SZRHS v Minister for Immigration
[2012] FMCA 806
•28 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRHS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 806 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Indonesia – Tribunal found that the applicant had no genuine fear of persecution – no jurisdictional error found. PRACTICE AND PROCEDURE – Observations on the need for restraint in making and dealing with allegations against the Refugee Review Tribunal. |
| Migration Act 1958 (Cth), ss.420, 422B, 424, 424A, 424AA, 425 |
| Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 Minister for Immigration v Li [2012] FCAFC 74 Khan v Minister for Immigration [2011] FCAFC 21 |
| Applicant: | SZRHS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 696 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 5 September 2012 |
| Date of last submissions: | 12 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr G S Antipas |
| Solicitors for the Applicant: | McArdle Legal |
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The amended application filed on 16 July 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 696 of 2012
| SZRHS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision was made on 2 March 2012. The Tribunal affirmed decisions of the delegate of the Minister not to grant the applicant and three of his relatives protection visas. Those three relatives are not parties to the present proceedings.
The following statement of background facts is derived from the submissions of the parties.
The first applicant is a citizen of Indonesia who arrived in Australia on 2 May 2009 on a student visa. References in this judgment to “the applicant” are references to him. He had earlier been refused a visa to the USA. His wife had arrived in Australia on 15 July 2008, also on a student visa. On 9 June 2011 the applicant, his wife and his two year old daughter applied for protection visas. Sometime later, the applicant's newborn child was joined as an applicant for a protection visa.
The applicant claimed that in 2004 he was a village head and discovered that a tax refund from the central government of Indonesia had been diverted for the personal use of local government officials. He claimed that, together with other village heads, he revealed this corruption to the Attorney General's Department in Jakarta. As a result of this, his wife received telephone threats and he and his family were threatened and intimidated. He claimed that he had to go into hiding and ultimately was forced to leave Indonesia to seek protection in Australia. The applicant’s claims were supported by a report by Dr Paul White, a research and policy officer of the Liverpool Migrant Research Centre, dated 12 May 2011[1].
[1] (erroneously dated a year earlier) Relevant Documents RD 157
On 6 September 2011 a delegate of the Minister made a decision to refuse to grant the applicant and his family visas. The delegate accepted that the applicant had been involved in revealing the corruption of government officials and had received threats as a result of that. However, for a number of reasons including the long passage of time, the delegate did not accept that the applicant had a genuine fear of persecution. The applicant and his family members applied to the Tribunal for review of the delegate’s decision.
On 21 September 2011, the applicant made an application to the Tribunal for a review of the decision of the delegate. On 2 February 2012, the Tribunal conducted the hearing of the application. Dr White provided a supplementary report for the purposes of the review[2].
[2] RD 273
Tribunal's decision
The Tribunal accepted that the applicant was a village head in Indonesia and that he was involved to some extent in exposing corruption and that this had angered the persons who were subsequently charged and their associates[3]. However, the Tribunal did not accept that the applicant had any continuing genuine fear of persecution in Indonesia and found that he had fabricated his claim in an attempt to provide a basis for refugee status in Australia.
[3] RD 475 [108]
The Tribunal found that the fact that the applicant and his wife had remained in Indonesia for five years following the exposure of corruption was not consistent with the claim to have feared harm in Indonesia[4]. The Tribunal found that the applicant’s evidence that he had been hiding lacked credibility in light of the fact that the applicant and his wife respectively worked and studied throughout this period.
[4] RD 476 at [109]
The Tribunal also found that the delay of three years between the applicant’s wife's arrival in Australia and their application for a protection visa was inconsistent with the claimed fear of harm in Indonesia[5]. In addition, the Tribunal considered that the applicant's actions in returning to Indonesia from Australia for some five weeks were not consistent with his claims to fear persecution in that country[6].
[5] RD 479 at [116]
[6] RD 480 at [118]
For those reasons, the Tribunal found that the applicant and his wife had not been the subject of threats after 2004 or that any action was taken by any persons in respect of them after that time; rather, the Tribunal was strongly of the view that the applicant and his wife had fabricated their claims to fear harm in Indonesia. For those reasons, it found there was no real chance that the applicant and his wife would be harmed upon their return to Indonesia for any Convention reason and so affirmed the decision of the delegate.
The judicial review application
These proceedings began with a show cause application filed on 29 March 2012. The applicant (who is the only visa applicant before the Court) now relies upon an amended application filed on 16 July 2012. The grounds in that application are:
1. The tribunal breached Section 420 of the Migration Act 1958, as follows:
2. The tribunal palpably misused its advantage and arrived at conclusions which were inconsistent with facts incontrovertibly established by the evidence (Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR [53] at 57) so that it was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds.”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
a.
Particulars
Failure to adhere to “fair, just” (Sub-Section (1)) and “substantial justice and merits” (Sub-Section (2)(b)
i. Disregard of evidence as to, and finding inconsistent with, newspaper reports, and verification of radio interviews, procured at the direction of the tribunal.
ii. Findings inconsistent with un-contradicted evidence of the Applicant and his wife.
iii. The tribunal made no adverse finding as to credibility based on the demeanour of the Applicant, nor his wife (the only other witness), nor on inconsistency of evidence, but simply declared that the tribunal “did not believe”.
iv. The Tribunal found that the applicant and his wife had ‘fabricated’ their evidence with no rational or logical foundation for that finding;
v. The tribunal held that the fact that the Applicant, his wife, or his children had not to date been killed or injured, discredited the Applicant’s claim to fear persecution in his home country.
b. The tribunal required the Applicant to prove the truth of his sworn evidence, and disregarded evidence on oath as being of value.
Particulars
i. Transcript
ii. Decision
See Sutharsan Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) [86] FCR [547]:
Were we satisfied that the RRT had reached its decision in this case by adopting a procedure which placed on the applicant an onus of establishing that he was truthful, or even a procedure based on the assumption that the purpose of the hearing before it was to discover whether the applicant was a truthful person, we would be satisfied that the procedures adopted by the RRT contravened s 420 of the Act.
c. The tribunal is not bound by “rules of evidence” but imposed on the Applicant burdens of evidence that were greater, not lesser, than those that would pertain if the rules of evidence applied.
Particulars
i. Transcript
ii. Decision
d. The Tribunal’s decision is affected by a reasonable apprehension of bias in that it involved the appearance of prejudgment.
Particulars
i. Transcript showing demeanour of member ab initio and assertions of disbelief within few minutes of commencement of questioning of each witness.
ii. The Tribunal Member did not appear to countenance any response to her apparently concluded view that the period of time spent in Indonesia since the allegations of corruption were first raised; the delay in applying for asylum following arrival in Australia; and the brief return by the husband to Indonesia were inconsistent with the claim to a fear of persecution.
3. The tribunal breached Section 424A of the Migration Act, as follows:
a. The tribunal did not write to the Applicant or his representatives, nor otherwise give clear particulars of any information that the tribunal considered would be the reason for affirming the decision under review.
Particulars
i. Information which was part of the reason for affirming the decision under review (being that Dr. White’s report was “based solely on what he has been told by the applicants and not as a result of any personal knowledge” – [RD]481 [123]) in circumstances where the applicant was not provided with written particulars of that information or how it would be relevant to the decision (namely to discount the favourable evidence provided by Dr. White in support of the applicants claims) and in circumstances where that information was not the subject to questioning consistently with s424AA of the Act or at all.
4. Further and in the alternative to ground 3 (particular (ii)), the Tribunal failed to have regard to material which it requested (the request was made at Transcript page 6) and so breached s424 of the Act, in that it failed to have regard to the World Bank Report “Fighting Corruption in Decentralized Indonesia” which identified that:
a. “As a political figure or regional head, the suspects [of corruption] inevitably have a mass base either from the political party, organisational ties and ethnic and/or regional ties. The supporter group actively pressures anti-corruption actors and law enforcement institutions to drop cases, sometimes involving violence” [RD]390;
b. The village heads [of whom the applicant husband was one] … were criticised by other village heads for acting above their station [in reporting corruption] [RD]391;
c. There are “counter attack(s) from corruptors. Intimidation, threats, potential law suits and counter rallies are all aspects of local level counter attacks by corruption suspects ([RD]405);
d. There were matters which had not yet been finalised at the date of that report in the Blitar Regency Case and were subject to ongoing proceedings: [RD]420 and 437.
5. The Tribunal failed to exercise its jurisdiction in that it applied the wrong test in determining whether there was a well founded fear of persecution by substituting the “real chance of harm” test with a test requiring evidence of actual harm having been suffered: [RD]478 [114].
6. The Tribunal breached s.425 of the Act in that it did not provide notice to the Applicants that an issue in the Review would be whether the husband applicant had “once been a member of such a group [namely the particular social group of whistleblowers” and that his membership was a matter of the past and not a continuing membership: [RD]481 [123].
I have before me as evidence the book of relevant documents filed on 7 June 2012. I also received the affidavit of Christopher John McArdle made on 17 July 2012, to which is annexed a transcript of the hearing conducted by the Tribunal on 2 February 2012.
Both parties made written and oral submissions. Counsel for the applicant addressed the grounds of review in a different order than that which appears in the amended application. He addressed first the issue of whether the Tribunal applied the incorrect test to the forward looking assessment of future harm which the Tribunal was required to undertake. Secondly, he addressed the issue of asserted illogicality in the Tribunal’s reasons and then the issue of apprehended bias. Counsel for the applicant then made submissions on the issue of procedural fairness and the application of s.420 of the Migration Act 1958 (Cth) (the Migration Act). In the course of argument, this extended to the proposition that s.425 of the Migration Act may have been breached. Finally, counsel for the applicant addressed the asserted breach of s.424A of the Migration Act.
The Minister’s outline of written submissions was prepared before the applicant’s outline had been provided. Counsel for the Minister addressed the written and oral submissions put on behalf of the applicant in his oral submissions. The Minister denies that the Tribunal fell into any jurisdictional error.
I provided counsel for the applicant the opportunity to make written submissions in reply. These were filed on 12 September 2012.
Consideration
The Tribunal accepted the applicant’s core claims of his role in reporting the corruption of local officials in Indonesia and supporting the authorities in the subsequent investigation and prosecution of those corrupt local officials. The applicant showed moral courage in resisting attempts to bribe him into silence and in not succumbing to threats made against him as a consequence of his actions. The information provided by the applicant to the Tribunal in support of his claims for protection included allegations of high level political involvement in corruption in Indonesia extending as high as a former president.
Allegations of that nature, if they were to be made public, have the potential to affect Australia’s relations with its near neighbours. Australia is fortunate in that protection visa decisions are reviewed on their merits by a tribunal which is able to operate independently of the rest of the Executive Government, although it forms a part of that Executive Government. There is a public interest in upholding public confidence in the reputation of the Tribunal for making high quality decisions on an independent basis. The Tribunal obviously has a role to play in promoting its own reputation through the review processes it pursues. The public interest is also served by the courts, and the legal representatives who appear before the courts in support of parties interested in Tribunal decisions, exercising restraint. The public interest is not well served by the use of extravagant language in dealing with claims and the making of extravagant claims.
A concern in this case is that the applicant’s representative before the Tribunal made extravagant claims against the Minister’s delegate[7] and that the amended application before the Court mounts a broad ranging attack upon the Tribunal decision which, in my view, is unwarranted. Extravagant claims against members of the Tribunal are too frequently made. Legal representatives, while they are entitled to represent their clients’ interests vigorously, should afford to Tribunal members the respect they deserve for undertaking a difficult job in a highly professional manner.
[7] See for example [61] and [96] of the Tribunal decision at RD 464 and RD 472
I do not, in saying this, intend any criticism of counsel for the applicant, who was briefed to appear on the amended application prepared by his instructing solicitors and who did his best to make submissions on that amended application in a professional manner. I also accept counsel’s submissions in reply at [27]:
The obligation on practitioners to support the confidence in the independence of the Tribunal is an obligation to ensure that the full rigor of the law is applied to those decisions, contrary to any obligation to give deference to the Executive and its decision making processes. Those processes, if they are to be respected, must withstand close judicial, logical scrutiny[8]. This is an essential element of the rule of law and the Applicant has every right to challenge the Executive in this way. The grounds in the Amended Application go to those matters.
[8] See McHugh, The Honourable Justice MH (as he then was) "Tensions between the Executive and the Judiciary" (2001) 6 The Judicial Review 111 at 117.
I nevertheless suggest that more care might be taken by instructing solicitors in the preparation of applications to review Tribunal decisions, in order to ensure that only fairly arguable issues of jurisdictional error are pursued.
I will now address the grounds of review raised on behalf of the applicant.
Ground 5 – Did the Tribunal apply the wrong test in determining whether the applicant faced a well-founded fear of persecution?
The applicant contends that the Tribunal erred in requiring evidence of physical harm having been suffered by the applicant in the past as a condition of establishing a well-founded fear of future persecution. There is, however, no substance to this ground of review. First, the Tribunal can be taken to have understood the test to be applied[9]. Secondly, the assertion in this ground misrepresents the Tribunal’s reasoning. The Tribunal did not in its reasons impose any requirement that the applicant must have suffered physical harm in the past in order to have a well-founded fear of future persecution. Rather, on a fair reading as a whole, the Tribunal reasoned that the applicant had no reason to fear harm from those he had exposed as corrupt in 2004 because, notwithstanding threats made against the applicant, he was not in fact harmed, the process of the law had been applied against the corrupt officials in Indonesia and some seven years had passed by the time the Tribunal came to consider the issues. The Tribunal reasoned that the applicant would have less cause now and in the future to fear harm from those he had exposed than in 2004. He had not been harmed in the past and that fact provided the Tribunal with confidence that he would not be harmed in the future.
[9] See [17] of the Tribunal decision at RD 448
Grounds 1 and 2 – is the Tribunal decision vitiated by an apprehension of bias?
The applicant contends that the Tribunal decision is vitiated by a reasonable apprehension of bias because of the appearance of pre‑judgement. The applicant refers in particular to the Tribunal’s reasons at [113], [114], [115], [118], [119] and [121][10] in support of the contention that the Tribunal had displayed a closed state of mind. However, as was recently pointed out by the High Court in Michael Wilson & Partners Limited v Nicholls & Ors[11] at [67] it will usually be unhelpful to look to the reasons of a decision maker to confirm an apprehension of bias because, of necessity, at the time those reasons are given, the decision maker has made up his mind. There is also a risk in that approach of confusing actual bias with a reasonable apprehension of bias. In my view, the particulars passages of the Tribunal decision referred to by the applicant simply explains the Tribunal’s reasons for drawing adverse credibility conclusions in respect of certain aspects of the applicant’s claims (by which he sought to support his claim of a continuing fear of harm notwithstanding the logical expectation that his fears should have abated).
[10] RD 477-481
[11] [2011] HCA 48
The applicant’s submissions also made reference to the transcript in support of a contention that the Tribunal expressed assertions of disbelief about aspects of the applicant’s claims very shortly after the commencement of the Tribunal hearing. In my view, that contention is not supported by the transcript. Three points may be made here. The first is that the Tribunal was entitled to test the applicant on his claims. He was invited to a hearing because the Tribunal was unable to make a favourable decision on the papers alone. His claims required testing. Secondly, several aspects of the applicant’s claims (including his status in the local community in Indonesia) though doubted by the Tribunal at the hearing, were ultimately accepted[12]. A fair minded observer, seeing that, would not apprehend that the Tribunal had failed to bring an unprejudiced mind to its inquiry. Thirdly, there is nothing in the manner or tone of the Tribunal’s questioning of the applicant (and his wife) which in my view should give rise to any concern.
[12] See page 21 of the affidavit of Christopher John McArdle
A reasonable apprehension of bias must be ascertained against the background of the framework within which the decision making is conducted[13]. Contrary to the applicant’s assertion, the material before me establishes to my satisfaction that the Tribunal gave to the applicant and his wife every opportunity to give evidence to explain their failure to depart Indonesia when they were most at risk and why that failure might be inconsistent with a genuine fear of persecution.
[13] Minister for Immigration v Jia Legeng (2001) 205 CLR 507
It must also be understood that the Tribunal was under an obligation to raise with the applicant and his wife at the hearing any issue that, in its mind, arose in relation to the decision under review (about which they might not have otherwise been aware). That obligation required the Tribunal to give the applicant and his wife the opportunity to address its concerns in respect of their credibility. Neither the fact that the Tribunal had concerns about the credibility of the applicant and his wife, nor the fact that it questioned them closely about those concerns, can give rise to a reasonable apprehension of bias.
Grounds 1 and 2 – was the Tribunal review otherwise procedurally unfair?
The applicant concedes that a “breach” of s.420 of the Migration Act does not of itself constitute a jurisdictional error but submits that such a breach may be a signpost to such error. The applicant contends that the Tribunal did not conduct a review that was fair and just because it misused the advantage of its position and arrived at conclusions which were inconsistent with facts incontrovertibly established by the evidence before the Tribunal. The applicant refers to what he describes as the “uncontradicted” evidence of himself and his wife. The applicant relies upon the decision of the High Court in Brunskill v Sovereign Marine & General Insurance Co Ltd[14]. The applicant’s reliance upon that authority is misplaced. The Tribunal is in a fundamentally different position to a court and this Court is in a very different position to that of an appellate court dealing with findings of fact made by a primary judge.
[14] (1985) 62 ALR 53 at 57
I reject the contention that there was any injustice or unfairness in the manner in which the Tribunal conducted its review. The Tribunal was not bound to accept the evidence of the applicant and his wife or the opinions proffered in support of their claims by Dr White. The Tribunal does not require contradicting evidence in order to reject evidence provided to it[15].
[15] Selvadurai v Minister for Immigration & Anor (1994) 34 ALD 347 at [7]
As noted above, although this ground focuses on s.420 and mounts an attack on the fact-finding process adopted by the Tribunal, the applicant’s counsel conceded that a breach of s.420 does not of itself constitute jurisdictional error. In spite of a recent decision of a majority of the Full Federal Court to the contrary[16], the preponderance of authority in the Federal Court and in the High Court is to the effect that s.420 does not set any boundaries on the jurisdiction of the Tribunal[17]. It is not necessary for me to reconcile those authorities because, in any event, the particulars provided in respect of this ground do not establish that the Tribunal was anything other than fair and just or that it did not act according to substantial justice and the merits of the case: first, the Tribunal clearly had regard to the evidence before it; secondly it was entitled to make findings inconsistent with the evidence of the applicant and his wife[18]; thirdly, the Tribunal did not simply declare that it did not believe the applicant or his wife but, rather, gave detailed reasons for its factual findings; and finally, the fact that the applicant and his family have not been killed or injured was not a matter that the Tribunal held to discredit the applicant and his wife in and of itself; rather, as explained above, it was a factor that, together with the long delay in the applicant leaving Indonesia, led the Tribunal to find that he and his wife did not have a genuine fear of persecution.
[16] Minister for Immigration v Li [2012] FCAFC 74
[17] Minister for Immigration v SZMOK (2009) 257 ALR 427; Khan v Minister for Immigration [2011] FCAFC 21; Ogawa v Minister for Immigration (2011) 199 FCR 51 at [13]-[16]; Minister for Immigration v SZKTI (2009) 238 CLR 489 at [21]; NAIS v Minister for Immigration (2005) 228 CLR 470
[18] Selvadurai v Minister for Immigration op cit at 348
The applicant relies upon the decision of the Full Federal Court in Kopalapillai v Minister for Immigration[19] at pp78 where the Court said:
Were we satisfied that the RRT had reached its decision in this case by adopting a procedure which placed on the applicant an onus of establishing that he was truthful, or even a procedure based on the assumption that the purpose of the hearing before it was to discover whether the applicant was a truthful person, we would be satisfied that the procedures adopted by the RRT contravened s 420 of the Act. As Foster J observed in Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194:
"It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected."
[19] (1998) 86 FCR 547
The applicant contends that the Tribunal’s review was unfair because it placed an onus on the applicant of establishing that he was truthful. There are a number of difficulties with that contention. The first is that the general law fair hearing rule is now excluded by s.422B of the Migration Act. I accept the applicant’s submission that the field of operation of s.422B is itself limited by its terms. Nevertheless, the Court must treat with caution authority concerning the obligations of the Tribunal under the general law that pre dates the commencement of that provision.
Secondly, to the extent that this assertion might be advanced in order to allege breach either of the general law fair hearing rule or of s.425 of the Migration Act, it is not supported by the facts. The Tribunal followed an inquisitorial process which involved testing the evidence of the applicant and his wife. This was not a case of the Tribunal imposing an onus on the applicant to prove his truthfulness. Rather, it was a case of the Tribunal not being satisfied that the applicant and his wife held continuing genuine fears for their safety.
The applicant also contends that the Tribunal’s reasoning that the applicant and his wife had fabricated some of their evidence has no rational or logical foundation. The first difficulty with the ground as so expressed is that judicial review on the ground of the irrationality does not attach to particular findings of fact but rather, to the decision itself: Minister for Immigration v SZMDS[20]. The second difficulty is that it is patently wrong to say that the Tribunal had no rational basis for finding that the applicant and his wife had fabricated their evidence. The Tribunal explained the basis for this finding over seven carefully reasoned pages of its decision[21]. Part of the Tribunal's reasons, and clearly probative of its conclusion, was the fact that the applicant and his wife had remained in Indonesia, unharmed, for five years in the face of the threats that they claim continued to be made and, when they had finally, on their version, escaped to Australia, took another three years to make any claim for protection from Australia.
[20] (2010) 240 CLR 611 at [130]
[21] See the Tribunal’s reasons at [108]-[123] at RD 475-481
Ground 3 – did the Tribunal breach s.424A of the Migration Act?
The applicant’s contentions on this ground reveal a misunderstanding of the operation of the provision.
The applicant argues that the Tribunal is obliged by s.424A to give him written particulars of the following: first, its view that the report of Dr White was “based solely on what he has been told by the applicants and not as a result of any personal knowledge”; and secondly, the stated omission of any reference to ongoing threats in documentation provided to the Tribunal. Neither of those matters falls within the meaning of “information" in s.424A(1)[22]. In that regard, there is no doubt that Dr White’s reports themselves were submitted on behalf of the applicant in support of his protection claims. That is sufficient to bring that material within the purview of s.424A(3)(b) and (ba).
[22] SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at [18]
Counsel for the applicant contended that the Tribunal was under an obligation to invite comment on information given by the applicant orally to the Minister’s delegate. There is, however, a lack of any evidentiary basis for that contention. First, it is not apparent that any aspect of the Tribunal’s reasons depended on what the applicant (or his wife) may have put to the delegate orally. The Tribunal specifically accepted at [126][23] that the applicants’ evidence to the Department was generally consistent with what had previously and since been provided and the Tribunal expressly made no adverse findings in relation to any of their evidence during the departmental interview. Secondly, I do not have a transcript of what oral evidence was given by the applicant and his wife to the delegate.
[23] RD 482
I agree with the Minister’s submissions in relation to the remaining grounds of review advanced by the applicant.
Ground 4 – was there a breach of s.424 of the Migration Act?
The applicant argues in the alternative to ground three that the Tribunal failed to have regard to material provided to it by the applicant. It is not clear why this is an alternative argument. In any event, it is clear that the Tribunal did have regard to the information in the document. First, it referred to the document and contents as part of the material to which it had regard[24]; secondly, it expressly referred to the document in its findings and reasons[25].
[24] RD 474 at [104]
[25] RD 480 at [120]
Ground 6 – was there a breach of s.425 of the Migration Act?
This ground is misconceived. The critical issue in the review was not whether the applicant had continued to be a member of a particular social group, but rather whether there was a well-founded fear of persecution for that reason. The Tribunal made abundantly clear at the hearing that this was an issue and gave the applicant and his wife every opportunity to address it. Further, that had been the critical issue in the delegate’s decision. For those reasons there was no breach of s.425 of the Migration Act.
The applicant also sought interlocutory relief in the form of an injunction restraining the Minister from attempting to recover from him the sum of $1,540, being the fee imposed arising from the affirmation of the delegate’s decision by the Tribunal. I indicated during argument that I was not minded to grant that relief as the applicant had not been prejudiced up to the point of the trial before this Court and that the proceedings in this Court would be resolved within a short timeframe. In the result, the claim for interlocutory relief was not pressed.
Conclusion
I conclude that the applicant has failed to demonstrate any jurisdictional error by the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 28 September 2012
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