraph (a); and
(ii) the applicant mentioned in paragraph (a) has been granted a Protection (Class XA) visa.
…
866.225 The applicant:
(a) satisfies public interest criteria 4001, 4002 and 4003A; and
(b) if the applicant had turned 18 at the time of application — satisfies public interest criterion 4019.
866.226 The Minister is satisfied that the grant of the visa is in the national interest.
Public interest criteria 4001, 4002, 4003A and 4019 are, respectively, concerned with character, national security, foreign affairs and the adoption of a values statement.
Although a number of considerations must be addressed before a person is granted a protection visa, the most important of these is whether the applicant meets the criteria laid down by the Convention. In this case, the Tribunal concluded that the applicant did not. Consequently, the fact that the applicant may have satisfied any or all of the other criteria found in cl.866.2 is of no importance because, even if he did, his failure to satisfy the Convention criteria meant that the Tribunal had no alternative but to affirm the delegate’s decision to refuse him the visa he sought.
In relation to the third particular of the allegation, the applicant asserted that the Tribunal did not take into account his fear that his wife would contact the Indian security agencies and that this was because it did not bring an independent mind to the review. The question of the independence of the Tribunal’s mind need not be considered in connection with this allegation because, contrary to the applicant’s assertion, the Tribunal did refer to the applicant’s alleged fear that his wife would contact the Indian authorities. As noted above at [26], it did so in para.76 of its reasons. The Tribunal also observed that the applicant had said that the Indian authorities were already aware of his past involvement with the BKI and that, as a result, it was unclear to it why the applicant claimed to be fearful of his wife reporting him to those authorities. In any event, as has already been noted, the Tribunal rejected the premise underlying the alleged fear, the applicant’s claim to have undergone training in Pakistan, on the basis that it was a last- minute allegation and that at an earlier point the applicant had said that before coming to Australia he had never travelled outside his home country. Consequently, the Tribunal did consider the issue in question but discounted its importance in light of its finding that the alleged basis for the fear of being reported did not exist.
The fourth and fifth particulars of the second allegation raise issues which might justify the grant of another, unidentified, visa but do not point to matters which the Tribunal was required to consider on this occasion. The Tribunal’s task was to determine whether the delegate’s decision to refuse the applicant a protection visa should be affirmed, set aside or varied, not whether the applicant was entitled to another sort of visa. Further, even though, or if, the criteria for the grant of a protection visa referred to humanitarian considerations of the sort identified by the applicant, for the reasons already given this can be of no significance if the applicant failed to demonstrate a well-founded fear of persecution for a Convention reason. That is what occurred in this case with the result that any humanitarian considerations which might justify the grant of a different sort of visa did not justify the Tribunal doing other than affirming the delegate’s decision.
Breach of s.425
At the hearing in these proceedings the applicant said that he was in bad shape at the time of the Tribunal hearing and implied that he had not been able to properly make his case. If that was so, the Tribunal would have failed to give the applicant the sort of hearing to which he was entitled under s.425 of the Act. However, the Tribunal was plainly aware of the applicant’s medical condition, expressly referring in para.65 to the medical evidence which the applicant had presented. Further, it went on to say that it had formed the view:
… that the applicant’s medical condition did not preclude him from being able to meaningfully participate in the hearing and from giving evidence and presenting arguments. The applicant appeared to have no difficulty understanding the questions posed to him and addressing these questions. He was responsive and comprehensive in his answers.
For these reasons, no breach of s.425 has been demonstrated.
Bias
Also at the hearing the applicant pointed to the fact that the Tribunal member who presided at his review also presided at his wife’s and was a female. He submitted that because the Tribunal member was female and had heard both reviews, she may have been more sympathetic to his wife than she was to him. The applicant appeared to be saying that because the Tribunal member believed the applicant’s wife and did not believe him, this in some way reflected a sex-based bias against him. When questioned, the applicant could not articulate why any acceptance by the Tribunal member of the applicant’s wife’s claims would have led the member to affirm the delegate’s decision to refuse him a protection visa. It may be that the grant to the applicant’s wife of a protection visa involved an acceptance of a version of events which was at variance with that of the applicant and that, in some way, an acceptance of the wife’s version necessarily meant a rejection of the applicant’s. However, even were this to have been the meaning of the applicant’s allegation concerning the presiding member, it must be recorded that the applicant’s factual allegations were tested against various other elements of the evidence, such as the statements in his original protection visa application, the fact that he returned voluntarily to India in 2002, his delay in lodging a protection visa application, the fact that he twice exited India without difficulty and on his own passport, inconsistencies in his accounts and the implausibility of the documents which he submitted in support of his review application to the Tribunal. This was not a case where the Tribunal’s decision turned simply upon an assessment of the applicant’s truthfulness based on his demeanour and conduct at the Tribunal hearing. Rather, his factual allegations were tested against a number of other matters and found wanting in respect of each of them. The Tribunal’s conclusions concerning the veracity of the applicant’s version of events was determined following a logical analysis of the evidence and one which does not disclose prejudgment on the part of the Tribunal or a predisposition to disbelieve the applicant.
Conclusion on allegations of jurisdictional error
Notwithstanding the matters which the applicant has alleged in his application, his written submissions and during the course of his oral submissions, I conclude that the Tribunal’s decision is not affected by jurisdictional error.
Conclusion
Although the applicant has provided a reasonable explanation for his failure to attend court on 22 March 2011, his failure to demonstrate an arguable case that the Tribunal’s decision is affected by jurisdictional error leads to the conclusion that the application to set aside the order of 22 March 2011 dismissing the proceedings should be refused.
Consequently, the applications in a case dated 19 April 2011 and 9 May 2011 will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 23 June 2011
0
0
3