FEDERAL COURT OF AUSTRALIA NANM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1071 MIGRATION – no issue of principle NANM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 917 OF 2004 CONTI J 28 JULY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 917 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NANM APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: CONTI J DATE OF ORDER: 28 JULY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed 2. The appellant pay the respondent's costs of the appeal assessed at $3,500. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 917 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NANM APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: CONTI J DATE: 28 JULY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from the orders and reasons for judgment of Federal Magistrate Barnes made and given on 20 May 2004 and 28 June 2004 respectively, whereby her Honour dismissed the appellant's application purportedly brought pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Refugee Review Tribunal ('the Tribunal') handed down on 18 March 2003. The Tribunal decision had affirmed the decision of the Minister's delegate made on 23 April 2002 not to grant the appellant a protection visa. 2 In terms of background to the appeal, I adopt the relevant written submissions of counsel for the respondent, which are soundly predicated upon the material in evidence below: 'Background The appellant, a citizen of India, arrived in Australia on 3 February 2002. On 28 February 2002, the Department received an application for a protection visa from the appellant. On 11 April 2002 the appellant attended an interview with an officer of the Department. On 23 April 2002 a delegate of the Minister refused the protection visa application. On 27 May 2002, the Tribunal received an application for review from the appellant. On 12 February 2003 the Tribunal sent to the appellant a bundle of country information upon which he would be given an opportunity to comment at his hearing. On 18 February 2003, the appellant attended a hearing before the Tribunal. The appellant's claims for refugee status The appellant claimed to have a well founded fear of persecution on his return to India because of his political affiliations, specifically as an active member, from September 1998, of the People's War Group (PWG) and the Communist Party of India (Marxist Leninist). The particular claims made by the appellant were that: a) he was falsely arrested an imprisoned in 1999, 2000 and 2001; b) he was tortured while under arrest; c) there were outstanding cases pending against him; and d) he anticipates being arrested and tortured on his return to India. The Tribunal's decision On 18 March 2003 the Tribunal handed down its decision, affirming the Tribunal's decision not to grant the appellant a protection visa. The Tribunal's decision turned upon its adverse credibility findings: a) the implausibility of many of the key aspects of the appellant's claims; b) the fact that there were many material and important contradictions between his testimony and his claims which were not explained to the Tribunal's satisfaction; and c) some of his key claims were at odds with the independent evidence. The Tribunal concluded that his key claims were not credible. The Tribunal was not satisfied that the appellant had a well founded fear of persecution due to his political opinion or for any other Convention reason.' 3 The notice of appeal filed 8 June 2004, read literally under the heading 'Grounds', reads merely as follows: 'His Honour erred in law and fact in determining that the Refugee Review Tribunal had not been affected by bias in reaching its decision.' 4 The appellant indicated to the Court that he relied primarily on his written submissions which purported to particularise his claim as to bias on the part of the Tribunal. Given that the appellant was self-represented, I thought it appropriate to allow the appellant to rely as well on his written submissions, albeit that the effect thereof was to amend his notice of appeal to that extent. The appellant also made oral submissions to the Court mainly in the form of responses to my questions. Counsel for the respondent indicated in turn that she relied primarily on her written submissions, but she assisted the Court in oral submission by drawing my attention to relevant findings in her Honour's reasons below. 5 At the conclusion of those relatively short addresses, I dismissed the appeal with a view to publishing my reasons for judgment in due course. Those reasons are now set out below. 6 In response to my questions to the appellant with regard to any alleged error of law in the reasons for judgment of the Federal Magistrate, he responded through an interpreter as follows: 'I was unable to pinpoint any error in the judgment of the Federal Magistrate. What I wish to say is that the Tribunal asked wrong questions in relation to my claim and application.' Later, the appellant further stated to the Court: '…if there is an irrelevant question asked then it is of no use to the decision making process. I am now challenging the questioning process of the Tribunal. If the Refugee Review Tribunal asked questions to which I would have been able to provide answers according to my age, memory and experience, then it would have been another matter, but they asked irrelevant questions to the country situation and my claim.' 7 Those claims were supplemented by the appellant's written submissions referred to in [4] above which consisted primarily of extracts of reported cases having no apparent relevance to the subject proceedings. On the final page of those submissions however, the appellant purported to particularise his claim of alleged bias on the part of the Tribunal, by submissions reading literally as follows: 'It can be easily understood that the RRT member acted in a bias manner by (i) asking high level questions about the organization [ie the People's War Group], (ii) demanding material evidence which could not be possible from Australia and (iii) visualizing India as one among the Advanced countries, in order to turn down the application.' The appellant then made the following request of the Court (read literally): 'The applicant's humble submission is that the Honorable Federal Court may make an arrangement to send an independent team to India to give a report on the India's administrative condition particularly about Passport authorities, Police department, medical record system, the degree of Information Technology and other living conditions, so that the words "HARD TO BELIEVE" can be reduced very much in number in the RRT decision and in order to give a fair Judgment.' The reference to 'hard to believe' was not explained or elaborated upon by the appellant in written or oral submissions. It does not seem to be a direct quotation from the Tribunal's reasons, which stated rather that most of the appellant's claims were simply not 'plausible'. 8 In response to these same submissions put to the learned Federal Magistrate below, her Honour said at [19] – [20]: 'The applicant claimed that the Tribunal was biased against him or had prejudged his application. It was contended that this was apparent in the method in which the Tribunal member questioned him in the course of the Tribunal hearing. In particular the applicant contended that the Tribunal member asked him questions and continued to ask him questions until he was unable to provide the right answer, and that if he did provide the answer, the Tribunal went on to ask for further clarification. The applicant claimed that it was apparent that the Tribunal member was unhappy with many of his answers and had noted where the applicant did not provide an answer. An applicant who alleges bias has a heavy onus. In this case, the only evidence before the court of the conduct of the hearing is the Tribunal reasons for decision. Such claims do not establish that the Tribunal had prejudged the applicant's application, or, indeed that there was apprehended bias. (See Jia Le Geng v MIMA (1999) 93 FCR 556 and RRT, Re; Ex parte H (2001) 179 ALR 425). The Tribunal has an inquisitorial role. It is appropriate for the Tribunal to put to the applicant its concerns in relation to critical matters (Kioa v West (1985) 159 CLR 550), to raise its concerns with the applicant and to test, as it did, the applicant's knowledge of the organisations to which he claimed to have belonged and the underlying philosophies. On the evidence before me the procedure adopted by the Tribunal as described in the reasons for decision does not establish that there was any actual or apprehended bias or lack of procedural fairness.' 9 I agree with her Honour that there was no evidence placed before her, such as to establish any finding of actual or apprehended bias by the Tribunal or that the member's questioning was relevantly inappropriate. Rather, the Tribunal used the outcome of its questions to make a credibility finding, and to conclude: '… that in light of the implausibility of many of the key aspects of the applicant's claims, the fact that there were many material or important contradictions between his testimony and his claims which were not explained to the Tribunal's satisfaction and since some of his key claims were at odds with the independent evidence, the Tribunal can only come to the conclusion that key aspects of the applicant's testimony are not credible and therefore finds that he is not a credible witness. Accordingly, since the Tribunal finds that virtually all of the applicant's claims are not credible, the Tribunal is not satisfied that he has a well-founded fear of persecution due to political opinion or for any other Convention reason.' 10 As to those findings on credibility by the Tribunal, Barnes FM said at [13] of her reasons: 'Credibility findings are a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407. The Tribunal's credibility findings were premised on factors explained in detail in its reasons. While, as Counsel for the respondent conceded, not every matter taken into account in the credibility assessment would necessarily be a matter that everyone would think was important, such issues were matters for the Tribunal. As was said in Kamal v MIMA [2002] FCA 618 at [36] it is not for the Court "on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal". Overall there is a coherent basis for the Tribunal's credibility findings. There were significant inconsistencies and unexplained implausibilities in the applicant's evidence and the Tribunal findings were open to it on the material before it.' Again, I agree with her Honour that the findings of credibility were open for the Tribunal to make. 11 In the result, Barnes FM held below that no jurisdictional error had been established on the basis of the application for review made to the Federal Magistrates Court, and duly dismissed the same. I entirely agree with her Honour's conclusions and the reasons which she furnished in support thereof. I therefore dismiss the appeal, and order that the appellant pay the respondent's costs assessed in the amount of $3,500. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 18 August 2004 The Appellant appeared in person Counsel for the Respondent: KC Morgan Solicitor for the Respondent: Sparke Helmore Date of Hearing: 28 July 2004 Date of Judgment: 28 July 2004