SZRIE v Minister for Immigration

[2012] FMCA 940

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRIE v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 940

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the Tribunal was biased – general obligations placed on the Tribunal when reviewing an application for a protection visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 427, 430, 476, 477

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
SZOYH v Minister for Immigration and Citizenship [2012] FCA 713
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818; (2002) 126 FCR 467
Chen v Minister for Immigration and Citizenship [2011] FCAFC 56
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592; (2007) 164 FCR 14
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 36; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749

Applicant: SZRIE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 744 of 2012

Judgment of: Nicholls FM

Hearing date: 28 September 2012

Date of Last Submission: 28 September 2012

Delivered at: Sydney

Delivered on: 18 October 2012

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Ms E Warner Knight

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 4 April 2012, and amended on 14 June 2012, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 744 of 2012

SZRIE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 4 April 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 6 March 2012, which affirmed the decision of a delegate (“the delegate”) of the first respondent, the Minister for Immigration and Citizenship, to refuse to grant a protection visa to the applicant.

Background

1. The applicant is a citizen of India who arrived in Australia on 2 August 2009 on a student visa (Court Book – “CB” – CB 3). On 9 June 2011, the applicant applied for a protection visa. At this time, the applicant’s then wife also applied for a protection visa as a member of his family unit (CB 1 – CB 36).

The Claims to Protection

1. The applicant’s claims for a protection visa were set out briefly in his application form, and were expanded upon at his interview with the delegate.

2. The applicant claimed that he joined the All India Sikh Student Federation (“AISSF”) in 2004 after he attended some of the group’s meetings with a friend who was a member of the group. The applicant claimed that he became a recruiter for the group. He also claimed that he was a supporter of the Khalistan Movement (“the Movement”). However, the applicant also claimed that he did not actively support the violent means that that Movement adopted.

3. The applicant claimed that two of his friends who were members of the AISSF were killed in 2005 and 2006. In particular, that his friend who died in 2005 was shot by police and his friend who died in 2006 was killed while he was trying to escape the police. The applicant claimed that both friends were targeted by the police because their name was on “the list”, which the applicant claimed was a list of AISSF members who lived in the “gurdwara area” (this was unexplained in the material before the Court, but it may be a reference to a spiritual area) (CB 47).

4. After his friends’ deaths the applicant claimed he, along with a number of other AISSF members, followed three policemen whom they suspected of killing one of his friends. They attacked those police officers leaving one police officer unconscious. The applicant claimed that at the time of the attack he “… was carrying a sword and cut one of the policemen on his head and the others were carrying baseball bats.” (CB 49.1.) He stated that he was charged with assault before he left for Australia and that he was also threatened by police officers.

5. The applicant claimed that members of the Bharatiya Hindu Party (“BHP”), the Rashtriya Swayamsevak Sangh (“RSS”) and the Bharatiya Janata Party (“BJP”) (Hindu groups), along with the police, attended the “gurdwara area” as it was suspected that AISSF members were hiding “arms”. Consequently the applicant claimed that AISSF members protested against the other parties’ presence in the area. The applicant further claimed that members of the BHP, RSS and BJP had asked neighbouring villagers about the applicant and had threatened to kill him. The applicant also claimed that he was always being followed by security agencies. Consequently the applicant claimed that he remained constantly at home (CB 48).

6. The applicant further claimed that, if returned to India, he feared he would be detained and tortured. In short he claimed to fear persecutory harm from members of Hindu political parties who were opposed to the aims of the Movement, as well as the police.

The Delegate

1. On 8 August 2011, an officer of the Minister’s department wrote to the applicant inviting him to attend an interview with the delegate (CB 37 – CB 39). On 7 September 2011, the delegate wrote to the applicant informing him that his (and his wife’s) application for a protection visa had been refused (CB 40 – CB 43). The delegate noted in the decision record that the applicant’s claims for protection “… appeared to be evolving during the interview.” (CB 51.5.) The delegate did not accept that the applicant was a member of the AISSF as claimed, and therefore was not a recruiter for the party, as the delegate found it implausible that the applicant could have attended as many meetings as claimed “…. yet have so little understanding of the goals of the party.” (CB 51.6.)

2. Further, the delegate found that the applicant had fabricated his claim that he had been involved in an assault on a group of policemen in retaliation for his friend’s death. That finding was compounded by the delegate noting that the applicant was never arrested for the assault, even though he claimed that he had been constantly threatened by police. However, the delegate noted that even if the applicant had been involved in the assault as claimed, that the purpose of his visa application would be to avoid prosecution, not persecution, for an action that was of a criminal nature and that was not Refugee Convention related (CB 52).

3. Consequently, the delegate found that the applicant did not have a

   
   

   well-founded fear of harm if returned to India and therefore refused to grant the applicant a protection visa.

The Tribunal

1. On 10 October 2011, the applicant applied to the Tribunal for review of the delegate’s decision (CB 54 – CB 57).

2. On 14 October 2011, an officer of the Tribunal contacted the applicant to confirm that his wife’s dependant application was not to be included in the applicant’s application for review. The applicant confirmed that he had separated from his wife and requested that only his application be reviewed (CB 61).

3. On 3 February 2012, the Tribunal wrote to the applicant inviting him to appear at a hearing scheduled for 5 March 2012 (CB 64 – CB 65), which the applicant attended (CB 73).

4. On 6 March 2012 the Tribunal affirmed the delegate’s decision, and the applicant was notified by letter dated 7 March 2012 (CB 77).

5. Ultimately, the Tribunal found the applicant’s evidence “… difficult to believe.” ([51] at CB 88.) In relation to the applicant’s claim that, because of his involvement in the assault on three police officers, the police had threatened to kill him, the Tribunal noted that the applicant had given varied responses as to why he had not been arrested for this offence in the time available before he left India, nor why there had not been any attempts by the police to kill him. The Tribunal found that the change in the applicant’s evidence was made in an attempt to deal with each issue raised by the Tribunal ([53] at CB 88).

6. The Tribunal also found that the applicant’s evidence of his movements and actions after his alleged involvement in the AISSF protests and the attack on the policemen were not consistent with someone who feared persecutory harm. Nor did it indicate that the applicant was of adverse interest to the police ([58] at CB 89 – CB 90). The Tribunal noted that the applicant stated initially at the hearing that, from 2007 until his departure to Australia, he had remained at his family’s residence ([52] at CB 88). The Tribunal highlighted that if the applicant had genuinely feared persecutory harm then he would not have continued living at his family residence from 2007 as this “… would have been the first place [the police] would have looked for him.” ([52] at CB 88 and [60] at CB 90.)

7. The Tribunal noted country information which provided that the AISSF had only ever been banned in 1984, and that that ban was later lifted in 1985. Although the Tribunal accepted that the AISSF stood for a separate Sikh nation, the Tribunal was not willing to accept that the applicant would face persecution now nor in the reasonably foreseeable future, for reason of his membership of the AISFF ([58] at CB 89).

8. The Tribunal also considered the applicant’s delay in applying for a protection visa to be relevant. It noted that it was almost two years from the applicant’s arrival in Australia until he made his application for a protection visa. Although the applicant had proffered in order to explain the delay that he had been “new” to Australia and was unfamiliar with “the rules”, the Tribunal noted that if the applicant held a genuine fear of returning to India that he would have made inquiries about how to remain in Australia at an earlier time ([55] at CB 89).

9. Consequently, the Tribunal rejected all of the applicant’s factual claims to fear persecutory harm, and found that if he returned to India now or in the reasonably foreseeable future he would not face persecutory harm for reasons of his imputed political opinion ([61] at CB 90).

Before the Court

1. At the first Court date the applicant appeared in person and was assisted by an interpreter in the Punjabi language. At that time the applicant was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. Consequently the applicant met with a lawyer assigned from that panel and was given advice. (A certificate from the lawyer has been placed on the Court file.)

2. Also at that time a timetable was made by way of relevant orders setting down how the matter would progress before the Court. The applicant was given leave to file and serve an amended application, and also evidence in support, by 13 June 2012. The applicant filed and served an amended application on 14 June 2012.

3. At the hearing of this matter, the applicant appeared in person and was assisted by an interpreter in the Punjabi language. Ms E Warner Knight appeared for the Minister. The Court Book was tendered in evidence and the Minister had filed and served written submissions. The applicant claimed that he had not received the Minister’s written submissions. He could not explain why the submissions, which had been sent by post by the Minister to the address for service, were not received by him. In light of this submission I did not take the Minister’s written submissions into account. Ms Warner Knight made comprehensive oral submissions (as appropriate to the applicant’s sparse grounds), these were interpreted by the interpreter, and the applicant was given the opportunity to respond.

Application to the Court

1. The following four unparticularised grounds were pressed by the applicant at the hearing:

   “The Tribunal failed to consider an integer of Applicant claim, in failing to consider whether or not a Sikh in India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.

   2. 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.

   3. 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.

   4. The Tribunal has failed to investigate applicant claims, specially the grounds of persecution in India. Therefore, the Tribunal’s decision dated 7 March 2012 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 clam.”

   [Errors in the original.]

2. At the hearing the applicant did not make any oral submissions in support of his amended application. The applicant relied on a person, whom he said was not a lawyer, in drafting the grounds of his amended application to the Court. It is clear, particular in circumstances where the applicant had been provided with a lawyer on the Court’s “RRT Legal Advice Scheme”, that he had chosen to rely on a lay person to advise him in presenting his application. If he was given any legal advice about the nature of the proceedings, he plainly chose to ignore it.

3. His complaint as presented to the Court was no more than that he was not satisfied with the Tribunal’s adverse decision. When I took him to the grounds of the application he said he could not assist further.

4. The applicant’s state of satisfaction, of course, is not on its own a matter revelatory of jurisdictional error in the Tribunal’s decision. It is the Tribunal’s state of satisfaction that is statutorily and jurisdictionally relevant (ss.65 and 36(2) of the Act and see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

Consideration

Ground One

1. In the first ground of the amended application, the applicant complains that the Tribunal failed to consider an integer of his claims in that, even though the Tribunal found that he was a credible witness, it did not consider whether as a Sikh he would be at risk of persecution from radical Hindus and would be denied effective state protection.

2. It must first be noted that contrary to the applicant’s assertion, the Tribunal did not consider the applicant to be a credible witness. At [51] (at CB 88) of the Tribunal’s decision record and as noted above at [15] of these reasons, the Tribunal stated that “… as I put to the applicant, I find a lot of his evidence difficult to believe.” This credibility finding was based on the implausibility and inconsistency of the applicant’s evidence ([51] at CB 88 – [60] at CB 90). As decision-maker “par excellence”, credibility findings are within the jurisdiction of the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J). Consequently, as this credibility finding was open to the Tribunal, and for which it gave reasons, this finding is not amenable to revealing jurisdictional error (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547).

3. As to the complaint that the Tribunal failed to consider an integer of the applicant’s claim, Reeves J in SZOYH v Minister for Immigration and Citizenship [2012] FCA 713 (“SZOYH”) provided at [36] – [38] that:

   “36. Aside from such an essential component or integer of an applicant’s claim, the Tribunal has no obligation ‘to refer to, or adequately to consider, evidence, whether or not it might be thought probative’:  see Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53 at [24] per Kenny J and the cases referred to there. Accordingly, its failure to do so does not give rise to jurisdictional error.

   37. In SXRB, Lander J described the difference between an integer and evidence in these terms (at [32]–[33]) as follows:

   32.    The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant’s claim for an entitlement to a visa.  Whether it will or not will depend upon whether it is the only or the overwhelming evidence relating to that integer.

   33.    Any integer of any applicant’s claim may well be made up of various pieces of evidence; sometimes direct, sometimes circumstantial.  The failure to consider any one piece of evidence does not necessarily amount to a failure to consider the integer itself.  It will only mean a failure to consider the integer if that evidence, either by itself or coupled with other evidence whether direct or circumstantial, would have affected or might have affected the result of which the RRT arrived...

   38. It follows that whether a piece of evidence is of the kind that has to be considered by the Tribunal, depends on the nature of the evidence concerned, either considered alone, or in combination with other evidence, and its significance in terms of the possible effect it may have on the result of the Tribunal’s deliberations.”

1. Therefore in order for the applicant to succeed in this ground as pleaded, the applicant must be able to show that, by the Tribunal failing to consider the claim that the applicant was at risk of being harmed by radical Hindus for reason of being a Sikh and not being able to seek effective state protection, this lack of consideration affected the decision made by the Tribunal (see [50] of SZOYH). This is also because, once the Tribunal rejected the applicant’s other factual claims on credibility grounds, all that remained was the fact that he was a Sikh.

2. However, as was submitted by Ms Warner Knight, the integer that the applicant now asserts (fear of harm from radical Hindus arising from his being a Sikh) was never expressly raised before either the delegate or the Tribunal. Therefore, as correctly highlighted by Ms Warner Knight, the question becomes, could this claim have been implied (“clearly arising”) from the country information before the Tribunal, such that the Tribunal was required to consider this claim?

3. I agree with Ms Warner Knight that the evidence and material in the circumstances presented before the Tribunal did not give rise to the claim now being raised by the applicant. Consequently as the Tribunal was only under an obligation to consider the claims before it, there was no requirement for the Tribunal to explore anything beyond the material before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE (No.2)”)). The Tribunal is only required to deal with a claim expressly made or “clearly arising” from the circumstances before it. There was nothing to suggest any such claim arose in what the applicant presented. Nor for that matter did the country information reveal that Sikhs were at harm from radical Hindus, simply for being Sikhs.

4. However, for completeness it is evident at [57] and [58] (at CB 89) of the Tribunal’s decision record, and in particular in relation to his assertion now in relation to state protection and whether that state protection would be denied to him, that the Tribunal acknowledged the applicant’s membership of a group that stood for an independent Sikh nation. Relevantly, the Tribunal stated:

   “57. I do not accept that the applicant was ever interrogated or mistreated by the police as he claimed in his original application. I likewise do not accept that the police or the security agencies were following him or threatening to kill him because he was a member of the AISSF or because they regarded members of the AISSF as agents of Pakistan…

   58. As I put to the applicant, the information available to me indicates that members of opposition parties in Punjab do not face repression at the hands of the authorities (Immigration and Refugee Board of Canada, ‘India: Treatment of political activists and member of opposition parties in Pubjab (2008 – 2010)’, 29 April 2010, IND103452.E). I accept that the AISSF favours a separate Sikh nation called Khalistan but I do not accept on the evidence before me that there is a real chance that the applicant will be persecuted by the police or the security agencies for reasons of his membership of the AISSF or his real or imputed political opinion in favour of a separate Sikh nation, Khalistan, if he returns to his home in India now or in the reasonably foreseeable future.”

5. It is clear from these paragraphs that the Tribunal did not accept that the applicant had suffered, nor would suffer, persecution at the hands of the police for reason of his imputed political opinion. These findings were open to the Tribunal on the evidence and material before it.

6. In all, ground one is not made out.

Ground Two

1. In ground two the applicant complains that the Tribunal did not have jurisdiction to make its decision for the reason that it did not reach a “reasonable satisfaction” in accordance with the Act.

2. It is unclear what is meant by “reasonable satisfaction” here as this was not expanded upon by the applicant at the hearing. However, it appears that the applicant, or whoever assisted him, has taken this wording generally from the relevant statutory test such that a visa must be granted (ss.65 and 36(2) of the Act and see the authorities cited at [27]).

3. In considering whether a protection visa in the circumstances should be granted, a decision-maker, whether this be the Minister himself, a delegate of the Minister or the Refugee Review Tribunal, must consider whether the applicant’s claims to fear persecution are for a Refugee Convention related reason and are well-founded. In this consideration it is for the applicant to make out his or her case to the decision-maker and to provide sufficient information for the decision-maker to reach the requisite level of satisfaction (Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 (“Abebe”)).

4. Further, as set out above, it is established that the decision-maker only needs to consider the claims advanced by the applicant (NABE (No.2) at [60] per Black CJ, French and Selway JJ) and that, in the case of the Tribunal, it is not under any general obligation to make inquiries about those claims (when read with s.427 of the Act) (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 (“SGLB”) at [43], WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 (“WAGJ”) at [24]), unless there is an obvious inquiry about a critical fact that could be easily ascertained (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”)). No such circumstances exist in the current case.

5. In this case, I agree with Ms Warner Knight that the Tribunal’s decision record is quite clear. That is, the Tribunal was aware of its obligations and duties imposed on it. The Tribunal clearly set out the applicant’s claims to fear persecutory harm, the evidence in support of those claims, and the Tribunal’s factual findings and final conclusion. However, as explained above, the Tribunal ultimately did not accept the applicant’s claims for the reason that it did not find the applicant to have been a credible witness. This finding was based primarily on the inconsistencies it found within the applicant’s evidence which were open to the Tribunal to make (see Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818; (2002) 126 FCR 467 at [36] and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56).

6. Further, as no particulars have been given in support of this ground, it is difficult to see how this ground can be made out.

Ground Three

1. This ground complains that the Tribunal ought to have given the applicant the “benefit of the doubt” and ultimately conclude that the applicant should be given refugee status.

2. The use of the wording “benefit of the doubt” by whoever drafted the applicant’s grounds may be a reliance on [203] – [204] of the “UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status”. This complaint is often seen in this Court in matters of this type. I must however note that although this Handbook does not have binding force in Australian law, it can be used as a useful reference for determination of whether a person satisfies the definition of “refugee” (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 392 per Mason CJ, Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 302 per Kirby J, Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [8] – [9] per Finn J)

3. If the Tribunal holds any doubt about an applicant’s claim, or integer of an applicant’s claim, then it is required to consider if the applicant meets the definition of “refugee” in the circumstances if its findings were incorrect (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”) at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (endorsed in Abebe, and further explained by the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 per Sackville J, with whom North J agreed)).

4. The relevant statutory scheme (ss.65 and 36(2) of the Act) requires that the decision-maker must be satisfied that a person meets the definition of “refugee”, whereby it is deemed that Australia owes that person protection obligations. Where the applicant does not meet the criteria, such that there is an absence of satisfaction, it follows that the applicant must be refused a protection visa (see the authorities in [27] above).

5. Plainly, in making this assertion, the drafter of the applicant’s ground has misconstrued the obligations placed on the Tribunal.

6. As stated above, before a protection visa must be granted the Tribunal is required to be satisfied that the applicant will face now, or in the reasonably foreseeable future, persecution for a Refugee Convention related reason if returned to his country of nationality, in this case India (MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 289 ALR 541 at [6] – [7]). The Tribunal must engage in a relevant thought process and determine whether the applicant’s claims for persecution are well-founded (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [45]).

7. As was correctly submitted by Ms Warner Knight, the Tribunal is not required to accept uncritically all the claims made by the applicant (Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). As was highlighted above, it is essential that the Tribunal (or for that matter the relevant decision-maker) is satisfied that the person applying for a protection visa meets the definition of refugee as defined by Art.1A(2) of the Refugees Convention (see also s.91R of the Act).

8. Therefore, contrary to what is being asserted by the applicant the Tribunal must be convinced that the applicant will suffer now or in the reasonably foreseeable future persecution for a Refugee Convention reason. A mere speculation, or uncertainty, is not sufficient to meet the requirements of the relevant test. In the current case there was no doubt on the part of the Tribunal as to its findings leading to the rejection of the credibility of the applicant’s factual account. In these circumstances the Tribunal was under no obligation to consider any alternative as to whether the applicant’s claims may be true (Guo).

9. In all, therefore, ground three is not made out.

Ground Four

1. Ground four appears to contain a number of complaints. Although the applicant did not explain this ground at the hearing, it appears that the applicant is asserting that the Tribunal should have made investigations into the applicant’s claims to fear persecution and, by reason of not doing so, the Tribunal exhibited bias.

2. As stated above, it is established law that the Tribunal only needs to consider the claims advanced by the applicant or “clearly arising” on the material (NABE (No.2) at [60] per Black CJ, French and Selway JJ). Further, the Tribunal is not required to refer to every piece of evidence proffered by the applicant, nor is it required to make findings on each piece of evidence (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (there is no legal error in a failure to comply with s.430 of the Act per se)).

3. Also, as set out above, a failure of the Tribunal to make an obvious inquiry into a critical fact which was easily ascertained amounts to a constructive failure to exercise jurisdiction (SZIAI at [20] – [25] and SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30]-[32] per Bennett J). However, this was not the case here.

4. Contrary to what is now asserted by the applicant, Ms Warner Knight is correct in submitting that the Tribunal is under no general obligation to make inquiries (read with s.427 of the Act) (SGLB at [43] and WAGJ at [24]). Section 427 of the Act does “not import an element of duty” on the Tribunal, therefore no duty to inquire arises from this section (SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592; (2007) 164 FCR 14 at [46] per Allsop J).

5. As stated above, the Tribunal’s decision record clearly sets out the applicant’s claims, the evidence and material before it, and its reasons for rejecting the applicant’s claims. Those findings were open to the Tribunal to make on the evidence and material before it. Consequently it appears that the applicant is merely cavilling with the Tribunal’s findings and therefore inviting the Court to undertake merits review, a course which the Court cannot entertain (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

6. In regards to the applicant’s complaint that, for reason of the Tribunal not making its own inquiries, it was biased, this ground must fail.

7. It is well established that to attack the integrity of a decision-maker is a serious allegation, and therefore such an allegation must be “… distinctly made and clearly proved.” (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J, see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 36; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749.) It is difficult to make out such a claim with reference to the decision record alone.

8. In support of this ground the applicant did not present to the Court any evidence or submissions. With reference to the case law above in [56] without supporting evidence, this allegation cannot be “… distinctly made and clearly proved”, and therefore this ground must fail.

Conclusion

1. None of the grounds as pleaded in the amended application reveal jurisdictional error on the part of the Tribunal. Therefore, accordingly, the application, as amended, should be dismissed with costs. I will make an order to this effect.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  18 October 2012