SZRHD v Minister for Immigration

[2012] FMCA 751

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRHD v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 751

MIGRATION – Review of decision of the Refugee Review Tribunal – whether Refugee Review Tribunal decision was reasonably open on the evidence and material before it – whether the Refugee Review Tribunal constructively failed to exercise its jurisdiction in failing to consider a document given to it by the applicant – whether the Refugee Review Tribunal should have investigated the applicant’s claims – whether the Refugee Review Tribunal was biased – whether the Refugee Review Tribunal properly considered the risk of future harm to the applicant.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 424A, 424AA, 425, 474, Pt.8

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 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 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 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) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant:

SZRHD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 634 of 2012

Judgment of: Emmett FM

Hearing date: 24 August 2012

Date of Last Submission: 24 August 2012

Delivered at: Sydney

Delivered on: 24 August 2012

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter in the Hindi language.

Appearing for the Respondents: Ms V Bulut

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 22 March 2012, is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,300.

NOTE: The bundle of relevant documents identified as ‘Court Book’ and filed on 16 May 2012 was tendered by the first respondent and marked Exhibit 1R.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 634 of 2012

SZRHD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 December 2011 and handed down on the same day.

2. The applicant claims to be a citizen of India and of Hindu faith.

3. Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. The applicant and his wife arrived in Australia on 8 March 2011, having departed legally from India on passports issued in their own name and with visitor visas.

2. On 18 May 2011, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act. The applicant’s wife lodged an application for a protection visa as a member of the applicant’s family unit.

3. On 3 August 2011, the Delegate refused the applicant’s and his wife’s applications for protection visas.

4. On 23 August 2011, the applicant and his wife lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 15 December 2011, the Tribunal affirmed the decision of the Delegate not to grant protection visas to the applicant and his wife.

6. On 22 March 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. 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.

2. 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”).

3. 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, is 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

4. Pursuant to s.91R(1) of the Act, a Convention related reason must be the essential and significant reason for the persecution, must involve serious harm to the person and involve systematic and discriminatory conduct. Section 91R(2) of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The applicant’s claims for protection were set out in a statement attached to his application for a protection visa and were expanded on at his interview with the Delegate.

2. The applicant claimed that he became a member of the Indian National Lok Dal party (“INLD”) when he was 18 years of age because he agreed with the policies of the party. During his membership the applicant claimed that he was “involved in various activities to help to increase [the party’s] popularity within the community” including actively supporting the party’s candidate in the 2009 election by talking to his family and friends about the candidate and travelling with other volunteers to local villagers to prepare for the candidate’s visit. The applicant claimed that through his active involvement with the party that his political profile heightened where he ultimately became known to the Congress party.

3. The applicant claimed that during his campaigning for his party’s candidate he was warned by Congress cadres to stop campaigning. The applicant claimed that he “refused to give any attention of their demand and continued to demand for reservation for [his] community”. Consequently the applicant claimed that sometime in the morning during October 2010 he “was dragged to the place of the local Congress leader office” by “three or four men” where his life was threatened by the Congress leader if he continued his support for the INLD party.

4. After this incident the applicant claimed that he was approached by a Congress leader who asked that the applicant change his allegiance and work for their party. The applicant claimed that he “refused to join with them and started to campaign against the corrupted Congress leaders vigorously… [but] the congress thugs threatened [his] family members and attacked [him]”.

5. The applicant claimed that three to four months after the elections which his party lost “[his] leader warned [him of] the gravity of the situation and said that [he] should leave the country as soon as possible to escape political conspiracy and implicating [him] in a false case”.

The Delegate’s decision

1. On 23 June 2011, the Delegate wrote to the applicant inviting him to attend an interview on 21 July 2011. The applicant ultimately attended this interview with the Delegate.

2. On 3 August 2011, the Delegate refused the applicant’s and his wife’s applications for protection visas on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.

3. The Delegate accepted that the applicant may have been engaged in some voluntary capacity for the party. However, due to the applicant’s limited knowledge of the INLD party and its members, the Delegate did not accept that the applicant had a high political profile within the party and that the level of the applicant’s political activity was unlikely to change in the foreseeable future.

4. The Delegate also did not accept that the applicant had come to the adverse attention of members and leaders of the Congress party as the applicant’s account at the interview of his assault and detention by the Congress party was inconsistent with his written claims.

5. Further, the Delegate held that the applicant’s account of his actions after the claimed abduction was not consistent with someone who held a subjective fear. Consequently, the Delegate did not accept that the applicant had been abducted or threatened as claimed, or had come to the adverse interest to the Congress party.

The Tribunal’s review and decision

1. On 23 August 2011, the applicant and his wife lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 9 November 2011, the Tribunal wrote to the applicant and his wife informing them 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 and his wife to attend a hearing on 5 December 2011 to give oral evidence and present arguments. A Response to Hearing Invitation was completed by the applicant and returned to the Tribunal.

3. On 9 November 2011, the Tribunal wrote to the applicant and his wife identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicant and his wife to comment upon it (“the s.424A Letter”). The letter also requested that the applicant provide the original reference letter from the INLD to the Tribunal. The information highlighted in the letter was also drawn to the applicant’s attention at the hearing, where the Tribunal granted the applicant a week to provide his comments and response in writing to the Tribunal. The applicant did not comply with this request. However, the applicant did provide a photocopy of the reference letter from the INLD on 29 November 2011, and the original was produced to the Tribunal on 5 December 2011.

4. The Tribunal summarised the applicant’s written claims in support of his protection visa application. The Tribunal also summarised the evidence given by the applicant o the Delegate on 21 July 2011 where the applicant expanded upon his claims. The Tribunal also summarised the Delegate’s findings.

5. The Tribunal noted that on 9 November 2011 it wrote to the applicant pursuant to s.424A of the Act inviting the applicant to comment on information which the Tribunal considered would be a reason or part of the reasons for affirming the decision under review. The letter referred to various inconsistencies in the applicant’s evidence which the letter stated may cause the Tribunal to find that the applicant was not truthful in the claims made by him in his protection visa application.

6. The Tribunal’s letter also referred to the copy of a letter allegedly from the INLD, dated 9 May 2011, and requested that the applicant provide the original by 2 December 2011. The applicant did not provide a letter from the INLD by that date but gave an original letter to the Tribunal at the hearing. The Tribunal asked the applicant why there was no seal on the letter and the applicant responded that he would obtain the sealed copy. The Tribunal informed the applicant about the concerns it had about whether the letter was genuine and that the Tribunal considered that the applicant could have obtained the letterhead easily. The applicant again indicated that he could obtain the sealed letter and would provide it to the Tribunal. The Tribunal told the applicant that he could provide the sealed original at any time before the Tribunal’s decision was handed down.

7. The Tribunal noted that the applicant did not provide the letter prior to the Tribunal’s decision being handed down on 15 December 2011. The Tribunal also noted that it was concerned that the letter was dated 9 May 2011, being two months after the applicant had left India. The Tribunal expressed concern why the applicant would not obtain such a letter from his party before his departure and only requested such a letter two months after his arrival in Australia. In the light of the concerns the Tribunal had about the authenticity of the document, it determined to give the document no weight.

8. The Tribunal also gave information to the applicant at the hearing pursuant to s.424AA of the Act in respect of information provided by the applicant in his visitor visa application and about which the applicant did not appear to be aware. The Tribunal also gave the applicant information about inconsistent evidence about the duration of his kidnapping given to the Delegate at interview. The Tribunal informed the applicant that he could respond orally or in writing or could request the Tribunal to adjourn the review. The Tribunal noted that the applicant said he would respond in writing and the Tribunal gave a further week for the applicant to do so. However, as at the date of the Tribunal’s decision record, no further comment had been received from the applicant.

9. The Tribunal’s decision record noted in some detail various exchanges it had with the applicant about this evidence. The Tribunal noted concerns that it had about the applicant’s evidence which it put to the applicant and noted his responses. The Tribunal also put to the applicant country information before it that was inconsistent with the applicant’s claims and noted the applicant’s responses.

10. The Tribunal found the applicant not to be a person of credibility. It found the applicant was often vague and evasive in his answers and appeared to repeat information he had memorised. The Tribunal found that the applicant also often avoided answering the Tribunal’s questions. The Tribunal noted the applicant’s explanation that his mind was not working well. However, the Tribunal noted that there was no medical evidence before it in respect of the applicant. The Tribunal also noted that the applicant had been able to provide a written statement with his application and had given detailed evidence to the Delegate at interview. The Tribunal found that the applicant did not appear to have any difficult understanding the Tribunal’s questions and was able to provide very detailed information in relation to some of the matters discussed. Accordingly, the Tribunal did not accept that the applicant’s mind was affected in any way that influenced the presentation of his claims or his ability to give evidence to the Tribunal or participate in the Tribunal hearing.

11. The Tribunal identified with particularity the various inconsistencies and vagueness that it found in the applicant’s evidence.

12. Ultimately, the Tribunal comprehensively rejected the applicant’s claims and found that his evidence had been fabricated for the purpose of his protection visa application.

13. The Tribunal did not accept that the applicant was of interest to the Congress party and found that there is not a real chance that the applicant would be persecuted for a Convention reason if he was to return to India now or in the reasonably foreseeable future.

14. Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although he had the assistance of an interpreter in the Hindi language.

2. On 15 May 2012, the applicant attended a directions hearing before me.

3. At the directions hearing 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. The applicant confirmed that he wished to continue with the application. The applicant 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, including any transcript of the Tribunal hearing, as well as submissions in support.

4. 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 free legal 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.

5. At the commencement of the hearing, the applicant confirmed that he had filed an amended application on 26 June 2012. However, no evidence or submissions were filed in support of the amended application and no further documents were presented to the Court this morning in support of the amended application.

6. The applicant confirmed that he relied on the grounds contained in the amended application filed on 26 June 2012 as follows:

   “1. The Tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.

   2. The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:

   (a) it failed to properly apply the consideration that applicant’s for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant’s claims are plausible, which was the case here.

   3. The Tribunal constructively failed to exercise its jurisdiction;

   Particulars:

   The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

   4. The Tribunal has failed to investigate applicant claims, specially the grounds of persecution in India. Therefore, the Tribunal’s decision dated 15 December 2011 was effected by actual bias constituting judicial error.

   Therefore the applicant submit that the Tribunal failed to analyse properly the ‘future harm’ the applicant may face if he has to go back to India.

   Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant claims”

   [Errors in the original.]

1. 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.

Ground 1

1. Ground 1 was not supported by particulars, evidence or submissions. The applicant said he had nothing to add to ground 1. Ground 1 does not identify an error capable of review by this Court.

2. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).

3. The Tribunal’s decision record makes clear that the Tribunal explored the applicant’s claims in detail with him at the hearing and put concerns that it had about the applicant’s evidence to the applicant and noted the applicant’s response. Ultimately, it was not persuaded by the applicant’s explanations.

4. The Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, 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).

5. It is for the applicant to satisfy the Tribunal that he meets the criteria for being a refugee. If the Tribunal is not so satisfied, pursuant to s.65 of the Act, the applicant must be refused a protection visa.

6. Otherwise, ground 1 appears to be no more than a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; 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).

7. Accordingly, ground 1 is not made out.

Ground 2

1. In support of ground 2, the applicant said that he wished to have more time to give the Tribunal additional documents. He was not able to identify what those documents were. To the extent that I understood the applicant to be referring to the INLD letter, the Tribunal’s concerns about that letter were put to the applicant at the hearing and the applicant was given further time to provide a sealed original of the letter. The applicant was also invited at the hearing to comment in writing to explain his lack of knowledge about the information contained in his visitor visa application and inconsistent evidence give by him to the Delegate about the duration of his kidnapping. The Tribunal received no further documents from the applicant as at the date of its decision record on 15 December 2011.

2. To the extent that ground 2 asserts that the Tribunal “entertained the possibility that the applicant’s claims are plausible”, such an assertion is incorrect.

3. While the Tribunal did accept that the applicant may have had some involvement with the INLD in its campaigns against the Congress party, the Tribunal did not accept that the applicant had ever been targeted by the Congress party or anybody else because of those activities. In particular, the Tribunal rejected the applicant’s claims that he had been warned on several occasions, been asked to join the Congress party or stop working for the INLD, been kidnapped and physically mistreated, harmed or threatened with false cases or otherwise adversely affected because of his political activities or his political opinion. The Tribunal also rejected the applicant’s claims that his family had been threatened, that he had been in hiding or that he left India to avoid persecution.

4. The Tribunal stated that it rejected “the entirety of the applicant’s evidence with respect to any harm that he had suffered”. The Tribunal also found that the applicant did not have any local profile that would cause the Congress party to harm him.

5. A fair reading of the Tribunal’s decision record does not suggest that the Tribunal had any doubt in respect of its adverse credibility findings made against the applicant. Indeed, the Tribunal found that the applicant had fabricated his claims to support his protection visa application. As stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.

6. Accordingly, ground 2 is not made out.

Ground 3

1. At the heart of the applicant’s complaint in ground 3 appears to be a contention that the Tribunal did not engage in an “active intellectual process” in considering the alleged original letter from the INLD provided to the Tribunal by the applicant at the hearing.

2. As is clear from the summary of the Tribunal’s decision above in these reasons, the Tribunal made its concerns about the lack of a seal on the letter clear to the applicant. It also made clear to the applicant its concern about the letter’s authenticity, given the date of the letter, noting that it was two months after the applicant arrived in Australia. The Tribunal stated that it would have expected the applicant to have obtained a copy before he left India.

3. The Tribunal informed the applicant that it would consider whether the letter was a genuine document and noted that the applicant said it was true. In any event, the Tribunal told the applicant that he could provide the sealed original at any time before the Tribunal’s decision was handed down. No such document was ever received by the Tribunal from the applicant.

4. In the circumstances, the Tribunal considered the letter provided by the applicant, however, it was not satisfied for the reasons it gave that it could place any weight on that document as corroborative of the applicant’s claims. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.

5. Accordingly, ground 3 is not made out.

Ground 4

1. In support of round 4, the applicant said that it had asked the Tribunal to investigate his claims and contact his political party to see if he was actively involved. He said that he had the contact details of the persons to whom the Tribunal could speak.

2. However, the Tribunal’s decision record does not suggest that any such request was made by the applicant or contact details provided.

3. 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 15 May 2012 the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence.

4. 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 Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

5. There is no general obligation on a Tribunal to investigate an applicant’s claims (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] per Black CJ, Sundberg and Bennett JJ in joint judgment).

6. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

7. In the circumstances, there is no evidence before this Court to suggest that the contact details of particular persons were given by the applicant to the Tribunal with a request that they be contacted or that it was obvious that information or material was readily available. In the circumstances, it was not unreasonable for the Tribunal not to have attempted to obtain that information. In the case before this Court, the Tribunal had made comprehensive adverse credibility findings that were open on the evidence and material before it and for the reasons it gave.

8. It is not part of the duty of the Tribunal to make the applicant’s case for him. Moreover, it is not enough that the Court could have found that the sounder course may have been to make enquiries (see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21] per Jacobson J).

9. The Tribunal is not obliged to conduct an enquiry to discover whether the applicant’s case might be better put or supported by other evidence (see Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and Emmett J at [49]).

10. Accordingly, there was no jurisdictional error on the part of the Tribunal in failing to further investigate the applicant’s claims.

11. To the extent that ground 4 alleges bias on the part of the Tribunal, the allegation is unsupported by particulars, evidence or submissions.

12. A claim of bias 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]).

13. As stated above, the Applicant was directed on 15 May 2012 by this Court to file and serve any affidavit containing additional evidence to be relied upon including the transcript of the hearing, by 26 June 2012. The Order informed the Applicant that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that if he wished to rely on a tape recording of the Tribunal hearing, he needed to give notice by 26 June 2012.  However, no document was filed by the Applicant either in accordance with those directions or otherwise.

14. 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]).

15. 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 proceedings, 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) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

16. Accordingly, the allegation of bias is not made out.

17. To the extent that ground 4 also alleges that the Tribunal failed to analyse properly the future harm the applicant may face if he was to return to India, such an assertion is misconceived.

18. As stated above, the Tribunal comprehensively rejected the applicant’s claims of past harm and was satisfied that the applicant did not have any profile that would cause the Congress party to harm him. Even though the Tribunal went on to consider relocation, in light of the confident adverse findings that it made against the applicant that the applicant did not have a well-founded fear of persecution, it was unnecessary for the Tribunal to do so (see Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 265).

19. Otherwise, there was no error in the manner in which the Tribunal considered whether there was a real chance that the applicant would be persecuted for a Convention reason if he was to return to India now or in the reasonable foreseeable future, and no error in the Tribunal’s conclusion that he was not at any such risk.

20. Accordingly, ground 4 is not made out.

Conclusion

1. 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. The Tribunal also put to the applicant independent country information before it that was inconsistent with the applicant’s claims and invited the applicant to respond.. 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.

2. 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.

3. 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.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  24 August 2012