REASONS FOR JUDGMENT

1                                             The appellant is a citizen of India.  He arrived in Australia on 10 March 2008.  On 21 April 2008, he applied to the Department of Immigration and Citizenship for a protection class XA visa.  He claimed to fear persecution if he returned to India on the basis of his claimed homosexuality. 

2                                             A delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused the appellant’s application for a protection visa.  The appellant then applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision.  The Tribunal affirmed the decision not to grant a visa.  However, the appellant then sought Constitutional writ relief in respect of the Tribunal’s decision from the Federal Magistrates Court. 

3                                             The Minister consented to the Federal Magistrates Court making an order setting aside the Tribunal’s decision.  The matter was remitted to the Tribunal for further hearing according to law.  After a further hearing before the Tribunal on 7 May 2009, the Tribunal, differently constituted, made a decision on 21 August 2009 affirming the delegate’s decision not to grant a protection visa.  The appellant then applied again to the Federal Magistrates Court.  After a hearing before the Federal Magistrates Court on 11 May 2010, the Federal Magistrates Court dismissed the proceeding.  The appellant has now appealed to the Federal Court from those orders.  The Tribunal was a party to the proceeding before the Federal Magistrates Court and is a party to this appeal.  It has filed a submitting appearance in both courts. 

4                                             Before the Federal Magistrates Court, the appellant was directed to file written submissions prior to the hearing.  The appellant did not comply with that direction.  At the hearing before the Federal Magistrates Court, the appellant was invited to make oral submissions.  He told the Federal Magistrates Court that he had no submissions to make, and that he did not wish to make any submissions in reply to the written and oral submissions of the solicitor who then appeared for the Minister.

5                                             When the matter was called on today, the appellant appeared in person, with the assistance of a Hindi-English interpreter, although he said that he understands English and has completed 14 years of study.  I invited the appellant to make submissions in support of his appeal, in the absence of any written submissions from him.  The appellant said that he wished to have some more time to be given to him to enable him to make some submission.  An adjournment was opposed by the Minister.  The appellant said that he had no funds and could not afford to obtain legal advice.  He said that he would now borrow money from friends to enable him to get some legal advice, but was unable to indicate why he could not have done that in the considerable time since the Tribunal’s decision of 21 August 2009.

6                                             Indeed, at the first court date before the Federal Magistrates Court, the appellant indicated that he wished to participate in the Tribunal’s Legal Advice Scheme, and his application was referred to a panel member for advice.  The appellant filed an amended application after he had availed himself of the opportunity and received legal advice. In those circumstances, I was not persuaded that any adjournment should be given. 

7                                             Notwithstanding that the appellant made no submissions to the Federal Magistrates Court, the Federal Magistrates Court embarked on a consideration of the grounds upon which the appellant sought Constitutional writ relief in his amended application.  The only grounds of appeal in the notice of appeal filed in the Federal Court are that the Federal Magistrates Court erred in not acceding to the grounds contained in the amended application filed in the Federal Magistrates Court.  There are, however, no particulars of any error given in the notice of appeal.

8                                             The four grounds dealt with by the Federal Magistrates Court may be summarised as follows: 

1.                  The Tribunal failed to accord the appellant procedural fairness in finding that he is not homosexual and was not involved in homosexual relationships or activity in India; 

2.                  The Tribunal failed to exercise the power conferred on it under s 427(1)(d) of the Migration Act 1958 (Cth) (the Act) in that the Tribunal was provided with a psychological assessment report saying that the appellant was suffering from anxiety and depression but the Tribunal failed to obtain a further report as to the appellant’s condition; 

3.                  The Tribunal’s decision was affected by an apprehension bias as evidenced by comments by the Tribunal in the course of the hearing; 

4.                  The Tribunal failed to have regard to the possibility that matters that the appellant asserted as true may possibly be true.

9                                             The Federal Magistrates Court dealt with each of those grounds at some length.  Having read the reasons of the Federal Magistrates Court, there does not appear to me to be any error in the way in which that Court dealt with those grounds.  In its reasons of 21 August 2009, the Tribunal found that the appellant was not a truthful or reliable witness.  It did not accept his claims relating to his past activities and harm in India.  The Tribunal based its findings on what it characterised as vague, unforthcoming, and inconsistent evidence.

10                                          The Tribunal considered the psychological report provided by the appellant, but was not satisfied that the report explained the inconsistencies and memory problems that it perceived in the appellant’s evidence.  The Tribunal had regard to the appellant’s conduct in Australia, and found that he was not in fact homosexual, and in any event, was not satisfied that the appellant had engaged in conduct in Australia otherwise than for the purpose of strengthening his claim for protection.  The Tribunal therefore disregarded that conduct under s 91R(3) of the Act.

11                                          The Federal Magistrates Court rejected the first ground, on the basis that the appellant’s contentions amounted to a complaint as to the factual findings of the Tribunal.  Such findings, in the absence of identified jurisdictional error, are not reviewable.  In relation to the second ground, his Honour observed that the power under s 427(1)(9) is no more than a power.  That provision does not impose any obligation on the Tribunal.  In relation to the third ground, the primary judge observed that vigorous testing of the claims of a protection visa applicant does not amount to bias or give rise to an apprehension of bias, since the testing is often required for reasons of procedural fairness.  Finally, the primary judge was satisfied that the reasons given by the Tribunal demonstrated an understanding of the correct test for determining whether the appellant was a refugee within the meaning of the Refugees Convention.

12                                          As I have said, I have perceived no error in the reasoning of the Federal Magistrates Court.  It follows that no ground in the notice of appeal has been established.  The appeal must therefore be dismissed with costs. 

Associate:

Dated:         8 December 2010