Prospects of Success?
35 Also relevant to the exercise of the discretion to grant or refuse leave to appeal is an assessment of the prospects of success on appeal shouldleave be granted.
36 The Appellants' claims for refugee status seem to have their origins in a claim that the husband uncovered a fraud said to have been committed by a customer of his employer. Claims were thereafter made that the person accused of the fraud proceeded to make threats against the First Appellant.
37 These claims were rejected by the Tribunal. The Tribunal made adverse findings of credit against him.
38 In doing so, the Tribunal made findings of fact and expressed conclusions, including the following:
[63.] The Tribunal, having dismissed the applicant's claims to have been subject to threats and physical attacks, finds that he did not seek police assistance from any such harm. It therefore does not accept that the police refused, expressly or implicitly, to accept or act on such complaints. The applicant belongs to the sizeable Hindu community, supports the mainstream BJP, and had a successful professional career. The Tribunal finds nothing to suggest a real chance of the applicant requiring State protection from any Convention-related harm in the future, or to indicate that the authorities may fail to provide protection if the need were to arise.
[64.] In sum, the Tribunal finds the applicant's claims to lack credibility. It does not accept that he suffered any Convention-related persecution or lesser harm in India, but finds instead that he came to Australia, together with the applicant wife, for unrelated reasons. It finds there is no real chance of him facing persecution, as a Hindu, a BJP supporter or any other Convention-related reason. The Tribunal is therefore not satisfied that he has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to India.
39 Even if content is sought to be given to the Grounds of Appeal before this Court as set forth in the Notice of Appeal by reference to the "Grounds of Application" which were before the Federal Magistrate, the present proceeding has no greater prospects of success. With the deletion of the repetition of s 424A of the Migration Act 1958 (Cth), those "Grounds of Application" wereas follows (without alteration):
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:
…
It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the credibility problems in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue.
2. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the requirements of the Migration Act.
3 The Tribunal's decision was unjust and was made without taking into account the full gravity of applicants circumstances and the consequence of the claim.
4. 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.
5. The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 27 November 2009 was effected by actual bias constituting judicial error.
40 Concurrence is expressed with the reasons of the Federal Magistrate for concluding that "none of the … grounds have any, or any reasonable, prospects of success": [2010] FMCA 206 at [34].
41 In rejecting Ground 1, the Federal Magistrate concluded that matters had been put to the husband during the course of the Tribunal hearing and that no "undertaking" had been extended to allow further time in which to make submissions after the hearing. Further time had, in any event, been given. The Appellants had sought from the Tribunal an opportunity to provide "further material" within a month. That request was denied but "the Tribunal agreed to receive any further submissions within 2 weeks". It was this request and the response of the Tribunal which was understood by the Federal Magistrate to constitute the asserted "undertaking".
42 During the course of his oral submissions in this Court, the First Appellant identified the only "further material" that he wished to place before the Tribunal as a letter dated 10 August 2008. Given that the First Appellant was in Brisbane and the Court was sitting in Sydney, it was not physically possible to have the letter tendered and made available to either the Court or those appearing for the Respondent Minister. But the letter was read by the interpreter. It stated that the First Appellant had undergone dental treatment. The relevance of that treatment to the Appellants' case was that it had earlier been claimed that those who had attacked the First Appellant had "broken down [his] two teeth". That was the claim made in a letter dated 9 November 2009, being a letter sent to the Tribunal by the First Appellant andtaken into account by the Tribunal and the Federal Magistrate.
43 Notwithstanding the date of the 10 August 2008 letter, being a date prior to the Tribunal hearing, the First Appellant explained that he only received a copy of it when it was faxed on 8 February 2010. That was a date after the Tribunal hearing but before the decision of the Federal Magistrate.
44 But the 2008 letter, it is respectfully considered, takes the matter no further - even if it were admitted on appeal: Federal Court of Australia Act 1976 (Cth), s 27.
45 Although no real opportunity was extended to Counsel for the Respondent Minister to object to reference being made to the letter or to its contents being read to the Court during the First Appellant's oral submissions, Counsel quite properly took the course of addressing the fact of the letter and its contents on its merits. On its merits, Counsel submitted that the Tribunal's reasons record that it was prepared to accept the Appellant's claims as to dental work being undertaken but further submitted that any such claims were not material to the conclusion ultimately reached by the Tribunal. That submission is accepted.
46 Grounds 2, 3 and 4 of the Grounds of Application were rightly rejected by the Federal Magistrate on the basis that they "make bare assertions that do not disclose any error capable of review…".
47 Ground 5 was rejected by reason of there being an absence of any foundation for an allegation of bias. An allegation of bias or prejudice, it is well-established, must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69], 205 CLR 507 at 531. An unwillingness on the part of the Tribunal to believe the claims made, without more, does not establish bias or any lack of good faith: SZAXY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 76 at [9] per Wilcox J.
48 The argument as sought to be advanced before the Federal Magistrate was, apparently, an argument that "actual bias" had been made out by reason of the failure on the part of the Tribunal "to investigate applicants claim, specially the grounds of persecution, in India". There is certainly no basis upon which a claim to "actual bias" may be made. Nor is there any basis upon which a claim founded upon a reasonable apprehension of bias could be sustained. There is no general duty imposed upon the Tribunal "to investigate": Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, 83 ALJR 1123. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ there observed:
[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. [footnotes omitted]
See also: SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [7] and [30] to [32] per Bennett J; SZNYI v Minister for Immigration and Citizenship [2010] FCA 221 at [37] to [40] per Yates J. There has been no identification in the present proceeding of any particular inquiry that could have been undertaken, but was not undertaken - whether that inquiry be "obvious" or not; nor has there been any identification of what may have been found had an investigation been undertaken - whether the result of the inquiry be about "a critical fact" or not. Ground 5 was a ground without substance. See also: SZMKR v Minister for Immigration and Citizenship [2010] FCA 340 at [42] per Gray J.
49 In summarising the approach taken by the Tribunal, the Federal Magistrate observed that the Tribunal's findings were findings open to it on the evidence and that its findings on matters of credit were findings for the Tribunal alone: [2010] FMCA 206 at [32].
50 The Grounds of Application as advanced before the Federal Magistrate and the decision of both that Court and the Tribunal have been independently reviewed with a view to determining whether any reviewable error may be elsewhere discerned. No such error is apparent.