SZUCG v Minister for Immigration
[2015] FCCA 566
•24 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUCG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 566 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal affirming decision to refuse to grant applicant a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SZRLB v Minister for Immigration & Anor [2014] FCCA 2851 SZRMQ v Minister for Immigration and Border Protection & Anor (2013) 219 FCR 212 |
| Applicant: | SZUCG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 771 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 17 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2015 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with a Tamil interpreter. |
| Solicitor for the First Respondent: | Ms N Senanayake of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application, as amended, be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 771 of 2014
| SZUCG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in the Federal Circuit Court on 24 March 2014 under the Migration Act 1958 (Cth) (the “Migration Act”), seeking judicial review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa. The Minister’s delegate refused to grant the applicant a Protection visa on the basis that he was not a person to whom Australia had protection obligations under s.36 of the Migration Act.
The solicitors for the Minister filed a folder on 7 May 2014 which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a male citizen of India born on 12 August 1982 (CB 27). He arrived in Australia on 31 March 2013.
The applicant applied for a Protection (Class XA) visa on 3 April 2013 (CB 1-26). The application was refused on 22 July 2013 (CB 198-231).
The applicant applied to the Tribunal for review of the delegate's decision on 9 August 2013 (CB 221-226).
The applicant gave oral evidence before the Tribunal on 25 February 2014. The Tribunal made its decision on 6 March 2014.
The applicant's claims
The applicant claims to fear harm in India from Islamic fundamentalists who he referred to as "mullahs" for reason of his circulation of information from a website he claims is opposed to terrorism and Islamic fundamentalism.
Tribunal’s Decision
The Tribunal noted that the applicant has an extensive travel and work history which was detailed in his oral and written evidence. The Tribunal found that on the evidence before it economic motivations have been central to the applicant's overseas travels, including to Australia (CB 278-279 at [11]).
The ticket on which the applicant departed India in March 2013 was to Nadi, Fiji, and he was only transiting through Australia. While in Australia the applicant claimed that entirely by chance he met a Sri Lankan man who told him he could apply for a Protection visa.
The applicant's claims were set out in a statutory declaration submitted to the delegate three months after he lodged his application for a Protection visa (CB 59-62). The Tribunal found that the applicant's delay of three months in presenting his claimed reasons to fear returning to India raised some concern that he did not have those fears at the time he lodged the application (CB 278 at [12]).
The Tribunal also found the explanation that the applicant gave regarding the reasons for the delay raised further concerns that he was not being entirely forthcoming or honest with the Tribunal.
The Tribunal had several concerns with the applicant's general credibility, based mainly on the evidence he gave at the hearing. In summary those concerns were:
a)The applicant's evidence regarding his work in Australia, particularly considering that he entered Afghanistan to work illegally for 6 months from 2011, demonstrated he had little regard for visa conditions and permission to work (CB 278 at [13);
b)The Tribunal found that the applicant's lack of activity in Australia in circulating fundamentalist/anti-terrorist information was inconsistent with his claim to have been passionately pursuing this in India (CB 278 at [14], CB 280 at [19]);
c)The applicant claimed that he went to Afghanistan the second time because he was being hassled by the Rashitriya Swayamsevak Sangh (“RSS”), a militant Hindu group in India, in connection with his brother's death. The Tribunal put to the applicant that this claim was not made in his written statement and found that if the militant Hindu Group was placing any pressure on the applicant for any reason, he would have mentioned this in his written statement;
d)The Tribunal considered the applicant's claim that he circulated anti-terrorist and anti-Islamic fundamentalist material on his return to India in 2012. The applicant claimed that he put his initials at the bottom of the material that he circulated. When asked, the applicant was unable to explain why he would take the risk of putting any identifiers on inflammatory materials to enable them to be traced back to him. The Tribunal found the applicant's evidence in this regard to be illogical and unconvincing and to cast doubt on the truth of the applicant's claims (CB 279 at [17]);
e)The applicant claimed that his motivation in circulating the material was because he did not think that anyone else should die like his brother at the hands of Islamic fundamentalists. However when asked the applicant was unable to explain how the circulation of the material achieved this;
f)The applicant gave inconsistent evidence as to whether he broke his arm in Saudi Arabia or Qatar (CB 281 at [21]); and
g)The Tribunal also considered the applicant's evidence that his parents, wife and children all lived at the same addresses to be inconsistent with his claims that his home had been visited by Islamic and RSS militants looking for him (CB 281 at [22]).
The Tribunal found the applicant's story and evidence evolved and changed over time, which cast doubt as to the truth of his claimed circumstances (CB 279 at [16]).
The Tribunal found the applicant's evidence to be very general and exaggerated and, in the context of the extensive, cumulative and significant credibility issues, the Tribunal was not convinced that those accounts were true or that any of the applicant's family members had been harmed, mistreated, threatened or adversely approached by anyone, including Islamists or RSS militants as claimed (CB 281 at [22]).
The Tribunal found that the applicant's evidence concerning the death of his brother presented extensive and significant inconsistencies, changes and concerns, which are set out in detail in the Decision Record at [23]-[28]. The Tribunal consequently found that the applicant's inconsistent and changing accounts about where he was when his brother died and how much time he spent with him in hospital, and his demonstrated willingness to change his evidence to meet the concerns put to him, cast significant doubt on his reliability as a witness and in respect of the truth of his claim that his brother had died.
At [29] of the Decision Record (CB 283) the Tribunal rejected significant aspects of the applicant's claims for credibility reasons. In particular the Tribunal was not satisfied that the applicant had, at any time, in India or otherwise, circulated the anti-fundamentalist or anti-terrorist material he claims to have circulated, or that he has any profile in India which connects him to such activities.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in India (CB 283 at [30], CB 284 at [33]).
The Tribunal went on to consider complementary protection and found, on the basis of its factual findings, that the applicant did not face a real risk of being subjected to degrading treatment or punishment in India in the reasonably foreseeable future (CB 283-284 at [31], [34]).
Current Proceedings
The applicant filed an amended application on 10 October 2014. At the hearing, he indicated he wished to rely on that. The Amended Application pleads the following grounds:
1. In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations. The Tribunal misunderstood or [misconstrued] the facts.
Particulars: The applicant claims that the Tribunal made the decision on (a) the wrong principle(s) allowed (b) allowed extraneous or irrelevant matter to guide or affected him (applicant) (c) mistook the facts. (d) did not take into account some material consideration or reached a result unreasonably or unjust.
The applicant claims that the Tribunal believed or formed the opinion that the applicant came to Australia for economic reason which is not truth.
The Tribunal mistook the facts or the applicant did not get chance to express or explain the facts.
The applicant claims that because of his High Standrads of Heavy Vehicle Mechanic Skills he is and was always in demand in his country or in overseas.
He extensively worked in the Arab countries such as Oman, Qatar, Saudi Arabia and Afghanistan and worked with Very Reputed Heavy Machinary Mechanic Companies and shops. Because of his experience in fixing Big Machinary such as Excavaors and Bull Dogers Machines he has no shortage of work in any country.
At no stays the applicant could get chance to express that he is highly skilled person. In any country the he could get highest rewards for his specialised skill.
The applicant was specialised and achieved good experiences after working in Saudi Arabia and Quatar. Because of that he got good references from all of the above mentioned Countries.
He went to Afghanistan for doing this types of Jobs and anyhow, the Technical Division of American and Australian Defence Force People knew that the applicant. They American Defence Force people approached him and offered jobs for fixing heavy machinery. When he came to Afghanistan he joined the American and Australian Defence Force for fixing heavy Defence Force Vehicles. He came in Contact with many Australian and Americam Defence official who told him if he comes to America or Australia he may be welcomed.
The Tribunal mistook the information and formed the view based on assumption that economic motivation was the main reason for the application for the Protection Visa wich is not correct.
2. The applicant claims that the Tribunal raised several irrelevant questions to test the credibility of the Oral Evidence related with his brother’s death. The applicant believes that the Tribunal made a jurisdictional error when he was denied procedural fairness during hearing.
Particulars:
The applicant claims that during hearing at different stages he could not understand the questions asked by the Tribunal. He believes that he was not properly represented.
At col 25 of the decision of the Tribunal clearly raised the issue of confusion and misunderstanding” “when asked why he said earlier that he found out about his brother’s death when he was returning to Chenai having already visited his brother in hospital during the 6 weeks of his claimed stay, and why his accounts appear to be changing, he said he didn’t understand what was being asked. However, as the Tribunal explained to him, it is persuaded that is true as his comments and respondents demonstrate that he understood the Tribunal’s questions and expressly referred to him hearing that his brother had died on the day he arrived to Chenai airport.
3. The applicant claims that the RRT made a jurisdictional error when it made decision on assumption and probability. The Tribunal’s finding of reasons is Confused and the test for persecution was not applied according to the Rules of the Migration Act.
Particulars:
The applicant claims that the Tribunal failed to understand the grounds and reasons for the applicant’s application for the protection visa in Australia.
The applicant claims that when he came back from Afghanistan after working with the American Defence force, the Indian Authorities became more vigilance and started to watch his activities and travel movements.
After looking details of his Passport, he was thoroughly searched and asked about his activities in Afghanistan. He told the truth to the Authorities and he was released.
These things he did not mentioned in his application for the protection Visa and also did not provide evidence of his association with the American Defence Force because he was scared to disclose his activities in India. (Please find attached a copy of Documents Related with the American Defence Force in Afghanistan).
In Afghanistan, he was also watched by the Taliban People and there he was threatened to be killed any time. He left Afghanistan because of fear of life. The Taliban people have network relation in the Indian States including Chinnai. When he returned to India and knew about the brothers death he became very worried.
His parents pressured him to leave the country. He became a target of Terrorist and extremist Muslims in Chinnai. Because of that he left the Country. When he came to Sydney Airport he decided to get shelter in Australia for the protection of his life. He has legitimate expectation from the Australian Government that he worked for the Coalition Forces for Australian and America, he will get shelter in this country.
The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the applicant. The Tribunal ignored all other independent information and came on the conclusion.
4. The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk test of persecution and harm.
Particulars:
The applicant claims the Tribunal, which is a independent judicial body. The applicant has a legitimate expectation from the Tribunal that it would assess the applicant’s claim according to required procedural fairness.
The RRT ignored the relevant consideration with complementary Protection set out in s 36(2) (aa).
The harm or the mistreatment feared by the applicant on return is for one or more of five grounds of recognized in the Refugee Convention.
Applicant’s fear of harm is well-founded and that there is a real chance that he will suffer persecution if he returned to India.
Applicant’s Submissions
Having read the applicant’s written submissions, one further claim of jurisdictional error on the part of the Tribunal is forthcoming. The applicant claims either apprehended bias or actual bias on the part of the Tribunal when assessing his claims, stating the Tribunal “became biased due to misunderstanding the evidence” and “that Tribunal made decision with closed mind”.
The remainder of the applicant’s written submissions either support or reiterate the grounds of the Amended Application or restate the applicant’s substantive protection claims.
It should be noted the applicant also filed an affidavit containing four annexures. These annexures appear to relate to work performed by the applicant for the United States of America Department of Defense during 2011. They do not appear in the Court Book and are not referred to in the delegate’s decision or in the Tribunal’s Decision Record. To the extent the applicant is attempting to tender new evidence in support of his Protection visa application, this is not permitted and was explained to the applicant at the hearing.
At the hearing, the applicant indicated he had no submissions in chief to make. When invited to make submissions in reply to the Minister’s oral and written submissions, the applicant indicated he was not conversant in how he should proceed before the Tribunal and had to be informed by people how he should proceed.
Minister’s Submissions
The Minister filed written submissions on 18 September 2014. However, since the date of the filing of those submissions the applicant filed the Amended Application (on 10 October 2014) amending his grounds pleaded.
Instead, Ms Senanayake, appearing for the Minister, sought to address the applicant’s claims in oral submissions.
In respect of the first ground of the Amended Application, Ms Senanayake states this ground alleges the Tribunal took into account irrelevant considerations. Ms Senanayake referred the Court to [9] of the Tribunal’s Decision Record where it observed the applicant’s travel history indicated he had, primarily, economic motivations for travel, however, that this was not determinative of his claims. Ms Senanayake submits that this did not provide the basis for the Tribunal’s decision. Further, the remaining particulars to ground 1 are assertions that were not before the Tribunal and, therefore, it cannot err for failing to consider these matters.
In respect of ground 2, Ms Senanayake submits the applicant in this ground alleges the Tribunal asked irrelevant questions when testing the applicant’s credibility, causing it to breach its procedural fairness obligations. In the Minister’s submissions, the Tribunal was entitled to test the applicant’s evidence and its findings about the applicant’s credibility as arising from his evidence. Further, Ms Senanayake submits findings about an applicant’s credibility arising from his or her evidence are factual matters for the Tribunal.
In respect of the ground 3 of the Amended Application, Ms Senanayake submits this is an allegation that the Tribunal failed to understand the applicant’s claims. However, Ms Senanayake submits the particulars provided below the ground set out factual claims that were not before the Tribunal. She submits this, therefore, cannot form the basis of an error on the part of the Tribunal.
Ms Senanayake submits the fourth ground of the Amended Application claims the Tribunal applied the wrong test in respect of complementary protection. Ms Senanayake states the Tribunal rejected the factual basis for the applicant’s claims at [29] of the Decision Record (CB 283). On this basis, the Tribunal then rejected the applicant’s complementary protection claims which is found at [31] of the Decision Record (CB 283-284).
In respect of the applicant’s written submissions, Ms Senanayake submits the majority of the document seeks to restate his claims and sets out factual matters that were not before the Tribunal. To that end, Ms Senanayake submits these matters cannot establish an error on the part of the Tribunal.
There is also an allegation of bias made on the part of the Tribunal in the applicant’s written submissions. Ms Senanayake submits that applicant has provided no particulars in support of this allegation. An allegation of bias is a serious one that ought to be properly particularised and supported by evidence. There is insufficient evidence to make out an allegation of bias in this matter. Ms Senanayake contends the Tribunal rejected the applicant’s claims on the basis of adverse credibility findings. The Tribunal did not reject the applicant’s evidence on any arbitrary or capricious basis and it further provided clear reasons for its decision.
Consideration
The first ground of the Amended Application raises the claim that the Tribunal failed to take into account relevant considerations. Having regard to the particulars of this ground, it is advanced on the basis that the Tribunal came to the conclusion the applicant came to Australia and applied for a Protection visa for economic reasons.
The Tribunal stated at [9] of its Decision Record:
9. The applicant has an extensive travel and work history which was detailed in his oral and written evidence. While some of the applicant’s claimed dates of travel were inconsistent, the Tribunal accepts that his passport bears only official stamps and that those stamps accurately reflect his lawful travels (noting, however, that on the applicant’s own evidence he travelled “illegally” to Afghanistan on a second occasion to work between 2011 and 2012). The Tribunal accepts, based on the evidence contained in his passport that the applicant spent a large part of the years from 2007 to 2013 living and working in Oman, Qatar, Saudi Arabia and Afghanistan. The Tribunal accepts that the applicant comes from an area in India in which mining is a prominent industry and that he trained in a Motor Mechanical training course in India and, after his schooling, worked there as Heavy Machine Operator when he was not working overseas. The Tribunal accepts his evidence that his work outside India allowed him to earn far more per month than he could earn within India. The Tribunal observes the evidence before it to reveal that economic motivations have been central to the applicant’s overseas travels, including to Australia, but is mindful that this is not determinative of his claims for Australia’s protection.
(footnote omitted) (CB 277)
The applicant claims the Tribunal’s finding that economic motivations were the “main reason” for the applicant applying for a Protection visa. This is not supported by the statement at [9] of the Decision Record. Rather, the Tribunal stated that economic motivations have been central to the applicant’s extensive travels, including to Australia. However, it clarified that statement noting these motivations were not determinative of the applicant’s claims for protection.
In Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24, the High Court considered the obligation to take into account a relevant consideration and, conversely, the obligation not to consider irrelevant matters. Mason J expressed it at 40 as follows:
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision … A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision …
Ultimately, as the Minister correctly submits, this finding in respect of the motivations for the applicant’s travel did not form the basis of the Tribunal’s decision. Rather, the Tribunal considered the applicant’s various claims and ultimately did not accept the majority of them. This non-acceptance was based on adverse credibility findings made against the applicant. A credibility finding is a matter for the Tribunal par excellence: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.
In any case, the Tribunal’s findings in respect of the motivations for the applicant’s travels, including to Australia, were open to it on the material before it and for the reasons it gave, noting they were not determinative of the applicant’s substantive protection claims.
Consequently, this ground cannot be sustained. I also note the ground has been expressed in a number of different ways by the applicant, however, none of these sub-claims can be sustained for the same reasons as expressed above.
Ground 2 of the Amended Application claims the applicant was denied procedural fairness during the Tribunal hearing. He claims that the Tribunal asked irrelevant questions to test the applicant’s credibility and that he was not properly represented at the hearing.
I first turn to the claimed lack of proper representation at the Tribunal hearing. As the applicant was not being assisted by a migration agent or lawyer at the time, in my view, the applicant appears to be raising a complaint in respect of the standard or quality of interpretation at the hearing.
The applicant’s specific complaint is that he was unable to understand a number of the questions posed to him at the hearing, and these issues are raised in [25] of the Decision Record. The Hearing Record (CB 272) indicates that a “Tamil (Tamil Nadu)” interpreter was present at the hearing, though it appears this interpreter was not NAATI accredited.
The Tribunal stated at [25] of the Decision Record:
25. [The applicant’s] evidence to the Tribunal regarding the claimed death of his brother presented extensive and significant inconsistencies, changes and concerns including the following. Firstly, when asked for the date of his brother’s death he initially responded that it was 14 June 2009. He then said that is his brother’s birthday and that he his brother died on 12 July 2009. When asked if his brother died in hospital he said his brother was in hospital for six weeks and died there. He said that he had returned to India and saw his brother while he was in hospital on that occasion. This differed from his written claim that his brother passed away before the applicant returned to India. When again [asked] if he was in India when his brother died he responded that he was not, but he returned to see him in hospital. When asked again whether he was in India at the time his evidence changed completely, to the effect that he was in India at the time his brother died. When reminded that he just said he was not in India at that time he said he was on a flight at the time. He then repeated that was in India when his brother died and he learnt of his brother’s death when he landed in Chennai. When asked if he is saying that he saw his brother in hospital, went back to Qatar and then returned to India again with the 6 weeks to find out on his arrival in Chennai that his brother has died, he said “yes”. He said that, after his brother died he returned to Qatar. When asked why he said earlier that he found out about his brother’s death during the 6 weeks of his claimed hospital stay, and why his accounts appear to be changing, he said he didn’t understand what was being asked. However, as the Tribunal explained to him, it is not persuaded that that is true as his comments and responses demonstrate that he understood the Tribunal’s questions and have expressly referred to him hearing that his brother had died on the day he arrived at Chennai airport.
(CB 281-282)
In SZRLB v Minister for Immigration & Anor [2014] FCCA 2851 his Honour Judge Nicholls stated at [17]-[18] (citing the authorities of Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 and SZRMQ v Minister for Immigration and Border Protection & Anor (2013) 219 FCR 212:
17. … [T]he question of the inadequacy of interpretation at a Tribunal hearing such as to find jurisdictional error requires demonstration that the interpretation was so incompetent that the applicants were prevented from giving their evidence on critical matters (Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 at [38] and [45]). I note that recently, further relevant direction on matters of interpretation at Tribunal hearings was provided by the Full Federal Court in SZRMQ v Minister for Immigration and Border Protection& Anor [2013] FCAFC 142 (see in particular per Allsop CJ at [22], and per Robertson J at [66]). It is not necessary, however, to consider these authorities in detail.
18. Despite opportunity to do so, the applicants have not provided any evidence to the Court to support their contention that, in effect, the level of interpretation at the hearing was not competent, and as such they were denied the opportunity to give their evidence on critical matters of substance, significance, or potential significance.
In the matter before the Court, the applicant has failed to provide any evidence in support of his contention that the standard or quality of interpretation was not competent, and as such he was denied an opportunity to give evidence on critical matters. The applicant has not provided a transcript of the Tribunal hearing to the Court, nor has he demonstrated in any way that he raised at the Tribunal hearing any issue relating to the standard of interpretation. There is no other mention in the Decision Record of any difficulties communicating with the applicant at the hearing.
Consequently, this aspect of the ground cannot be sustained.
The second aspect of this ground claims the Tribunal asked the applicant irrelevant questions at the hearing and that this was a breach of procedural fairness. There is no demonstrable particularisation of this ground. However, as the Minster correctly submits, the Tribunal was entitled to test the applicant’s evidence (including in relation to the claimed death of the applicant’s brother). Further, credibility findings, including when arising at least in part from findings in relation to an applicant’s evidence, are a matter for the Tribunal par excellence: Durairajasingham (supra).
Accordingly, this aspect of the ground cannot be sustained and ground 2 should be dismissed.
Ground 3 of the application claims that the Tribunal misapplied the test set out in ss.36(2)(a) and 91R of the Migration Act relating to serious harm. The particulars of this ground restate a number of the applicant’s substantive protection claims as well as introducing a number of new claims.
What this ground fails to do is identify how the relevant test was misapplied. The Tribunal stated at [29]-[30] of the Decision Record:
29. Based on all the evidence before, including the significant cumulative concerns detailed in the Tribunal’s considerations above, the Tribunal is not satisfied of the truth of significant aspects of the applicant’s claimed circumstances. Specifically, the Tribunal is not satisfied that the applicant’s brother died at the hands of Islamic fundamentalists as the applicant has claimed. The Tribunal is also not satisfied on the evidence before it that the applicant’s claimed brother is in fact deceased. The Tribunal is not satisfied that the applicant’s experiences of mistreatment in the middle eastern countries, which he voluntarily pursued work in and returned to over some five years, are as he has claimed or that he has been motivated by those claimed experiences or the death of his brother to circulate anti-fundamentalist or anti-terrorist materials in India. The Tribunal is not satisfied that the applicant has, at any time, in India or otherwise, circulated the anti-fundamentalist or anti-terrorist material he claims to have circulated, or that he has any profile in India which connects him to such activities. The Tribunal is not satisfied that the applicant has been or will be adversely pursued by any militant group in India, including the RSS or any militant Islamic group or that he faces any risk of harm in India for any of the reasons he has claimed either individually or cumulatively. In particular, based on the evidence, reasoning and findings above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm as contemplated by section 91R(1)(b) or 91R(2) of the Act, or a real risk of significant harm as contemplated by section 36(2A) of the Act, in India in the reasonably foreseeable future, for any reasons he has claimed.
Conclusions regarding the Refugees Convention
30. Based on the evidence before it and the cumulative considerations and findings above, the Tribunal is not satisfied that the applicant had, at the time he departed India for Australia, an adverse profile of any nature giving rise to a real chance of serious harm as contemplated by sections 91R(1)(b) or 91R(2) of the Act, for any reason, including a Convention reason. Nor is the Tribunal satisfied that the applicant has, since that time, developed any profile within India, including amongst any Islamist of “Mullah group”, which gives rise to a real chance of serious harm in India in the reasonable foreseeable future. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in India and that the Tribunal is not satisfied that he is owed Australia’s protection under section 36(2)(a) of the Act.
It is clear from the Tribunal’s Decision Record that it considered all the claims put to it by the applicant at that time. It made findings that were open to it on the material and evidence before it in relation to the applicant’s claims and, ultimately, applied those findings when correctly performing the real chance test in the manner set out in the Migration Act. The Tribunal also provided in “Appendix 1” to the Decision Record (CB 285-286 at [37]-[47]) a correct statement of the relevant legislation and principles to be applied to Refugees Convention based protection claims. On a fair reading, it cannot be seen that the Tribunal misapplied that statement in respect of the applicant’s claims.
Further, a number of claims in the particulars of this ground were not, on a fair reading of the Court Book and Decision Record, made to the Tribunal and, accordingly, cannot have led the Tribunal into error.
To the extent this ground seeks to invite the Court to assess the merits of the applicant’s protection claims, such an invitation invites the Court to engage in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272.
Accordingly, this ground cannot be sustained.
Ground 4 of the application claims the Tribunal failed to apply the correct test in relation to the complementary protection provisions of the Migration Act (s.36(2)(aa)). The only relevant particular contained in that ground states the Tribunal ignored relevant considerations with complementary Protection set out in s 36(2)(aa). The other statements contained within the particulars are general statements or relate to persecution under Convention grounds which has been addressed above.
Relevant to this ground, the Tribunal stated at [31]:
31. The Tribunal has also considered whether the applicant is eligible for complementary protection. Based on the findings of fact detailed in the Tribunal’s considerations above, the Tribunal is not satisfied that the applicant faces a real risk of the death penalty being carried out on him or that he will be arbitrarily deprived of his life in India. Further, based on the considerations and cumulative findings of fact detailed above, the Tribunal is not satisfied on the evidence before it that any entity, group or individual in India has or would have the requisite intention to inflict any harm on the applicant. Without the pressure of intention, the Tribunal is not satisfied that he faces a real risk of being subjected to torture or cruel or inhuman treatment or punishment within the meaning of section 5 of the Act. Similarly, the evidence before the Tribunal does not indicate that any harm or hardship, including economic hardship, he fears in the reasonably foreseeable future in India would be “intended to cause” extreme humiliation which is unreasonable. Accordingly, the Tribunal is not satisfied on the evidence before it that the applicant faces a real risk of being subjected to degrading treatment or punishment in India in the reasonably foreseeable future.
The Tribunal also in “Appendix 1” to the Decision Record provided a correct statement relating to the complementary protection provisions (CB 286 at [48]-[50]). On a fair reading of the above paragraph in conjunction with the balance of the Decision Record and Court book, and in the absence of particularisation by the applicant, I am satisfied the Tribunal did in fact correctly apply the “Real Risk Test”. No error on the part of the Tribunal has been demonstrated in this ground.
Accordingly, this ground cannot be sustained.
In his written submissions, the applicant alleges bias on the part of the Tribunal on three occasions. In his submissions he states:
…
7. The applicant claims that the Tribunal made a jurisdictional error when it failed to assess the applicant’s claims, became biased due to misunderstanding the evidence – this affected the matters considered and not considered by the Tribunal.
8. The Tribunal made decision with closed mind discredited the evidence saying that the Tribunal does not believe. On assumptions and possibilities the Tribunal concluded that this is not genuine.
…
19. The applicant claims that Tribunal made decision with closed mind when it concluded that he is not genuine refugee and he has no fear of harm. The applicant claimed that Muslim Mullah killed his brother and might be he will be killed soon like his brother because he worked in Afghanistan with Americant Forces.
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng (supra) at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434 per Gleeson CJ.
Having regard to the various claims founding the applicant’s allegation of bias on the part of the Tribunal are that the Tribunal either misunderstood or discredited the applicant’s evidence, failed to assess the applicant’s claims and/or concluded he was not a genuine refugee.
The only evidence before the Court is the Court Book and Decision Record. On a fair reading thereof, without the benefit of any other evidence, particularly a transcript of the Tribunal hearing, there is no evidence the Tribunal misunderstood the applicant’s evidence. It considered the claims put to it as well as the applicant’s oral evidence, however, found the applicant’s evidence and claims, broadly, were not credible. This occurred after a hearing that lasted for approximately three and a half hours where determinative issues in relation to the applicant’s protection application were discussed. Having regard to the detailed reasons of the Tribunal, its findings were open to it on the material before it and do not reveal any bias or apprehension of bias on the part of the Tribunal.
Accordingly, any claim of actual or apprehended bias on the part of the Tribunal cannot be sustained.
Conclusion
None of the pleaded grounds in the Amended Application nor any of the applicant’s written submissions are able to be sustained. Further, a detailed examination of the Court Book and, particularly, the Decision Record reveal no error on the part of the Tribunal.
Consequently, the application as amended should be dismissed with the applicant ordered to pay the Minister’s costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 24 March 2015
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