SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia|2006-10-19|Before: Allsop J

REASONS FOR JUDGMENT 1 This matter is an appeal from orders made by the Federal Magistrates Court on 19 December 2005 which dismissed with costs the application of the appellant for judicial review of a decision of the Refugee Review Tribunal (the "Tribunal") made on 14 September 2005 which affirmed a decision of a delegate of the Minister not to grant a protection visa. 2 At the hearing of the appeal, I heard argument of counsel as to each ground of appeal pressed by the appellant in a Further Amended Notice of Appeal that was filed in court on that day. A transcript of the Tribunal was tendered on appeal. The Minister took no objection to this course, which involved the raising of new arguments on appeal. The appeal was thus conducted almost without reference to the Federal Magistrate's reasons because of the new issues thus raised. 3 I dealt with each argument in turn, hearing both counsel fully on each issue, before moving on to the next issue. This enabled me to outline my views issue by issue on the day. I did not make orders on the day. I thought it better to bring all the reasons together, in an edited form, contemporaneously with the orders so that the parties would have a coherent body of reasons. These reasons reflect, in an edited form, my reasons given on 10 August 2006 as to the arguments pressed. This enabled me also to give further reflection to the arguments of counsel. 4 If I may respectfully say so, both counsel, (Ms Pepper who appeared for the applicant pursuant to a request under Order 80 of the Federal Court Rules and Mr Reilly who appeared for the Minister) assisted the Court with care, precision and despatch for which the Court is grateful. These reasons are written with that background and so do not set out the arguments at length. 5 The background to the application and the approach of the Tribunal are contained in the reasons for judgment of the Federal Magistrate at [2], [4] and [5] as follows: "The applicant is a national India who arrived in Australia on 8 December 1998 and applied for a protection visa with the first respondent´s Department on 4 May 2005. His application for a protection visa is reproduced at Court Book ('CB') 1 to CB 44, and in particular in a statutory declaration of 3 May 2005 at CB 32 to CB 34. The applicant was also represented by migration adviser throughout the period of the processing of his application for review before the Tribunal. The adviser made submissions on the applicant's behalf and these are reproduced at CB 71 to CB 76. The adviser also submitted independent information (reproduced at CB 77 to CB 236). Importantly, in his submission the adviser, on the applicant's behalf, repeats the key claims and information relating to the applicant's claims made in his application for a protection visa. In particular the information repeated relates to his fears from the Hindu majority in his home area due to his Muslim faith. He claimed on the applicant's behalf that many of the applicant's family members had been harmed by Hindus (CB 72.8) that he feared, as a Gujarati, if he were to return to India he would be persecuted for that reason. He also feared that if he returned to India he may be harmed because he applied for Australia's protection (CB 76.5). … In essence the applicant's claims before the Tribunal were that he feared persecution in India from: 1. Hindus 2. The police 3. The BJP State and Central governments 4. Hindu perpetrators of a 'violent incident in the 1994/95 riots', which he claimed to have witnessed at the hands of the perpetrators of the 2002 Gujarati riots The claims were based on the applicant's claims to be a: 1. Muslim 2. Gujarati 3. Member of a particular social group namely the Pathan (Bluchi) caste 'family' 4. Because he would be a 'witness' against those who carried out and/or he would investigate, the deaths of his family 5. Because he sought asylum in Australia The Tribunal's 'Findings and Reasons' are set out in its decision record at CB 356.3 to CB 361.6. The Tribunal found: 1. That it had grave concerns about the applicant's credibility as he had made new and serious claims (for the first time) during the Tribunal hearing, and that other claims were misleading or exaggerated, leading it to the view that many of these new claims were 'fabrications' to bolster his protection visa claims and/or made in response to information put to him during the hearing (CB 356.6). 2. The applicant's evidence at the hearing was 'disjointed and confused' and he gave a strong impression of 'improvising in his responses' (CB 356.7). 3. It did not accept the applicant's explanation for his failure to put key claims forward at the first opportunity and provided reasons for this. In particular it found that the 'new' claims were too central to his case to be forgotten even where he claimed to be under pressure or under time constraints (CB 356.9). 4. That this was especially so given the applicant is a very well educated man who has lived in Australia for six years and had been assisted throughout by an experienced registered migration agent from a well-established company and that there was ample opportunity in all the circumstances for the applicant's key claims to have been presented at any time prior to the hearing before the Tribunal (CB 356.9 to CB 357.1). 5. That it had some doubts about the applicant's claims relating to the death of family members, it was prepared to accept that the applicant's parents and his sister were killed during the February 2002 riots in Gujarat state (CB 357.3). 6. In relation to his claims of harm suffered by other family members, while the Tribunal considered the applicant's explanation for a key discrepancy put forward in written submissions (the facsimile put forward by the adviser) to be 'implausible', nonetheless the Tribunal did not make a finding adverse to the applicant on this point because it did not accept that these family members had been arrested and imprisoned in any event (CB 357.6). 7. That it did not accept that the applicant's brother in law was arrested and imprisoned and gave reasons for this (CB 357.7). 8. That it was prepared to accept the applicant's consistent claim that an uncle was detained in May 2000, but was not satisfied that, on the information before it, this gave rise to well founded fear of persecution by the police or the state or central government if the applicant were to return to India (CB 357.8). 9. It did not accept that the applicant had a well founded fear of persecution because he was a member of the Pathan family caste, and/or of a particular branch of that caste, and it gave reasons for this. It noted that the applicant made this important claim for the first time in oral evidence before the Tribunal, and there was no independent country information located by the Tribunal, or indeed submitted by the applicant, to suggest that such persons were blamed for the train attack that preceded the anti-Muslim riots, or that people with the name 'Pathan' have been targeted for anyone for any reason (CB 357.9). 10. It could not accept the applicant's claims put forward by his adviser in a submission of 1 July 2005 that the applicant's relatives had been threatened and illegally detained because they had become witnesses, and encouraged other witnesses to get 'justice for victims', and that the applicant would be similarly targeted. The Tribunal gave reasons for its rejection of this claim. In particular it noted that the applicant had done nothing about getting 'justice' for his family in the 2 ½ years since he heard about their fate in early 2003, did not know the circumstances of the deaths, or who was responsible, and that he did not even asked his surviving sister for documents and photos (CB 358.4). Further, in relation to a crime that the applicant claimed to have witnessed in 1994/95 the Tribunal was not satisfied that the applicant would come forward now to give evidence, assuming that the case was still open, given that he did not do so at the time and did not do so when requested by a victim's family 18 months after the incident. Further, although he claimed that he would do so now he has not done anything about this in the last six years, even from the safety of Australia (CB 358.5). 11. It could not accept, and rejected as speculative and without foundation, the applicant's claims that he may be of interest to the authorities for 'something to do with the 1994/95 riots or something else'. Further, the Tribunal noted that these incidents were well over a decade ago. The applicant did not claim to have been of interest to the authorities while he was in India up until 1998, and that he had been out of India since that time (CB 358.6). 12. It could not accept the applicant's new claim that an arrest warrant had been issued, or that he was wanted by authorities, or that he was of adverse interest to the Gujarat or Indian authorities for any reason. This claim, and the information relied on by the Tribunal, was the subject of the Tribunal's 's.424A notice'. The Tribunal considered the applicant's response to the matters raised in its notice, and rejected the submissions made on the applicant's behalf, with reasons given (CB 359.4). 13. It could not accept the applicant's adviser's assertion that because the Tribunal referred to independent material about the ease with which fraudulent documents could be obtained in India it had already decided that any warrant submitted by the applicant would be fraudulent. The Tribunal gave reasons for its rejection of this claim (CB 359.6). 14. It was not satisfied that the applicant's fear of persecution was because he was of Gujarati ethnicity or from Gujarat state, because there was no independent country information before the Tribunal, and none was submitted by the applicant or his adviser, to suggest that Gujaratis are persecuted by anyone for these reasons (CB 359.7). 15. Further, it was not satisfied that the applicant had a well founded fear of persecution for reason of his actual or imputed political opinion and/or his Muslim religion from the BJP and/or Hindu nationalist groups and it gave reasons for this (CB 359.9). 16. It was also not satisfied that the applicant, as a returned or returning asylum seeker, had a well founded fear of persecution within the meaning of the Convention and gave reasons for this (CB 360.1). 17. It was not satisfied with the applicant's claim to fear persecution because he is a Muslim. It found that this fear was not well founded, and gave reasons for this including reference to independent country information, and the applicant's own evidence about what had occurred to him in the past (CB 360.6). 18. Further in this regard that it was satisfied that it would be reasonable, in the applicant's circumstances, to relocate elsewhere in India if he feared persecution as a Muslim or a Gujarati or for any other reason on return to his home area (CB 360.7). 19. That it was not satisfied that the applicant's claimed problems from an ex-girlfriend's father were well founded within the meaning of the Convention if he returned to India, and gave reasons for this (CB 361.4). 20. Having considered all of the material before it that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention, and that therefore the applicant did not satisfy the criterion set out in s.36(2) of the Act for a protection visa (CB 361.7)." 6 The first group of issues related to the possible application of s 424A of the Migration Act 1958 (Cth).

s 424A - issue 1 - "new claims information" addressed in paragraph 12(a) of the appellant's written submissions 7 At pp 14-15 of its reasons, the Tribunal expressed the view that many of the new claims made by the applicant were fabrications, saying the following: "The Tribunal has very grave concerns about the Applicant's credibility as he made new and serious claims during the Tribunal hearing, and other claims were misleading or exaggerated, and the Tribunal is of the view that many of these new claims are fabrications to bolster his protection visa claims and/or were made in response to information put to him during the hearing; much of the Applicant's oral evidence was disjointed and confused and he gave the strong impression of improvising in his responses. The Applicant claimed that when he prepared the protection visa application he was under pressure and unable to present his claims in the best way possible, and that the application was prepared under time constraints, however the Tribunal does not accept these explanations because the Applicant assured the Tribunal at the start of the hearing, that he had no new or additional claims and no corrections to make to the claims made in the protection visa application (other than that he was not an unauthorised arrival), and because the new claims are too central to his case to be forgotten because he was under pressure or under time constraints; this is especially so given that the Applicant is a very well-educated man who has lived in Australia for over six years, and he has been assisted throughout by an experienced registered migration agent from a well-established company, and new claims could have been presented to the Department in the ten days after the protection visa application was lodged and before it was decided, or to the Tribunal after review was sought on 19 May 2005." 8 At the hearing, the Tribunal asked the applicant to check the accuracy of his application to the Department. He did so and verified its accuracy. Yet new claims came out at the hearing. The expression of view by the Tribunal in the above passage clearly expressed importance to the comparison between what was being said at the hearing and what had been put in the application form at a time when the applicant was not under pressure or time constraints. Given that approach, subject to what might be referred to as the "resubmission of information argument", I think that it was necessary to put the relevant aspects of the inconsistent information to the appellant. However, a letter was sent to the appellant in purported compliance with s 424A of the Migration Act 1958 (Cth) (the "Act") dealing with the essence of the new claim. Its form was as follows: "The Tribunal has information that would subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information is as follows: At the Tribunal hearing you claimed that an arrest warrant had been issued for you and that you are wanted by the authorities. However, as the Tribunal noted during the hearing, this had not been claimed in the protection visa application. Furthermore, in that protection visa application you did not respond to the questions (Part C, Schedule A) about being the subject of criminal investigations, or having criminal charges pending (copy attached), and in response to Question 6 (Part B), copy attached, you denied having been charged with any offence currently awaiting legal action. Also in a separate statutory declaration dated 3 May 2005 (copy attached) you stated inter alia "I have not been charged with any offence that is incomplete or awaiting legal action, nor am I aware of any investigation into my affairs that has the potential to lead to such charges". This information is relevant because it gives rise to serious concerns about your credibility. You are invited to comment on this information your comments are to be in writing and in English. They are to be received at the Tribunal by 2 August 2005." 9 Without setting out all the parts of the transcript of the hearing at which the new material was set out, I am of the view that this letter sufficiently summarised it for the purposes of s 424A(1). 10 This conclusion makes it unnecessary to explore the effect of the re-verification of the contents of the application. It should be said in this regard, however, that the appellant's advisers resubmitted in its entirety his original statutory declaration with the papers sent to the Tribunal.

s 424A - issue 2 - "the delegate information" addressed in paragraph 12(b) of the appellant's written submissions 11 In its reasons for decision at pages 5-6 the Tribunal refers to the terms of the delegate's decision. No aspect, however, of the delegate's reasons appear to form part of the reasoning process of the Tribunal. Looking at the reasons of the Tribunal as a whole. I conclude that it cannot be said that any aspect of the reasons of the Tribunal would be or were the reason or part of the reason for affirming the decision. 12 I am not persuaded that the references to the delegate's reasons played any part whatsoever in the reason for the decision or what would be the reason for the decision. In my view, they reflect what is otherwise textually the careful setting out of the history of the matter. No reference to the delegate's decision is made in the reasons for the decision and I'm not persuaded that, in substance, it played any part. That ground of the appeal fails.

s 424A - issue 3 - "the absence of country information issue" addressed in paragraph 12(e) of the appellant's written submissions 13 The Tribunal relied on the absence of independent country information to reject the appellant's fear of persecution because he was of Gujarat ethnicity or from the Gujarat State or because he is a member of a Pathan family caste. The knowledge of absence of country information was said to be "information" not caught by s 424(3)(a). 14 On p 17 of its reasons the Tribunal stated: "The Applicant claimed to fear persecution because he is of Gujarat ethnicity or from Gujarat state, however the Tribunal is not satisfied that the Applicant's fear of persecution is well-founded. This is because there is no independent country information before the Tribunal and none was submitted by the Applicant or his adviser to suggest that Gujaratis are persecuted by anyone for these reasons." 15 I reject this submission. The conclusion here reached by the Tribunal is one about the state of country information. As such, it is encompassed by s 424A(3)(a): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572, WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.

s 424A issue 4 - "the asylum seeker information" addressed in paragraph 12(f) of the appellant's written submissions 16 In its reasons the Tribunal stated: "In relation to his claim, not repeated at the hearing, to fear harm on return because he sought asylum, the Tribunal explained that the Department and the Tribunal keep protection visa applications confidential and anyway, it has never seen any independent country information to suggest that the Indian authorities know or care if people applied for asylum, and certainly nothing to suggest that people were harmed for that reason on return. The Applicant replied that he heard from two asylum seekers who had returned to Gujarat that police beat them and accused them of saying things about India, and one was kept for two days." 17 To the extent that the argument was based on the absence of country information the argument fails for the same reason as "s 424A issue 3" above. Indeed, all the material in this paragraph if it be assumed to be part of the reason falls within s 424A(3)(a). 18 Also, insofar as the Tribunal referred in its reasons before the section entitled Findings and Reasons, that is at page 350.3, to the procedure of the Department to keep protection visa applications confidential, I am not persuaded that that played any part in the reasons.

s 424A issue 5 - "the relocation issue" addressed at paragraph 12 (g) of the appellant's written submissions 19 The Tribunal relied on information concerning the applicant's age, level of education, employment history and the visa permitting him to enter Australia in finding that he could relocate to avoid any harm. The Tribunal said the following at pp 18-19 of its reasons. "The Applicant is a very well educated young man, he is single, speaks, reads and writes Hindi and Urdu as well as English and Gujrati, and he has a range of work and business experience. He was able to come to Australia at the age of 21 and to manage, without relatives in Australia to assist him, with some success here for a number of years. It was submitted by the adviser that the Applicant would not relocate because he would want to seek justice for Muslims against Hindu violence; the Applicant's claim is that he would seek justice for his family. However, as the Tribunal explained above, it does not accept this. The adviser submitted that POTA (anti-terrorism laws) apply throughout India and that this 'repealed' law also targeted Muslims, so relocation is not available to the Applicant. The Tribunal rejects this as a reason the Applicant cannot reasonably relocate as, for reasons already addressed, the Tribunal is not satisfied that the Applicant is of adverse interest to the authorities for any reason. The Tribunal is satisfied that it is reasonable in the Applicant's circumstances to relocate within India if he fears persecution in his home area." 20 However, it is plain from the text of the transcript that all this information was given to the Tribunal by the appellant at the hearing. There was no importance placed on this information as having been placed in an earlier document. All the Tribunal was doing was using certain factual information in its reasons about relocation. I am satisfied that all this factual information was given by the applicant at the hearing for the purpose of the application. Therefore s 424A(3)(b) applies.

s 424A issue 6 - "the residence information" addressed in paragraph 12(h) of the appellant's written submissions 21 The Tribunal had regard to information which was in the protection visa application concerning the appellant's residence in Gujarat. 22 After some considerable debate about the material see pages 25 and 33 of the Transcript of the appeal, I reached the view that all these matters were provided orally to the Tribunal at the hearing. 23 I remain of that view. 24 There was some discussion at the hearing about whether anything said by the Full Court, including myself, in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 was inconsistent with anything said by Heerey J in VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851. I do not think it appropriate or necessary for this case to enter an exegesis or gloss on other cases. If the Tribunal, as here, puts an earlier statement or application to the applicant and asks questions about it, it does not seem to me capable of being denied that the answers given to those questions will be information for the purposes of s 424A(3)(b). If the Tribunal then takes that information, that is, for want of a better expression, that raw information or data into account, nothing would prevent the operation of s 424A(3)(b). If, however, the importance placed by the Tribunal on the information previously given to the Department (which may have been repeated in answers to the Tribunal) is not merely the facts disclosed, but arises from the context or circumstances of it being given earlier, then s 424A(3)(b) may not prevent the requirement of a notice under s 424A(1) and (2). For instance, if the Tribunal says: he said X + Y at the hearing, but with the aid of a lawyer or migration agent, under no pressure and closer to the events he only said X in his statement, this being a consideration as to why Y is not accepted, then the fact that at the hearing the applicant stated that the content of his earlier statement was true may not prevent an obligation under s 424A(1) and (2) arising. The information is the knowledge by the Tribunal of the earlier statement being created in the form it was in circumstances of having a migration agent, under no pressure and closer to the time of the events. On the other hand, if fact Y as a raw fact is the relevant information it can be seen to have been given at the hearing. The question is, what is the information. In other words, if facts are given to the Tribunal in answers, they are information falling within s 424A(3)(b). That section is not limited to volunteered or unprompted information. 25 Here, the raw information in the protection visa application is given to the Tribunal for the purpose of the application by the evidence at the Tribunal. All that the Tribunal was doing on page 19 of its reasons was using that raw information as a factual base. It then drew some conclusions from that in the context of the totality of the other material before it. 26 Section 424A was not contravened.

The asserted constructive failure to exercise jurisdiction 27 The appellant submitted that the Tribunal, though dealing with the appellant's claims based on his Gujarati ethnicity and Muslim faith, did not deal with his claim for persecution as a Gujarati Muslim. 28 In my view, though brief, the Tribunal can be seen to deal with the various alternative ways that the appellant put his claims. Particular reliance is placed on an asserted failure by the Tribunal to deal with his claim for persecution as a Gujurati Muslim distinct from Gujurati ethnicity and his Muslim faith. 29 In my view the submissions of the respondent as set out in Mr Reilly's written submissions are correct. I do not think that from reading the Tribunal's reasons one can say there has been a failure to deal with the claim. In particular when one looks to pages 17 and 18 of the Tribunal's reasons one sees that the Tribunal has, in my view, considered the position of the appellant as a Gujurati Muslim.

Jurisdictional error regarding the claim for persecution by reasons of membership of 'Pathan' social group 30 Here an error was made as disclosed by the Federal Magistrate as discussed in [20] of his reasons as follows: "In relation to one matter, it appears the Tribunal may have made a factual error. This was in relation to the Tribunal's reference in its decision record at CB 357.9 to people with the name 'Pathan' from the Pathan caste. In particular its statement that there were no 'Pathans' in the list of those killed, missing or made widows or orphans by the riots. The applicant pointed to CB 279, and noted that this was a list of missing persons during communal riots. Three names contain either the descriptor, or the name 'Pathan'. Mr. Reilly for the respondents relied on the authority of Abebe v The Commonwealth(1999) 197 CLR 510 ('Abebe') for the proposition that there is no error of law let alone a jurisdictional error in the Tribunal making a wrong finding of fact. I accept that submission. There is nothing to show that this factual error caused the Tribunal to ask itself the wrong question. In NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCAFC 37 at [66], Nicholson J. states: 'In Minister for Immigration & Multicultural & Indigenous Affairs v SGLB[2004] HCA 32 at [38] Gummow and Hayne JJ (with whom Gleeson CJ agreed) said: `The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 67[37], 71 [52], 98 [173]; 73 ALD 1 at 9, 13, 40; 77 ALJR 1165 at 1172 [37], 1175 [52], 1194 [173]; cf at ALR 62 [9]; ALD 4; ALJR 1168 [9]). If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act . However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.´ InNABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)[2004] FCAFC 263 the Full Court, Black CJ, French and Selway JJ.) recognised that: '… an error of fact in the course of a decision is likely to be a jurisdictional error where the fact is a jurisdictional fact.'" 31 This, in my view, is the hardest and most difficult argument in the appeal. It is one that is not easy to resolve. It involves the difference between the asserted failure of a Tribunal to attend to the jurisdictional task and making an error of a factual character within jurisdiction. 32 The High Court has on a number of occasions been at pains to point out that jurisdictional error should not be analysed by positing the related, but different taxonomy of fact and law. The question of the existence of jurisdictional error is not to be answered by posing this different question and answering it. What may be a factual error may in fact mask a jurisdictional error. For instance, if factual errors are made because incorrect questions are being asked the fact that the symptom of the problem is a factual error will not gainsay the proposition that there has been a failure to attend to the jurisdictional task. 33 More difficult is the question of the execution of the jurisdictional task. In the case of NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 in the Full Court, the Court was dealing with, what was on the facts of the case a failed attempt to exercise jurisdiction. Within that context, the court was not willing to conclude that when the Tribunal said certain documents showed something that the Tribunal had really turned its mind to even considering the documents given that the statements about the contents of the documents were so unconnected with reality. That was a case where the difference between making a mistake about what a document said and simply not attending to the task of considering the material put forward was found. The difference between those two matters was recognised and the conclusion was that the Tribunal had not looked at the documents in a way that fulfilled its jurisdictional task. 34 In this case there was put before the Tribunal a document which was otherwise accurately described by the Tribunal at page 15 of its reasons as the Lunawada Relief Camp booklet which the applicant submitted contained a record of Pathans who had been killed, made missing or made widows or orphaned by the riots which were under discussion in the Tribunal hearing. 35 Indeed, at page 48 and 49 of the transcript, when the Tribunal was being taken through the document by the appellant, the Tribunal was taken to particular references and told that these three entries - seven, eight and nine - were relatives of the appellant. When one goes to that document and, in particular, entries seven, eight and nine, which are at page 279 in the court book, one sees that under the heading Name of the killed persons, there are words as follows: "… 07 Pathan [name] 28 Kidiyad 08 Pathan [name] 6 Kidiyad 09 Pathan [name] 1 Kidiyad …" These were the names of persons killed. 36 The Tribunal said the following at pp 15-16 of the reasons: "The Tribunal does not accept that the Applicant has a well-founded fear of persecution because he is a member of the Pathan family/caste and/or of a particular branch of that caste. This is because the Applicant made this claim for the first time in oral evidence and because there is no independent country information located by the Tribunal or submitted by the Applicant to suggest that persons from the Pathan caste are blamed for the train attack that preceded the anti-Muslim riots or that people with the name Pathan, a common name according to the Applicant, have been or are being targeted by anyone for any reason; for example, in the Lunawada Relief Camp booklet the Applicant submitted, there are not Pathans in the lists of those killed, missing or made widows or orphans by the riots. … The Applicant claimed to fear persecution because he is of Gujarat ethnicity or from Gujarat state, however, the Tribunal is not satisfied that the Applicant's fear of persecution is well-founded. This is because there is no independent country information before the Tribunal and none was submitted by the Applicant or his adviser to suggest that Gujaratis are persecuted by anyone of these reasons." 37 The document to which the applicant had taken the Tribunal, was seven or eight pages long with a list of over 110 names. The document is not difficult to read in the sense of the quality of its print. Mr Reilly, on behalf of the Minister, put the submission that at its height, what this revealed was that there had been an error of fact within jurisdiction. Mr Reilly, in particular, relied upon the decision of the Full Court of this court comprised of Black CJ, French J and Selway J in NABE v The Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, in particular, at [31], [52] to [54] and [68]. Given the importance of this issue for the resolution of the appellant's claim, I set out the whole of those paragraphs in these reasons "His Honour referred to the passage from the decision record of the delegate dated 9 August 2001 in which the delegate referred to the appellant's claim that he had been arrested by PLOTE people and detained and tortured during interrogation by the PLOTE. His Honour said: This statement in the delegate's decision clearly indicates that the applicant's claim was not detention and torture by the authorities, but by PLOTE. It was the decision of the delegate that was the subject of the review by the RRT and this statement as to the nature of the claim was before the RRT when considering the decision. Other material before the RRT did not specify clearly who detained and tortured the applicant. On the material I have referred to, other statements by the applicant and the relevant part of the transcript of the hearing before the RRT which was tendered in evidence, I am satisfied that there was an error by the RRT which could have affected the outcome because it bears directly on the question whether there were grounds, based on past persecution, for the applicant believing there is a real risk of persecution if returned. (Emphasis in original.) … The question that arises in the present case is whether and to what extent a factual error on the part of the Tribunal may evidence or constitute a failure to carry out its review function or otherwise amount to a failure of jurisdiction amenable to the writ of certiorari and/or mandamus and prohibition. It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact: Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error. Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 [75 ALJR 542] at [35] per McHugh J. The question was further discussed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165. McHugh and Gummow JJ, with whom Callinan J agreed, rejected a submission by the Minister that the presence of an error of law was essential for a finding of jurisdictional error to support the grant of relief under s 75(v) of the Constitution. They said (at [54]): The introduction into this realm of discourse of a distinction between errors of fact and law, to supplant or exhaust the field of reference of jurisdictional error, is not to be supported. Error of law may occur within jurisdiction: S20/2002 at [57]. The line drawn between factual and legal matters may vary according to the purposes it serves: at [58]. Their Honours cautioned against importing into s 75(v) wider approaches to the consideration of factual errors derived from statutory jurisdictions providing for appeals on questions of law or systems of judicial review. Examples of such jurisdictions are the jurisdiction conferred on the Federal Court by s 44 of the Administrative Appeals Tribunal Act 1975(Cth) to hear appeals from AAT decisions on questions of law and that conferred on the Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth). The observations in the joint judgment in S20/2002 did not offer any clear guidance upon the circumstances in which factual error may amount to jurisdictional error for the purposes of the exercise by the High Court of its constitutional jurisdiction under s 75(v) or the exercise by this Court of its analogous statutory jurisdiction under s 39B of the Judiciary Act. The comments did, however, indicate that, absent a question of jurisdictional fact, which in itself may be a matter of some complexity involving questions of fact and law, the circumstances in which factual error will amount to or evidence jurisdictional error are likely to be quite limited." 38 The Tribunal here did not fail to address claims of the appellant. Rather, in my view there has been revealed what I am prepared to conclude for the purposes of argument is an error of a not insignificant character in the assessing of the material. It is not a question of failure to deal with the claim. It is, to put it neutrally, a question of failing to form the correct conclusion in relation to material that was placed before the Tribunal. 39 It seems to me, without intending to qualify in any way the words of the Full Court in NABE, that what must be identified is that from the character and quality of the error, together with any other relevant circumstances, it can be concluded by the court on review, that notwithstanding the reference to the document for some reasons, whether deliberate or unintentional, the Tribunal has not in fact finished its jurisdictional task by considering the document. 40 Multiple examples could be given and perhaps it does not assist to do so; but if a Tribunal in its reasons said that it had looked at document X and it was of no assistance because it was a blank sheet of paper apart from the heading, it might be said to be more than a factual error if in fact the document which was before the Tribunal had cogent and compelling material in relation to the applicant's claims. One might be able to conclude that the only conclusion that can rationally be drawn is that in the Tribunal, in saying that it had considered a document, had not in fact considered that document. Whether or not that was deliberate would not matter. It might then be able to be said that the Tribunal had not completed its task because it simply had not broached the task of examining material that the applicant had put forward for its consideration. Though not without some hesitation, I have come to the view that in this case the quality of the error is such that the explanation for the error may be misreading or a lack of precise attention to the detail that the document exhibited but that, in my view, is no more than saying that, within jurisdiction, an error, though a serious one, was committed. 41 Jurisdictional error is not serious factual error; it is failure to attend to the statutorily mandated task. I appreciate that the appellant may see a certain harshness in this conclusion. However, this is not an appeal on questions of findings of fact. The distinction that I have attempted to illuminate is more easily stated than applied and the conclusion I have come to is that the quality of the error as it appears to be by the Tribunal set against the background of the totality of the reasons does not lead me to conclude that the relevant document was not examined. If I had come to that conclusion I would draw the conclusion of a failure to complete the jurisdictional task. 42 In those circumstances, I am not prepared to conclude that there was jurisdictional error. May I conclude with saying that in relation to this kind of question, the line between jurisdictional error and errors of fact is not pellucid and may conceivably be advantaged by consideration by others.

Relocation 43 The essence of the claim in relation to relocation was that the appellant said that various matters concerning the personal attributes and circumstances of the appellant were not considered by the Tribunal in its consideration of relocation. For the reasons set out by Mr Reilly in submissions, I do not think that that is sustainable. The Tribunal, in the early part of its reasons, made clear that it had before it all the relevant personal characteristics and attributes of the appellant. In my view, reading the decision as a whole, it cannot be said that there was any failure in accordance with cases such as NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 and Randhawa v Mnister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437in failure to consider the issue of relocation.

Bias 44 The final question was raised in the further amended notice of appeal today and supported by fresh evidence on appeal. No objection was made by the Minister to this expansion of the appeal. The question of bias is dealt with in the additional submissions of counsel for the appellant which were sent by facsimile to my chambers. The claim for bias is put on both actual and apparent grounds. The governing principles are to be recalled and I refer in that respect for a convenient summary, at least for me, NADH of 2001 v The Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264in paragraph 10 and onwards. At paragraph 14 I attempted to distil, relevantly, the principle. No error in this expression of a principle was argued by the counsel. The general test for apprehended bias is whether the relevant circumstances are such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not bring or have brought an impartial mind to bear on the decision. 45 The substance of the accusation of bias flows from the treatment by the Tribunal of the appellant's statement during the course of evidence when propounding his new claim about the existence of a warrant for his arrest, that he could obtain documentary evidence of this from India. The relevant passages at pages 45 and 46 in the transcript as follows: "TM: Okay I'll think about that some more, about your answers but it seems to me that given the many millions of Muslims in Gujrat given that you've not been there when all the troubles have been on, I just find it very difficult to, and given the small numbers relatively that have been detained and been detained for lengthy periods, I just still have great difficulty believing that you would be of any interest to the authorities either in Gujrat or anywhere else but you know and that's why I think elsewhere because I really don't, I really have difficulty believing that the authorities have a warrant out for you, or that they're looking for you. I just, I have difficulty with that and it is only fair that I let you know that I have difficulty with that. Do you understand? Applicant: yes I understand that but if your Honour, I want to say that if you give me some time --- TM: Sorry, sorry? Applicant: If you want evidence that's why they're looking for me now, I can bring the evidence but I needed some time to get the evidence. TM: What sort of evidence? Applicant: The why the, they got a warrant for me to why they're looking for me, the Police have got a warrant, I don't know how they got a warrant because I'm here, that's why I'm scared to go because why they're looking for [inaudible] because I'm here since '98 of December and that's why I'm worried and I've been just study and help my brother in business, small business things like that, I've never been involved you know, do, go bash someone or do this thing, I wouldn't, I was always with my studies and things like that. TM: And if, even if there was a warrant and it's very easy in India to obtain documents that are not genuine, or genuine documents that have false information in them. Applicant: Yes, that's true but --- TM: You know, that is of questionable value Applicant: Yes Your Honour." 46 It should be noted that at the Tribunal hearing the appellant was represented by a solicitor. 47 It was submitted to me that what appears at page 46 amounted to a statement by the Tribunal that there was simply no point in attempting to bring evidence from India as it would be flawed. I do not think that that is what Tribunal was saying. Nor do I think that a reasonable bystander would have assumed that. The legal adviser took up the issue later in the day and said the following in what was in effect final address: "…and the only other thing is I mean there's no way, it seems, for him to satisfy you about the Police incident, he's offered to provide the warrant and you have countered that with the prevailing of fake documents in India so I guess it's a little bit caught between a rock and a hard place if his words not accepted, the provision of the warrant is not accepted so I don't know how he's able to satisfy you and as to whether it was mentioned in the statement or not, in terms of these statements we're provided 5 days with him, to by the time we get this referred, referred these [inaudible] cases to the time we lodged them and there are some time constraints but at the end of the day in paragraph 19 of his stat. dec he does say that if he, that his sister told him that if he returned to Gujrat they will certainly jail him too. So that I guess in a way is not so different from the authorities being after him that's all I wanted to say really." 48 All the Tribunal Member said in answer to this was the following: "Okay. I'll have a think about all of that some more. How much, when would be able to get back to us in writing if there was anything you wanted to say in relation to these paper articles and other bits." 49 No application was made at that point in relation to the Tribunal's position. What then occurred was a letter was sent to the Tribunal by the lawyer, relevantly in the following terms: "4. Warrant At the Hearing the Applicant noted that the authorities had issued a warrant for his arrest. In this regard the Member indicated that she did not believe the applicant. Thereafter, the Applicant offered to provide obtain a copy of the warrant from India and provide the same to the RRT. In this regard, the Member basically advised the Applicant that even if he were to provide the RRT with a copy of the warrant - the ease with which fraudulent documents can be obtained from India - would lead the Member to disregard/dismiss the veracity of that piece of evidence. Please provide us with a copy of the objective evidence on which the Member relies in stating that it is easy to obtain fraudulent documents from India. In the alternative please advise if the Member is now willing to receive a copy of that warrant and objectively consider the same.

We hope that the above/attached assists in the decision making process." 50 For my part I think the statements of the lawyer were put too highly. However, if that was what the lawyer thought, one would perhaps have expected, and the Tribunal could have expected, either an application to be made or an application to put the material to the Tribunal to be pressed. What was done was an alternative given to the Tribunal: provide the basis of, in effect, country information about document fraud in India, or advise if the member was now willing to receive a copy of the warrant and objectively consider the same. The Tribunal, shortly thereafter, sent a letter to the solicitor in the following terms: "The Member reviewing your case has asked me to advise you as follows. As requested by your adviser, and in case the Tribunal relies on this evidence, enclosed is an extract of the relevant part of a UK Home Office report on India indicating that fraudulent documents can be easily obtained. In addition, if you want the Tribunal to consider the letter from your sister (your fax of 29 June 2005 to the adviser refers) the Tribunal will need to receive the original of the letter, and a translation by a qualified translator by close of business 2 August 2005." 51 Thereafter, no further application was made by the solicitors acting on behalf of the appellant and no attempt was made to forward further documentation or other evidence from India. 52 In its defence, if I may use that expression, in the reasons that it gave, the Tribunal said the following: "The adviser implied that because the Tribunal referred to independent material about the ease with which fraudulent documents can be obtained in India, it had already decided that any warrant submitted by the Applicant would be fraudulent. The Tribunal rejects this suggestion as its purpose was to put the Applicant on notice that any such document would have to be assessed by the Tribunal in the light of that information, and in the light of other evidence before it about the issue of being wanted. Obviously, all documents from India are not fraudulent, nor did the Tribunal suggest this, especially given that it had accepted for consideration, the submission of photographs, Indian newspaper clippings, and other material such as the Relief Camp booklet and curfew certificate, and indicated its willingness to consider a recent letter (and translation) for the Applicant's sister." 53 The question of actual bias is in part to be understood by reference to what the Tribunal said. I am not prepared to find on the evidence before me, in the face of what the Tribunal has said, that there is any ground to conclude that the Tribunal was in fact biased in the sense that it had in fact closed its mind. Such a finding would be to reject as untruthful what appears on page 17 of its reasons and I am simply not prepared to entertain that submission in the light of the material as a whole. That, however, does not deal with apprehended bias and apprehended bias, as NADH shows, may be properly assessed at the time of the action or conduct in question or when the decision has been handed down. NADH was a case where the apprehended bias was illuminated ultimately, and completely, by the way the Tribunal dealt with the claims and the reasons in the light of what had happened. 54 Here, while the legal adviser was prepared to assert that what had happened put him "between a rock and a hard place". But he was not prepared to say to the Tribunal that it should disqualify itself and this matter should be re-heard. The letter was somewhat more plain, but it, too, did not squarely say to the Tribunal that it should not hear the matter any further. 55 I think everything goes back to assessing what occurred in the Tribunal hearing as reflected on pages 45 and 46 of the transcript. I simply do not agree with Mr Varess that the Tribunal expressed any view that it would not deal with any information that was brought forward. I think what was said is plainly able to be understood as the Tribunal says it was intended. I do not have the tapes. I have not heard the tone of voice, but I am not prepared to conclude that apprehended bias has been disclosed. For those reasons I would dismiss the appeal in relation to the bias claim both actual and apprehended.

An additional consideration 56 As I indicated at the hearing in my view, the factual mistake issue and whether or not it is a jurisdictional error is a question of judgment to be assessed in the way that I have identified. Given that there does appear to have been a serious factual mistake made in relation to material put before the Tribunal, the case would not be one that was inappropriate in my view for the Minister through the Department to consider the potential ramifications of that mistake. I will not say any more, but the mistake seems to be a serious one, although not jurisdictional. 57 The appeal should be dismissed with costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 19 October 2006 Counsel for the Appellant: Ms R Pepper

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