Applicant S1607 of 2003 v Minister for Immigration
[2007] FMCA 1740
•9 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1607 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1740 |
| MIGRATION – Application related to husband only – evidence of what happened to wife not relevant – whether sending s.425 notification to authorised recipient of correspondence is sufficient – comments in response to 424A letter to come from Australia – therefore 14 days to be allowed – whether right to a hearing abandoned. |
| Migration Act 1958 (Cth), ss.36(2), 91R, 422A, 422B, 424A, 424B, 425, 425A, 426, 441A, 474 Migration Regulations 1994 (Cth), reg.4.35, 4.35D |
| Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | APPLICANT S1607 of 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1023 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 13 September 2007 |
| Date of last submission: | 13 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 November 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R. Turner of Parish Patience |
| Counsel for the Respondents: | Mr J.D Smith |
| Solicitors for the Respondents: | Ms S. Goodman of Blake Dawson Waldron |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1023 of 2007
| APPLICANT S1607/2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 27 March 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 10 February 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 2 August 2007.
Background
On 14 February 1996 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to that he was persecuted by Indian authorities because of his socio-political and religious beliefs.
This application was refused by a delegate of the first respondent on 22 May 1997 (CB 49-62) and by the Tribunal on review on 24 March 1999 (CB 173). An application for judicial review was subsequently filed with this Court, and on 24 August 2006 Smith FM remitted the matter to the Tribunal to be determined according to law (CB 269). By decision signed on 10 February 2007 the second Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
The matter is now before this Court pursuant to an application for judicial review filed on 27 March 2007, and an amended application filed on 2 August 2007.
Issues for determination
The issues before the Court are as follows:
·As the application related to the husband only, is the evidence of what happened to his wife relevant?
·Whether sending a s.425 notice to the applicant’s authorised recipient of correspondence complied with the Migration Act 1958 (Cth) (“the Act”)?
·Whether comments in response to the 424A letter were to come from Australia or elsewhere?
·Whether the Tribunal is required to provide a draft, or give an applicant an opportunity to respond to doubts held by the Tribunal?
The application
In his application, the applicant set out seven grounds as follows:
(1)The Refugee Review Tribunal (the Tribunal) was asserting a proposition of law, as to which it was in serious error to deny the applicant his well founded fear of persecution, having accepted what happened to him, to his wife, the Tribunal made an unreasonable finding such as “the applicant is not a refugee and his fear of persecution is now well founded”.
(2)The truth is that there was ample evidence upon which it was open to the Tribunal to at least see that the applicant’s well founded fear of persecution, subjective fear of persecution is well founded. It has accepted that the applicant is from Shatrana. His father’s political involvement, his own association with Jarnail Singh among others, his own involvement in the SSF, his wife’s association with SSF Members after he himself left India, his involvement in the ISYF here, his opposition to the Nuclear Tests carried out by the Vajpayee Government, his status as a failed asylum seeker and his declared support for the Shiromani Akali Dal (Amritsar) of Simranjit Singh Mann. The Tribunal Member accepted that the applicant was arrested on two occasions and tortured in 1991 and 1993 and accepted that his wife was raped while in custody and that this experience led her attempting to commit suicide and to her continuing psychological problems. The Tribunal accepted that the Police subsequently came looking for the applicant. The Tribunal accepted that it is a crime under Indian law to burn the Indian flag etc. The Tribunal erred in law by not accepting that there is a real chance that he will be arrested, killed or otherwise persecuted for a convention if he returned to India now or in the reasonably foreseeable future.
(3)The Tribunal erred in law and incorrectly applied the law to the facts as found and the Tribunal ignored how the applicant’s wife escaped India and failed to consider the persecution she will suffer because of the illegal way she departed India.
(4)The Tribunal did not dispute that the applicant and his wife were persecuted, harassed and abused because of their political imputed activities. The Tribunal failed to recognise the applicant as having a profile such that it would merit the description of a high profile.
(5)The Tribunal failed to accept that the applicant satisfies the criteria set out in section 36(2) of the act for a protection visa and that the applicant’s wife is a member of the family unit.
(6)The Tribunal ignored important findings made by His Honour Justice Smith FM in his judgment of 24 August 2006.
(7)The Tribunal Member acted in bad faith and condemned the community volunteer and disregarded the psychological trauma suffered by the applicant and his wife and that the assistance given is emotional, and the community volunteer has never charged money and evidence on file quoted by the Presiding Member overlooked that there was never any finding by any authority that Mr Laba Sarkia lacked integrity and his skills, qualifications and involvement have led to support the applicant.
The applicant filed an amended application on 2 August 2007 setting out the following grounds and particulars:
(1)The Tribunal failed to carry outs its statutory duty.
Particulars
(a)The Tribunal failed to comply with the Migration Act 1958, s.425 to invite the applicant to a hearing.
(b)The Tribunal failed to comply with the Migration Act 1958, s.424A in that it did not give the applicant a real opportunity to respond to the adverse information.
(c)The Tribunal, as reconstituted, lacked the jurisdiction to review the application as the President of the Tribunal failed to reconstitute the Tribunal in accordance with the Migration Act, s.422A.
(2)The Tribunal denied the applicant procedural fairness.
Particulars
(a)The Tribunal’s failure to hold a hearing was a denial of procedural fairness to the applicant.
(3)The Tribunal asked itself the wrong question.
Particulars
(a)The Tribunal having found that persecution was not a “convention reason”, failed to ask itself whether such harm or persecution was condoned or ignored by the authorities for a “convention reason”.
(b)The Tribunal failed to ask itself “what if I am wrong”. The orders sought are a declaration that the decision of the Refugee Review Tribunal of 1 March 2007 is void ??? and of no effect to a Writ of Certiorari to act to the second respondent removing into this Court to be quashed the decision by it of 1 March 2007.
(c)A Writ of Mandamus directed to the second respondent to rehear and redetermine the applicant’s application according to law.
Findings of the Court in relation to the grounds in the application
Ground one complains that the Tribunal erred in accepting what had happened to the applicant and his wife, and then finding that the applicant is not a refugee and that his fear of persecution is not well-founded (CB 425.10). Those were findings of fact properly open to the Tribunal on the material before it; they are not open to review. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Ground one is rejected.
Ground two again seeks to challenge the finding of fact that the applicant does not have a well-founded fear of persecution. That finding is not open to review. The applicant alleges that the Tribunal erred in law by not accepting his evidence. As stated in Lee (ante), “the Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.” A failure to accept the applicant’s evidence is not an error of law. Ground two is rejected.
Ground three claims that the Tribunal erred in law by ignoring how the applicant’s wife escaped from India and failing to consider the resulting persecution that she will suffer. The application to the Tribunal was by the applicant husband alone (CB 68). The Tribunal concluded correctly that it had to determine the criteria for a protection visa in relation to the husband, not the wife. Any harm that may be suffered by the wife in the future was irrelevant to the review by the Tribunal, except if it resulted in a risk of harm to the husband. There was no evidence that the applicant might face harm as a result of the illegal departure by his wife. The Tribunal therefore did not err in failing to find that the possible harm the wife may suffer meant that the applicant is a refugee. Ground three is rejected.
Ground four seeks to challenge a finding of fact as to the profile of the applicant. That finding of fact was properly open to the Tribunal and is not open to review. Ground four is rejected.
Ground five seeks to challenge the findings of fact that the applicant does not meet the criteria in s.36(2) for the grant of a protection visa. A review of those findings of fact, which were properly open to the Tribunal on the material before it, is not available. The ground also asserts that the Tribunal should have found that the applicant’s wife is a member of the family unit. That issue is not relevant to whether the Tribunal erred in relation to the applicant’s application for a protection visa. An application by the applicant’s wife for a protection visa was not before the Tribunal. Ground five is rejected.
Ground six complains that the Tribunal ignored findings made by Smith FM in his judgment of 24 August 2006 (that the Tribunal should determine the matter according to law). The Tribunal was required by the order at CB 269 to determine the application for review according to law; it did that. No error of law by the Tribunal has been shown. This ground is rejected.
Ground seven complains about findings by the Tribunal in relation to Mr Laba Sarkis. At CB 398.10, the Tribunal found that Mr Laba Sarkis was not a registered migration agent, and that there was no evidence that he was otherwise entitled to assist the applicant with the proceedings before the Tribunal. The Tribunal did, however, deal with the crucial problem raised by Mr Laba Sarkis, being whether the applicant’s wife and children are or can be included in the application (CB 399.2). The Tribunal stated that the only matter that was before the Tribunal pursuant to the orders of Smith FM was the application by the applicant father, and that the applicant’s wife and son had not been included in that application (see application – CB 68). The fact that the Tribunal did not accept representations from a person not entitled to assist the applicant with his case, does not show a lack of good faith by the Tribunal. This ground is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground 1(a) alleges that the Tribunal failed to invite the applicant to a hearing in accordance with s.425 of the Act. That is incorrect; the Tribunal sent a s.425 invitation to the applicant’s authorised recipient of correspondence on 26 September 2006 (CB 275). The Tribunal wrote again on 6 October 2006 (CB 278) re-stating that the applicant was invited to the hearing on 30 October 2006. The applicant was re-invited again by letter dated 18 October 2006 (CB 289). Sending the letter to the authorised recipient complied with s.441A(4)(c)(i).
The s.425 letter (CB 275):
·Informed the applicant that the Tribunal was unable to make a decision in his favour on the information before and invited him to attend a hearing in order to submit further evidence in support of his claims: s.425;
·Provided the applicant with notice of the specified day, time and place at which the applicant was scheduled to appear: s.425A(1);
·Was sent to the applicant by post to the last address for service nominated by the applicant, being the address of the authorised recipient of correspondence: s.441A(4)(i);
·Provided a period of notice to the applicant that complied with the prescribed period of 14 days: reg. 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”); and
·Contained a statement to the effect of s.426A regarding the options available to the Tribunal if the applicant failed to appear at the scheduled hearing.
·Accordingly the invitation clearly complied with the statutory requirements contained in Regulation 4.35D and ss.425(1), 425A, 426(1) and 441A of the Act. No breach of s.425 or s.425A occurred.
Ground 1(a) is rejected.
By letter dated 25 October 2006 the applicant advised the Tribunal that he was not fit to attend the hearing on 30 October 2006 and asked that the Tribunal put in writing matters that could be part of the reason for a decision that he is not a refugee (CB 294). A s.424A letter was sent to the applicant.
Ground 1(b) alleges a breach of s.424A. A s.424A letter was sent to the applicant on 2 January 2007 (CB 296-309). The applicant was given until 25 January 2007 to respond which gave the prescribed period of 14 days. A breach of s.424A or 424B has not been established. This issue is examined in more detail below, and rejected.
Ground 1(c) alleges that the Tribunal was not reconstituted according to s.422A. A breach of this section has not been established. This issue is examined in more detail below, and rejected.
Ground 2 alleges a denial of procedural fairness because the Tribunal failed to hold a hearing. Division 4 of Part 7 of the Act is an exhaustive statement of the natural justice hearing rule applicable to this matter (s.422B). The applicant was invited to a hearing, but declined to attend. The Tribunal was therefore entitled to make a decision on the review without taking any further action to allow or enable the applicant to appear before it (s.426A(1)). No breach of Division 4 has been shown. This ground is rejected.
Ground 3(a) alleges that the Tribunal should have considered “whether such harm or persecution was ignored by the authorities for a Convention reason.” The Tribunal did not accept that there was a real chance that the applicant would be persecuted for a Convention reason if he were to return to India (CB 421.6, 425.10). The question posed by the applicant was therefore not required to be considered. This ground is rejected.
Ground 3(b) alleges that the Tribunal should have asked “what if I am wrong?”
If a Tribunal has no real doubt that events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed). The Court extends this reasoning to include where a Tribunal has no doubts as to the conclusions it has reached on the material before it; it is not necessary for it to consider that it might be wrong. The Tribunal reached its conclusions on the basis of information before it, and not on the basis of credit or demeanour. There is no indication that the Tribunal had any doubts about the conclusions it reached, and therefore it was not necessary for it to ask “what if I am wrong?” This ground was not pursued at the hearing and is rejected.
Ground 3(c) seeks a Writ of Mandamus and does not raise any ground for review.
Findings of the Court as to the matters raised in the written submissions for the applicant
The submissions refer to the s.425 invitation and to the applicant responding to the s.424A letter (CB 374) and asking the Tribunal to contact him if further information is required. It is alleged that the Tribunal failed to carry out it statutory duty, denied procedural fairness and failed to ask the correct questions.
Statutory duty
It is alleged that the applicant asked that the hearing on 30 October 2006 go ahead. That assertion is incorrect (CB 295). The applicant stated that he was not fit to attend a hearing and asked that matters be put to him in writing: that was done (CB 296). Sections 424A and 425 were complied with. The Tribunal was entitled to make a decision without taking any further action to allow or enable the applicant to appear before it (s.426A(1)).
The submissions allege that the Tribunal failed to give the applicant a real opportunity to comment on adverse information. That information was set out extensively in the s.424A letter (CB 296) sent on 2 January 2007. The applicant responded in detail on 24 January 2007 (CB 374) and asked the Tribunal to request more specific information if it needed it. It is for an applicant to establish their case. An applicant must satisfy the Tribunal that all statutory elements are made out. The Court agrees with the following statement by the Tribunal in another matter:
However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out”: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596.
The relevant facts of the case must be supplied by the applicant. The Tribunal is not required to make an applicant’s case for them. There was no obligation on the Tribunal to request further information. No error of law has been shown. This ground is rejected.
It is claimed that the Tribunal had to give the applicant 28 days to respond to the s.424A letter. The s.424A letter was sent on 2 January 2007 (CB 296) and gave until 25 January to respond (CB 309). Regulation 4.35(5) provides that if the information or comment to which the invitation relates is to be provided from a place that is not in Australia, the prescribed period for giving the information is 28 days after the day on which the invitation is received.
The Court accepts the submission for the first respondent that the invitation under s.424A was to provide comment on the information in the letter. That comment was to be provided by the applicant who was in Australia, and therefore the time limit under reg 4.35(3) is 14 days after the day on which the invitation is received, which, by s.441C(4) is taken to be 7 days after the date of the letter. The letter was dated 2 January 2007, which means receipt by 9 January 2007; 25 January 2007 gave 14 days to respond. No breach occurred.
The applicant argues that the President of the Tribunal failed to reconstitute the Tribunal according to s.422A. A member of the Tribunal became unavailable. The Tribunal was therefore reconstituted. The power to do that is in s.422(1). The question is whether the correct section was specified in Exhibit A1(f). The Principal Member had the power to reconstitute the Tribunal. That power was exercised but the incorrect section was stated; that does not invalidate the appointment. A breach of this section has not been established.
Procedural fairness
It is alleged that the Tribunal denied the applicant procedural fairness by failing to hold a hearing. The applicant was invited to attend a hearing but declined. The Tribunal was empowered to proceed to make a decision. This ground is rejected.
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 does not mean that the Tribunal must give a further oral hearing to address any concerns that it may have after considering the material provided in response to the s.424A later.
In SZBEL (ante) at [48], the joint judgment approved a statement by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 that
… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
The Honours continued that:
Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
There was no obligation to conduct a further hearing. This ground is rejected.
SZILQ v Minister for Immigration and Citizenship [2007] FCA 942 was referred to in support of a submission that the interaction between s.91R(3) and s.425(1) meant that the obligation to give procedural fairness was not “foreclosed by s.422B”. As the rules of natural justice do not require a decision maker to disclose what they are intending to decide in order to give the parties a further opportunity (to respond), the Court holds that the applicant was not denied procedural fairness by not being offered a further hearing to respond to such issues.
The correct question
The applicant raises again the contention that the Tribunal should have asked whether persecution was condoned or ignored by the authorities for Convention reasons. This complaint has been rejected above. The “what if I am wrong?” issue was abandoned by the applicant at the hearing.
In oral submissions for the applicant, it is claimed that the applicant never abandoned his right to an interview (Transcript 8, line 21). The Court put to Mr Turner (Transcript 7, line 1) that what the applicant was really saying (at CB 294-5) was that there
…‘is a hearing on 30 October, I’m not fit to attend a hearing now…Please write to us to clarify the issues the Tribunal has concerns with. If I can’t come to a hearing but write to us.’
The applicant therefore declined the invitation to attend the hearing, and did not ask for an adjournment.
It is submitted for the applicant that, as he saw it, he never abandoned his right to an interview (Transcirpt 8, line 21). Mr Turner agreed that what was meant by the letter at CB 294 was open to interpretation (Transcript 8, line 28).
The Court finds that it was open to the Tribunal to determine that the applicant had declined the invitation to a hearing. By the letter of 25 October 2006, the applicant had consented to the Tribunal proceeding to deal with the matter on the papers (without a hearing) (CB 290.5, 291.1, 294-5). The Court finds that s.425 was complied with.
The applicant stated that he could not attend the hearing and asked for any concerns to be put in writing. The Tribunal wrote a 424A letter on 2 January 2007 (CB 296) and put its concerns to the applicant. The applicant responded in writing (CB 374). The applicant then asked the Tribunal to request more specific information if it needed it (CB 381). It is for an applicant to establish their case. The Court agrees with the following statement by the Tribunal in another matter
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
The Tribunal had no obligation to write to an applicant and seek further information; it had no duty enquire. It complied with the Act, and in so doing, complied also with the procedure requested by the applicant, other than the request that the Tribunal write again. The Court finds no error in what the Tribunal did. The Court refers to the decision in SZBEL (ante) at [48] and F Hoffmann-La Roche & Co (ante).
The decision in SZILQ (ante) was referred to. The passage in [25] was referred to where Justice Buchanan stated that the applicant was entitled to a hearing under s.425(1). Mr Turner referred to the passage in [29] where His Honour quoted from the decision in SZBEL that the Tribunal there did not give the applicant sufficient opportunity to give evidence and make submissions. Paragraph 35 was also referred to. Having found that here the applicant was invited to a hearing and declined, and was sent a s.424A letter and responded, the Court finds no failure to afford procedural fairness.
Mr Turner complained about the s.424A letter (Transcript 10, line 12), saying that 21 days was insufficient time for the applicant to have a real opportunity to respond to it. Section 424B(2) is as follows:
424B Requirements for written invitation etc.
(1)… … …
(2)If the invitation is to give additional information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
... … …
Regulations 4.35(3) and (5) are as follows:
4.35 Prescribed periods – invitation to comment or give additional information (Act, s 424B (2))
(1) … … …
(2) … … …
(3) If:
(a)the invitation relates to an application for review of a decision that does not apply to a detainee; and
(b)the information or comment to which the invitation relates is to be provided from a place in Australia;
the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 14 days after the day on which the invitation is received.
(4) … … …
(5) If:
(a)the invitation relates to an application for review of a decision that applies to a person who is not a detainee; and
(b)the information or comment to which the invitation relates is to be provided from a place that is not in Australia;
the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 28 days after the day on which the invitation is received.
Mr Turner submits that the information to be given in response to the s.424A letter was to come from outside Australia; therefore the prescribed period is 28 days. The s.424A letter however, was an invitation to comment on the information in the letter. Clearly those comments were to come from the applicant in Australia. The prescribed period was therefore 14 days.
The 424A letter is dated 2 January 2007. The applicant is taken to have received the letter 7 working days after the date of the document (s.441C(4)); this meant receipt on 11 January; the 14 days for response ended on 25 January; that is the date specified in the letter (CB 309). No error occurred.
Mr Turner submits that the applicant was not provided with a real opportunity to comment. The Court rejects that submission; the applicant was provided with the statutory period and his comments were in a detailed eight-page letter. This claim is rejected.
Mr Turner then submitted (Transcript 17, line 5) that the changed circumstances in the Punjab were not put to the applicant in the 424A letter. As those changed circumstances come under independent country information (Transcript 16, line 46) it was excepted from s.424A(1) by s.424A(3)(a). The conclusion that there were changed circumstanes clearly came from country information (CB 423.2 – 423.9). Further, the s.424A letter at CB 305-7 makes it clear that the Tribunal had information that things in the Punjab have changed. The letter therefore put that matter to the applicant. There was no breach of s.424A. The situation in SZBEL (ante) is to be distingushed as there the delegate failed to deal with certain aspects of the applicant’s claims.
Mr Turner then argued (Transcript 19, line 12) that the Tribunal should have asked itself whether
the failure of the state to protect [the applicant] from that [harm was] for a Convention reason, ie because he was a Sikh.
The Tribunal found at CB 421.5 that there was not a real chance that the applicant will be persecuted because of the factors he claimed, including that he is a Sikh. Having made that finding, it was not necessary for the Tribunal to ask itself about the alleged failure to provide state protection: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47].
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 9 November 2007
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