FEDERAL COURT OF AUSTRALIA

SZEOO v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1797

MIGRATION – appeal from a judgment of a Federal Magistrate – whether decision of the Refugee Review Tribunal involved a denial of procedural fairness – whether Refugee Review Tribunal breached the requirements of s 424A of the Migration Act 1958 (Cth) – whether Refugee Review Tribunal’s decision contained jurisdictional error – appeal dismissed

PRACTICE AND PROCEDURE – conduct of the appellant’s solicitor – direction to District Registrar that these reasons be provided to the New South Wales Legal Services Commissioner

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Migration Act 1958 (Cth), ss 424A, 430

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 referred to

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 referred to

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 referred to

Sneddon v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 170 explained

SZBKC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1416 referred to

SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 998 referred to

VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 cited

SZEOO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1716 OF 2005

STONE J

12 DECEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.

AND THE COURT DIRECTS THAT:

3. The District Registrar forward a copy of these reasons to the New South Wales Legal Services Commissioner for his consideration.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from the judgment of a Federal Magistrate delivered on 26 August 2005.  His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’), made on 24 August 2004 and handed down on 21 September 2004, in which it affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa.

BACKGROUND

2                     The appellant, a citizen of India, arrived in Australia on 24 February 2004 (as a holder of a business visa) and shortly thereafter lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 30 March 2004, the delegate of the first respondent refused to grant the appellant a protection visa and the appellant applied for review with the Tribunal.

Protection visa application

3                     In his protection visa application, the appellant claimed that he left India because the Indian police tried to kill him and he feared being killed by police or his ‘enemy’ if he returned to India because there was ‘no one to check the corrupted police officials’. 

4                     In a statement attached to his protection visa application, the appellant expanded on these claims.  The Tribunal accurately detailed the claims as follows:

‘In an accompanying statement the Applicant claimed that after he was unable to continue his education he worked in a sports shop in his hometown.  He claimed that he always had problems with the Akali Dal (AD) Party which was not very popular at that time.  The Applicant claimed that when he criticised unstable Indian politics and corrupt politicians, his neighbour, Gurnam Singh, took offence and quarrelled with him; due to the enmity and hatred of the neighbour, the Applicant went to Malaysia in 1975.  The Applicant married in India in 1979 and returned to Malaysia.  In 1985 the Applicant’s parents passed away and he went to Brunei; he worked there, from 1985 to 2001, as a driver but he often visited India.

In 2001 the Applicant returned to India to farm but his neighbour didn’t let him live peacefully; he wanted “to fix me in Kalisthan (sic) Problem.”  He gave a false allegation to the Police, namely that the Applicant “had contact with Kalisthan extremists who was killed in the Blue Star Operation at Amritsar Golden Temple was my relative and I had close contact with him.”  On 3 June 2003 the Applicant was arrested and taken to Amritsar police station; he was beaten hard and asked numerous questions about extremists in the Blue Star Operation and about the future moves and funding of the Kalisthan Party.  The Applicant was released on condition that “I must less than know my outdoor activities.”  The Applicant stopped going outside for fear of the Police.

Three months later Police found an unattended suitcase at the Bhikhiwind bus stand; they suspected it was dropped by a Kalisthan extremist escaping from police.  Police arrested the Applicant and took him to the police station; the neighbour turned up and advised police to jail him for some serious case.  The Applicant’s father-in-law paid a large bribe to police to save him and gave money to the neighbour who promised to treat the Applicant as his brother, the neighbour expected more benefits and presents but the Applicant couldn’t oblige.

On 11 November 2003 the body of Kalisthan extremist Manjit Singh was found near the railway station; before the Applicant heard this he was arrested by Police.  The Applicant was handcuffed and dragged through the streets to the police station, his wife fell down on the platform unconscious and the neighbour accompanied police to the station and congratulated them.  The neighbour told police that he had known the Applicant since childhood and that he was always bad and a criminal.  The Applicant claimed that he was thrashed mercilessly by the Police; he feared for his life and promised them a large amount of money.  When the Applicant’s father-in-law arrived with the lawyer he gave them a large amount and another large amount to another officer to grant the Applicant bail and to squash the case.  When the Applicant returned home his father-in-law sent him to Gurdarpur where the Applicant stayed for 15 days in a friend’s house.  He then moved to Ludhiana, Pathankot and then to Mumbai where he stayed with a relative and made arrangements through an agent to come to Australia.  If he returns to India he fears that the neighbour and the Police will kill him.’

(emphasis in original)

Proceedings in the Tribunal

5                     In his application for review before the Tribunal, the appellant indicated his displeasure with the delegate’s decision and stated that he would provide a statement in respect of his review later.  The Tribunal stated in its reasons that no such statement was submitted and the appellant has not sought to contend otherwise.

6                     The appellant attended a hearing of the Tribunal at which the Tribunal questioned him on aspects of his claims.  In relation to how he came to be the holder of a business visa, the appellant stated that he did not know except that it came through an agent engaged by a relative of his.  In response to the Tribunal’s observation that it would have been quicker and easier to go to Singapore and Malaysia, the appellant stated that he had only been to Singapore for short holidays and that he had been told that it was hard to get protection in Malaysia.  As to why he took a month to apply for a protection visa in Australia, he claimed that it took some time to find a Punjabi friend and he did not know what to do.

7                     At the hearing, the appellant claimed that during various visits to India while he resided overseas he had problems because his neighbour, a member of the Akali Dal party, had harassed and followed him, demanded money from him and threatened to kill the appellant if he did not comply with the demands.  The Tribunal stated:

‘While working overseas the Applicant visited his home in India for a few months every two years.  On these visits he had problems because his neighbour is Akali Dal and harassed him a lot in that the Applicant had several arguments with him, the neighbour followed him when he went to Amritsar and the neighbour demanded money from him and threatened to kill him if he didn’t give him money.  The neighbour harassed him and demanded money from him because he thought he was rich; this started in 1979.  The Applicant never gave the neighbour any money but on visits home he made promises to do so.  Asked if there was any other reason for the neighbour wanting his money the Applicant said that it was because the neighbour knew that he worked overseas and threatened to kill him if he didn’t give him money.  Asked if the neighbour ever harmed him the Applicant said he was beaten by him in 1979; he reported this to Police but they didn’t do anything because the neighbour knew someone in the police at the time, and he didn’t report any subsequent demands for money or threats to kill him, as for the same reason, he didn’t think they’d do much.  There were no other problems from the neighbour or from anyone else when the Applicant visited India.

Asked more generally if he was ever harmed again by the neighbour the Applicant said that the neighbour demanded money several times so he went into hiding; asked what he meant the Applicant said that he avoided his neighbour.  He last saw or had any contact with him in 2001 when his attitude towards the Applicant was the same.’

8                     On the basis of this information concerning the passage of time since he had contact with his neighbour, the Tribunal asked what he believed would happen to him if returned to India at the time of the hearing.  The Tribunal’s reasons provide that the appellant responded by stating:

‘The Tribunal noted that this was three years ago and asked what he thought would happen to him if he returned to India now.  The Applicant replied that he will be killed by the neighbour because the neighbour threatened to kill him in the past and because the neighbour is an [Akali Dal] member and doesn’t like the Applicant.  Asked if he feared harm from any other source he said that maybe others in the neighbour’s group might chase him but he didn’t know (as he never had trouble from such persons).  The Tribunal noted that many Punjabis are not [Akali Dal] supporters and asked why then the neighbour wanted to kill him.  The Applicant replied that it’s because they have had a bad personal relationship since the Applicant was a child; maybe the neighbour is jealous for some unknown reason and although the Applicant tried hard, the relationship never worked out.  The Applicant had no other concerns about returning to India.’

9                     The Tribunal also put to the appellant that he could relocate and live elsewhere in the Punjab or India in order to avoid the neighbour.  The appellant claimed that he could not relocate as his neighbour would track him down.  When the Tribunal noted that the appellant lived at home until 2004 and had not had a problem with his neighbour since 2001, the appellant replied as follows:

‘The Applicant was very hesitant when ever relocation was discussed but claimed that he couldn’t relocate as the neighbour could track him down outside Punjab.  The Tribunal noted that the Applicant had lived at home until 2004 but had no problem with the neighbour since 2001; he replied that the neighbour kept harassing him all the time.  When the Tribunal noted that he’d said there was no contact with the neighbour since 2001 the Applicant said he tried to avoid him several times by living in hiding meaning that he’d go to his sister’s place (also in Punjab) or to other relatives for a while.  He had no problem from the neighbour while staying with relatives but the neighbour asked family members at the Applicant’s home about his whereabouts; they didn’t disclose his location.  The Tribunal put to the Applicant that this indicated that he could relocate and that the neighbour would not track him down; the Applicant replied that if a person wants to track you down he can.’

10                  The Tribunal also questioned the appellant on other aspects of his claims and it will be necessary to return to this portion of the Tribunal’s reasons.  In setting out its findings on the application for review the Tribunal stated:

‘…[H]aving considered the Applicant’s oral and written evidence about his key claims, the Tribunal is satisfied that the Applicant is not a witness of credit and that his key claims have been fabricated.’

11                  The Tribunal made the following findings:

(a)    The appellant’s oral and written evidence was inconsistent about important matters;

(b)   His claim to be of interest to police on account of a perceived association with the Sikh insurgency (mainly in the 1980s) was implausible and not supported by independent country information;

(c)    At the hearing the appellant made no mention of any problem from the police or any fear of the police (a claim contained in his written claims) until the Tribunal specifically asked him about it;

12                  The Tribunal accepted that the appellant had a long-standing personal problem with his neighbour and that his neighbour assaulted him in 1979, however, it did not accept that the neighbour targeted the appellant for a Convention reason.  The Tribunal did not accept that he was targeted because his neighbour was an Akali Dal supporter or because the appellant had criticised the Akali Dal party.  The Tribunal referred to the fact that the appellant’s own evidence was that his neighbour harassed and threatened him for money, believing the appellant was rich after living overseas for many years, and because of animosity between the two since they were children.  Moreover, in light of the appellant’s oral evidence that he had not had any contact with the neighbour since 2001, the Tribunal did not accept that the appellant continued to have problems in the period from 2001.

13                  In addition, the Tribunal rejected the appellant’s claim that he always had problems with the Akali Dal party.  It noted the appellant’s evidence that the Akali Dal party was not popular at the time he criticised it and found that there was no credible evidence to support this claim.  In addition, the Tribunal found that there was nothing to suggest that ordinary people were targeted because they did not support the Akali Dal party. 

14                  In respect of the appellant’s claim to have been arrested and assaulted by police because of a suspected association with Sikh extremists, the Tribunal stated:

‘The Tribunal rejects the Applicant’s claims to have been arrested, interrogated and beaten by Police because he was suspected of an association with Khalistan extremists.  This is because the Applicant failed to mention these matters or any fear of the Police on return in oral evidence (before finally being asked about it directly) and told the Tribunal that his only problem when he was back in India and that he fears on return, was and is his neighbour’s demands for money, and the harassment and threats that accompanied that.  Also, when asked directly about problems with the Police the Applicant’s oral and written evidence, about how many times he was arrested, was inconsistent.  Also when pressed about the questions asked by Police the Applicant could really only refer most generally to Khalistan groups and then, very oddly, said that he was asked about [Akali Dal].  The Tribunal finds his responses on these matters so vague and confused as to be totally unconvincing.  Also, the Tribunal finds the Applicant’s claim that Police suspected him on involvement in the Sikh separatist Khalistan insurgency implausible given that he was living and working overseas during the whole period and this could be readily and easily established.  Finally, the Tribunal does not believe these claims of arrest in 2003 because his written evidence refers to the neighbour turning up at an arrest in 2003 yet he also told the Tribunal that he has not seen his neighbour since 2001.’

15                  The Tribunal also rejected the appellant’s claim to have been in hiding from mid-November 2003 until his departure for Australia in February 2004 on the basis of inconsistency. 

16                  In sum, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution if he returned to India.  In relation to his claimed fear of persecution from the police or other authorities, the Tribunal did not accept his account of previous harm and did not believe that he was of any interest to the police or the authorities as he had retained his passport, remained in India for almost three months with an Australian visa and departed India openly and legally.  In relation to claimed fear of harm from his neighbour, as set out above the Tribunal found any persecution or harm was not Convention related.  Further, if the appellant feared harm from his neighbour, the Tribunal considered that it was reasonable for him to relocate elsewhere within Punjab or within India.

Proceedings in the Federal Magistrates Court

17                  The appellant sought judicial review in the Federal Magistrates Court.  In an amended application for review the appellant raised the following grounds of review:

(a)    the Tribunal drew conclusions where there was no evidence to support such conclusions;

(b)   Wednesbury unreasonableness;

(c)    procedural unfairness;

(d)   failure of the Tribunal to comply with ss 424A, 430(1)(c) and 430(1)(d) of the Migration Act 1958 (Cth) (‘the Act’) in relation to conclusions it reached; and

(e)    that the Tribunal was ‘procedurally unreasonable’.

It is pertinent that before his Honour the appellant was represented by a solicitor, Mr Jayawardena, who also represents him in this appeal.

No evidence ground

18                  In support of the appellant’s submission that the Tribunal drew conclusions where there was no evidence to support them, Mr Jayawardena referred to the Tribunal’s findings as to the appellant’s credibility.  His Honour stated at [7] that:

‘The first ground of complaint made by the applicant is that the Tribunal made jurisdictional error by drawing conclusions where there was no evidence to support the conclusion and thereby questioned the applicant’s credibility.  Mr Jayawardena particularised this complaint by reference to the Tribunal’s decision record at CB87.2:

            “Having carefully considered the Applicant’s oral and written evidence about his key claims, the Tribunal is not satisfied that the Applicant is not a witness of credit and that his key claims have been fabricated.”

This is not a precise reproduction of what the Tribunal’s record actually shows:

                        “However, having carefully considered that the Applicant’s oral and written evidence about his key claims, the Tribunal is satisfied that the Applicant is not a witness of credit and that his key claims have been fabricated.”

In any event Mr Jayawardena for the applicant submitted that this a “serious misdirection” and that the applicant had clearly said in his written statement at CB 44 to CB 47 that he was suspected of being a Kalisthan separatist, that he had been beaten by the Indian police and detained by them.  Mr Jayawardena’s submission, in essence, appears to be that having the applicant’s statements before it meant that the Tribunal’s conclusion that the claims were fabricated was unfounded and therefore “judicially wrong”.  Mr Jayawardena submitted that the applicant had made a clear cut statement as to his fears of harm, that the Tribunal “repeats” the claims at CB 82 and then says that the claims have been fabricated without any direct evidence to show this fabrication.’

19                  The Federal Magistrate held that the Tribunal was not required to accept uncritically any or all of the appellant’s claims.  His Honour referred to the material upon which the Tribunal’s findings as to credibility were based and stated at [8]:

‘The Tribunal clearly made findings on the applicant’s credibility.  These were open to it on the material before it.  Much of this material was what the applicant himself put to the Tribunal, and the manner in which he put it, for example:

1)         The applicant at first claimed to have suffered at the hands of police and from his neighbour.  At the hearing before the Tribunal, which is not challenged by the applicant, he made no mention of the problems with police and after recounting his problems with his neighbour said that he had no other problems in India (CB 85.2).  It was only after prompting that he mentioned what had been the important claim in his protection visa application.

2)         Inconsistencies between his different accounts as to how many times he had been arrested by police (CB 88.4).

3)         Inconsistencies between written and oral claims relating to when he went into hiding between mid November 2003 and mid February 2004 (CB 88.8).’

20                  As such, according to the Federal Magistrate the appellant’s submission in this context was that the appellant made claims and the Tribunal did not accept them.  Accordingly, his Honour rejected this ground of review.

Wednesbury unreasonableness

21                  The appellant’s second ground of review was that the Tribunal, in holding against the appellant that he was not able to provide certain information, made a decision that was so unreasonable that no reasonable decision-maker could have made it.  His Honour stated at [10] that:

‘The applicant’s second complaint is that the Tribunal was Wednesbury unreasonable in holding against the applicant on the basis that the applicant was not able to provide certain information.  This was particularised by Mr Jayawardena’s reference to CB 87.1 where he says the Tribunal said:

“The Tribunal finds that the Applicant’s oral & written evidence is inconsistent about important matters, and his claims to be of no interest to Police for reasons associated with Sikh insurgency (mainly in the 1980s) is implausible and not supported by independent country information.’

The actual statement by the Tribunal at CB 87.1 is :

            “This is because the Tribunal finds that the Applicant’s oral and written evidence is inconsistent about important matters, and his claim to be of interest to Police for reasons associated with the Sikh insurgency (mainly in the 1980s) is implausible and not supported by independent country information.”

            The applicant now complains that he never said that he supported the Sikh insurgency but that he was suspected by the Indian police of being a Sikh separatist.  This claim must also fail:

1)         On a plain reading of the Tribunal’s decision record this is what the Tribunal looked at.  The words in the Tribunal’s are:

            “his claim to be of interest to the police.”

2)         At CB 88.3, the Tribunal records its findings in relation to claims relating to the police and then says in the middle of this section at CB 88.5:

            “Also, the Tribunal finds the Applicant’s claim that Police suspected him of involvement in the Sikh separatist Khalistan insurgency implausible given that he was living and working overseas during the whole period and this could be readily and easily established.”

The Tribunal expressly refers to the police view and police suspicion of his involvement in the Sikh separatist movement.  I cannot see in light of the above that the Tribunal’s approach was so unreasonable that no reasonable decision maker could have come to the findings that it did in all the circumstances.  The applicant has been unable to establish the factual basis for this claim, let alone that Wednesbury unreasonableness could be made out.’

22                  On this basis, the Federal Magistrate held that the appellant had been unable to make out the factual basis of this claim, let alone the contention that the findings was so unreasonable as to constitute Wednesbury unreasonableness.

Procedural unfairness

23                  Mr Jayawardena contended for the appellant that it was a breach of procedural fairness for the Tribunal to decide it was reasonable for the appellant and his family to relocate elsewhere without considering the difficulty the appellant would encounter in relocating.  The Federal Magistrate rejected this contention holding that the clear findings made in relation to the lack of a Convention nexus made it unnecessary for the Tribunal to make a finding on the issue of relocation.  Any error in that finding did not affect the Tribunal’s earlier findings on the lack of a Convention nexus.  Moreover, the Tribunal discussed the issue of relocation with the appellant at the hearing and the appellant was thus on notice of the Tribunal’s views.  The Federal Magistrate stated at [11]:

‘…The Tribunal was not required to consider the issue of relocation once it had made the finding that the applicant did not have a fear for a Convention reason emanating from the neighbour.  It is understandable however, that the Tribunal sought to make reference to this issue, given that it had discussed this issue with the applicant at the hearing before it. I can see no error in what the Tribunal has done in this regard and even if the applicant were able to produce evidence of what may have occurred at the hearing to challenge the Tribunal’s account, the Tribunal’s finding in relation to the neighbour that there was no Convention nexus remains unchallenged by this particular complaint.’

Sections 424A, 430(1)(c) and 430(1)(d) of the Act

24                  In the amended application, this ground was particularised by reference to the following statement contained in the Tribunal’s reasons:

‘The Tribunal rejects the Applicant’s claims to have been arrested, interrogated and beaten by Police because he was suspected of an association with Khalistan extremists.  This is because the Applicant failed to mention these matters or any fear of the Police on return in oral evidence (before finally being asked about it directly) and told the Tribunal that his only problem when he was back in India and that he fears on return, was and is his neighbour’s demands for money, and the harassment and threats that accompanied that.’

25                  In his reasons, the Federal Magistrate records that at the hearing before him Mr Jayawardena withdrew this submission insofar as it relied on a breach of any statutory duty.  Instead, it was argued that it was unfair of the Tribunal to rely on the fact that, during the hearing, the appellant had not mentioned, until prompted, the matters in relation to the complaint against the police.  At [12], his Honour stated:

‘Mr Jayawardena submitted that the Tribunal should not be able to penalise (as he put it) the applicant because he failed to “narrate the entire story” when the Tribunal examined the applicant in the manner that it chose.  On this basis, he submitted, there really was no probative basis for the Tribunal’s finding.  The applicant, represented by a solicitor, has not brought to the Court any other evidence to contradict the Tribunal’s account of what occurred at the hearing before it.  The applicant’s complaint now that the Tribunal managed the hearing process before it and thereby did not provide him with the opportunity to talk about the serious claims is contradicted by the Tribunal’s record which…says:

“Asked if he wanted to say anything else about problems in India or what he fears on return the applicant said ‘no, that’s’ all’.”

It is after that, that the Tribunal makes the comments that the applicant now complains of.  The Tribunal clearly gave the applicant the opportunity to comment on his problems in India and his fears on return to India and the applicant did not take up this opportunity.  This reported exchange, unchallenged by any evidence before me, provides the clear basis for the Tribunal’s subsequent comment and its subsequent finding.’

26                  The Federal Magistrate also considered whether the Tribunal’s decision could be said to be lacking in logic or rationality.  His Honour held that, leaving aside the circumstances in which a lack of logic or rationality would constitute jurisdictional error, the Tribunal’s decision was not illogical, irrational or unreasonable.

Procedural unreasonableness

27                  Before the Federal Magistrate, Mr Jayawardena also submitted that the Tribunal was ‘procedurally unreasonable’ in relation to the following conclusion:

‘Having considered the Applicant’s claims and evidence the Tribunal is prepared to accept that the Applicant has a long standing personal problem with his neighbour and that he was beaten up by him in 1979, as most of this was consistently claimed.  The Tribunal does not accept that the neighbour targeted the Applicant for a Convention reason…’

28                  It was contended for the appellant before his Honour that the appellant had clearly stated that the neighbour had given false information to the police that the appellant was associated with Khalistan extremists and, consequently, this conclusion by the Tribunal was erroneous and procedurally unfair.  The Federal Magistrate noted that the unchallenged evidence before the Court indicated that the Tribunal discussed this issue with the appellant at the hearing however did not accept the appellant’s claims.  As such, his Honour held that there was no error in the Tribunal’s findings on this issue.

This appeal

29                  On 14 September 2005, the appellant filed a notice of appeal from his Honour’s judgment.  Although the notice of appeal was signed by the appellant and gave his address as the address for service, at the hearing of the appeal Mr Jayawardena admitted that he had prepared it.  The notice of appeal does not reflect well on the drafter’s competence, being poorly drafted and asserting grounds of review that ignore the limits of this Court’s jurisdiction.  At the hearing of the appeal Mr Jayawardena abandoned one ground of appeal and pressed three grounds which I will address in turn. 

Ground 1

30                  The notice of appeal claims that the Federal Magistrate was ‘essentially wrong’ in his judgment on the following basis:

‘That the learned Federal Magistrate completely disregarded the Applicant’s counsel’s argument that the Tribunal had made a serious Jurisdictional error because of its illogical analysis of the Applicant’s evidence as “Having carefully considered the Applicant’s oral evidence about his key claims, the Tribunal is not satisfied that the Applicant is not a witness of credit and that his key claims have been fabricated. ….

The Applicant submit that the fundamental obligation of the Tribunal was to treat the applicants in a manner that upholds the ‘substantial justice’ and ‘procedural fairness’.  Hence the Tribunal’s finding that the Applicant had been unreliable and fraudulent in his claims without citing proof to that effect, amounted to a serious illogical finding and therefore a clear jurisdictional error.’

(errors in original)

I should note that, as was the case before his Honour, the appellant’s notice of appeal misquotes the Tribunal’s reasons in this context.  Despite the Federal Magistrate expressly referring to the mistake in his judgment and setting out the correct quote (see [7] of his Honour’s judgment quoted at [18] above) the error is repeated in Mr Jayawardena’s written submissions.

31                  It is difficult to see how any competent counsel could submit that the Federal Magistrate ‘completely disregarded’ this argument, when his Honour plainly dealt with it at [7]-[9] of his judgment.  When I pointed this out to Mr Jayawardena he conceded that his Honour had considered the submission but said that it was not to the appellant’s satisfaction.  He submitted that the failure of the Tribunal to warn the appellant of these possible adverse findings in respect of the appellant’s credibility and provide an opportunity for the appellant to respond constituted jurisdictional error. 

32                  Mr Jayawardena referred me to the decision of a Full Court of this Court in Sneddon v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 170 (‘Sneddon’).  He submitted that the Full Court held that the failure of a tribunal to warn an applicant about possible adverse credibility findings constituted jurisdictional error.  The judgment of the Full Court is authority for no such proposition.  In Sneddon, the Full Court was concerned, inter alia, with an appeal under s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal.  The Court relied on the trite proposition that in certain circumstances the failure of an administrative decision-maker to give a person the opportunity to respond to an adverse conclusion the decision-maker proposes to draw may result in a denial of procedural fairness.  However, the adverse conclusion of the tribunal in that case was not in relation to credibility.  Rather, it related to an erroneous view on a matter of fact, namely that there was a cap on the number of persons able to receive a particular visa.  As such, the judgment of the Full Court does no more than apply well-established principles.

33                  The submission that the Tribunal denied the appellant procedural fairness in failing to put to him that it was proposing to make an adverse finding in relation to his credibility must be rejected.  The rules of procedural fairness did not require that the Tribunal expressly put to the appellant that it was considering an adverse finding as to his credit.  According to its reasons, the Tribunal put to the appellant at the hearing a number of concerns it had in relation to his claims.  Some of these then formed the basis for its finding that the appellant was not a witness of credit.  The appellant was, as a result of the Tribunal’s questioning at the hearing, plainly on notice that his credibility was a significant and important issue.  As the Federal Magistrate noted, the appellant, who was legally represented, had not sought to adduce any evidence to contradict the account of the hearing given by the Tribunal in its reasons. 

34                  Mr Jayawardena also contended that the Tribunal breached s 424A of the Act in relation to its findings as to the appellant’s credibility.  Leaving aside the fact that some of the information relied on to make the credibility finding was provided by the appellant (see s 424A(3)(b)) and some was independent country information (see s 424A(3)(a)), the Tribunal’s reasoning, conclusions and determinations are not themselves ‘information’ for the purposes of s 424A: see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471.  Mr Jayawardena gave no indication that he understood this problem and certainly made no attempt to overcome it.

Ground 2

35                  The second ground of appeal pressed is set out in the notice of appeal as:

‘The Applicant further submit that the learned Federal Magistrate failed to recognize the Applicant’s Counsel’s argument that the Tribunal made a further jurisdictional error by its unreasonable misjudgement of his claims by finding to the effect – “Having considered the Applicant’s claims …….. the Tribunal does not accept that the neighbour targeted him for a Convention reason.”…

The Applicant submit that the Tribunal made a wrong assessment of the Applicant’s claim that that he once again became a target in the hands of the Indian Police, because of his neighbour’s allegation that he was involved in the Khalistan Commando force.  The Applicant submit that the learned Federal Magistrate failed to recognize that it was the applicant’s imputed political opinion as alleged by the neighbour, the basis for his police assault and torture.  Therefore this type of wrong assessment by the Tribunal amounted to clear cut jurisdictional error.’

(errors in original)

36                  It was submitted for the appellant, purportedly in order to challenge this finding, that the appellant had claimed that he was branded by his neighbour as a supporter of Khalistan extremists.  As I understood him, Mr Jayawardena contended that given the appellant made this claim the above findings were erroneous.  He submitted at the hearing of the appeal that:

‘The Tribunal cannot just disbelieve an applicant … when the claims are submitted; unless there are grounds to disbelieve them.’

As such, he argued that the Tribunal was required to accept the appellant’s claims unless it had evidence to the contrary.  When asked for any relevant authority for such an extraordinary proposition, Mr Jayawardena referred to ‘principles of fairness’. 

37                  It is plainly not the case that the Tribunal is required blindly to accept a visa applicant’s claims unless it has contradictory material before it.  The legislative scheme requires that the delegate, and the Tribunal on review, determine whether they are satisfied as to certain matters.  In the absence of a positive finding of satisfaction, the visa must be refused: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15]-[16]; and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73. 

38                  The Tribunal considered each of the appellant’s claims and discussed them with him at the hearing.  It found that the neighbour did not target the appellant for a Convention reason.  It went on to find that it did not accept the appellant’s claims of harm from the police and the Akali Dal party flowing from the dispute with the neighbour.  These findings, contrary to the contentions of the appellant, were open to the Tribunal on the material before it and no error is disclosed in the Tribunal’s approach.

39                  In respect of this ground of appeal, Mr Jayawardena also pressed the claim that there had been a breach of s 424A of the Act and referred to the Court to SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 998 and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134.  He contended that these judgments demonstrate that a failure of the Tribunal to bring to a visa applicant’s attention ‘any critical issue’ during a hearing constitutes a breach of this section.  In my view, they do not demonstrate this.  Presumably Mr Jayawardena’s submission is that the ‘critical issue’ is the failure to accept the appellant’s claims and this constituted ‘information’ of the purpose of s 424A of the Act.  As set out above at [34], the Tribunal’s reasoning, conclusions and determinations are not themselves ‘information’ for the purposes of this section.  This contention must be rejected.

Ground 3

40                  Finally, Mr Jayawardena contended that the Tribunal’s reasons disclose jurisdictional error in its approach to the question of relocation.  The notice of appeal details the ground as:

‘The Applicant finally submit that the learned Federal Magistrate totally ignored the Applicant’s Counsel’s argument that the Tribunal made serious derogations of its responsibility by failing to assess properly the Applicant’s Relocation, but, merely finding – “if the applicant fears resumption of problems from his neighbour, the Tribunal is satisfied that it is reasonable for him to re-locate within Punjab or within India”.

The Applicant submit that the Tribunal failed to ask the Applicant face to face the issue regarding re-location.  The Applicant submit that this being either the main or a part of the main reason of the refusal of his application, it was a statutory requirement that the Tribunal should have put this issue to the Applicant first, for his comments.  This type of failure amounts to a clear jurisdictional error.’

(errors in original)

41                  At the hearing of the appeal, it was submitted for the appellant that the relevant jurisdictional error in this context was the failure of the Tribunal to consider whether the appellant would face the same treatment from the police and his neighbour as he had in the past.  Mr Jayawardena also referred to s 91R of the Act and argued that before the Tribunal can make a finding as to relocation it is essential that it consider whether there is a real likelihood that the visa applicant will suffer harm.

42                  Mr Jayawardena accepted that this ground of appeal was dependent upon the success of at least one of the first two grounds of appeal, as ultimately argued.  As such, given I have rejected each of the first two grounds of appeal this ground must also fail.  However, in my view the approach adopted by the Tribunal in respect to relocation was entirely appropriate.  The Tribunal considered each of the appellant’s claims and was not satisfied that he had a well-founded fear of persecution for a Convention reason.  In relation to the claimed fear of harm from his neighbour, it went on to find that the appellant could resolve the issue by relocating.  In the circumstances this finding was unnecessary, however, there is no error in approach in the Tribunal choosing to make a further finding on relocation.

43                  For the above reasons the appeal must be dismissed. 

Further issues

44                  It is also appropriate to take this opportunity to make some comments about the conduct of the appellant’s solicitor.  In my view, the manner in which this appeal was conducted on behalf of the appellant, raises a very real question about Mr Jayawardena’s competence to represent visa applicants in judicial review proceedings.  This appeal is not an isolated instance; I note that in a recent appeal in this Court I also expressed some concerns as to Mr Jayawardena’s representation: see SZBKC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1416 at [15] et seq.

45                  As noted above, the notice of appeal raised some completely incompetent grounds of appeal.  I accept that Mr Jayawardena did not press some of the grounds set out in the notice of appeal however, that said, the first ground pressed was plainly not a competent ground of appeal and had no prospect of success: see [31] above.  It is not to the point that when confronted with this difficulty at the hearing Mr Jayawardena attempted to circumvent the problem by augmenting or altering a ground of appeal.

46                  It is common for an unrepresented litigant seeking review of a decision of the Tribunal to make submissions that invite the Court to review the merits of the claim made to the Tribunal and to substitute more favourable findings of fact for those made by the Tribunal.  It is, of course, not within the jurisdiction of the Court to do so but it is not surprising that a litigant in person should fail to appreciate the distinction between errors of fact and errors of law.  In such a case the Court generally makes an effort to determine, for itself, if there is any substance to the applicant’s complaint even if it has not been correctly identified.  Where an applicant or appellant is legally represented, however, it is intolerable that the Court should be faced with the same lack of discrimination and, seemingly, a complete inability to understand the legal issues involved.  

47                  To add to the difficulties, both the application for review, the notice of appeal and Mr Jayawardena’s written submissions all contain a number of errors.  I accept that errors creep into many documents submitted to the Court and while not to be encouraged they are, to a limited extent, understandable.  However, the documents submitted by Mr Jayawardena contain grammatical errors, incorrect citation of cases and, most significantly, material errors in quotations purportedly from the Tribunal’s reasons (see [30] above).  This latter issue is of particular concern.  To the extent that such errors are the result of carelessness or inattention, they serve to confuse the Court and do a disservice to those being represented.  More seriously, if such errors evince an intention on the part of a solicitor to attempt to mislead the Court, or mislead a client in relation to the prospects of success, such conduct must not be merely discouraged; steps must be taken to eliminate it.  In the present context I am unable to discern the cause of the errors, both of which, as I have noted, are serious matters.  This is particularly so when the documents filed in this Court failed to correct the quotation errors the subject of express comments in the court below: see [30] above. 

48                  The way in which this appeal was conducted raises serious concerns about Mr Jayawardena’s understanding, even at the most fundamental or conceptual level, of the law in this area and of the relevant procedures of the Court.  It suggests that he is not competent to be of any assistance to his clients.  I am not aware of the basis on which Mr Jayawardena is engaged by his clients and whether or not he is paid for his services.  In either case, clients are badly served by the standard of representation to which I have referred.  Legal practitioners accept certain duties when they are retained irrespective of the relevant financial arrangements.  In the context of the migration jurisdiction of this Court it is commonly the case that visa applicants are people without substantial financial means and without the language or education to assess the quality of the service being provided.  The consequences of the proceedings are extremely serious, often resulting in removal from Australia.  The Court cannot stand by and allow this situation to continue.  I therefore intend to direct that the District Registrar forward a copy of these reasons to the New South Wales Legal Services Commissioner.

49                  As the successful party, there is no reason why the first respondent should not have her costs of the appeal in the usual way and I propose to make the usual order.  Given the concerns expressed above, at the hearing of the appeal I put Mr Jayawardena on notice that I would be considering whether he should be required to argue why he should not be ordered to be personally liable for those costs.  I have decided not to take this course mainly because of the difficulty in determining the exact nature of the client’s instructions and the potential for incurring disproportionately greater costs in attempting to resolve the issue.  I suggest, however, that Mr Jayawardena should carefully consider whether it would be commensurate with his duty to his client for him to waive any fee that he proposed to charge in respect of the appeal. 

Associate:

Dated:              12 December 2005