MZTAZ v Minister for Immigration
[2005] FMCA 152
•22 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZTAZ & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 152 |
| MIGRATION – Review of decision by Refugee Review Tribunal – religious persecution of Muslims in India – Shiv Sena – reaching a factual conclusion unsupported by evidence in respect to a critical step in Tribunal reasoning – option of relocation within subject country – jurisdictional error disclosed – application allowed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 91R, 474
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 (24 October 2003)
| Applicants: | MZTAZ, MZUAA & MZUAB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1121 of 2003 |
| Delivered on: | 22 March 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 2 February 2005 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Ms H. Riley |
| Solicitors for the Applicant: | P.J. Roberts Pty Ltd |
| Counsel for the Respondent: | Mr E. Heerey |
| Solicitors for the Respondent: | Blake Dawson Waldron |
THE COURT DECLARES THAT:
The decision of the Refugee Review Tribunal made on 12 September 2003 is invalid.
AND ORDERS THAT:
A writ of certiorari issue quashing and setting aside the said decision.
The matter be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with the law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1121 of 2003
| MZTAZ, MZUAA & MZUAB |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicants on
10 October 2003 seeking judicial review of the decision of the Refugee Review Tribunal on 12 September 2003 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant protection visas to the applicants.
The history
The applicants are citizens of India, of Muslim background, and comprise a husband, his wife and their son. They came to Australia on 17 December 2001 and lodged an application for protection visas with the Department of Immigration and Multicultural Affairs on 14 January 2002. As the wife and son rely on the claims of the husband, the husband shall hereinafter be referred to as “the applicant”. Pursuant to the provisions for the issue of a protection visa in respect to applicants who are members of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations.
On 4 June 2002, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visa; the applicant applied for review of that decision by the Refugee Review Tribunal (“the Tribunal”) on 28 June 2002.
The applicant claimed that he cannot return to India as he fears religious persecution by reason of his being Muslim, by a militant Hindu group known as Shiv Sena. The applicant claimed that members of Shiv Sena had entered his shop in Mumbai on a number of occasions and demanded money from him, and that such occasions had occurred during Hindu festivals and he was targeted because he was Muslim. The applicant had reported the matter to the local police who had arrested some men. However on the same day as the arrests occurred, the applicant was seriously assaulted (and required hospitalisation) and the lives of he and his family were threatened. Following the assault, the applicant withdrew his complaint to the police and the men were released without charge. He stated that he believed the police were sympathetic to groups such as Shiv Sena. Further claims are enunciated on page 5 in the decision of the Refugee Review Tribunal dated 21 August 2003:
The applicant claims that he later resisted demands for one of the six apartments he owned to be handed over to militant Hindus. He claims, however, that while in his shop with a client in about September 2000, two people on a motor-bike shot at him in an attempt to murder him. He claims that they missed him, but killed his client. He claims that he knows the perpetrators of the crime were members of Shiv Sena even though he does not know their names. He claims that he gave a description of them to police who later arrested an alleged murderer and two others. He claims that although he attended the court as a witness he left for Australia before the case had been concluded. He claims that he was threatened with dire consequences by members of Shiv Sena if he were to give evidence at the trial. He added that he does not know the outcome of the case, or even if it has yet concluded.
The applicant claims that he was attacked in late 2000 while on his way to his shop, and threatened with death if he opened his business premises…
He also claims that his children were harassed and threatened and were not, therefore, able to complete their studies. He claims after an attempted abduction of one of his daughters she fled to Australia in August 2001.
The applicant said that Shiv Sena is still in coalition with the Bharatiya Janata Party (BJP) in his State… He claims that Shiv Sena is active and influential all over India, in league with other pro-Hindu groups such as the BNP which continues to hold power nationally.
In the decision made by the Tribunal on 12 September 2003, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol); consequently the applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for the purposes of a protection visa. Specifically, the Tribunal accepted:
a)that the applicant and members of his family had been targeted by members of Shiv Sena and the motivation for same was essentially because they were Muslim;
b)that each of the incidents about which the applicant had given evidence, had actually occurred, however that:
i)the applicant likely exaggerated the extent of his injuries incurred when he was assaulted;
ii)the Tribunal was not satisfied that the applicant was the intended target of the shooting which occurred at his shop; and
c)the applicant and his family had held genuine fears of violence against them as stated by the applicant.
However, the Tribunal also found that:
d)although the applicant was fearful of giving evidence in a court case due to threats made against him, “those particular threats against the applicant arose out of an endeavour to prevent him giving evidence at a criminal trial” (rather than because of his Muslim background);
e)the “applicant did not lack the protection of the State”, and that the police had taken appropriate action to bring the alleged offenders to justice;
f)“Shiv Sena might endeavour to have a presence generally in India, [but] it ‘has a regional base only, with no national representation’… It is only in Maharashtra that it has been highly influential in government…”
g)the influence of Shiv Sena in the applicant’s home state of Maharashtra was waning and the chance of the applicant facing further persecution there was diminishing;
h)it would be reasonable to expect the applicant and his family to relocate to another part of India if they feared to return to their home state; and
i)the applicant did not have a well-founded fear of persecution for a Convention reason.
On 10 October 2003, the applicant lodged an application in this Court, being MZ 1121 of 2003, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The application filed an amended application and contentions of fact and law on 14 September 2004. Summarily, the applicant claimed the Tribunal had made jurisdictional errors because:
a)the applicant was denied natural justice, by failing to draw the applicant’s attention to a critical matter (in this case, the Tribunal’s view that the applicant’s client was the target of the shooting at his shop) in order to receive his comment on same;
b)the Tribunal made a critical finding for which there was no evidence, in that it implicitly found that the applicant’s client was the target of the shooting without evidence supporting same;
c)the Tribunal’s decision was unreasonable and irrational, by rejecting that the applicant was the intended target of the shooting for no given reason; and
d)the Tribunal failed to take into account a relevant consideration, in that it failed to take into account the fact that the applicant was the intended target of the shooting.
The respondent’s contentions of fact and law, which were filed on 18 October 2004, rebutted the applicant’s contentions, arguing that:
a)the applicant exaggerated the importance of the Tribunal’s finding in respect to the shooting incident at the applicant’s shop;
b)the Tribunal’s decision was not likely to turn on whether the applicant was or was not the intended target of the shooting at his shop;
c)it was open to the Tribunal to make a finding of fact in respect to the shooting incident and it is beyond the jurisdiction of this Court to reconsider the factual matter;
d)the Tribunal’s decision ultimately turned on general country information, not the shooting incident; and
e)even if the Tribunal had erred in respect to the shooting incident (which is denied), an independent alternative reason existed for denying the applicant’s claim – that is, the applicant and his family could relocate to another part of India.
The respondent contended that, as a result of the above, there was no failure of procedural fairness or natural justice by the Tribunal, and as such there was no jurisdictional error.
At the commencement of the trial, leave was sought and granted for the applicant to file a further amended application which submitted one further ground of contended jurisdictional error, as follows:
… the Tribunal made jurisdictional errors in connection with its conclusions that:
2. the diminished representation of Shiv Sena in Parliament established that violence against Muslims had virtually disappeared.
Particulars:
a.the Tribunal made a critical finding for which there was no evidence;
b.the decision of the Tribunal was unreasonable and irrational;
c.the Tribunal failed to ask the right question;
d.the Tribunal took into account an irrelevant consideration, namely, Parliamentary representation;
e.the Tribunal failed to take into account a relevant consideration, namely, the actual level of violence against Muslims.
The law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions and findings
The first ground contained in the applicant’s further amended application filed 2 February 2005 at the commencement of the hearing, is that the Tribunal made a jurisdictional error in that it concluded that the applicant was not the target of the gun shots that were fired into his shop. The applicant contends that the Tribunal made a critical finding for which there was no evidence and that the applicant was denied natural justice. It was further contended on his behalf that the decision in this regard was unreasonable and irrational and failed to take into account a relevant consideration.
In essence, what the applicant was submitting was that there was no evidence to support the finding that the applicant was not the target of the gun shots that were fired into his shop. It is important in this regard to point out, as did Counsel for the respondent, that this was not the finding of the Tribunal. The Tribunal at Court Book (“CB”) page 168 said:
Nevertheless, the Tribunal cannot be satisfied on the applicant’s evidence that the alleged murderers targeted him rather than his client who was killed in the incident. The applicant said that more than one shot was fired, and at close range. He did not wait for the conclusion of the court case and has not adduced any evidence to satisfy the Tribunal that he was the person targeted in the aforementioned incident.
I accept the submission of the applicant that it has been accepted that the making of a finding and drawing of inferences in the absence of evidence, is an error of law – see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355. Further, the Court at 357 held that if the decision of the Tribunal was ‘Wednesbury unreasonable’ or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not in reality satisfied in respect of the correct test, then there would also be jurisdictional error.
The applicant contended that there was no evidence on which the Tribunal could consider that the applicant’s client, rather than the applicant, was the target when the Shiv Sena members shot into the applicant’s shop. This is simply not correct. The fact is that it was the applicant’s client who was shot and killed. Whilst it is not irrefutable evidence that the applicant’s client was the target, it is certainly evidence that can be construed in that way and it was open to the Tribunal to make the finding that it was not satisfied that the applicant was the target rather than the client. To go behind this finding is to challenge the merits of the decision.
Further, it cannot be said that there has been a denial of natural justice by the Tribunal in that it failed to draw to the applicant’s attention a matter critical to its decision. I accept the respondent’s submission that it is artificial to suggest that the applicant was taken by surprise by the evidence that the shooting and killing of the applicant’s client was supportive of a finding that the alleged murderers may have targeted the client rather than the applicant. This was not a fact or evidence that had been withheld from the applicant but was an issue which should have been obvious to the applicant. There was no breach of procedural fairness and no jurisdictional error.
The second ground relied upon by the applicant in the further amended application is that the Tribunal made a jurisdictional error in that it determined the diminished representation of the Shiv Sena in parliament established that violence against Muslims had virtually disappeared. At page 170 CB, the Tribunal found:
The waning influence of Shiv Sena in Maharashtra indicates that the chance of the applicant and his family facing persecution by reason of their religion is diminishing such that the Tribunal is unable to conclude there remains a real chance of persecution there for a Convention ground.
The applicant contends what the Tribunal relied upon to find that the influence of Shiv Sena was waning, was an extract from a book that was published in 1999. At CB page 169:
The Political Handbook of the World, 1999, Arthur S. Banks and Thomas C. Muller (eds) remarks at p. 439:
“Meaning “Army of Shivaji” (referencing a 17th century Hindu warrior king who repulsed the armies of the Muslim Moghul empire), the Maharshtra-based Shiv Sena articulates Hindu nationalism even more forcefully than the BJP, with which it is closely linked. Led by a former newspaper cartoonist turned popular orator, the movement was prominent in the anti-Muslim violence that led to the destruction of the Ayodha mosque in December 1992. It won 15 Lok Sabha seats in the April-May 1996 election and was represented in the resultant very short-lived government led by the BJP. Closely linked to the BJP – the parties are in coalition in Maharashtra state – the SS broughts its remaining six seats into the BJP-led government following the 1998 election.
The applicant argues that this evidence is indicative only of its waning influence in parliament and says nothing of the sorts of violence that the applicant experienced and the events that the applicant related which were well after the book was published.
The attack on the applicant’s shop, the shooting incident, was in the year 2000 and the attempted abduction of his daughter was in 2001. There was also country information accepted by the Tribunal itself at CB page 170 from the United States of America Department of State, “International Religious Freedom Report – India” of October 2002 (CX68425):
“In Maharashtra, Hindu-Muslim violence has increased in recent years (See Section III)…”
The Tribunal says, at CB page 169:
In light of country information above indicating a deep level of religious tension in the applicant’s home area in recent times and a climate of oppression for Muslims there the Tribunal accepts that the applicant’s children were harassed and threatened. It also accepts that their harassment was of such an order that it caused them to fear being in public places and eventually caused them to curtail their studies.
The Tribunal goes on accept that there was an attempted abduction of the applicant’s daughter, at CB page 169:
The Tribunal also accepts that there was an attempt to abduct one of the applicant’s daughters. (That daughter is not attached to this application.) Although the reasons for that abduction attempt are uncertain, aforementioned country information indicates that the oppressive political and religious climate in the applicant’s home area might have been significant in inculcating in militant Hindus a view that they had licence to act out their religious prejudices in criminal ways, including abduction and other acts of violence against young women. Given that the applicant’s daughter was sent to Australia in advance of him, and being in mind the applicant’s distress at the hearing when alluding to her ordeal, the Tribunal has formed a view that her attempted abduction was a major, if not overriding, factor in the family’s decision to seek asylum because the general climate in their home area had become so menacing.
Again it was clear that all of this occurred after the book was published.
Then the Tribunal referred to the country information compiled by the Department of Immigration, Multicultural and Indigenous Affairs in March 2003 which is reported at CB page 164 & 165:
“BJP Party
The BJP and Shiv Sena are allied, and governed as a coalition for 5 years prior to the current Congress coalition government.
Shiv Sena
This party has a regional base only, with no national representation. Its leader is Bal Thackeray, and it has a right wing ultra nationalist Hindu programme. The BJP and Shiv Sena are 20 seats short of a majority in the 288 member state assembly.
State / local government commitment to the secular constitution
An Amnesty International report released on 5 December 2002 has accused the Congress government of not taking any “significant step” to implement the recommendations of the Srikrishna Commission. The reference of the Commission was the Mumbai riots of 1992. Amongst other things, the Commission had called for action against 31 policemen allegedly responsible for killing innocent people, acting in a communal manner, being negligent or themselves rioting.
Whereas the Shiv Sena-Bharatiya Janata Party government in the state had tried to disband the Commission itself in 1996, the present Congress-led government “has simply buried the report with silence,” the Amnesty report said.
In August 1998, the Commission accused Shiv Sena of conducting organised attacks on Muslims during the December 1992 / January 1993 riots. Justice B N Srikrishna accused Shiv Sena of having provoked Muslims by organising rallies to celebrate the demolition of the Babri mosque. The justice’s report also stated that the BJP had played a marginal role in this. Srikrishna’s report accused a senior official in the then Congress government of Marahashtra of conducting an ineffectual and half hearted response to the riots, and accused the police force of harbouring widespread prejudice against Muslims. The August 1998 report found no evidence to suggest that any known Muslim individuals or organisations were responsible for the riots “though a number of individual Muslims and Muslim criminal elements appear to have indulged in violence, looting, arson and rioting”.
Some major media sources have accused the Shiv Sena party, and to a lesser extent the BJP of fomenting Hindu-Muslim tension since that time. Recently the state government disbanded several privately run suicide squad outfits which reportedly owe allegiance to the Shiv Sena party. In November 2002, Bal Thackeray had called for formation of Hindu “suicide squads” to take on Islamic terrorists.
The current Congress government has failed in its efforts to prosecute Shiv Sena leader, Bal Thackeray, for his alleged role in inciting the anti-Muslim riots in Mumbai in 1992. The Supreme court found the charges too old to prosecute.
Evidence of communal conflict or communal persecution
In December 1992 nationwide riots between Hindus and Muslims broke out when a Hindu mob destroyed the Babri mosque at Ayodhya (Uttar Pradesh). The riots began as a reaction of Muslim mobs in December 1992 which met a Hindu retaliation in January 1993.
The 1992 riots claimed the most deaths in Mumbai, Marashtra state – 800 people according to official figures. Most of those killed were Muslims. Other sources claim the death toll was much higher.
On 26 October 2001, violence between Hindus and Muslims erupted in Malegaon, in the district of Nashik. Riots erupted when police fired at Muslims who had thrown stones at them while the police were interrogating several Muslim youths. The trouble spread to surrounding Hindu dominated villages and 40 incidents of communal violence occurred in the districts of Dhule and Jalgaon. Malegaon was put under curfew for almost two weeks. Most of the victims of the rioting were Muslim.
The Law and Order department estimated that Hindu-Muslim conflict in the first two weeks of November 2001 was the highest recorded in the State for a fortnight since the riots in 1992. Besides the 203 registered communal offences in Nashik district, there were 47 registered communal incidents across the State in the two weeks following 26 October. The police arrested 1,400 people in the three northern districts in connection with instigating and causing communal tension.
In early December 2002, a bomb on a city bus in Mumbai killed two and injured many others. In June 2002, a curfew was imposed in the town of Jamner, after four people were killed in sectarian clashes between Hindus and Muslims. About a hundred shops were set on fire in the rioting…” (CX74206)
The applicant further contends that while parliamentary representation may have diminished and waned at an earlier time, there was no evidence that the violence perpetrated by the Shiv Sena had waned and in fact all the evidence was to the contrary. The applicant contends that in focussing on the Shiv Sena’s parliamentary representation, the Tribunal missed the point. It in effect took into account an irrelevant consideration. I accept the submission in that what was happening in the parliament some time earlier was not what had to be decided – it was an irrelevant consideration in this respect. The real issue was whether the applicant and his family faced a real chance of persecution by reason of their religion. The level of anti-Muslim violence which all of the evidence suggested had increased was the real essence of whether the applicant faced a real risk of being persecuted. Whilst evidence of Shiv Sena’s parliamentary participation may, in some circumstances, indirectly bear on whether there is a real chance of persecution, it goes no higher than that purpose.
I further accept the contention of the applicant that the Tribunal failed to ask itself the right question. That is, whether the anti-Muslim violence had decreased to such an extent that there was no real risk of the applicant being persecuted. I am satisfied that it made findings about the waning influence of Shiv Sena and that there was no real risk of the applicant being persecuted when there was no evidence in support of that fact and indeed all the evidence was to the contrary. In SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 (24 October 2003), the Full Court of the Federal Court held at [18] & [19] that:
[18] The proceedings before us involve an appeal from the decision of the primary judge pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth). At the hearing of the appeal, leave was sought and granted for the appeal grounds to be amended. The effect of the amendment was that the arguments put before the primary judge (and on which he had decided the judicial review application before him) were abandoned. Instead a different was put. That argument was that the Tribunal had made a jurisdictional error in making a finding that the appellant was not at real risk of persecution. The basis of the alleged jurisdictional error was put on various interrelated bases: that the Tribunal did not correctly identify the proper legal test for persecution or, if it did, then it reached a factual conclusion unsupported by any evidence; or that it failed to consider other relevant evidence that was before it; or that its conclusion on the evidence was ‘Wednesbury unreasonable’. But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.
[19] This argument, if it were made out, would be sufficient to establish that the Tribunal had made a ‘jurisdictional error’ so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was ‘Wednesbury’ unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 … at 62, 67, 76, 90-91.
I am satisfied that the Tribunal made the finding about the waning influence about Shiv Sena and that it was a critical step in its ultimate conclusion that the Tribunal was unable to conclude that there remains a real chance of persecution for a Convention ground. I am further satisfied that the evidence that the Tribunal relied upon was so unreasonable or so inadequate that the only inference was that the Tribunal applied the wrong test or was not in reality satisfied in respect to the correct test, and as a result committed jurisdictional error. Alternatively, the failure of the Tribunal to explain how it could reach this conclusion based upon the extract from the book Political Handbook of the World despite accepting the large body of later evidence to the contrary leads to the conclusion that the Tribunal failed to properly undertake its central task of determining what facts it accepted and thereby committed jurisdictional error.
The respondent argues however, that even if the Tribunal was wrong about the real chance of persecution of the applicant in Maharashtra, it considered that it would be reasonable to expect the applicant and his family to relocate to another part of India. The applicant argues that the Tribunal, in determining that the applicant could relocate, did so on the basis of an inaccurate understanding of the real circumstances that the applicant was in. The Tribunal had taken the applicant’s circumstances to include a waning influence of Shiv Sena and had ignored the evidence of the increased anti-Muslim violence. I am satisfied that if the Tribunal had looked at the evidence properly, its view about the relocation could well have been different.
In all the circumstances, the applicant’s claim should be allowed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: J. O’Brien
Date: 22 March 2005
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