WZANE v Minister for Immigration & Anor [2008] FMCA 1520

1. On 25 July 2008 the applicant filed an affidavit in support of the application.[8] The content of the affidavit was brief and essentially argumentative. It was in the following terms:
   • "1. The Deligate of the Minister For Immigration and Citizenship Refused to grant my Protection Vissa. I applied for Review in RRT. But Tribunal Members Affirme the deligate decision.
   • 2. The Tribunal Exceeded is Jurisdictional or Constructively Failed to exercise its Juridiction or denied my Procedural Fairness in the Tribunal fail to investigate my Genuine claim with the requirement of Migration Act.
   • 3. I appeal to Federal Magistrate to Consider my Application on the above Ground. The RRT asked to me the evidence. I sent all evidence to RRT (Solid evidence)
     • 1. News papper Cutting with photo.
     • 2. Medical Certificate from the Hospital
     • 3. FIR from the Police (Kerala Police)
     • The RRT did not study my case."[9]
2. The somewhat convoluted second paragraph of the Applicant's First Affidavit appears to allege jurisdictional error by reason of:
   1. a denial of procedural fairness; and
   2. a failure to investigate the applicant's claim or claims, as required by the Migration Act.

1. The issue which requires determination is whether the Tribunal committed jurisdictional error, on the grounds alleged by the applicant, which the Court, doing the best it can to distil the grounds from the material before it, considers to be:

1. failure to take into account integers central to the applicant's claim; 2. failure to exercise its review function;

1. a failure to investigate the applicant's claim.[10]

1. The applicant is an Indian national.[11] He arrived in Australia on 11 May 2007.[12] The applicant arrived in Australia holding a subclass 420 (entertainment) visa.[13] The entertainment visa was seemingly granted to the applicant based on documentation alleging he was an associate director for a film to be made in Australia, and that he had 8 years experience as a film maker and an agreement to employ him as an associate director.[14] At the hearing before the Tribunal the applicant admitted that these documents were false, that he had never been employed in the film industry and that the documentation had been prepared by his travel agent.[15]
2. On 14 May 2007, three days after the applicant's arrival in Australia on an entertainment visa, he applied for a protection (class XA) visa.[16]

1. In the applicant's protection visa application, and more particularly a hand written statement attached to that protection visa application,[17] the applicant claims:

1. that he is a Hindu;[18] 2. that since 2002 he has been actively involved with Hindu movements;[19]

1. he became a member of and interested in various Hindu organisations, including Rastriya Swayam Sevak Sangh,[20] Baj Rang Dal and Vishwa Hindu Parishad and closely associated with them;[21]

1. he was deputed by RSSS to disrupt a miracle crusade being held by the Indian Pentecost Mission in his locality;[22] 2. that following several heated discussions with a Reverend (whom it can be implied was with the Indian Pentecost Mission), and in which the applicant's questions were politely answered, he started to slowly disassociate himself from RSSS and decided to work with the Indian Pentecost Mission;[23] 3. RSSS workers were angered by his deciding to work for the Indian Pentecost Mission;[24] 4. RSSS workers turned against him and physically attacked him on several occasions and issued threats against him and his family;[25] 5. that he made several complaints to the police about RSSS workers' attacks and threats, but the police failed to take any action against members of RSSS;[26] 6. that on 14 September 2006, returning from an Indian Pentecost Mission meeting, he was brutally attacked by members of RSSS, suffered serious injuries, was rushed to hospital for treatment and was "bedridden" for a month;[27] 7. that after the 14 September 2006 incident he was still hounded by members of RSSS and the police failed to take any action against, and are working with, RSSS;[28] and 8. he "reasonably" believed that his life would be in danger if he remained in India.[29]
2. Seemingly attached to the protection visa application was the applicant's discharge summary in-patient record from the Medical College Hospital, Thiruvanthapuram.[30] The discharge summary showed that the applicant was admitted on 14 September 2006 and discharged two days later. On examination the notes indicate that the applicant presented as a result of an "Alleged Assault by a group of persons ... near Parippally", and that he had pain and swelling in his left shoulder, active movement was not possible and that an x-ray showed a "Fracture dislocation" to part of the left shoulder. A provisional diagnosis of a fracture in the left shoulder was made. On 24 September 2006 the applicant presented to the hospital for restrapping.[31]

1. The delegate refused the protection visa application on 29 June 2007.[32]

1. On 27 July 2007 the applicant sought review of the delegate's decision in the Tribunal.[33] The applicant was invited to attend a hearing on 4 October 2007.[34]
2. On 6 June 2008 the Tribunal affirmed the delegate's decision to refuse to grant a protection visa to the applicant.[35]
3. The issue identified in the Tribunal Decision was whether under s.65 of the Migration Act the decision-maker was satisfied that the prescribed criteria for the grant of a visa had been satisfied.[36] The Tribunal referred to the relevant criterion under s.36(2) of the Migration Act for the grant of a class XA protection visa as being whether the Minister (the first respondent) was satisfied that Australia had protection obligations towards the applicant, and the further criteria for the grant of a protection visa as set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994 (Cth).[37] The Tribunal identified the relevant elements of the Convention definition of "refugee",[38] and considered the question of whether there was a well founded fear of persecution. [39]
4. At the Tribunal hearing some additional relevant facts emerged, as follows:

1. the applicant was born into a traditional Hindu family and that he and his wife and his three year old son lived together with his parents;[40] 2. he recalled being attacked by persons he says were members of RSSS, seemingly in about May 2005, whilst returning from a meeting of the Indian Pentecost Mission on his bicycle, but that he received no injuries in the attack, and was able to ride his bicycle home notwithstanding some slight damage to his bicycle;[41]

1. after the bicycle attack incident he moved to another province about 1000 kilometres from his home where he had no trouble with RSSS, and whilst he was away there were no threats by any Hindu groups to his parents, wife or child, his wife and child having stayed at home;[42]

1. that the attack on 14 September 2006 was carried out by about 10 to 15 people and that those people "attack[ed] them with timber pieces that they used to hit them, he described these weapons as something used for mortar, scaffolding or concreting.";[43] 2. on 25 September 2006 he made an application for a visa, which he obtained on 26 November 2006, allowing him to come to Australia.[44]
2. The applicant then requested, and was granted, further time to submit additional information. Additional information in documentary form was submitted on 5 November 2007, those documents purporting to be a police report with a translation by an unidentified translator.[45] The translation describes an attack on a group of people including the applicant in which it alleges an attempt was made to murder the applicant's group with the use of a sword.[46] The Tribunal says that the description was different to any incident the applicant described to the Tribunal and that the Tribunal had some reservations concerning the authenticity of the documents. Consequently, the Tribunal requested that the applicant provide the original of the documents and advise as to who had translated the documents. The Tribunal also requested that the applicant comment on the discrepancies between his oral evidence concerning the attack and the information contained in the purported police report.[47]
3. The Tribunal requested that the applicant comment on:
   • "The description of the alleged attack in the police report seems quite different to what you described at the heating (sic); where you claim to have been attacked by a group of people using pieces of timber, a type used for mortar, scaffolding or concreting. However the police report refers to an attack using deadly weapons, including a sword."[48]
4. The applicant did not respond to the Tribunal's invitation to comment. Nor does it appear that he provided the original documents requested. Rather he forwarded what purported to be an article from a newspaper written in Malayalam.[49] The Tribunal had the purported newspaper article translated.[50] The translation identified the fact that there had been an attack upon a group returning from a Christian Pentecost prayer meeting, and that that group included the applicant. The article further indicated that the group had been followed after the meeting by the attackers "with arms" and that in the attack "they severely hit us and tried to kill us as well."[51]
5. The Tribunal found that the essence of the applicant's claim was that he feared being beaten and killed by members of RSSS because of his conversion to Christianity.[52]
6. The Tribunal noted that the applicant claimed to have been beaten on several occasions. However, the Tribunal found evidence of two assaults only, and that in relation to them that the applicant exaggerated the extent of the assaults:
   1. having suffered no physical injury in the first assault; and
   2. having regard to the Patient Record which revealed an injury which would cause considerable inconvenience, but which would not render the applicant "bedridden" for a month.[53]
7. The Tribunal also found that the applicant's evidence in relation to his former involvement with RSSS was lacking in detail and vague.[54] The Tribunal was not satisfied that the applicant was a member of RSSS or had engaged in any other Hindu movement, and went so far as to find that the applicant "did not claim to have been involved in any activities even remotely related to any Hindu movement other than this one event" (being the disruption of the miracle crusade in March 2005).[55]
8. The Tribunal found that the applicant had provided contradictory reports of the alleged attack on 14 September 2006. Based on this, and after giving the applicant the opportunity to respond to the apparent contradiction, which he did not, the Tribunal found it was not satisfied that the applicant was in fact attacked by RSSS, nor that the police had not acted against the RSSS. The Tribunal noted that the police report made no reference to the RSSS, but did indicate that the alleged attack had been registered as a crime, ten persons had been identified by the complainants, and that the matter would be referred to the court and to higher officials. The Tribunal attached little weight to the newspaper article describing the weapons used in the attack, and which description differed from that given by the applicant to the Tribunal.[56]
9. The Tribunal was also not satisfied that RSSS continued to harass the applicant, observing that apart from the two alleged assaults (the major one of which it found was not an attack by RSSS), there was no evidence of other assaults, or of the applicant's family being harassed while he was away working in another province.[57]
10. The Tribunal also noted that the applicant had been granted the subclass 420 visa on 28 November 2006 thereby allowing the applicant entry into Australia at that time. The Tribunal observed that "the applicant chose not to take advantage of this visa" (he did not leave India until May 2007) and that that indicated that "there was no immediate emergency or that he feared for his life in September 2006."[58] The Tribunal described the applicant's explanation - "that he did not know about the grant of the visa" - as "implausible having regard to the applicant's allegations as to the emergency created by the alleged assault."[59]
11. Finally, the Tribunal was not satisfied that the applicant had converted to Christianity prior to making the application for a protection visa or at all.[60] The Tribunal placed little weight on a letter dated 21 October 2007 supplied by the applicant from The Pentecostal Mission in Koltara to FIF Subiaco (the meaning of which was not explained) saying that a person with a similar name to the applicant was "our new believer."[61] Greater weight was seemingly given to the applicant's protection visa application in which he said he was a Hindu.[62]
12. The Tribunal found that:
    1. the applicant did not come to any serious harm for the reason that he had converted to Christianity; and
    2. there was no real chance that the applicant would face persecution for religious or other Convention reasons if he returned to India.[63]

1. The applicant filed a further and lengthier affidavit in support of the application on 20 October 2008,[64] which referred to the following matters:

1. that the Tribunal misinterpreted the facts; 2. that the applicant's account of the attack on 14 September 2006, including the fact that he was attacked with a piece of timber, was correct, and that the newspaper and police reports highlighted the more sensational allegations about the attack including the use of a sword by one of the attackers;

1. that it was not true that he had exaggerated the extent of his injuries and that due to the shoulder injury he was incapacitated to take up any activities;

1. that the influence of RSSS is such that the police altered the police report to exclude reference to their involvement; and 2. that his agent was to do everything possible to get him a visa and to notify him upon grant of the visa, but that the agent did not contact him regarding the approval of the visa until April 2007 and that he is unable to understand why.
2. Again, much of the content was argumentative, taking issue with the facts found in the Tribunal's decision, or seeking to argue that different conclusions ought to have been reached on the material before the Tribunal. Oral submissions at the hearing before this Court followed the outline of the Applicant's Second Affidavit. Essentially, it was all little more than an attempt to reargue the merits of the application.

Setting aside Tribunal's Decision requires jurisdictional error

1. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[65]
2. An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:

1. identifies a wrong issue; 2. asks the wrong question;

in such a way that the Tribunal's exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[66]

1. Grounds (a) (b) (c) and (d) are set out above.[67]

1. These three grounds can be taken together as they essentially allege a failure by the Tribunal to consider or investigate the applicant's claims and to exercise the review function.
2. Ground (d) can be simply dealt with. It is not the function of the Tribunal to inquire or investigate, other than in exceptional circumstances which are not established here, but rather to consider the application as it was put forward by the applicant.[68] Ground (d), alleging as it does a failure to investigate, must fail.
3. The Tribunal considered the ultimate question of satisfaction: namely, whether it was satisfied that the applicant had a well founded fear of persecution for a Convention reason. The Tribunal considered the ultimate question in proper form, having regard to:

1. the prescribed criteria; 2. sections 36(2) and 65(1) of the Migration Act and Parts 785 and 886 of Schedule 2 to the Migration Regulations;

1. that element of the definition of "refugee" as to whether there was a well founded fear based on a "real chance" of persecution for a Convention reason.[69]
2. In relation to the factual findings made by the Tribunal the Court is of the view that each of the specific findings made by the Tribunal was open to it.
3. With respect to the alleged assaults on the applicant it was open for the Tribunal to find that there were only two such assaults, and that the applicant exaggerated the nature of the assaults, and the extent of injury suffered as a result of the assaults. For example in relation to the shoulder injury the applicant was only in hospital for two days, and it was open to find that his assertion that he was bedridden for a month was exaggerated. Although not relevant to the Tribunal's finding of fact, the Tribunal's finding of fact is in some ways confirmed by the applicant in the Applicant's Second Affidavit where he claims that the period was one of incapacity, rather than being bedridden, and in oral submissions when he said he was not allowed to do any solid work for the next month.[70]
4. The applicant's evidence as to his membership of RSSS and any other Hindu organisation was, to say the least, very limited. The very limited nature of the evidence was such that it was open to the Tribunal to find that it was not satisfied that he had been a member of RSSS or any other Hindu movement or organisation.
5. In relation to the 14 September 2006 assault it was open for the Tribunal to find that the applicant provided contradictory reports to it in relation to that assault, particularly with respect to the nature of the weapons used in the assault. The lack of evidence of RSSS involvement is such that it was open for the Tribunal to find that there was no RSSS involvement in the 14 September 2006 assault and no police - RSSS collaboration. Furthermore, the Tribunal was entitled to place little weight on the newspaper article, an article which did not mention RSSS. The overall effect of the evidence was that the Tribunal accepted that the applicant was hit with a piece of timber during the 14 September 2006 assault, as he had asserted, but that there was not an assault involving swords and not an assault resulting from any attack by RSSS.
6. Having regard to the nature of the two assaults, and the finding which was open that at least the latter assault did not involve the RSSS, and the fact that the applicant's family were not harassed by anyone while he was away working in another province, it was open to the Tribunal to find that the RSSS did not continue to harass the applicant.
7. The Tribunal's finding that the applicant's failure to take advantage of the grant of the entertainment visa in November 2006 to leave India was evidence of there being no immediate emergency or fear for his life, and that his explanation that he did not know about the grant of visa was implausible, was also open to be inferred on the evidence. Again, although not relevant to the Tribunal's fact finding, the explanation in the Applicant's Second Affidavit, that he relied upon his agent to advise him of the visa, is inconsistent with any emergency or fear of persecution on the part of the applicant.
8. It was also open for the Tribunal to find that the applicant was a Hindu, and had not converted to Christianity, particularly having regard to his protection visa application stating that his religion was Hindu.[71] It follows therefore that it was open for the Tribunal to find that the applicant had not come to any serious harm as a result of conversion to Christianity, because the Tribunal found that there was no such conversion.
9. Having regard to all of the above findings it was therefore open to the Tribunal to be satisfied that there was no real chance of persecution for a Convention reason if the applicant was to return to India.
10. In the circumstances, grounds (a) and (b) are not made out.

1. The applicant alleges a denial of procedural fairness.
2. The alleged denial of procedural fairness is not particularised in any way.
3. In general terms, the applicant put his case to the Tribunal, the Tribunal considered his claims, and where the Tribunal has had a concern with respect to information provided to it, it has sought further information from the applicant. Whilst the applicant did not respond in terms, he did provide further information to the Tribunal which was considered by the Tribunal. In those circumstances, there can not have been a denial of procedural fairness by the Tribunal in a general sense.
4. The Tribunal's obligations concerning procedural fairness are codified in s.422B of the Migration Act and Division 4 of Part VII of the Migration Act. Most significant of the relevant sections are ss.424A and 425 relating to the giving of information required to be notified to an applicant and the necessity to invite the applicant to appear before the Tribunal to give evidence and present arguments respectively. There is in the Court's view nothing in the circumstances of the manner of the conduct of the proceedings by the Tribunal which gives rise to a failure to afford the applicant procedural fairness.
5. Ground (c) must therefore fail.

1. The applicant has not advanced arguable grounds in the application. The application asserts that the Tribunal did not consider his claims or the evidence put forward in support of his claims, an assertion which is not borne out by an examination of the Tribunal's Decision. The Tribunal considered all of the claims and evidence put to it, and gave the applicant an opportunity to comment on information which the Tribunal considered relevant to its decision_._ All of the findings made in the Tribunal's Decision were open on the information before it.
2. The Tribunal approached its task correctly, had regard to relevant material, made findings open on the evidence and was procedurally fair in its hearing and in the Tribunal Decision.
3. None of the requirements for the establishment of jurisdictional error have been made out by the applicant. The applicant has failed to establish that the Tribunal's Decision was affected by jurisdictional error.

1. For the above reasons the Tribunal's Reasons for Decision do not involve jurisdictional error and the application will be dismissed.
2. The Court will hear the parties as to costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Lucev FM

[3] "Migration Act".

[4] Applicant's application filed 25 July 2008 ("application").

[5] Application. Transcribed from the application without amendment.

[6] Application. Transcribed from the application without amendment.

[7] Application. Transcribed from the application without amendment.

[9] Applicant's 25 July 2008 Affidavit at paras.1-3. Transcribed from the affidavit without amendment.

[10] Hereafter, grounds (a), (b), (c) and (d) respectively.

[16] CB16-59 ("protection visa application").

[37] CB165 ("Migration Regulations").

[41] CB168. In the Applicant's Second Affidavit (see para.29 below) the applicant claims that it was not a bicycle but a motorcycle. Nothing turns on the discrepancy.

[65] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.

[66] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ; SZLKZ v Minister for Immigration and Citizenship [2008] FCA 850 at para.16 per Reeves J; WZAMV v Minister for Immigration & Anor [2008] FMCA 1284 at para.51 per Lucev FM.

[68] Azzi & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 24; (2002) 120 FCR 48 at 71-76 per Allsop J; [2002] FCA 24 at paras.102-123 per Allsop J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at 21-22 per Gummow and Hayne JJ (Gleeson CJ agreeing at 13); [2004] HCA 32 at paras.42-43 per Gummow and Hayne JJ (Gleeson CJ agreeing at para.1); Bachir & Anor v Minister for Immigration [2007] FMCA 115 at para.21 per Lucev FM.

[69] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 at 274-275 per Brennan CJ, Toohey, McHugh and Gummow JJ. See also Minsiter for Immigration and Multicultural Affairs v Eshutu & Anor (1999) 197 CLR 611 at 650-651 per Gummow J; [1999] HCA 21 at paras.128, 130 and 131 per Gummow J; and SZJAO v Minister for Immigration & Anor [2007] FMCA 1102 at paras. 28-30 per Lucev FM.

[71] CB28. And noting that that information is provided supported by a declaration under the Statutory Declarations Act 1959 (Cth) providing that the applicant believes them to be "true in every particular": CB40. The protection visa application form wrongly refers to the "Statutory Declaration Act":CB40.