SZRMO v Minister for Immigration

Case •

[2012] FMCA 1216

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRMO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1216
MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal considered all of the claims before it – whether the applicants were denied procedural fairness because certain “information” was not drawn to the attention of the applicants – request for impermissible merits review – Tribunal’s findings were reasonably open to it on what was before it – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.36, 65, 424A, 425, 425A, 426, 426A, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg.4.35D
Randhawa v Minister for Immigration and Local Government Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Tickner and Ors v Chapman and Ors (1995) 57 FCR 451; (2003) 133 ALR 226
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (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
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
First Applicant: SZRMO
Second Applicant: SZRMP
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1096 of 2012
Judgment of: Nicholls FM
Hearing date: 10 December 2012
Date of Last Submission: 10 December 2012
Delivered at: Sydney
Delivered on: 19 December 2012

REPRESENTATION

The Applicants: In person
Appearing for the Respondents: Ms L Weston
Solicitors for the Respondents: Minter Ellison

ORDERS

  1. The application made on 21 May 2012 is dismissed.

  2. The applicants pay the first respondent’s costs set in the amount of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1096 of 2012

SZRMO

First Applicant

SZRMP

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made on 21 May 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 16 April 2012, which affirmed the decision of the delegate of the first respondent to refuse to grant protection visas to the applicants.

Background

  1. The applicants are citizens of India who most recently arrived in Australia on 26 June 2011 (Court Book – “CB” – CB 3). They are wife (“the applicant”) and husband (“the applicant’s husband”). At that time the applicant held a student visa. On 8 August 2011, the applicant applied for a protection visa (CB 1 – CB 32). The applicant’s husband applied for a protection visa as member of the applicant’s family unit and, therefore, relied on her claims to seek protection (CB 1 – CB 32). Supporting documentation was provided with the application (CB 33 – CB 98).

Claims to Protection

  1. The applicant set out her claims for protection in a statement attached to her protection visa application (CB 40 – CB 46).

  2. The applicant claimed that she was a Hindu from the “Gujarat” area and a member of the “Leva” caste who grew up in an orthodox Hindu family (CB 42.5). The applicant claimed that her father held “… a senior position in the Leva Patel Patidar Samaj (Society)…” promoting Hindu customs and beliefs (CB 42.6).

  3. The basis of the applicant’s claim to fear persecutory harm was said to be her rejection of a marital proposal from a Muslim man (“Kader”) whom she had known at university. She claimed he had subsequently become a prominent lawyer.

  4. The applicant claimed that when her family and friends became aware of the marriage proposal she was advised to “stay away from Kader” (CB 44.1). The applicant claimed that Kader continued to follow her and consequently he was “… attacked by a mob of street sweepers and cleaners and was severely hurt” (CB 44.3). As a result of that incident the applicant claimed that Kader’s family attended the applicant’s family home to talk to the applicant’s father as he was accused “… for ordering the dalits (Hindus) to beat [Kader]” (CB 44.4). The applicant claimed her father refused to allow them to enter their home and, consequently, a physical fight ensued between the two families. The police were called.

  5. The applicant also claimed that “[a]round the latter part of 2004…” while travelling with her father to visit a Hindu temple, a group of Muslims followed her and her father and tried to overtake them at which time the applicant claimed that “… the Muslim youths in the car shouted at us saying be ready to die” (CB 45.3). The applicant claimed that they had informed the police of the incident, but that the police stated that it was the applicant’s father who had created the problem (CB 45.4).

  6. The applicant claimed the enmity between her family and Hindus on the one side and Muslims on the other continued. This included harassment of the applicant’s family (CB 45.5).

  7. The applicant claimed that while she was in Australia her family told her that “… Kader would have given up on [her] and no one was seen around the area any more” and, consequently, the applicant returned to India in or around May 2011, but “… feared to go to [her] house so [she] stayed with [her] husband’s parents…” (CB 46.1). The applicant claimed that her husband did not accompany her at this time (CB 46.1).

  8. The applicant also claimed that, on 19 June 2011, while out with her mother-in-law she was doused in acid which had been thrown from “… a car with Muslim men” (CB 46.3). The applicant claimed that “… these men were the same people who were trying to hurt [her] before” (CB 46.5). Consequently, the applicant claimed that her father sent her back to Australia.

  9. The applicant claimed that she could not return to India because she was “… noted by the fanatic Muslims [for] having connections with Pakistani militants who wanted to take revenge on [her] for hurting Kader…” (CB 46.6). Further, she could not relocate to another area “… as these Muslim fanatics could trace [the applicant] and kill [her]” (CB 46.7).

The Delegate

  1. The applicant was interviewed by the delegate on 5 October 2011 (CB 99 – CB 105). On 10 October 2011, the delegate wrote to the applicant advising that her, and consequently her husband’s, applications for protection visas had been refused (CB 106 – CB 126).

  2. The delegate did not consider the applicant’s main claim that she feared harm from Muslims for her refusal to marry a Muslim man as providing a basis for persecutory harm as this was deemed to be of a “criminal” nature, not for a Refugees Convention related reason (CB 123.4). However, the delegate did consider the applicant’s claim that, if returned to India, she would face harm from Muslims for reason of being a Hindu (CB 123.5). With reference to country information, it was acknowledged that although there are difficulties between Hindus and Muslims, that this animosity was not condoned by the authorities, and, therefore, if required, the applicant could rely on state protection. Notwithstanding this finding, the delegate also found that relocation was an “effective” option for the applicant (CB 124 – CB 125).

The Tribunal

  1. On 3 November 2011, the applicants applied to the Tribunal for review of the delegate’s decision (CB 127 – CB 130). The applicants attended a hearing before the Tribunal (CB 141 – 152). Newspaper articles were presented to the Tribunal at the hearing (CB 154 – CB 168).

  2. On 16 April 2012, the Tribunal affirmed the delegate’s decision and by letter dated 18 April 2012 the applicants were notified of the decision (CB 169). The Tribunal noted in its decision record that although the applicant’s husband had applied for a protection visa as a member of the applicant’s family, the Tribunal was satisfied, after hearing evidence, that he too claimed to fear serious harm from the same persons who it was claimed were targeting the applicant ([54] at CB 182).

  3. Ultimately, the Tribunal was not satisfied that either the applicant or the applicant’s husband were witnesses of truth in relation to their account of being targeted by Muslims for reasons of the applicant’s unrequited love interest ([56] at CB 183).

  4. With reference to country information, the Tribunal accepted that there had been a number of frequent and serious, communal riots between Hindus and Muslims in India ([58] at CB 183). The Tribunal noted, also, that there had been a number of bombings and terrorist attacks by Islamist groups in the applicant’s home area ([58] at CB 183). However, the Tribunal was “… not satisfied as to the credibility of the claim that [the applicants] have any personal connection with these incidents” ([59] at CB 183).

  5. The Tribunal found it difficult to accept that, if the communal rioting, as was claimed by the applicants, had occurred those incidents could have gone unreported in the media. The Tribunal noted that if the applicant’s evidence was correct in regard to the high-profile nature of her father, Kader and herself, then as these “… persons [were] said to be at the centre of communal rioting and terrorist incidents in a major city such as Ahmedabad over a number of years, it would be reasonable to expect that at least some form of media coverage would be devoted to them.” ([61] at CB 184).

  6. The Tribunal noted the applicant’s response to the lack of media coverage, namely that her father’s prominent profile enabled him to suppress media coverage and the fact that the police had not accepted the complaints made by her and her father. However, the Tribunal found these explanations “unconvincing” and, accordingly, doubt was cast over the credibility of the applicants’ claim in relation to the incidents, and also over their evidence generally ([61] – [62] at CB 184).

  7. The credibility finding by the Tribunal was further supported by the applicant’s evidence in relation to Kader, where the Tribunal noted that her responses to questions about him were “vague and uninformative” ([64] at CB 184). Further, although the applicant’s husband had not met Kader, his evidence on this point “cast little further light” and “was also unenlightening” ([63] – [64] at CB 184).

  8. Notwithstanding these findings, the Tribunal was willing to give the applicants the benefit of the doubt and to accept that there is a person named Kader, who may have developed feelings for the applicant beyond those of friendship. However, it was not willing to accept that this courtship caused conflict between themselves, their families, nor their respective communities. Consequently it did not accept that the applicants, or their families, had ever been threatened or harmed in the manner claimed by them ([65] at CB 184).

  9. The rejection of the applicants’ claims was seen as being supported by their delayed departure from India, that is almost a month after their Australian visas had been granted. Further, that the applicant had returned to India in May 2011. The Tribunal noted that this behaviour was not consistent with someone who genuinely feared harm in their home country ([66] at CB 185).

  10. The Tribunal further noted that although it could not be confident that there would not be further outbreaks of violence between Hindus and Muslims in the future, it did “… not accept there is anything about the personal circumstances of the [a]pplicants which would lead to them being targeted in any way, beyond the basic fact that they belong to the majority Hindu community… [and] that the chance of their suffering serious harm in such violence, in a city whose population is almost six million, could reasonably be regarded as more than a remote one.” ([68] at CB 185.)

  11. Consequently, the Tribunal was not satisfied that there was a real chance that the applicants would face serious harm for a Refugees Convention reason if they were to return to India now, or in the reasonably foreseeable future ([70] at CB 185 – [71] at CB 186).

  12. The Tribunal also noted that it considered whether the applicants met the alternative criterion for complementary protection. However, there was nothing before it to suggest that, if returned to India, there was a real risk that the applicants would suffer significant harm as defined in s.36(2)(aa) of the Act ([72] at CB 186).

Application to the Court

  1. The following four unparticularised grounds were presented by the applicants at the hearing:

    “1. The Second Respondent made a jurisdictional error by failing to consider both the Applicants’ claims with regard to their fear of their life upon their return.

    2. The Second Respondent failed to refer to any of the relevant news articles and information submitted by the Applicants and denied the applicant procedural fairness and thereby fell into jurisdictional error.

    3. The Second Respondent fell into jurisdictional error by making a finding for which there was no evidence and by coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.

    4. The Second Respondent fell into jurisdictional error by failing to have regard to all relevant material.”

Before the Court

  1. At the first Court date both applicants appeared in person and were assisted by an interpreter in the Gujarati language. At this time the applicants were referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme” and, at a later time, were provided with legal advice from that lawyer.

  2. At the hearing of this matter, the applicants again appeared in person and were assisted by an interpreter in the Gujarati language. Ms L Weston appeared for the Minister. The Court Book was tendered in evidence. I also had before me both the applicants’ and the Minister’s written submissions.

Consideration

  1. The applicants’ complaints, put orally to the Court, were essentially as follows.

  2. First, the Tribunal did not accept their “case”. The short and complete answer is that, without anything else, the Tribunal does not have to uncritically accept what the applicants put to it (Randhawa v Minister for Immigration and Local Government Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437).

  3. Second, the Tribunal “ignored” what they said. This was explained as the Tribunal not believing what they said. Again, the short and complete answer is that the Tribunal did not fall into jurisdictional error simply because it made findings of fact, including findings on credibility adverse to the applicants in circumstances where those findings were reasonably open to it on what was before it and for which it gave reasons (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”) at [67] per McHugh J).

  4. Third, the applicant, in particular, complained that the Tribunal was “not correct” in finding that her life would not be in danger if she were to return to India. The Tribunal did not know what would happen to her. The first part seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). At its highest it seeks to cavil with the Tribunal’s findings of fact. The second does not reveal any error in the Tribunal’s application of the forward looking “real chance” test (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559).

  5. Fourth, the Tribunal asked irrelevant questions. These were, variously, said to be questions about terrorist groups. The applicant asked rhetorically how she would be expected to know about them. Further, that the Tribunal asked questions about her family and how Kader became a lawyer.

  6. As Ms Weston submitted the applicants have put no evidence before the Court to contradict the only account before the Court of what occurred at the Tribunal hearing. That is, the account in the Tribunal’s decision record. In these circumstances it is not open to the Court to speculate, or draw inferences, as to what may otherwise have happened (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

  7. Further, the Tribunal is not limited by the applicants’ desires as to what questions it may ask. But, in any event, on the Tribunal’s account, its questions cannot be said to have been irrelevant given the nature and character of the applicants’ claim. The applicants claimed to fear harm from Muslims generally whom they sought to, in part, present as having terrorist links.

  8. The applicant herself raised the matter of a “terrorist organisation LeT…” in her written statement attached to her protection visa application (see CB 46.3). The Tribunal was therefore entitled to test this with the applicant. That she generally gave unsatisfactory answers only serves to reinforce the Tribunal’s concerns with the very claims she herself raised.

  9. The applicant’s family, their caste, their place in the local Indian society and the family’s involvement in claimed events, makes that questioning obviously relevant. Kader becoming a prominent lawyer, and his position in the Muslim community, was a part of the reason she said she feared persecutory harm. It is self evident in these circumstances why the Tribunal would want to test this claim with her. No legal error is revealed here.

Ground 1

  1. It is not clear from the ground as stated whether the complaint is that the Tribunal failed to consider some aspect of both applicants’ claims or whether it failed to consider the claims of the applicant’s husband. The written submissions appear to support the former understanding. If this is the complaint then it plainly fails because, in the circumstances it seeks to cavil with the Tribunal’s factual findings (Wu Shan Liang).

  1. The applicants’ submissions ignore the critical core of the Tribunal’s reasoning. That is, while the Tribunal gave the applicants’ the benefit of the doubt, despite its concerns about their evidence, and accepted that Kader did exist, it did not accept the remainder of the applicants’ factual account. The Tribunal’s findings in this regard were open to it. It gave cogent reasons for its findings, essentially the deficiencies that it identified with the applicants’ evidence (e.g. “vague and shifting” and “unsupported” ([65] at CB 184)). Such findings were within jurisdiction (Durairajasingham).

  2. I should note that if the complaint sought to relate to the applicant’s husband, while he made no claims, initially, to fear persecutory harm in his own right, the Tribunal proceeded, in light of the evidence given at the hearing, to consider a claim that he himself separately feared persecutory harm as a result of the situation presented by his wife ([51] at CB 182).

  3. In all, therefore, the ground seeks to challenge the factual findings of the Tribunal, and seeks impermissible merits review (Wu Shan Liang). It fails to reveal jurisdictional error for this reason.

  4. In written submissions in support of this ground the applicants made a number of assertions. None of these reveal jurisdictional error.

    a)The Tribunal failed to take into consideration relevant material. This was said to be the applicant’s fear of returning to India for reason of her previous relationship with Kader, the applicant’s husband’s fear of death if returned to India and the frequent communal violence in Gujarat.

    b)The Tribunal’s finding that the lack of media coverage of the claimed communal violence in Gujarat was arbitrary and an error of law.

    c)The Tribunal failed to find make a number of findings including that the applicant was an Indian woman who feared persecution from a Muslim man, that the applicant had to wait for flight seat bookings before travelling to Australia, and that the reason for the applicant’s return to India was to arrange money for her studies.

    d)The Tribunal asked itself the wrong questions and dealt with the wrong issues in relation to the applicant’s knowledge of Kader.

Complaints/Submissions (a) (b) and (c) to Ground One

  1. The Tribunal is only required to consider the claims advanced by the applicant before it, or claims that “clearly arise” from the material before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 at [60] per the Court and Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”)). It is for the applicants to make out their case and to provide sufficient information for the Tribunal to reach the requisite level of satisfaction (Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 (“Abebe”)).

  2. Before the Tribunal both of the applicants asserted that, for reason of the applicant’s background with Kader and the claimed animosity between the families and the attacks that ensued, they were both at risk of harm if returned to India. These claims were clearly advanced by the applicants. No other claims were, or could have been, imputed from the material and evidence before the Tribunal.

  3. In its decision record the Tribunal clearly set out the applicants’ claims, the evidence and material before it, and its reasons for rejecting those claims. In its analysis the Tribunal set out the applicants’ evidence in support of their claims and the reasons for rejecting that evidence ([57] at CB 183 – [66] at CB 185). Ultimately the applicants’ claims were rejected for reason that the Tribunal found the applicants were not witnesses of truth. It is established law that credibility findings are for the decision-maker “par excellence” (Durairajasingham at [67] per McHugh J).

  4. I agree with the Minister that there is no evidence before the Court to support a finding that the Tribunal failed to consider a “substantial, clearly articulated argument relying on established facts” (Dranichnikov at [24] per Gummow and Callinan JJ).

  5. It may be with the reference to the “… applicant is an Indian woman who feared persecution from a Muslim Kader…” that the applicant now seeks to assert membership of a particular social group. Such a suggestion must be rejected. If nothing else, there was no evidence that Kader wanted to marry anyone else such as to say the applicant was a member of such a group.

Complaint/Submissions (d) to Ground One

  1. In considering whether the Tribunal has fallen into jurisdictional error for reason of asking the wrong question, or dealing with the wrong issue, the focus must be on whether the question is relevant and necessary in order to consider whether the requisite level of satisfaction is reached. An applicant’s dissatisfaction with the Tribunal’s conclusion is not sufficient, in itself, to find jurisdictional error.

  2. In considering whether an applicant meets the definition of “refugee” as set out in Art.1A(2) of the Refugees Convention the Tribunal must reach a requisite level of satisfaction as set out in ss.65 and 36(2) of the Act (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). Therefore in discharging this obligation the Tribunal is required to take on an “inquisitorial”, as opposed to adversarial, function when posing its questions to the applicant (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), Abebe at [40] per the Court and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ).

  3. In the current case the only evidence before the Court is the Tribunal’s decision record and, therefore, that is the only account the Court has before it of what occurred at the Tribunal hearing. As nothing was put in evidence by either party to contradict this account, the Court can only proceed on the Tribunal’s decision record as the account of what occurred at the hearing.

  4. The relevant part of the Tribunal’s decision record relating to these questions is found at [28] (at CB 177). The Tribunal noted that when it asked the applicant for particulars of the person who was making threats against her, the applicant said “… Kader [he] came from a Muslim area very close to hers.” The Tribunal went on to say in this paragraph:

    “… Asked the name of this area she said she did not remember, then offered the name of Raipur. Asked about Raipur she said it was in Ahmedabad. Asked what Raipur was she said there are two areas of Ahmedabad, one of which is Raipur and the other (where she lived) was Bapunagar. Asked for further details she said she could not remember where he lived, only that it was in Raipur.”

  5. It appears that the applicants are now cavilling with the questions that were asked of the applicant. It is apparent from the relevant paragraph above that the Tribunal was trying to establish the identity, and background of the person who was at the centre of the applicants’ claim to fear persecution. In asking these questions the Tribunal was executing its statutory obligation in considering whether the applicants met the definition of “refugee”. No jurisdictional error is revealed here.

  6. In all, therefore, ground one cannot be made out.

Ground 2

  1. In this ground the applicants complain that, by reason of the Tribunal not referring in its decision record to the newspaper articles given by the applicants, it denied the applicants procedural fairness.

  2. In support of this ground the applicants made two submissions. The first was that, pursuant to s.424A of the Act, the Tribunal was required to put this information to the applicants for comment because it considered that this information would be the reason, or part of the reason, for affirming the decision under review. Second, by disregarding the articles, the Tribunal ignored a material fact which was relevant to the decision being made.

  3. It must be first noted that the “information” that the applicants refer to were the newspaper articles that were given to the Tribunal by the applicants in support of their claims. This action is consistent with the obligation placed on applicants. That the onus is on an applicant to make out his or her own case before the Tribunal (Abebe). I agree with the Minister that this is not a situation which gives rise to the statutory obligations under s.424A(1) of the Act. The “information” referred to, namely documents that were given to the Tribunal by the applicants, are exempt from this requirement by virtue of s.424A(3)(b) of the Act (see also SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) at [17] – [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

  4. Even further, in relation to the claim that the applicants had been denied procedural fairness the Tribunal is not required to give to the applicants a commentary subsequent to the hearing about what it thinks of the evidence before it. If so, it could give the impression of
    pre-judgment (SZBEL at [42] – [44] per the Court). In the context of s.424A of the Act what the Tribunal thinks of the applicants’ evidence is not “information” for the purposes of this section (SZBYR at [17] – [18]).

  5. In regard to the applicants’ submission that the Tribunal failed to accept that there had been outbreaks of communal violence because it had not been reported in the media, and failed to accept that there are still continuous riots in the “Gujarat” area, this submission has misconstrued the Tribunal’s actual and relevant findings.

  6. In its decision record the Tribunal referred to country information which provided that violent outbreaks had occurred between Hindus and Muslims ([58] at CB 183 and [68] – [69] at CB 185). However, it was not satisfied that the specific conflicts, as claimed by the applicants had occurred at all. That finding was based on a number of factors, including the confusing evidence given by the applicant ([60] at CB 183) and the unconvincing explanation given by the applicant as to why there was no media coverage of these claimed attacks (noting that they were portrayed by the applicant at the hearing as causing violent riots) ([61] at CB 183 – [62] at CB 184). These findings were open to the Tribunal on the evidence and material before it. The relevant issue was not whether there were communal clashes between Hindus and Muslims. The Tribunal accepted that there were. The issue was whether the specific clashes referred to by the applicant had occurred.

  7. For completeness, it must be noted that, in any event, the Tribunal is not required to refer to every piece of evidence proffered by an 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) and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28] per North and Lander JJ). Further, the weight to be attributed to the evidence that is proffered by an applicant in support of their application is a matter for the Tribunal only. It is not the role of the Court to assign a different evaluation or weight to the evidence (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“WAEE”)). Consequently, contrary to what the applicants assert now, the Tribunal was not required to refer to the articles in its decision record in the way claimed by the applicants and, therefore, the Tribunal did not fall into jurisdictional error.

Ground 3

  1. Ground three asserts that the Tribunal fell into jurisdictional error for reason of making a finding without evidence, and which was illogical and irrational. Although, in this ground the applicants refer to “independent merits reviewer”, for consideration of this ground that reference must be read as the “Tribunal”.

  2. In submissions the applicants referred to two findings that were said to be illogical and irrational.

  3. The first finding was (at [61] at CB 184):

    “… Given these aspects of the persons said to be at the centre of communal rioting and terrorist incidents in a major city such as Ahmedabad over a number of years, it would be reasonable to expect that at least some form of media coverage would be devoted to them. Such, however, was not the case according to the Applicants…”

  4. This finding was part of [61] (at CB 184) of the Tribunal’s decision record and was made in the context of the Tribunal finding that if a personal dispute had caused such rioting, then, in the circumstances, there would be some media coverage of the riots. However, the applicants submitted that this reasoning was illogical and irrational because the implication is that all terrorist incidents around the world should, reasonably be, published. The applicants submitted that the Tribunal rejected the claims of Kader’s terrorist involvement because the applicants were unable to give details of Kader’s terrorist connections, and what explanations were given, were ultimately rejected by the Tribunal.

  5. The second finding that the applicants contend was irrational and illogical was the finding that the Tribunal did not accept that the police had refused to accept the complaints made against Kader, and Muslims generally. Further, that the police had ordered that the parties settle the matter themselves.

  6. In circumstances where “minds might differ” a finding cannot be said to be illogical or irrational (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] – [131] per Crennan and Bell JJ with whom Heydon J agreed at [78]. See also SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 (“SZOOR”) at [58] per McKerracher J with whom Reeves J agreed with at [112]).

  7. I agree with the Minister that the findings made by the Tribunal were open to it on the material and evidence before it, and for the reasons it gave. The Tribunal’s reasons reveal a “logical or rational path of thought” and, also, were reasons made by a logical and rational mind (SZOOR). No jurisdictional error is revealed here. It appears in this ground, again, that the applicants are merely cavilling with the Tribunal’s findings (Wu Shan Liang).

Ground 4

  1. In ground four the applicants assert that the Tribunal fell into jurisdictional error by failing to have regard to all of the relevant material.

  2. In support of this ground the applicants submitted the following:

    a)The Tribunal failed to give either “active or implied” consideration to the claims made, where there was a failure to rely on any evidence, and that the applicant’s claims were rejected because they ultimately could not be accepted.

    b)The Tribunal failed to comply with s.424A of the Act.

    c)The Tribunal is not authorised to deal with hearsay evidence.

    d)The Tribunal did not offer a fair hearing and acted in a biased manner.

    e)The Tribunal failed to consider materially significant matters and ignored other relevant material.

  3. In support of their submissions, the applicants said they relied on the authorities of Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and WAEE.

  4. I agree with the Minister that the submissions made by the applicants in support of this ground are “multifaceted” and do not necessarily relate to the ground as originally pleaded.

Complaint/Submissions (a) to Ground Four

  1. It appears that the applicants’ submission that the Tribunal failed to give “active or implied” consideration could be a reference to “active intellectual process” as used in Tickner and Ors v Chapman and Ors (1995) 57 FCR 451; (2003) 133 ALR 226 and Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140. Or, it could be a reference to the phrase “proper, genuine and realistic consideration” (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30] per the Court, see also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 at [37] per Gummow J).

  2. Contrary to what the applicants now assert, the Tribunal clearly set out in its decision record the claims made by the applicants, the evidence given by the applicants, other material before it, and its ultimate findings and conclusions. As stated above, the findings made by the Tribunal were open to it on the material and evidence before it. The applicants’ assertions are not made out.

Complaint/Submissions (b) to Ground Four

  1. Beyond what is set out above at ground two, the applicants have not said what information the Tribunal failed to put to them pursuant to the obligation in s.424A(1) of the Act. If, at best and in the context of the written submissions, the applicants complain that the Tribunal did not put to them for comment its adverse views of their evidence, then it is well established that the Tribunal’s view of the evidence is not “information” for the purposes of s.424A(1) of the Act (SZBYR at [17] – [18]). In any event, the Tribunal’s record of the hearing reveals that it did put its concerns to the applicants and it gave them an opportunity to respond.

Complaint/Submissions (c) to Ground Four

  1. Just what is meant by the reference to “hearsay” evidence here remained unexplained before the Court. The Tribunal relied on the applicants’ evidence and country information before it. If this complaint is meant as some challenge to the choice and weight given by the Tribunal to country information, then such matters are for the Tribunal to assign and determine (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court).

Complaint/Submissions (d) to Ground Four

  1. In relation to the matter of a “fair hearing”, the applicants were invited to a hearing pursuant to s.425 of the Act. The Tribunal’s invitation complied with all of the relevant statutory and regulatory requirements (ss.425, 425A, 426, 426A, 441A, 441C and reg.4.35D of the Migration Regulations 1994 (Cth)). On the material before the Court the issues dispositive of the review were raised and an opportunity was given for the applicants to comment (SZBEL).

  2. The applicants also assert in this complaint that the Tribunal Member acted in a biased manner. 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 361; (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 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). I agree with the first respondent that it is difficult for an allegation of bias to be made out solely on the Tribunal’s decision record (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). Consequently, I agree with the first respondent that there is insufficient evidence to make out the allegation of bias. None is apparent on the material before the Court.

Complaint/Submissions (e) to Ground Four

  1. It was quite clear before the Court, from the applicants’ oral submissions, that what was meant by this complaint was that the Tribunal did not accept the applicants’ claims to fear persecutory harm. For the reasons already set out above, this complaint does not rise above a request for impermissible merits review (Wu Shan Liang).

  2. In all, I cannot see that the Tribunal failed to have regard to the relevant material in the sense explained by the applicants before the Court.

  1. None of the complaints raised by the applicants in submissions in relation to ground four reveal jurisdictional error. Ground four, therefore, is not made out.

Conclusion

  1. The grounds of the application to the Court do not reveal jurisdictional error. Despite opportunity to obtain legal advice the applicants have chosen to press their case based on their own research, as the applicants told the Court from the “internet”. That is entirely a matter for them. However, the application must be dismissed as no jurisdictional error has been revealed. I will make an order accordingly.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  19 December 2012

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Cases Citing This Decision

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SZRMO v Minister for Immigration and Citizenship [2014] FCA 235