SZRJO v Minister for Immigration
[2012] FMCA 1148
•3 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRJO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1148 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal failed to properly consider the applicant’s documents – whether Refugee Review Tribunal should have given the applicant the benefit of the doubt where the applicant’s claims were plausible – whether Refugee Review Tribunal was obliged to and failed to investigate claims made by the applicant – whether Refugee Review Tribunal failed to analyse properly the future harm the applicant may face if she was to return to India – whether Refugee Review Tribunal failed to assess and carry out the “real chance” test – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474, Pt.8 |
| SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012) Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd (1986) 162 CLR 24 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 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 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 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 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27] WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 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 |
| First Applicant: | SZRJO |
| Second Applicant: | SZRJP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 837 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 22 November 2012 |
| Date of Last Submission: | 22 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2012 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Malayalam interpreter |
| Counsel for the Respondents: | Ms E Baggett |
| Solicitors for the Respondents: | DLA Piper |
Orders
To the extent that the Refugee Review Tribunal refused the second named applicant a protection visa and to the extent that he now seeks judicial review of the decision of the Refugee Review Tribunal, dated 21 March 2012, in his own right, at the request of the first respondent, his application is dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of his failure to attend the scheduled hearing on 22 November 2012.
The proceeding before this Court, commenced by way of application filed on 17 April 2012, is dismissed, including the second named applicant’s application for judicial review as a family member of the first named applicant.
The applicants pay the costs of the first respondent fixed in the amount of $6,000.
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 837 of 2012
| SZRJO |
First Applicant
| SZRJP |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 21 March 2012 and handed down on 22 March 2012.
The first named applicant (“the Applicant”) is the wife of the second named applicant. The second named applicant completed an application for a protection visa as a member of the Applicant’s family unit without claims of his own.
The Tribunal stated that the Applicant informed the delegate of the First Respondent (“the Delegate”) that the second named applicant was also at risk. The Delegate refused both applicants protection visas.
The Tribunal noted that the second named applicant did not attend the Tribunal hearing and had not put forward any claims. The Tribunal found it was unable to test his evidence and, on the basis of the “very limited evidence before it”, the Tribunal was not satisfied that the second named applicant has experienced any threats or has any genuine fear of persecution.
The second named applicant is an applicant before this Court for judicial review of the Tribunal’s decision. However, he did not appear either at the first court date directions hearing or at the final hearing.
It is not clear to me whether the second named applicant seeks judicial review of the Tribunal’s decision to reject any individual claims for protection that the second named applicant may have made; or, whether the second named applicant joins in the Applicant’s application for judicial review of the Tribunal’s decision only as a member of the Applicant’s family unit.
To the extent that the second named applicant seeks judicial review of the Tribunal’s decision, insofar as the Tribunal found that he had not experienced any threats or has any genuine fear of persecution, his application is dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of his failure to appear at today’s scheduled hearing.
To the extent that the second named applicant was intending to do no more than join in the Applicant’s application for judicial review of the Tribunal’s decision as a member of the Applicant’s family unit, his claims are dependent on those of the Applicant.
For those reasons, these Reasons deal only with the claims of the Applicant.
The Applicant claims to be a citizen of India and is of Catholic faith.
The issues in this case are: whether the Tribunal failed to properly consider the Applicant’s documents; whether the Tribunal should have given the Applicant the benefit of the doubt where the Applicant’s claims were plausible; whether the Tribunal was obliged to and failed to investigate claims made by the Applicant; whether the Tribunal failed to analyse properly the future harm the Applicant may face if she was to return to India; and whether the Tribunal failed to assess and carry out the “real chance” test. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
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 and the decision of the delegate of the First Respondent and a summary of the Tribunal’s review and decision.
Background
The Applicant arrived in Australia on 29 November 2010, having departed legally from India on a passport issued in her own name and a Transit visa issued on 11 November 2010.
On 2 December 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 20 October 2011, the Delegate refused the Applicant’s application for a protection visa.
On 8 November 2011, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 21 March 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 17 April 2012, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:
“1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.
2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).
3. Section 36(2)(a) of the Act provides that:
(2) A criterion for a protection visa is that the Applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:
owing to 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, is unable or, owing to such fear, is unwilling to return to it.
6. Section 36(2)(aa) of the Act provides that:
(2) A criterion for a protection visa is that the applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.
10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”
The Applicant’s application for a protection visa
The Applicant provided two statements in support of her protection visa application in which she stated as follows:
a)She faces religious persecution in India from fundamentalist Muslims as a result of her Christian beliefs.
b)In India, she had been the leader of a Christian group called the Basic Christian Community (“BCC”).
c)As a leader in the Christian community, she criticised and protested against fundamentalist Muslims and, as a result, she became their enemy and they “targeted to kill” her.
d)On 16/17 May 2009, there were clashes between Christians and Muslims in which she was “their main target”. She was “surrounded by them’ and they “smash[ed]” her, resulting in serious injuries for which she was hospitalised for two weeks.
e)Six Muslims were killed in the incident on 16/17 May 2009 and, as they believed she caused the incident, they seek “revenge” against her.
f)She cannot relocate because the “impact of Muslim terrorism has spread all over India”.
The Delegate’s decision
On 27 September 2011, the Applicant attended an interview with the Delegate.
On 20 October 2011, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate expressed serious concerns about the veracity of the Applicant’s claims, having regard to the many inconsistencies that it found to exist in her written claims and in her claims made at interview. The Delegate was also troubled by the fact that the applicants travelled to New Zealand in November 2010 on visitors visas where they remained for six days, yet did not seek protection.
The Tribunal’s review and decision
On 8 November 2011, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of her review application.
On 20 February 2012, the Tribunal wrote to the applicants 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 applicants to attend a hearing on 19 March 2012 to give oral evidence and present arguments.
On 21 February 2012, the Tribunal wrote to the applicants identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicants to comment upon it (“the s.424A Letter”). The information in the s.424A Letter related to inconsistencies in information provided by the applicants in their protection visa applications and information given to the Delegate at interview.
The applicants did not respond to the s.424A Letter.
On 19 March 2012, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“6. The RRT, whilst accepting the applicant was involved in religious activities in her community (at [74a]), did not accept that she had a senior position in the church. However, the RRT formed the view that that applicant 'entirely lacked credibility' (at [74]) and on this basis rejected the rest of her claims.
7. The RRT's credibility finding was made on the basis of the following concerns with her evidence:
7.1 Generally, the RRT considered the applicant's evidence to be evasive and inconsistent (see [74]).
7.2 The RRT considered that there was no basis for the local Muslim community to hold the applicant responsible for the clashes in May 2009 (see [74a], and if the applicant played a central role as claimed that there would be some mention of this in the media (see [74b]).
7.3 The letters from the KCYM and the District Congress Committee made no mention of the applicant's claims, and the letter which does mention her claims was undated and provided no contact details (see [74c]).
7.4 The applicant had provided no evidence of her claimed hospitalisation and treatment, despite being asked to provide this in a letter from the RRT dated 21 February 2012 (see [74d]).
7.5 The applicant gave inconsistent and implausible evidence about her address in India and her reasons for moving (see [74e]). The applicant also made claims at the RRT hearing which had not previously been raised (see [74f] and [74g]).
7.6 The applicant's evidence was not consistent with available country information (see [75]).
8. The RRT did not accept any of the evidence provided by the applicant in the form of statements from the KYCM, District Congress or Mr Tony Oliver, to be probative and therefore gave these documents no weight (at [76]).
9. The RRT concluded that the applicant was not being truthful in her evidence, and that she had fabricated her claims (at [77]). On this basis the Tribunal rejected the entirety of the applicant's claims.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Malayalam interpreter.
On 24 May 2012, the Applicant attended a directions hearing before me. 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 the applicants wished to continue with the application. The applicants were 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.
At the directions hearing, the applicants were referred to the Court’s Legal Advice Scheme for free legal advice. The applicants have 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 her own language.
The Applicant confirmed that she relied on the grounds contained in the amended application filed on 12 July 2012 as follows:
“1. The Tribunal constructively failed to exercise its jurisdiction;
Particulars:
The applicant provided documents to the Tribunal to corroborate her 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 her claims.
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 has failed to investigate the claim, specifically on the grounds of persecution in India. Therefore, the Tribunal’s decision dated 22 March 2012 was affected by actual bias constituting judicial error.
Therefore the applicant submits that the Tribunal failed to analyse properly the ‘future harm’ the applicant may face if she 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’s claim.”
The Applicant also sought to read an affidavit sworn by her on 12 July 2012 annexing a letter, dated 5 June 2012. The Applicant confirmed that the letter had not been provided to the Tribunal. The solicitor for the first respondent, Ms Baggett, objected to the affidavit. The affidavit was rejected.
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
Ground 1 asserts that the Tribunal failed to engage in “an active intellectual process” in respect of documents provided to the Tribunal and erred in giving the documents no weight on the basis of “credit findings”. Ground 1 also contended that it was an error for the Tribunal to assess the Applicant’s credit without first assessing whether the substance of the documents corroborated her claims.
Ground 1 was not supported by written submissions.
I asked the Applicant what the documents were that she contended were not considered by the Tribunal. She identified two letters. The first, a letter from the Kerala Catholic Youth Movement (“KCYM”) provided at the hearing, asserted that the Applicant was an active member of the Movement and an active social and religious worker. The second letter was an undated statement from Tony Oliver which was not written on letterhead and provided no contact details. The document stated that the Applicant’s residence had been attacked on 17 January 2009 by “Muslim criminals”. The document also stated that the Applicant is an active worker of the Indian National Congress Party.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal gave proper consideration to the documents. In relation to the letter from the KCYM, the Tribunal accepted the authenticity of that document. However, the Tribunal found that the letter did not refer to any of the activities described by the Applicant and did not support her claims.
In relation to the document purportedly signed by Tony Oliver, the Tribunal noted that it bore no formal insignia and provided no contact details, thereby making it “impossible to test his evidence”. The Tribunal also found the information in the Tony Oliver document not to be consistent with the Applicant’s claims and to contain no reference to the Applicant’s claimed leadership and religious activities (which the Applicant claimed formed the basis for the attack upon her and subsequent threats of harm), as well as no reference to ongoing threats and harassment. For those reasons, the Tribunal determined to give the Tony Oliver document no weight.
Part of the Tribunal’s function is to determine what weight should be given to evidence and material before it (see Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd (1986) 162 CLR 24 at 64-65 per Brennan J). It was open to the Tribunal to give no weight to the Tony Oliver document for the reasons it gave. It was also open to the Tribunal to find that the KCYM letter was not corroborative of the Applicant’s claims for the reasons it gave in that it did not refer to any of the activities described by the Applicant.
Further, a fair reading of the Tribunal’s decision record does not make clear whether the Applicant’s credit was assessed without first assessing whether the substance of the documents corroborated her claims.
The Tribunal appeared to accept the information contained in the KCYM letter insofar as it asserted that the Applicant is an active member of KCYM. However, the Tribunal found that there would be many persons engaging in religious and social activities and promoting dialogue between communities. The Tribunal found that the Applicant was not unique in her role. The Tribunal found that the Applicant appeared to have been involved in mundane work in her area and did not have a senior position in the church. The Tribunal did not accept that such a person would be perceived as being responsible for the clashes between the Applicant’s church and Muslim fundamentalists involving the police and the death of six people. Nothing in the KCYM letter is at odds with those findings.
In relation to the Tony Oliver document, the Tribunal gave cogent reasons as to why it placed no weight on that document as supportive of the Applicant’s claims. The Tribunal put to the Applicant its concerns about the document and noted her responses. The Tribunal noted that the Applicant said that, to the best of her knowledge, Tony Oliver is a councillor in the area and what he wrote was true. The Tribunal noted that it asked the Applicant why there were no contact details and no way to verify the information in the document. The Tribunal noted the Applicant’s response that she told Tony Oliver to give her a letter about what happened to her and he gave her what he could. As stated above, the Tribunal found that the information in the Tony Oliver document was not consistent with the Applicant’s evidence.
In the circumstances, it was open to the Tribunal to determine to give the Tony Oliver document no weight and for the reasons it gave.
Accordingly, ground 1 is not made out.
Ground 2
Ground 2 alleges that the Tribunal failed to give the Applicant the benefit of the doubt in entertaining the possibility that the Applicant’s claims are plausible.
Ground 2 was not supported by written submissions. The Applicant made no relevant oral submission in support of ground 2. She said no more than that she had given all the evidence to the Tribunal.
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 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). 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 at 348 per Heerey J).
A fair reading of the Tribunal’s decision record does not suggest that the Tribunal had any reasonable doubt about its findings and conclusions. The Tribunal found that the Applicant had “entirely lacked credibility”. It found at times her evidence to be evasive and her responses inconsistent. It found the Applicant’s claims to be generally inconsistent with country information before it. The Tribunal comprehensively rejected the Applicant’s claims, stating as follows:
“The totality of the concerns set out above cause the Tribunal to find that the applicant has not been truthful in her evidence. The Tribunal has formed the view that the applicant had fabricated her claims for the purpose of her protection visa application. The Tribunal rejects the entirety of the applicant’s claims.”
A fair reading of the Tribunal’s decision record as a whole shows that the Tribunal did not have any real doubt that the claimed events had not occurred. In such circumstances, it is not necessary for the Tribunal to consider the possibility that its findings were wrong (see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (“Rajalingam”) per Sackville J).
It is for the Applicant to satisfy the Tribunal, being the relevant decision-maker, that she meets the criteria for being a refugee. If the Tribunal, as the relevant decision-maker is not so satisfied, pursuant to s.65(1) of the Act, the Applicant must be refused a protection visa.
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).
Otherwise, the Applicant’s complaints in ground 2 appear more to be 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).
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 contends that the Tribunal erred in failing to investigate the Applicant’s claim “specifically on the grounds of persecution in India.” Ground 3 asserts that by failing to do so, the Tribunal’s decision was affected by actual bias. Ground 3 also contends that the Tribunal failed to analyse properly the “future harm” that the Applicant may face if she was to return to India, and failed to assess or carry out the “real chance” test before dismissing the Applicant’s claims.
Ground 3 was not supported by particulars or written submissions. In support, the Applicant said that there were so many people in India that are still struggling. She said that if she was to return to India, she would be killed and that all her claims are true.
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).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There is no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the Applicant (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It may be that, in certain circumstances the Tribunal may be obliged to make some further investigation (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21]).
However, the case before this Court is not such a situation. The Applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate her claims further.
In relation to the Applicant’s contention that the Tribunal failed to analyse properly the future harm that the Applicant may face if she was to return to India, the Tribunal identified with specificity the country information to which it had regard and which it discussed with the Applicant. In particular, the Tribunal put to the Applicant country information which indicated that Muslims and Christians generally co-exist peacefully in Kerala and that there are no reported incidents such as those claimed by the Applicant. The Tribunal noted the Applicant’s response.
The country information to which the Tribunal referred was comprehensive and from a number of sources. The Tribunal identified 24 sources to which it had regard about the treatment of Christians in Kerala and reports of religious freedom in India, including advice from the US Department of State’s 2010 International Religious Freedom Report for India relating to an overview of the coexistence of various religious groups resident in India; the US Commission for International Religious Freedom’s 2011 Annual Report relating to small scale attacks and harassment of Christians and Muslims and their places of worship; the UK Home Office’s most recent Country of Origin Information Report for India, September 2010; and, annual reports for India by Amnesty International and Human Rights Watch. The Tribunal found that if systematic mistreatment of Christians was occurring in Kerala, it is likely that these annual reports would have included information reflecting this.
It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
In the circumstances, a fair reading of the Tribunal’s decision record makes clear that the Tribunal did in fact inquire about religious persecution in India.
In relation to the Applicant’s claim of bias, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
The Applicant was directed on 24 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 12 July 2012. The Applicant was directed that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit and that if she wished to rely on a tape recording of the Tribunal hearing, she needed to give notice by 12 July 2012. However, no document was filed by the Applicant either in accordance with those directions or otherwise.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the 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]).
Accordingly, the Applicant’s allegation of bias on the part of the Tribunal for any reason is not made out.
To the extent that ground 3 states that the Tribunal failed to analyse properly the “future harm” the Applicant may face if she was to return to India and whether the Tribunal carried out the “real chance test”, such complaints are not made out.
As stated above, the Tribunal comprehensively rejected the Applicant’s claims as fabricated. The Tribunal concluded as follows:
“Having considered the applicant’s evidence, singularly and cumulatively, the Tribunal finds that there is no real chance that the applicant would be persecuted now or in the reasonably foreseeable future for the reason of her religion or for any other reasons, or combination of reasons if she were to return to India.”
That finding was open to the Tribunal on the evidence and material before it. The findings made by the Tribunal grounding that ultimate conclusion were open to the Tribunal based on the evidence and material before it and for the reasons it gave.
As stated in [53] and [54] above, a fair reading of the Tribunal’s decision record as a whole makes clear that the Tribunal did not have any real doubt that the claimed events had not occurred and had been fabricated by the Applicant for the purpose of her protection visa application. In such circumstances, it is not necessary for the Tribunal to consider the possibility that its findings were wrong (Rajalingam).
Accordingly, ground 3 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence in writing and at the hearing and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal also identified with great particularity the independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the proceeding before this Court should be dismissed with costs.
I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 3 December 2012
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