FEDERAL COURT OF AUSTRALIA

SZGGD v Minister for Immigration and Multicultural Affairs [2006] FCA 1138

Migration Act 1958 (Cth): s 424A

Judiciary Act 1903 (Cth): s 39B

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR followed

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR followed

SZGGD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD914 OF 2006

JESSUP J

28 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appellant have leave to rely upon a ground of appeal to the effect that the Federal Magistrate erred by not holding that the Refugee Review Tribunal had constructively failed to exercise its jurisdiction by failing to comply with s 424A of the Migration Act 1958 (Cth) in that it failed to give to the appellant, in writing, particulars of the fact that in his protection visa application the appellant had given an explanation for the death of his mother which differed from the explanation given by the appellant at the hearing before the Tribunal, being a fact which became part of the reason why the Tribunal affirmed the decision under review.

2.                  The appeal be allowed.

3.                  The orders made by the Federal Magistrates Court on 27 April 2006 be set aside, and in place thereof it be ordered that:

a a writ of certiorari issue directed to the Refugee Review Tribunal removing its decision made on 24 March 2005 into this Court there to be quashed;

b. a writ of mandamus issue directed to the Refugee Review Tribunal requiring it to review according to law the decision made by a delegate of the first respondent on 13 December 2004 to refuse to grant a protection visa to the appellant.

4.                  The first respondent pay the appellant’s costs of the appeal.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal from a judgment of the Federal Magistrates Court given on 27 April 2006 dismissing applications for certiorari, prohibition and mandamus under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal handed down on 15 April 2005, in which the Tribunal had affirmed a decision of a delegate of the respondent to refuse to grant a protection visa to the appellant under the Migration Act 1958 (Cth) (“the Act”).

2                     The appellant is a citizen of India, and claimed before the Tribunal that he was being targeted by the Thevar Community. Essentially, the appellant’s fears were said to be based on the treatment of his family by his in-laws and the fact that, despite many attempts to have his concerns dealt with under the law, he had not been able to move the police to investigate and to prosecute the wrongdoers. After each of a number of deaths in the appellant’s family, the appellant claims that his family reported their suspicions to the police, but this was reflective because the police were influenced by the Thevar Community which was capable of violence, and because the appellant’s brother-in-law’s family were ‘political supported rowdies’, and were able to buy the police and doctors with their money and threats.

3                     The conclusion of the Tribunal was shortly stated in the following paragraphs towards the end of its decision:

“In short, having considered all the claims made by the Applicant, both individually and collectively, the Tribunal has not been able to satisfy itself that there is a real chance of the Applicant experiencing serious harm amounting to persecution for a Convention reason if he returns to India, either now or in the foreseeable future, and finds that he is not a refugee.

Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa.”

In a number of respects, largely because of variations in his story from time to time, the Tribunal had real concerns as to the appellant’s credibility, and expressed these concerns in its decision.

Leave to rely on new grounds

4                     I need not state the grounds upon which the appellant based his application for the prerogative remedies in the Federal Magistrates Court, since none of those grounds were pursued in the appeal in this Court. Rather, Mr Jenkins, who represented the appellant, sought leave to rely upon two new grounds which had not been previously taken. Each alleged a failure on the part of the Tribunal to comply with s 424A of the Act. To the extent relevant for present purposes, that section provides as follows:

“(1) Subject to subsection (3), the Tribunal must:

(a)               give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal; consider would be the reason, or part of the reason, for affirming the decision that is under review; and

(b)               ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)                invite the applicant to comment on it.

…

(3)   This section does not apply to information:

…

(b)               That the applicant gave fort the purpose of the application...”

5                     Mr Jenkins submitted that there was information which had been part of the Tribunal’s reason for affirming the decision of the delegate, which had not been given to the appellant in writing, and on which the appellant had not been invited, in writing, to comment. Mr Jenkins supported his application for leave by reference to the judgment of Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51, 82-86, especially at [163]-[166]. His Honour, with whom Conti J agreed in relevant respects, considered the authorities with respect to the granting of leave to argue a new point, and set out a list of questions which would be appropriate for the Court to consider in such a setting (at [166]). Those questions, which were expressed as inclusive, were:

“1. Do the new legal arguments have a reasonable prospect of success?

5.         Is there an acceptable explanation of why they were not raised below?

6.         How much dislocation to the Court and efficient use of judicial sitting time is really involved?

7.         What is at stake in the case for the appellant?

8.         Will the resolution of the issues raised have any importance beyond the case at hand?

9.         Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

10.     If so, can it be justly and practicably cured?

11.     If not, where, in all the circumstances, do the interests of justice lie?”

Mr Reilly, who appeared for the first respondent (“the respondent”) in the appeal, was content to resist Mr Jenkins’ application for leave broadly within the framework established by Madgwick J’s questions. In the arguments of counsel before me on the point, the main matters agitated were whether the new points now sought to be relied on had reasonable prospects of success, whether there was an acceptable explanation for why they had not been raised before the Federal Magistrates Court, whether there was actual prejudice to the respondent and whether, even if the Tribunal had failed to comply with s 424A as now alleged, that omission made any difference to the disposition of the application before it.

6                     I shall consider first the question whether each of the new points sought to be raised on behalf of the appellant has a reasonable prospect of success. The first of these points arises from the following passage in the Tribunal’s decision:

“And while claiming in his protection visa application that his mother and sister were attacked with iron rods and wood and were admitted to hospital with severe injuries but on 12 August 2001 his mother died, at the hearing the Applicant did not make this claim but rather attributed the death of his mother to his claim that Ravi’s family destroyed his house and this adversely affected his mother who then passed away.”

Mr Jenkins submitted that the state of the appellant’s visa application, and specifically the absence therefrom of the explanation later advanced for the death of his mother, amounted to ‘information’ within the meaning of s 424A of the Act. He supported that submission by reference to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. He submitted that, in the circumstances, the Tribunal was obliged under s 424A to provide the appellant’s visa application to him in writing, and to invite the appellant, in writing, to comment upon it. Mr Jenkins submitted that, for these purposes, it was not necessary for him to submit that s 424A(2) required the explanation ordained by s 424A(1)(b) also to be in writing: it was clear, he submitted that the visa application had not been given to the appellant in writing, and that he had not been invited, in writing, to comment upon it.

7                     Mr Reilly submitted that this new point was of doubtful merit. He submitted that, assuming that the visa application was ‘information’ for the purposes of s 424A(1), when the Tribunal’s decision was properly understood, it could not be said that the Tribunal considered that that information would be the reason, or a part of the reason, for affirming the decision under review. He submitted that, in the passage which I have set out above, the Tribunal was doing no more than noting its awareness of two different explanations which had been put forward by the appellant for his mother’s death, purely as a matter of record, as a preliminary to moving forward and determining the case by reference to the explanation put forward at the hearing. Mr Reilly emphasised that the Tribunal, in relation to the original claim made by the appellant in his visa application, said that the appellant “did not make this claim”, which was, in his submission, a clear statement that the Tribunal was not determining the matter by reference to that claim.

8                     Mr Jenkins’ point was that it appeared that the Tribunal had taken into account the discrepancy between the two explanations offered by the appellant as to the death of his mother as a matter which had an adverse impact on the appellant’s credibility. He pointed to a number of passages in the Tribunal’s decision in which the Tribunal found that the appellant was not credible. It is clear that the credibility of the appellant was a significant element in the Tribunal’s decision and, if the discrepancy between the two explanations offered by the appellant for the circumstances in which his mother died is to be regarded as an element in the Tribunal’s general assessment of credibility, there would be an argument of apparent force that that discrepancy, and the view which the Tribunal took of it, constituted part of the reason for affirming the decision under review. Mr Reilly, however, took me to each of the passages in the decision in which the Tribunal had stated in terms that the matter under discussion impacted adversely on its assessment of the credibility of the appellant. There were several such passages. By contrast, as Mr Reilly submitted, in the passage dealing with the two explanations offered by the appellant for the death of his mother, the Tribunal says nothing in terms about the matter of credibility. In his submission, the Tribunal should be taken at its word, and there should be no ready assumption that that passage was relevant to its consideration of the matter of credibility or became part of its reason for affirming the decision under review.

9                     Mr Jenkins rejoined that the reason, or each part of the reason, which the Tribunal had for affirming the decision under review should be ascertained by a reading of the decision as a whole, rather than by the more narrow process of taking only the express words used in immediate conjunction with the passage in question. In this respect, he relied upon the following words of Weinberg J in SZEEU (at [164] – [165]):

“It would be both artificial, and dangerous, to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant, and a decision rejecting that person’s claim, by focussing largely upon where, in the reasons for decision, the information is discussed. The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal's reasons must, of course, be read as a whole.

The possibility that the similar claims information contributed to the Tribunal's rejection of the appellant's claim cannot realistically be excluded. The appellant’s credibility was of critical importance to his claim. Any ‘information’ that the Tribunal considered as casting serious doubt upon his credibility, whether referred to in the early stages of its reasons, or as fortifying its earlier conclusions, seems to me likely to have played ‘a part’ in the decision.”

Mr Jenkins submitted that the possibility that the Tribunal’s thinking was influenced by the circumstance that the appellant’s visa application (the original ‘information’) set up a different explanation for the death of his mother could not be excluded.

10                  Mr Reilly also derived support, he submitted, from SZEEU. He drew my attention to the following words of Allsop J (at [216]):

“That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves ‘‘information” does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ.”

Mr Reilly particularly stressed that the mere fact that the Tribunal mentioned something in its decision does not mean that it constituted the reason, or part of the reason, for affirming the decision under review.

11                  In deciding the question of ‘a reasonable prospect’ in relation to the first of Mr Jenkins’ two new points, the first matter to consider under s 424A is whether the inclusion in the appellant’s application for a protection visa of an explanation for the death of his mother which differed from that later stated by him at the hearing before the Tribunal was ‘information’ within the meaning of the section. Mr Reilly did not argue that it was not, and I believe that he was well-justified in adopting that course. What Mr Jenkins proposed was ‘information’ in the present case cannot, in my view, be relevantly distinguished from the kind of thing which the Full Court held to be ‘information’ in the case of Mr SZBMIin SZEEU.

12                  The next matter to consider is whether this information was considered by the Tribunal to be the reason, or part of the reason, for which it affirmed the decision under review. In the decided cases in this Court, the approach has been taken that the actual reason, or part reason, for which the Tribunal has affirmed a decision under review, as disclosed by an objective analysis of the Tribunal’s printed decision in the case in question, must be treated as the reason which the Tribunal considered to be such for the purposes of s 424A. That approach is consistent with the submissions made in the present case, and I shall adopt it, both at the ‘reasonable prospect’ and at the level the ultimate merits of the matter, should leave to argue the new point be granted.

13                  By s 430 of the Act, the Tribunal was obliged to provide a statement of its reasons. Conformably with this requirement, the Tribunal’s published decision contains a section headed ‘Findings and Reasons’. It is in that section that one finds the passage which I have set out in par 6 above. That purely textual circumstance, however, is not conclusive. My task is ‘to isolate what were the integral parts of the reasons for the Tribunal’s decision’: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, [33], relied on by Allsop J (and apparently also by Weinberg J) in SZEEU: 150 FCR at 262 [216]. Nonetheless, the placement of the passage in the section of its decision where the Tribunal was ostensibly stating its reasons in compliance with s 430 of the Act does, in the context of the whole terms of the decision in the present matter, establish what I would call a prima facie case for concluding that the circumstance referred to in the passage was at least part of the Tribunal’s reason for affirming the decision under review. It is evident that the appellant’s credibility was a significant factor in the Tribunal’s thinking, and that the passage in question does present an inconsistency between different stories advanced by the appellant at various times, albeit perhaps tenderly expressed.

14                  For the above reasons I consider that Mr Jenkins’ first new point would, if permitted to be run in this appeal, have a reasonable prospect of success.

15                  On the question whether there was an acceptable explanation as to why this point had not been raised before the Federal Magistrate, Mr Jenkins submitted that the appellant had represented himself at that stage, and that it was apparent that he had no understanding of the nature of an application for judicial review. He drew my attention to a passage in the Magistrate’s reasons which stated:

“The applicant’s brief oral submissions were limited to seeking to explain the reasons why he fears persecution in India.”

Mr Reilly drew my attention to the fact that the appellant in NAJT, apparently, had given evidence that he could not afford a lawyer in the proceeding before the Magistrate. In the present case, he correctly pointed out, there was no such evidence. He submitted that I should not be persuaded that there was an acceptable explanation as to why the point was not raised below. Mr Jenkins, however, relied upon the following paragraph from the judgment of Madgwick J in NAJT (at [165]):

“It is no accident that the ‘practice’ spoken of in VUAX has often occurred in migration matters. Especially is this so in relation to cases concerning claims to refugee status. In the High Court and in this Court, judges have shown, as was recognized in Iyer, that they are acutely aware of what may be at stake if the claims made are genuine. There is no longer a general system of legal aid for poor applicants, as many of them in such cases are, who are independently assessed as having reasonably arguable cases. Often, unrepresented applicants who appear to be decent, genuine but impecunious people are reduced to floundering in complete incomprehension of the prevailing system of judicial review or the dangerous partial comprehension of those with a little knowledge of that system. Unsurprisingly, Full Courts have been slower in such cases to assert the primacy of finality of litigation considerations than in many cases where the risk of very serious personal harm is not involved. In saying this, I do not lose sight of the fact that, to degrees which may vary from place to place and time to time, there is a proportion of refugee claims which are simply legally unwarranted, and cynical attempts to subvert this country’s immigration system. Even the cynic, however, has a right to lawful treatment. In many areas of the law it is sometimes necessary, for the sake of the truly deserving, to accord concessions also to those ultimately shown to be undeserving.”

I do not understand Madgwick J to have been purporting to establish any new legal presumption in the passage set out above. Whether a particular applicant for a protection visa fits what his Honour appears to regard as a kind of stereotypical template will, in my respectful view, be a question of fact from case to case.

16                  In the present case, the appellant’s application for judicial review in the Federal Magistrates Court was evidently prepared by someone with an understanding of the jurisdiction which arises under s 39B of the Judiciary Act. The application also contains references to relevant provisions of the Migration Act, and to two Full Court judgments. The application, in terms, seeks writs of certiorari, prohibition and mandamus, and alleges jurisdictional error in various respects. It is signed by the appellant. In his visa application, the appellant nominated English as the second, in point of preference, of three languages which he could speak and of two languages which he could speak, read and write. In the absence of evidence from the appellant on this point, I infer that, as at May 2005, the appellant had access to, and made use of, professional advice of sufficient competence to give rise to an awareness of the nature of jurisdictional error and of the remedies available under s 39B of the Judiciary Act, and that he was so aware, at least as much as any lay person would be with respect to those technical matters.

17                  Why the appellant did not make use of the advice to which, apparently, he had access when he appeared before the Federal Magistrate is not the subject of any evidence before me. He was represented by counsel in this court, and there is likewise no evidence as to why the arrangements which permitted that course to be adopted might not have been put in place at first instance.

18                  Although not relied upon by Mr Jenkins, the fact is that the appellant’s application under s 39B was lodged some 9 days before the High Court delivered judgment in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009. Until the delivery of that judgment, the view, as stated by the Full Court in the same matter ([2002] FCAFC 411)was that a failure to comply with 424A of the Migration Act did not have jurisdictional consequences. It was not surprising, therefore, that the appellant’s application in the Federal Magistrates Court did not rely on the point which Mr Jenkins now seeks to raise. However, it was April 2006 by the time that that application came to be heard by that court, and I am not prepared to infer that the appellant would not have had, potentially at least, access to advice from quarters (such as those apparently involved in the drafting of the original application in the Federal Magistrates Court) where there was an awareness of the judgment of the High Court in SAAP.

19                  In all the circumstances, particularly since the appellant did not offer any evidence on the subject, I am disposed to the view that he has not provided an acceptable explanation as to why the point was not raised before the Federal Magistrate.

20                  As to whether there would be dislocation to the Court, and to the efficient use of judicial sitting time, if the new point were permitted to be taken, Mr Jenkins said that his two new points were the only arguments which he sought to raise on the appeal, and that any dislocation would be minimal. Mr Reilly did not deal with this aspect. However, for the purpose of considering whether the appellant’s new point had a reasonable prospect of success, Mr Reilly raised no objection to the point being fully debated before me. Both counsel were given, and used, the opportunity to make all submissions which they were disposed to make on the substance of the point, assuming that leave be granted. In the circumstances, it could not be contended, and it was not contended, that any inconvenience would arise if I were to permit the point to be taken.

21                  As to what was at stake in the case for the appellant, Mr Jenkins pointed out that the appellant faced almost certain deportation if he were unsuccessful in this proceeding (and, I should say, it was implicit in Mr Jenkins’ submission that, if he were not permitted to run the new points, he would inevitably be unsuccessful). Mr Reilly made no submission to the contrary.

22                  Neither party submitted that the resolution of the issues involved in the new points would have any importance beyond the case at hand.

23                  On the matter of actual prejudice, Mr Jenkins submitted that, at least since SAAP, strict compliance with s 424A was required of the Tribunal. He submitted that the onus was on the respondent Minister to establish that information had been given, in the proper form, to the appellant. I rather gathered that Mr Jenkins’ submission was to the effect that the respondent could not now be heard to say that it would be prejudiced, if her own Tribunal had, on a reasonable prospect basis, failed to comply with s 424A. Mr Reilly’s only point in response to the appellant’s submissions on this aspect was to say that, if the arguments now sought to be introduced had been advanced in a timely way before the Federal Magistrate, the respondent would have had an opportunity to peruse the transcript of the hearing before the Tribunal to ascertain whether the appellant himself had volunteered information as a result of which, by the operation of par (b) of subs (3), the Tribunal would have been excused from the obligation to comply with s 424A.

24                  On this aspect, I do not accept Mr Jenkins’ submission that the respondent to a judicial review application carries the onus of proving that s 424A was complied with. This consideration, however, is not conclusive on the matter of prejudice. As I understand Mr Reilly’s submission, his present instructions do not go to the point of positively affirming that an examination of the transcript of the hearing before the Tribunal would establish a defence under par (b) of subs (3) of the section. His submission was concerned with the possibility, rather than with the probabilities, of the matter. I do not consider that, on the material before me, I would be justified in inferring that the respondent was likely to suffer actual prejudice if the point were now permitted to be taken.

25                  Neither counsel addressed me on the question whether the prejudice to which Mr Reilly referred (if it existed) could be justly and practicably cured, nor, save as must be inherent in the submissions they did make to which I have referred above, as to where, in all the circumstances, the interests of justice lay.

26                  Balancing all the considerations to which I have referred, and influenced most heavily by the appellant’s reasonable prospect of success with respect to the point, and by the fact that no inconvenience or prejudice would be visited upon the respondent were the point to be argued, I propose to give leave to the appellant to argue to this point, and shall deal with it on the merits presently.

27                  The second of the two points sought to be advanced on behalf of the appellant arises from a request, which the appellant made at the end of the hearing before the Tribunal, to have more time in order to collect more documentation to support his case. According to its decision, the Tribunal told him, in effect, that he had had ample time to provide any documentation on which he wished to rely. The appellant, apparently, claimed that he had not had sufficient time. The following passage then appears:

“He requested more time so the Tribunal gave the Applicant until COB on 20 March 2005 to get these documents and again asked him to get this documents urgently, but added that it worried the Tribunal that he had not previously obtained these documents and he had previously not asked for time to get them, and suggested this went to the matter of his credibility.”

Here the Tribunal expressly referred to credibility. The ‘information’ to which s 424A referred in this context, according to the submission of Mr Jenkins, was the fact that the documents which the applicant sought time to obtain had not previously been lodged with the Tribunal.

28                  In relation to this point, Mr Reilly pointed out, correctly, that the passage to which I have referred was contained in a section of the Tribunal’s decision introduced by the sub-heading ‘Claims made at the Hearing’. It was not within the section headed ‘Findings and Reasons’. All the Tribunal was doing here, he submitted, was recording what it had said at the time. In the ‘Findings and Reasons’ section of the decision, there is no further reference to this matter. Mr Jenkins submitted, as he had under his first point, that his opponent’s approach amounted to an overly simplistic analysis of the Tribunal’s reasoning process and, particularly where the Tribunal had said that the matter went to credibility, it could not be concluded with confidence that that matter did not constitute part of the reason for affirming the decision under review.

29                  Considering whether this point has a reasonable prospect of success, the first question is whether the matter which Mr Jenkins identified was ‘information’ within the terms of s 424A of the Act. In SZEEU, Moore J (at [18]-[20]) and, apparently, Allsop J (at [205]-[207]) accepted, and followed, the judgment of Finn and Stone JJ in VAF at [24]. In the light of these authorities, I should regard information as ‘knowledge of relevant facts or circumstances communicated to or received by the Tribunal’, but not including ‘subjective appraisals, thought processes or determinations’ or ‘identified gaps, defects or lack of detail or specificity in evidence’ or ‘conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc’. In the passage to which I have referred at par 27 above, I do not believe that the Tribunal was referring to ‘information’ as so understood. Indeed, whether there were any other documents at all was a circumstance of which the Tribunal had no knowledge, other than the appellant’s own assertion. Further, it was the appellant’s continued refusal to make good on that assertion (thereby, the longer that went on, making it less likely that there was any ‘information’ at all) that gave the Tribunal cause to point out that his credibility might come into question. In this respect, the context in which the Tribunal pressed him, and warned him, should, in my view, be seen as the identification of gaps, defects, or lack of detail or specificity in the evidence in relation to the appellant’s case before the Tribunal.

30                  Further, the very existence of these additional documents was something which lay only in the appellant’s own assertion before the Tribunal. To the extent, therefore, that there was any ‘information’ involved here, it seems to me that it would inevitably be covered by the exception provided for in par (b) of subs (3) of s 424A.

31                  I also accept Mr Reilly’s submission that the fact that the Tribunal warned the appellant that his continued failure to produce these documents might affect his credibility, and recorded the fact of that warning in its decision, does not mean that the matter constituted a part of the Tribunal’s reason for affirming the decision under review. In the section of its decision headed ‘Findings and Reasons’, there is no further reference to this point and, to the extent that the Tribunal took the appellant’s credibility into account – and, as I have said, there were several such occasions – this point appears not to have been relevant.

32                  For the above reasons, I do not think that the appellant’s second proposed new point has a reasonable prospect of success.

33                  My consideration of the other seven items articulated by Madgwick J in NAJT, in relation to this second point, follows the same lines as the corresponding consideration of the same items in relation to the appellant’s first point, and I would express the same conclusions in relation to each. However, because I have come to a different conclusion in relation to the first item (prospect of success), and because of the importance of that item in the overall consideration of the matter, I propose to refuse the appellant leave to rely upon this second point.

34                  Mr Reilly also submitted that there was a basis upon which the decision of the Tribunal might be justified, quite independent of any failure to follow s 424A. In this regard he referred to the observation by Allsop J in SZEEU at[231] – [233]. In the hearing before the Tribunal, the appellant had identified his brother-in-law and his family as the ones who were likely to harm him if he returned to that part of India where he previously lived. The Tribunal said it was satisfied that if, for any reason, the appellant did not wish to return to that area, he would be able to move elsewhere and live in safety. This was, Mr Reilly submitted, a finding of fact upon which the Tribunal relied in the alternative as a basis for affirming the decision under review, and in no respect did it rely upon the Tribunal having recourse to information in relation to which there had been doubtful compliance with s 424A. However, whatever the merits of this point, being an alternative basis for the justification of the decision of the Tribunal as it is, I do not think it would be proper to take it into account at the point when I am considering whether the inherent merits of the new points being raised by Mr Jenkins are such that they would have a reasonable prospect of succeeding. I shall return to Mr Reilly’s alternative basis at the appropriate stage of my full consideration of the first point.

Compliance with s 424A

35                  I turn then to a consideration of Mr Jenkins’ first new point, namely, whether the Tribunal failed to comply with s 424A of the Act in relation to the passage for its decision set out at par 6 above. As I have said, Mr Reilly did not deny that the absence from the appellant’s protection visa application of the explanation which he later gave for the death of his mother constituted ‘information’ within the terms of that section. The question for determination, therefore, is whether that information was the reason, or part of the reason, why the Tribunal affirmed the decision under review. In light of the authorities to which I have referred, particularly VAF, and the way that judgment was explained in SZEEU, I need to consider carefully the Tribunal’s decision as a whole, I need to be conscious that the Tribunal’s reasoning may not necessarily be linear, and I need to isolate the integral parts of the reasons of the Tribunal, paying due regard to the structure, layout and arrangement of the printed form of the decision, but ultimately identifying those parts at the truly deliberative, as distinct from the merely formal, level of the Tribunal’s decision.

36                  The Tribunal commenced its written decision with a short paragraph setting out the factual background to the application before it. It referred next to the legislation under which it was operating, and to the definition of ‘refugee’ in the Refugees Convention. It set out what it identified as ‘four key elements’ in the definition.

37                  The next section of the decision was headed ‘Claims and Evidence’. The Tribunal noted that it had before it the departmental file, which included the appellant’s protection visa application and the record of decision of the delegate. It stated that it had also had regard to the material referred to in the delegate’s decision, ‘and other material available to it from a range of sources’. In this section of the Tribunal’s decision, there are three internal sections, each identified by its own subheading. They are, in order, ‘Claims in the protection visa application’, ‘Claims made in his application for review’ and ‘Claims made at the hearing’.

38                  Under the subheading ‘Claims in the protection visa application’, the Tribunal noted that the appellant claimed to have come from the Kammavar Naidu Community, and then set out certain basic biographical details which the appellant had included in his application. The appellant had said that one of his sisters fell in love with a Mr Ravi who belonged to the Thevar Community. He said that his parents were opposed to this relationship because Ravi’s family was involved in ‘ruling political activities and his brother was the Union Secretary of DMK’. The appellant said that his father attempted to dissuade Ravi’s parents, but ‘they threatened if they not allow to give his daughter to their son, they are ready to kidnap my sister for Marriage with their son’. The Tribunal noted that, according to the appellant, his parents ‘half-heartedly agreed’ to the marriage between the appellant’s sister and Ravi, which was then held. The Tribunal noted the appellant’s claim that, within three months, his sister was driven from Ravi’s house to get more money and jewels, that she had been ill-treated there, that Ravi had become ‘a drunken’ and that his sister’s mother-in-law beat her and often asked her for money and ornaments.

39                  The Tribunal noted that the appellant had claimed that, in November 2000, his sister was hospitalised for a head injury sustained, according to Ravi, as a result of slipping on the bathroom floor. According to the appellant, when his sister woke up in hospital she claimed that she had been ill-treated and attacked by Ravi and his brother with firewood. He said that his father went to Ravi’s home, but he too was attacked, so he complained to the police. They arrested Ravi, but subsequently released him on bail after three days because, according to the appellant, one of Ravi’s brothers was one of the Thevar Peravai leaders, a front for some ‘rowdies’ involved in crime. This brother of Ravi’s, according to the appellant, attacked everybody in the appellant’s house and broke things out, but the police did nothing about it and ‘because of the political pressure from their side the police threatened my father that they return the case against my father’.

40                  The Tribunal noted that the appellant claimed that, despite an apparent reconciliation between the two families in January 2001, Ravi’s family ‘tortured’ the appellant’s sister, who could not do anything which would lead to the dissolution of her marriage with Ravi, as that would affect the prospects of the appellant’s other two sisters. Then in May 2001, the appellant’s family received a message that Ravi and his family had killed the appellant’s sister. The appellant went to the hospital, and saw that his (dead) sister had severe injuries, but Ravi’s family said that she had poisoned herself. The appellant’s father accused Ravi’s family of killing the sister, however ‘the police and the doctors strongly told my father she dead because of her poison’. The appellant said that the police and doctors had been bribed to give this information, and had their hands tied due to their political involvement. The appellant’s sister’s death was reported in the paper as suicide. The police took no action against Ravi and, when the case came to court, the appellant’s father was threatened by the police not [sic] to compromise it, or ‘they will not allow living peacefully the rest life of my family’.

41                  The appellant’s father complained to the Chief Minister about his daughter’s death, and in July 2001 Ravi was arrested, but was released on bail after a week. Ravi, his brother and ‘other rowdies’ threatened the appellant’s father to withdraw the case, but he refused. On 30 July 2001, the appellant’s father was killed riding a motorbike and, according to the appellant, the police described it as being a road accident. The Tribunal noted that the appellant had gone to the police station and argued that it was murder, and related it to the earlier incidents involving Ravi and his family. The appellant went to Ravi’s house to ask about his father’s death, and claimed that they threatened to kill him if he did not keep quiet. He went to see the Police Commissioner, but Ravi and his brother were already there with the Commissioner. The appellant claimed to have handed his complaint to the Police Commissioner, who undertook to take action, but ‘one of the policemen advised me to escape from India, because they were very cruel people’.

42                  At this point in its decision, the Tribunal said:

“He claims that they attacked his mother and sister with iron rods and wood and they were both admitted to hospital with severe injuries.”

According to the Tribunal, the appellant said he again went to the Police Commissioner, and Ravi was arrested. However, on 12 August 2001, the appellant’s mother died. The appellant claimed to have left his sister in hospital and to have escaped to Singapore on 11 September 2001, not returning to India until 23 August 2003, at which time he could not find his sisters and claimed that his house had been destroyed. Although the Tribunal did not comment on the matter, it would seem, if the claims made in the protection visa application are to be accepted, that the sister who, together with the appellant’s mother, was beaten with iron rods and wood was a different sister from the one who had died in May 2001.

43                  The Tribunal noted that the appellant claimed that Ravi’s family knew he had returned from Singapore and targeted him, so he stayed with his uncle in Melatur village in Tanjore, and also hid in several different places. The appellant claimed that he departed from India on 26 September 2004 to save his life. He expressed the strong belief that ‘enemies’ would kill him if lived anywhere in India, and that they were ‘political supported rowdies’. He said that these enemies could buy the police and justice with their money and power, ‘so as a normal citizen he cannot get any justice’.

44                  In the section of its decision under the subheading ‘Claims made in his application for review’, the Tribunal referred briefly to that application, upon which nothing further turns for present purposes.

45                  In the section headed ‘Claims made at the hearing’, the Tribunal set out the essence of the evidence given by the appellant at the hearing before the Tribunal. In that evidence, the appellant dealt with where he lived as a young man, his schooling, his vocational training, and such matters. The appellant claimed that he went to Singapore on 11 November 2001 ‘as he had troubles in India’, returning in August 2003. He confirmed that he had not been in contact with his sisters since September 2001, and in August 2003 he found that his family’s house had been vandalised, and one side had been broken. He accepted that, during his absence, his sisters could have sold the house. The Tribunal noted that it questioned the appellant about the significance of his being a member of the Kammavar Naidu Community, whereas Ravi’s family was from the Thevar Community, and particularly how this point of difference related to his claim to be a refugee. According to the Tribunal, the appellant ‘replied that his sister had a “love marriage” with Ravi and this caused a lot of problems as they speak Telego’. The Tribunal pressed the appellant several times to state how coming from a different Community from Ravi related to his refugee claims, and the appellant said, first, that the Thevar Community formed the majority, secondly, that his sister was in a ‘love marriage’ which raised many issues, mentioning that Ravi told his sister to take the Thevar Community name and tortured his sister and beat her up and asked for a dowry, and thirdly, that he did not understand the question. When the Tribunal asked the appellant what he personally feared because Ravi’s family belonged to the Thevar Community, he replied that they murdered his sister and father and destroyed his house, and this affected his mother who then passed away. The appellant claimed that if they complained to the police, everything was for the benefit of Ravi’s family as they belonged to the DMK ‘which was on the well-to-do side’ so everything went their way, whereas the community to which the appellant belonged was in the minority. The appellant claimed that if he was there, he would have problems and would not have protection.

46                  The Tribunal noted that it put it to the appellant that there was no political aspect to the tension between the two families. Although at first he claimed not to understand this question, he then said that he had family problems because of the separation of the Thevar and Kammavar Naidu communities ‘but then it became a community problem as they are from the Telego speaking minority and the Thevar are the majority, so they could do anything.’

47                  The Tribunal referred to three untranslated documents that the appellant had provided. It showed these documents to the appellant. The first was a ‘First Information Report’, which apparently stated that the appellant’s sister had committed suicide. The appellant claimed that the report was not independent, as it had been provided by Ravi’s family to the police. The Tribunal noted that it had tried to explore several unclear and contradictory statements made by the appellant about this report. The second document was an ‘Accident Register’, which apparently said that the appellant’s sister had committed suicide. According to the Tribunal the appellant was very reluctant to accept that this report contained such a statement. He claimed that it had been provided by Ravi’s family, and that they had fixed it as they had the political power. He claimed that the report did not reflect what his own family had said, that Ravi’s family had beaten up his sister and killed her, that the report was not true, and that Ravi’s family had ‘asked them to say it was suicide’. The third document was a post-mortem certificate, which apparently attributed the death of the appellant’s sister to suicide. Again, the appellant insisted that this was not true, and that Ravi’s family had asked everyone to write down that his sister had committed suicide.

48                  The Tribunal put it to the appellant that the two families were in ‘a highly emotional state over a domestic situation, and asked him how he knew how his sister had died, and how he knew that the police and doctors had all entered into an elaborate conspiracy that it was suicide.’ The appellant replied ‘that they had tortured her and would have killed her as when he saw her she had marks on her body from the beating she had received.’

49                  According to the Tribunal, it questioned the appellant about the death of his father, asking him how he could allege it was murder when it appeared to be a simple road accident. The appellant said that his father had made lots of complaints to the Chief Minister and was regarded as a problem, so, he claimed, ‘they beat him up and killed him and called it a road accident.’ When the Tribunal asked the appellant how he knew this, he simply replied that it was the truth.

50                  The Tribunal apparently put it to the appellant that he and his family had complained to the police a number of times, and on each occasion they had, apparently, received a fair hearing, and on at least two occasions Ravi was detained and held for investigation, albeit that he was subsequently released on bail. It put to the appellant that this suggested that the police were professional in their treatment of his claims, and that they did not give into bribery or political pressure. The appellant’s reply was that whenever complaints were made and Ravi was held in prison, he was subsequently released as his family had political powers as the head of the Thevar Community.

51                  The Tribunal put it to the appellant that his evidence was in essence one of tension between families, and not something which invoked the operation of the Refugees Convention. The appellant replied that it was not a family problem, but rather between the Thevar Community and the Kammavar Naidu Community, between which there had been much conflict. He said that, when he returned from Singapore in August 2003, ‘they’ knew he had returned and organised some rowdies from the Thevar Community who tried to beat him up. The appellant said he thought that he was a refugee because, if he returned to India, he would not have protection, so he came to Australia.

52                  The Tribunal then put to the appellant a series of propositions about the prospect of returning safely to India. It said that the population of India was over 1.3 billion, that the appellant was part of the 83% Hindu majority, and that he had several languages including English. It said that the appellant was still young and had technical skills that were likely to be in high demand. Why would it not be reasonable, the Tribunal asked the appellant, for him to live elsewhere in Tamil Nadu, away from where he originally lived, or elsewhere in India, if he was having some family problems in the local area? In response, the appellant claimed that ‘wherever you go they have political protection and support from the central government, so they cannot go anywhere as they will not have protection.’ The appellant said that because of a family problem, there became a community problem, and that he was being targeted not only by Ravi’s family but also by the Thevar Community, which was ‘very ferocious’, and always targeting people and seeking revenge.

53                  The Tribunal then noted that, at the end of the hearing, the appellant had requested more time in order to collect more documentation. This is the matter to which I have referred earlier in these reasons.

54                  The Tribunal then embarked on the next section of its decision, headed ‘Findings and Reasons’. Here the Tribunal’s method was to refer again to claims which it regarded as significant, and then, in each case, to indicate whether it accepted the claim, and if not, why not. Necessarily, the claims which the appellant made were both those contained in his protection visa application and those which he had made at the hearing. Indeed, since the appellant’s application for review in the Tribunal asserted, amongst other things, that his original application for a protection visa had been rejected by the delegate ‘for no good reasons’, it was inevitable that the Tribunal would have considered and, where appropriate, given the appellant the benefit of, the claims made in his visa application. In many parts of the Tribunal’s decision one finds mention of a particular claim made in the visa application, together with an explanation of how that matter was dealt with by the appellant at the hearing.

55                  At the outset of its ‘Findings and Reasons’, the Tribunal provided a succinct statement of the issues which seemed to be central to the appellant’s claim:

“The Applicant’s claims centre on a developing family feud following the engagement and then marriage of his sister … to Mr Ravi whose family is from the Thevar Community. He claims that subsequently his sister was murdered by Ravi and his family, and they then killed his father, destroyed his house and killed his mother and seriously injured another sister, and he does not know what has become of his two remaining sisters (implying that they may also have suffered or been killed).”

The Tribunal then, in a lengthy paragraph, recited the nature of the appellant’s claims, specifically with respect to the asserted transfer of what was originally a family problem into what became essentially a community problem. In this paragraph, the Tribunal did little more than to reiterate how these issues had been dealt with at the hearing, and the appellant’s claims as to the significance of the two different communities. The Tribunal then noted that the claimed tension between the two families, and communities, had not, apparently, been sufficient to prevent the appellant’s sister from marrying Ravi. Specifically, it noted that her membership of the lower Kammavar Naidu Community had not been an unsurmountable obstacle to either Ravi or his family in his agreeing to marry her.

56                  The Tribunal then turned its consideration to s 91S of the Act. It set out the terms of that section, and referred to the judgments of Merkel J in SDAR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 72 ALD 129, of von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 and of Selway J in STXB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 860. The Tribunal then said:

“The Tribunal is satisfied from the unsupported claims made by the Applicant and from the other evidence before it, that the deaths of his sister, father and mother occurred for a non-Convention related reason (this is also dealt with in more detail below). The Tribunal is also satisfied that the motivation for any hostile action (if any) that may in the future be directed at the Applicant by Ravi or his family would also not be for a Convention related reason. It follows that, in view of s.91S of the Act, the Tribunal must disregard any fear of serious harm the Applicant may have because he is the member of a family that suffered loss for a non-Convention related reason. It also follows that the Tribunal is satisfied that the Applicant does not have a well-founded fear of serious harm amounting to persecution for a Convention reason on the basis of his social group being the family or a member of his family.

It would seem to follow that, on the Tribunal’s reasoning, it considered itself to be under an obligation to disregard any fear of persecution which the appellant held as a result of being a member of his own family. The Tribunal noted that, when it pointed out to the appellant, in effect, that s 91S presented problems for his case, he ‘replied that it was not a family problem but rather conflict between the Thevar Community and the Kammavar Naidu Community’. The Tribunal reiterated the appellant’s claims, referred to above, that the dispute had become a community one, and that the Thevar Community were politically powerful.

57                  The Tribunal then proceeded to analyse the appellant’s claims about the two communities. It pointed out that he did not claim that anyone from the Thevar Community, other than members of Ravi’s family and their ‘rowdies’, attacked any member of his own family. It pointed out that, despite the appellant’s insistence on characterising the dispute as a community one, this had not, apparently, provided an obstacle to the marriage between his sister and Ravi, and he did not claim that his sister was treated the way she was by Ravi’s family because she had breached some form of cultural code or rule by marrying outside her own community group. It pointed out that the appellant had provided no evidence to support his claim that there was any hostility between the two communities. Neither, according to the Tribunal, did the appellant claim that because of his membership of the Kammavar Naidu Community he was denied access to education or employment, or experienced other serious harm amounting to Convention-related persecution. The Tribunal did not accept the appellant’s unsubstantiated claims that members of the Kammavar Naidu Community did not receive protection. The Tribunal concluded on this aspect:

“In short, and while accepting that his Community is a minority community and the Thevar community are the majority in the area in which he lived, the Tribunal does not accept the unsubstantiated claims that they benefit form whatever they do so while his community does not receive protection (see also below). And while accepting that the Applicant and his family are from the Kammavar Naidu Community, the Tribunal has not been able to satisfy itself that there is a real-chance that the Applicant would be subjected to serious harm amounting to persecution for a Convention reason on this basis from the Thevar Community, Ravi’s family, or indeed anyone else if he returned to India.”

58                  The Tribunal continued its statement of findings and reasons with the sentence: ‘The applicant nevertheless claims that three members of his family have been killed by Ravi’s family and the Tribunal carefully considered these claims.’ In my reading of the Tribunal’s decision, I consider that the use of the word ‘nevertheless’ conveys the sense that the Tribunal had already reached at least a provisional conclusion that the appellant’s claims, if true, did not attract the operation of the Refugee Convention, but that it would proceed to consider whether those claims were in fact true.

59                  The Tribunal turned first to the circumstances of the appellant’s sister who died in May 2001. It undertook a careful examination of the evidence, and of the appellant’s claims in that regard, after which it expressed the following conclusion:

“It follows that given all the above, the Tribunal finds the Applicant’s unsupported subjective conjecture about the death of his sister totally uncompelling and unreasonable. In short, the Tribunal is satisfied that his sister’s death was properly investigated by the authorities in India and they took her death very seriously, and does not represent an absence or even breakdown in effective state protection. It follows that the Tribunal does not accept the Applicant’s claims that there was no justice in the case; that the police took no action against Ravi; or that when the case came to court, that his father was threatened by the police not to compromise it or “they will not allow living peacefully the rest life of my family”. It also follows that the Tribunal finds that this goes to the matter of the Applicant’s credibility, and finds he is not a credible witness.”

60                  The Tribunal next turned to the circumstances of the appellant’s father who, it may be recalled, was killed in a motorbike accident in July 2001 (by an apparent typographical error referred to in this section of the decision as July 2000). The Tribunal also examined the evidence as to this incident with care. It concluded as follows:

“In short, the Tribunal does not accept that the Applicant’s father was murdered for a Convention related reason either by Ravi’s family or because he was [sic] nuisance who kept on complaining to the Chief Minister and for one reason or another (such as focussing too much attention on the matters of his complaints, possible on [sic] Ravi’s family), but rather is satisfied that the cause of his father’s death was simply an unfortunate non-Convention related traffic accident. The Tribunal again finds that this goes to the matter of his credibility.”

61                  The Tribunal did not then immediately turn to the circumstances of the death of the appellant’s mother. Rather, it referred to the appellant’s own evidence regarding the capacity of the local justice system to respond to claims which the appellant and his family had made against Ravi and his family. It referred to the police response to the appellant’s representations following his father’s death, and continued:

“And when the Applicant claims that his mother and sister were attacked with iron rods, resulting in their serious injury and the subsequent death of his mother on 12 August 2001, he claims he again went to the Commissioner “whom took action against Ravi and he was arrested again”. From all these claims made by the Applicant, the Tribunal is satisfied that notwithstanding his claims that Ravi’s family was politically and socially connected and bribed the police and other authorities, the actual claims he made to the police were genuinely investigated by the police. It follows that the Tribunal does not accept these claims.”

The Tribunal then referred to Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487 on the subject of the degree of protection which a citizen might expect from his or her own State.

62                  Because of its significance in the structure of the Tribunal’s decision, I shall set out the next paragraph in full:

“Further, the Tribunal has already found that the death of his father was nothing other that a simple car accident and the unfortunate death of his sister was anything other than suicide (possible induced by an unhappy marriage and domestic violence). And while claiming in his protection visa application that his mother and sister were attacked with iron rods and wood and were admitted to hospital with severe injuries but on 12 August 2001 his mother died, at the hearing the Applicant did not make this claim but rather attributed the death of his mother to his claim that Ravi’s family destroyed his house and this adversely affected his mother who then passed away. Further, in regard to the damage done to his house, the Applicant claims that he only became aware of this after his return from Singapore in August 2003, two years after his mother had died. The Tribunal put to him at the hearing that that his sisters could have sold the house after he left for Singapore, and the Applicant confirmed that this could have been the case. It follows that the Tribunal has not been able to satisfy itself that in August 2003 the house still belonged to the Applicant’s family, or that the damage done to it was directed at the Applicant’s family – let alone that it was done for a Convention related reason. Nor does the Tribunal accept that the claimed attack on his mother and one of his other sisters was for a Convention related reason (but rather because he had complained to the police), or that because of any of these unfortunate events there is a real chace that the Applicant would be subjected to serious harm amounting to persecution for a Convention related reason. Nor from the claims made by the Applicant has the Tribunal been able to satisfy itself that just because he has not been in contact with his two remaining sisters since his departure for Singapore in September 2001 that something untoward has happened to them and, if so, that this was for a Convention related reason. Again the Tribunal finds that the Applicant’s claims are unsupported conjecture.”

It will be seen that it is in this paragraph that the contentious passage upon which Mr Jenkins relies occurs. It will also be seen that the Tribunal did not dismiss the appellant’s claims about the circumstances in which his mother died in the same way that it had dismissed his like claims with respect to the deaths of his sister and his father. As to the latter, in each case there was a reason, which appeared ex-facie on the public record, for the death of the person concerned which had nothing to do with Ravi, his family or his associates. It was suicide in the case of the appellant’s sister and a traffic accident in the case of his father. However, when it came to the death of the appellant’s mother, there was no such obvious benign explanation. It is true that the appellant had given two explanations for his mother’s death, but each was related, in some way, to Ravi. In addition to its earlier finding that, however the mother’s death had come about, it was not for a Convention-related reason, the Tribunal had no further justification, on the evidence before it, for dismissing the significance of that death to the claims made by the appellant. It may be that this circumstance explains why the Tribunal, having dealt with the deaths of the appellant’s sister and father, did not proceed to deal with the death of his mother in the same kind of analytical framework.

63                  It is fairly clear that, in expressing this passage on which Mr Jenkins relies in the way that it did, the Tribunal has used the word ‘while’ to convey the sense of contemporaneity, together with opposition or contrast. Although the Tribunal referred to a past event (the visa application) as a point of contrast with a more recent event (the hearing), the use of the word ‘while’, together with the present participle of the verb which follows, persuades me that the Tribunal was viewing the visa application as having a continuing relevance and as constituting an existing document by reference to which the application before it should be determined. I do not think that the reference to the visa application can be regarded as a mere historical aside. More importantly, perhaps, the sense of contrast which is conveyed by the word ‘while’ in context shows that the Tribunal here identified a point of inconsistency in the appellant’s claims. That such a point should be the significant aspect of this passage in the Tribunal’s decision (rather than the primary facts contained in each of the explanations) is consistent with the subject matter of the paragraph taken as a whole.

64                  If there is a unifying theme in the paragraph which I have quoted in full at par 62 above, it is that there were several otherwise unrelated claims which the appellant had made which were either internally inconsistent, incongruous with other things which the appellant had stated, unsupported by the evidence and/or irrelevant to the appellant’s claim under the Refugees Convention. The Tribunal’s own assessment, in the closing sentence of this paragraph, that the claims were ‘unsupported conjecture’ seems an apt summary of the Tribunal’s view as to the matters referred to in the paragraph.

65                  The Tribunal next referred to the applicant’s movements since September 2001, and said that it was satisfied that, if the appellant had any fear of harm, he would not have chosen to return to India in August 2003 and to remain there for a further 14 months.

66                  The Tribunal finally considered, in a lengthy paragraph, the appellant’s prospects for safe relocation elsewhere than at his original village, should he return to India. I shall return to this consideration presently.

67                  What does this analysis of the Tribunal’s printed decision reveal as to the place of the passage set out in par 6 above in the Tribunal’s reason, or reasons, for affirming the decision under review? Looking at that passage in the context of the overall paragraph in which it appears (set out in par 62 above), I cannot accept Mr Reilly’s submission that the explanation contained in the appellant’s protection visa application as to the death of his mother was merely noted by the Tribunal in this passage, and not subsequently acted upon. Indeed, if anything, the passage which I have set out in par 61 above comes close to justifying the inference that the Tribunal regarded that explanation as the more likely of the two. More importantly, however, as I have held, the essence and purpose of the Tribunal’s observations in the paragraph set out in par 62 above was to collect together a number of aspects in which the applicant’s claims, or some of them, were regarded as ‘unsupported conjecture’. On its face, this was a powerful and significant finding against the appellant, and cannot be relegated to the status of mere commentary. The fact that the appellant was prepared to engage in such conjecture fairly clearly depreciated the value of his claims in the eyes of the Tribunal. In my view, that fact was at least part of the reason why the Tribunal affirmed the decision under review.

68                  I return to the aspect of the Tribunal’s decision which was touched upon at par 58 above. I have considered whether, before it turned to what I have described as the ‘nevertheless’ aspects of its decision, the Tribunal had provisionally reached its final conclusion that the applicant should not be granted a protection visa, and whether everything that followed, down to the Tribunal’s conclusion at the end of its decision, was merely by way of tying up subordinate loose ends or what would be regarded, in a legal context, as obiter dicta. I do not believe that the Tribunal’s decision can be so construed. For one thing, there is much important, and apparently forceful, material in the five pages which follow ‘nevertheless’, not least in the crucial paragraph which contains the passage upon which Mr Jenkins relies. For another thing, those remaining pages include passages which, on any view, constitute part of the Tribunal’s deliberative reasoning. In a number of places the Tribunal says, for example, ‘the Tribunal accepts’ or ‘the Tribunal does not accept’, and similar things. Finally on this aspect, save for the two discrete, lengthy, paragraphs in which the Tribunal deals with the applicant’s claims as to the deaths of his sister and his father respectively, there is no discernable point of demarcation between passages that might be regarded as factual asides on subsidiary matters, on the one hand, and further consideration of central aspects of the general credibility of the appellant’s claims, on the other hand.

69                  For the above reasons, I have concluded that the fact that the appellant’s protection visa application contained a particular explanation for the death of his mother, being an explanation which differed from that advanced by him at the hearing before the Tribunal, was a part of the reason for the Tribunal affirming the decision under review. Since it was common ground that that fact was ‘information’ within the terms of s 424A of the Act, and that the information was not given to the appellant in the way required by the section, it follows, that there has been a failure to comply with the section on the part of the Tribunal. I am obliged by SAAP to treat that failure as a constructive failure to exercise jurisdiction and to hold that the Federal Magistrate erred in this regard. Subject only to the matter to which I next turn, the appellant has made good his case for certiorari and mandamus.

independent basis to refuse relief?

70                  I turn finally to the point raised by Mr Reilly to which I have referred at par 34 above. He submitted that there was a basis upon which the Tribunal’s ultimate decision might be affirmed which was ‘entirely independent of the failure to follow s 424A’ within the meaning of the judgment of Allsop J in SZEEU (150 FCR 214, [233]). The basis was that the Tribunal stated that it did not accept that the appellant would be subject to harm at the hands of Ravi and his family, no matter where he went to live in India. Indeed, it did not accept that even if Ravi, or members of his family or community, ‘stumbled upon the applicant elsewhere in India’ they would seek to harm him because he came from a minority community or for other Convention-related reasons. Referring to these findings, Mr Reilly submitted that, even if everything the appellant claimed about the fear which he held were accepted, and even if the nature of that fear could legitimately be linked to the Refugees Convention, if the appellant could have safely returned to some other part of India than the village in which his original home was situated, it could not be said that he was outside his country of nationality owing to that fear.

71                  The difficulty with this submission is that it is immediately confronted by the undoubted circumstance that the Tribunal’s finding that the appellant could safely return to live in some other part of India could only be made if the appellant’s own evidence in that regard were disbelieved, as it was. Indeed, in the lengthy paragraph in which the Tribunal dealt with this aspect, there were six occasions upon which the Tribunal said that it did not accept particular assertions, or evidence, on the part of the appellant. As I have held above, concerns as to the appellant’s credibility lay at the core of the Tribunal’s use of the inconsistency as between the two explanations proffered for the death of the appellant’s mother. If the appellant’s ability to return to India, and to live elsewhere than in his original village, was an alternative basis providing support for the Tribunal’s decision, on no view could it be said that that basis was ‘entirely independent’ of the Tribunal’s failure to follow s 424A of the Act.

72                  In circumstances, there will be a writ of certiorari quashing the Tribunal’s decision of 24 March 2005, and a writ of mandamus commanding the Tribunal to hear and determine the appellant’s application for a review of the decision of the delegate according to law.

Associate:

Dated: 28 August 2006