MZYEL & Ors v Minister for Immigration & Anor [2009] FMCA 1179 (7 December 2009)

Last Updated: 7 December 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYEL & ORS v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1179

MIGRATION – Section 424A(1) – country information excluded by s.424A(3)(a) – Tribunal not required to disclose its thought processes or deliberations for comment – “obvious and natural” appraisal of matters considered – natural justice – s.422B – no duty to enquire – bias not established.

Migration Act 1958 (Cth), s.422B, 424, 425, 474

SZJMG v Minister for Immigration and Citizenship & Anor [2008] FCA 1145 MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; [2004] 140 FCR 572 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 Kioa v West (1985) 159 CLR 550 SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179; 96 ALR Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (FC) Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 354 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 Dhanoa v Minister for Immigration & Anor [2009] FMCA 383 Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39 Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589[2000] FCA 589; , 173 ALR 362 Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13 SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR Re Refugee Review Tribunal & Anor; ex parte H & Anor [2001] HCA 28; (2001) 179 ALR 425 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 176 ALR 644 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 SZMDJ v Minister for Immigration and Citizenship [2008] FCA 1837

First Applicant:

MZYEL

Second Applicant

MZYEM

Third Applicant

MZYEN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 620 of 2009

Judgment of:

Turner FM

Hearing date:

6 October 2009

Date of Last Submission:

6 October 2009

Delivered at:

Melbourne

Delivered on:

7 December 2009

REPRESENTATION

The First applicant appeared in person with the assistance of a Malayalam interpreter

Solicitors for the Respondents:

Australian Government Solicitor – Mr D Brown

ORDERS

(1) That the application filed 27 May 2009 and the amended application filed 21 August 2009 are dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 620 of 2009

MZYEL

First Applicant

MZYEM
Second Applicant

MZYEN
Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first applicant (the “applicant”) has been refused a Protection (Class XA) Visa and seeks to have that decision reviewed.
2. The main issues for that review are:
   • Whether the Tribunal was required to give the applicant notice of country information that it intended to rely on.
   • Whether the conclusions reached by the Tribunal were obvious and material appraisals of the evidence.
   • Whether the Tribunal was obliged to make its own enquiries.
   • Whether the applicant was denied an opportunity to make written submissions.
3. These issues are extracted from grounds in the application and amended application which are as follows:

The application

(1) The Tribunal did not give to the applicants before the hearing independent country information that it had about India. The Tribunal used this information (RRT decision record pages 7 to 15). This was against the section 424A of the Migration Act 1958.
(2) The Refugee Review Tribunal denied the applicants procedural fairness by reaching the adverse conclusions the certain aspects of applicants claim were implausible, being conclusions that were not obviously open on the known material, without giving the applicants the opportunity to be heard in respect of those matters.
(3) The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
(4) The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 1 November 2007 was effected by actual bias constituting judicial error.

The amended application

(1) The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in S424A which relevantly states:

424A applicant must be given certain information

1. Subject to subsection (3), the Tribunal must:
   1. Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider would be the reason, or a part of the reason, for affirming the decision that is under review; and
   2. Ensure, as far as is reasonable practicable, that the applicant understand why it is relevant to the review and
   100. Invite the applicant to comment on it.

It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence and lacked credibility; therefore the Tribunal had erred by denying me procedural fairness in respect of this issue. If I would provide a submission prior to the RRT decision, I believe that I would have a different decision.

(2) The Tribunal failed to comply with s424 of the Migration Act 1958.

• (a) The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:
  • (i) The invitation did not specify the way in which additional information may be given.
  • (ii) The invitation did not specify the period within which the information was to be given.

(3) The Tribunal did not give to the applicants before the hearing the Independent Country Information that it had about Kerala, India. The Tribunal used this information (Court book pages 119 and 120). This was against section 424A of the Migration Act 1958.

Therefore, I submit that the Tribunal failed to analyse properly the “future harm” that we may face if we have 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 my claims.

4. By order of Registrar Allaway on 1 July 2009 the applicant was ordered to file any amended application and written submissions by
   26 August 2009. The applicant filed his amended application on
   21 August 2009, but told the Court that he could not remember if he filed written submissions. The first respondent was not served with the applicants written submissions. The Court refused an application by the applicant for an adjournment to obtain his written submissions from his home, on the basis that he had had a full opportunity to file and serve those submissions but failed to do so.
5. The applicant sought an adjournment also on the basis that he was obtaining more information from India to support his application. The applicant stated that this would be press reports that had not been placed before the Tribunal.

The Court refused that application.

An applicant for judicial review is confined to material put before the Tribunal see SZJMG v MIAC & Anor [2008] FCA 1145 per McKerracher J at [27]:

“27 An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]:
It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission [1995] FCA 1137; (1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos [1995] FCA 1137; 56 FCR 377 in a migration law framework.”

6. The Court invited the applicant to make submissions in support of his application but he declined.

Consideration of the Application

7. Ground one claims that the Tribunal did not give the applicant independent country information that it had about India.

Section 424A(3)(a) excludes country information from the requirements of s.424A(1). Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; [2004] 140 FCR 572 at [64]- [74] and at [112]-[118] and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]- [16]. Accordingly, the Tribunal was not obliged to provide independent country information to the applicant for comment.

The Tribunal did however provide country information to the applicant for comment pursuant to s.424AA of the Act.

Ground one is dismissed.

8. Ground two claims that the Tribunal denied the applicant procedural fairness by reaching adverse conclusions on aspects of the applicant’s claim, without giving the applicant an opportunity to be heard on those matters.

In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48], the joint judgment approved a statement by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 that:

“... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”

Their Honours continued that:

“Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”

9. The Court refers also to the decision in SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 per Justice Cowdroy at [16]-[17] as follows:
   • “In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant’s evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [86] Kirby J said:
     • ‘The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice’.”
   • For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 at 557 and Kioa v West (1985) [1985] HCA 81; 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11].
   • “The Court is satisfied that the Tribunal’s determination of the credibility of the appellant and the truthfulness of his claims comprise obvious and natural appraisals of the material and evidence presented to it. Further the Tribunal’s findings based on country information were open to it and there is no obligation to provide the appellant with such material. Accordingly no error of the Tribunal nor of Turner FM exists, and this ground of appeal is dismissed.”

As decided in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 per curiam at [89]: “As SZBEL makes clear (at [48]) the RRT is not obliged to provide ‘a running commentary upon what it thinks about the evidence that is given’”.

The Court finds that the Tribunal’s findings as to the applicant’s evidence were obvious and natural appraisals of the material, in the sense that they were findings that were reasonably open to it on the material before it.

For instance that the primary applicant’s claim about having been hospitalised following an attack was implausible in light of his wife’s conflicting evidence on when the attack occurred, and how long he had been kept in hospital (Court Book 114.6 and 7 and 117.10).

The Tribunal put to the applicant matters that were potentially adverse to his application including inconsistent evidence of his and his wife (Court Book 102.4 et seq).

10. The gravamen of this claim is that the Tribunal made findings rejecting the applicants evidence without giving the applicant further opportunity to comment.
11. The reason the Tribunal affirmed the decision of the Delegate is that it found the applicant and his wife were not credible witnesses
    (Court Book 118.3) and did not accept most of the claims made by the applicant and the evidence in support of them. A finding as to credibility is a finding of fact par excellence. Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 at [67].
12. As to rejecting evidence, the Tribunal was free to do that. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

In W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703, Tamberlin and R.D Nicholson JJ stated at [64]:

“The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:

• If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

See also Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179; [1990] HCA 47; 96 ALR 354. “This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”

The Court does not find that the Tribunal has failed to use, or has palpably misused, its advantage, or that it has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable or that the probabilities of the case are strongly against the findings rejecting the evidence of the applicant.

The Court refers to the following decisions:

“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 McHugh J at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA [1998] FCA 1126; (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA [2001] FCA 679; (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, and there is no error of law, let along a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137].”

As stated by Justice McHugh in Re Minster for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407

“...a finding as to whether the prosecutor should be believed in his claim – a finding on credibility...is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”

13. Section 422B provides that Division 4 is an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with.

Section 424AA was complied with (Court Book 102.4); s.425 was complied with (Court Book 7.4). A breach of the provisions of Division 4 has not been established. A denial of procedural fairness has not been established.

14. Ground two is rejected.
15. The second ground two, which the Court will refer to as “Ground three” is that the Tribunal did not consider whether the applicant met the four key elements of the Convention definition. Pages two and three of the Tribunal’s decision shows that it considered those matters (Court Book 82-83). The first key element is set out at Court Book 83.4; the second element at Court Book 83.4; the third at Court Book 83.6; and the fourth at Court Book 83.9. The Tribunal set out its reasons relating to each element. Ground three is misconceived and is dismissed.
16. Ground four alleges that the Tribunal failed to investigate the applicant’s claims, especially of persecution in India.

There is no positive obligation to obtain further information on the part of the Tribunal: see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]. While s.424 of the Act provides that the Tribunal may get any information that it considers relevant in conducting the review, there is no obligation on the Tribunal to do so. The Tribunal has the power to obtain further information, it does not have a duty to investigate the applicant’s claims: SZHQG v Minister for Immigration & Anor [2006] FMCA 1275 at [33].

In Dhanoa v Minister for Immigration & Anor [2009] FMCA 383 Driver FM stated at [34]:

In SZIAI Flick J held that there may be circumstances in which a failure on the part of the Tribunal to make enquiries, or further enquiries, on a matter would amount to jurisdictional error. Such circumstances will be rare. At [25]-[26] his Honour said:

• The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. Wilcox J there observed at 169–70:
• ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...

This decision was subsequently endorsed by the Full Court: Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:

• [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.

The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be "strictly limited": Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.

Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions [1994] UTasLawRw 2; (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration.

The Tribunal had country information about the situation in India including the position of Christians in Kerala.

The Tribunal therefore had material before it to consider the applicants claims properly. Those claims were considered (Court Book 122.1 et seq).

This part of ground four is dismissed.

17. The applicant then claims bias.

No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].

In Re Refugee Review Tribunal & Anor; ex parte H & Anor [2001] HCA 28; (2001) 179 ALR 425 at [27], the High Court stated (citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:

“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.”

There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”. Bias has not been established.

The Court refers to the following passage in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]:

“Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.”

Further, the fact that the RRT did not believe the applicant’s claims is not evidence of bias. Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872.

18. Bias has not been established. That claim is dismissed.
19. The applicant claims in his amended application that s.424A was breached. That claim has been dismissed above. He then claims that the Tribunal failed to give him an opportunity to make written submissions about inconsistencies in the evidence. That claim has been considered and dismissed above.
20. The applicant then claims that he should have been able to provide a submission prior to the Tribunals decision. The Tribunal’s decision records that the applicant submitted post-hearing evidence
    (Court Book 104.8). The applicant therefore took the opportunity to provide a submission on 25 March 2009, which was prior to the Tribunals decision dated 29 April 2009. This claim is dismissed.
21. The applicant then claims that s.424 of the Act was breached because the Tribunals’ invitation to provide further information:-
    1. did not specify the way in which the additional information may be given, and
    2. the invitation did not specify the period within which the information was to be given.
22. A s.424 invitation was not given. A breach of s.424 has not been established. This claim is dismissed.
23. The applicant then claims that the Tribunal failed to analyse properly the future harm he and his family may face if they go back to India. That is incorrect. The Tribunal found that the applicant did not have a well founded fear of persecution for a Convention related reason, whether religion, particular social group, or for any other reason. The Tribunal then assessed the risk of future harm (Court Book 111.4). It considered the alleged threatening telephone calls, his proselytisation activities and the risk of being targeted by supporters of either the RSS and/or the Communist Party (Court Book 111.5). The Tribunal considered country information that Kerala is a haven of religious tolerance (Court Book 111.6). The Tribunal noted that the country information “does not support the applicant’s claim that the Communist party is actively seeking to destroy Christian churches and persecute Christians” (Court Book 111.7). The Tribunal observed that the newspaper articles submitted by the applicant following the Tribunal hearing do not provide specific examples of the RSS and the Communists attacking Christians and destroying Christian churches in Kerala during 2006 – 2008 (Court Book 111.10).

The Tribunal did not accept that the applicant and his family had a profile that would give rise to them receiving threatening phone calls as a result of his religious activities (Court Book 112.2). The Tribunal was free to not accept that evidence Lee (supra)

The Tribunal did not accept that receipt of such telephone calls indicate that the applicant is at an increased risk of serious harm in the future if he were to return to India (Court Book 112.3). Lee (supra)

The Tribunal did not accept that the stoning of the applicant’s house was related to his religious beliefs and practices (Court Book 112.6) or that the alleged failure of the police to investigate the incidents are indicative of the government’s general attitude towards Christians in Kerala (Court Book 112.7). Lee (supra)

The Tribunal continued with its considerations (Court Book 112 – 120) and concluded that on the basis of the country information before it, it did not accept that the applicant faces a real chance of persecution as a Christian in the Indian State of Kerala, now or in the reasonably foreseeable future from either the State authorities or non-state agents (Court Book 120.9). The Tribunal then considered the claims based on particular social groups (Court Book 120.10) and did not accept them for the reasons given (Court Book 121.8). Lee Supra. The Tribunal continued its considerations and concluded that “the applicant does not face a real chance of persecution, or serious harm, in the reasonable foreseeable future for Convention reasons if he were to return to India” (Court Book 123.6).

The Tribunal therefore gave the issue of possible future harm very extensive consideration. That claim is dismissed.

24. The applicant claims then that the Tribunal failed to carry out the “real chance test.” For the reasons set out above the Tribunal did carry out that test. That claim is dismissed.
25. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
26. All grounds in the applicant and amended application are dismissed.

I certify that the preceding 26Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-sixtwenty-six (26) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Erin Firns

Date: 7 December 2009