S1586 of 2003 v Minister For Immigration and Anor (No.2)

[2006] FMCA 1058

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1586 of 2003 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2006] FMCA 1058

MIGRATION – Application to review decision of Refugee Review Tribunal – interaction of sections 416 and 424 of the Migration Act – whether lack of procedural fairness – whether Tribunal erred in reliance on s.416 or misled applicant.

Migration Act 1958, ss.416, 424, 430

Abedi v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 186
Applicant F v Minister for Immigration & Multicultural Affairs [2001] FCA 304
Applicant M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 310
Applicant S1174/2002 & Ors v Refugee Review Tribunal [2004] FCA 289
Applicant S1586 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 711
Applicant S1586 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 472
Kioa v West (1985) 159 CLR 550
Muin v Refugee Review Tribunal& Ors, Lie v Refugee Review Tribunal  & Ors (2002) 76 ALJR 966
Lie v RRT [2002] HCA 30
NADD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 275
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293
SZDMC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 763

Applicant: APPLICANT S1586 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1250 of 2005

Judgment of: Barnes FM

Hearing date: 29 May 2006

Date of Last Submission: 13 June 2006

Delivered at: Sydney

Delivered on: 7 August 2006

REPRESENTATION

Solicitors for the Applicant: Cross Law

Counsel for the Respondents: Mr J. Mitchell

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1250 of 2005

APPLICANT S1586 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application filed on 13 May 2005 seeking review of a decision of the Refugee Review Tribunal (the Tribunal) made on

   
   

   2 December 1996 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant arrived in Australia from India in 1985.  In 1992 he applied for refugee status.  By operation of the Migration Reform Act 1992 (Cth) this became an application for a protection visa.

   
   

   The application was refused by a delegate of the respondent by decision notified to the applicant by letter dated 11 December 1992 (the first delegate’s decision).  The applicant sought review of that decision by the Tribunal.  On 1 March 1995 the Tribunal affirmed the delegate’s decision (the first Tribunal decision). 

3. In 2000 the applicant unsuccessfully sought judicial review of the first Tribunal decision in the High Court (as a member of the Lie class action).  His application was remitted to the Federal Court and dismissed (see Applicant S1174/2002 & Ors v Refugee Review Tribunal [2004] FCA 289). He then commenced proceedings in relation to the first Tribunal decision in this Court and appealed to the Federal Court (see Applicant S1586 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 711 and [2005] FCA 472). The appeal was dismissed.

4. Meanwhile, on 10 April 1995 the applicant lodged another application for a protection visa which was refused on 12 March 1996. 

   
   

   The applicant applied to the Tribunal for a review of that decision in April 1996.  The second Tribunal decision of 2 December 1996 is the subject of these proceedings. 

5. In a statement accompanying his 1995 application for a protection visa the applicant claimed that he feared persecution in India on the basis of his Sikh religion.  He claimed that he had worked as a welder in India until 1974, that due to various economic and social problems he had been unable to maintain his employment and that at the same time resentment was beginning to be seen in the mainly Hindu community in relation to the call for an independent Sikh state.  He travelled to Singapore and found employment there in December 1975.  He came to Australia in 1985. 

6. The applicant claimed that the position in India had deteriorated that he could not return to his wife in Singapore given the Singaporean immigration laws, that he had nothing to return to in India and believed he would experience prejudice and discrimination after 20 years’ absence.  He claimed that the fact that he belonged to a certain religious sect would place him in great jeopardy and prejudice should he return, that he feared persecution based on ongoing social and civil problems in India and that the social and economic hardship he would experience would make it difficult for him.

7. The applicant attended an interview with a delegate of the first respondent.  On 12 March 1996 his application was refused.  In his April 1996 application for review by the Tribunal he claimed that the Department did not take into account the personal effect on him should he return to India, that it did not seem to understand that there was ongoing discrimination against him as a  Sikh in India and that it did not take into account the well-founded fears that he held. 

   
   

   The applicant attended a Tribunal hearing on 19 November 1996. 

   
   

   The transcript of the Tribunal hearing is before the Court. 

8. The applicant’s adviser provided a post-hearing written submission to the Tribunal on 25 November 1996, in particular in relation to the then current situation in India together with a hand-written statement from the applicant dated 19 November 1996 adding to what he had said in the Tribunal hearing as discussed below. 

Tribunal decision

1. In its reasons for decision the Tribunal outlined the applicant’s claims to the Department, in the review application and at the Tribunal hearing.  In considering the applicant’s claims the Tribunal found that the only material that could be identified that had not been considered by the differently constituted Tribunal in reaching its earlier decision of 1 March 1995 related to the elections in India in 1996.  This issue was first raised by the applicant’s adviser at the Tribunal hearing.  

   
   

   The adviser subsequently provided written submissions in relation to the electoral success of pro-Hindu parties in the 1996 elections.  It was claimed that this gave rise to a well-founded fear of persecution on the part of the applicant.  The Tribunal observed however that when the applicant was asked at the hearing about any new information which he considered relevant to his claim, he indicated that the issues were still the same. 

2. Nonetheless, the Tribunal considered the election success of the BJP and other Hindu fundamentalist groups in the 1996 elections. 

   
   

   It observed that it was important to note that the BJP had formed the central government in India for a period of 13 days in May 1996 before being replaced by a coalition government led by Deve Gowda. 

3. The Tribunal found it notable that all incidents of religious or political violence which the applicant referred to at the hearing and in later written material had occurred prior to the time of the earlier Tribunal decision and had been dealt with in that decision and that beyond pointing to proposals to change some city names in India to Hindu names neither the applicant nor his adviser had pointed to any evidence of the persecution of Sikhs by pro-Hindu forces in recent times. 

4. The Tribunal accepted that some of the proposals of the BJP and like-minded parties had increased enmity between Muslims and Hindus, referring to independent country information in that respect, but found no reports either presented by the applicant or available to it referring to similar sentiments being expressed against the Sikh community in India nor violence or other harm directed at Sikhs on the basis of their beliefs since the 1984 and 1988 riots. 

5. The Tribunal also found it notable that the only incident recalled by the applicant affecting him or his immediate family related to his younger brother having to remove the outward signs of being a Sikh during riots in 1984.  It found that the decision of the applicant to do likewise appeared to be related to personal convenience.  The Tribunal stated:

   While the applicant has claimed in his latest written submission that Sikhs throughout India live in fear, this can be contrasted with his statements at hearing that his brother was able to live in safety in the area in which he lives.  The applicant believed he would also be able to live safely there but would have difficulty in finding employment and travelling to other parts of India.  This would tend to indicate that notwithstanding the rhetoric of parties such as the BJP there are areas in which Sikhs can live in safety in India.  Furthermore, the applicant’s fears regarding living elsewhere in India appear related to the difficulties of getting established in a new community rather than any specific fear of harm on the basis of his religion.

6. The Tribunal continued that while it was:

   … no doubt the case that the policies of the BJP and related groups are unpalatable and of concern to those who followed minority religions in India, particularly Muslims, there is no material which indicates that the policies of the BJP or similar groups have led to persecution of those of the Sikh faith.

7. The Tribunal also referred to independent evidence that BJP actions while in government suggested that it was seeking to appear more conciliatory.  Considering all of this material the Tribunal was not satisfied that the policies of the Hindus nationalists gave rise to a well-founded fear of being persecuted on the part of the applicant should he return to India. 

8. The Tribunal found that, in considering all the other material presented by the applicant including in relation to economic and social difficulties he claimed he would face on his return and his concerns about resettlement in India, it was of the view that such material had all been considered by the first Tribunal decision. It therefore relied upon the operation of s.416 of the Migration Act 1958 (Cth) (the Act) in relation to that information and took to be correct the decision reached on the basis of that information.

9. The Tribunal concluded that it did not believe that the applicant held a well-founded fear of being persecuted should he return to India and was not satisfied that he was owed protection obligations by Australia under the Refugees Convention. 

These proceedings

1. The applicant sought review of the Tribunal decision of 2 December 2006 by application filed in this Court on 13 May 2005.  An amended application filed on 23 January 2006 raises nine grounds.  However it was clarified in oral submissions by the solicitor for the applicant that ground one (which referred to the delegate’s decision) was not pressed.  It was confirmed that the applicant was not seeking review of the delegate’s decision, but only of the Tribunal decision.  Nor were generally expressed paragraphs five, seven and nine of the grounds of review pressed.  Leave was granted to delete the words “on the papers” from ground six.  Thus the grounds of review relied on are as follows:

   …

   2.     The applicant was denied natural justice by the Second Respondent Tribunal on 2 December 1996. 

   …

   3.     The Second Respondent erred in failing to find that that the Applicant was denied natural justice before the delegate in that the delegate failed to find that the First Respondent – by his delegate and his department and departmental secretary – did not make known to the Applicant the material, some of it adverse, which the First Respondent was taking into account in reaching its decision.

   4. The First respondent – by his delegate and his department and departmental secretary – erred in natural justice and in breach of the Migration Act and Rules in failing to send to the Second Respondent all papers in the possession or control of the first respondent in the Applicant’s case before the Second respondent.

   …

   6. The Second respondent erred in failing to consider all the papers before him, and that had been before the First Respondent’s delegate, when making a decision … (Green Book pages 85, 86, and 87) which failure was both a breach of natural justice and a breach of the Migration Act.

   …

   8.     The Second Respondent erred in failing to find that the Applicant could not relocate within India without losing a basic norm of human rights, viz the right to practise untrammelled his religion; ie to observe the Articles of Faith of Sikhdom which include the Kesh (uncut hair) and wearing the turban;

Natural justice

1. The first ground is in paragraphs 2, 3 and 4 of the amended application.  It was clarified in oral submissions that it was contended that the applicant was denied natural justice by the Tribunal.  Ground two is an unparticularised claim to this effect which, of itself, does not establish jurisdictional error.  In ground three it is contended that the Tribunal erred in failing to find that the applicant was denied natural justice by the delegate of the Department on the basis that the first respondent (the Minister for Immigration) did not by his delegate and departmental secretary make known to the applicant the material which the delegate was taking into account in reaching its decision.

2. However the Tribunal review is a de novo merits review.  It was not necessary for the Tribunal to make a determination as to whether or not the applicant was or was not denied procedural fairness by the delegate or Department in the manner contended or whether there was other jurisdictional error on the part of the delegate of the first respondent. 

3. Insofar as these grounds are intended to raise a general contention that the Tribunal denied the applicant procedural fairness by failing to give him an opportunity to deal with adverse information, it is the case that at common law the Tribunal is under an obligation to give the applicant an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made (see Kioa v West (1985) 159 CLR 550 at 611 and Applicant M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 310 at [29]. However the applicant has not particularised any items of adverse information taken into account by the Tribunal that he alleges he was not given an opportunity to deal with by the Tribunal. In oral submissions it became apparent that the applicant’s argument in relation to adverse material was that put under grounds four and six as considered below.

4. Ground four of the application alleges that the first respondent (sic) erred in natural justice and in breach of the Migration Act and Rules in failing to send to the second respondent all the papers in the possession or control of the first respondent in the applicant’s case before the second respondent. First I note that the grounds in relation to the first respondent were not pressed by the applicant. Secondly the evidentiary basis for such a claim is in any event not established on the material before the Court. It seems to be a contention that the Department was under an obligation to send to the Tribunal papers relating to the first Tribunal decision and/or papers relating to the second delegate’s decision. However the Tribunal told the applicant in the hearing that it had the file from the Department and from first Tribunal hearing.

5. If by this ground the applicant intends to rely on principles akin to those considered in Muin v Refugee Review Tribunal& Ors, Lie v Refugee Review Tribunal  & Ors (2002) 76 ALJR 966 he has not established such a claim. Muin stands for the proposition that procedural fairness will have been denied in a case where an applicant is misled into thinking that the Tribunal has considered relevant information so that the applicant does not place information before the Tribunal which he might otherwise be able to put.  (See NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 at [24] per Kiefel J and NADD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 275 at [26]).

6. The applicant has not established the factual matrix on which Muin depended.  Muin related to a claim about material before a delegate. 

   
   

   In this case the applicant complains generally that the Tribunal did not consider properly material before the delegate or material before the first Tribunal.  Muin proceeded on the basis of agreed facts.  There is no such agreement in the present case and the applicant has not established each of the factual matters necessary to succeed with such an argument.  In particular it has not been established that material before the first Tribunal (or the second delegate) was not before the second Tribunal.  No denial of procedural fairness is apparent on this basis. 

7. The next ground in the amended application, ground 6, is the essence of the applicant’s contentions.  It is a contention that the Tribunal erred in failing to consider all the papers before it and that had been before the first respondent’s delegate when making a decision on the second protection visa application. 

8. Ground six assets a breach of natural justice and an unparticularised breach of the Migration Act 1958 (Cth). It was clarified in oral submissions that it was contended that there had been a breach of s.424 of the Migration Act. It also emerged in oral submissions that the applicant’s contention in this regard related not just to the documents before the delegate of the first respondent but also to documents before the first Tribunal. There may be some inconsistency between this ground and reliance on Muin principles (insofar as this ground is based on a contention that the Tribunal did have all the information before it referred to in the delegate’s decision and the first Tribunal decision). 

   
   

   In any event for the reasons set out below no jurisdictional error has been established. 

9. The applicant’s contentions take particular issue with the Tribunal’s reliance on s.416 of the Migration Act. Section 416 is as follows:

   If a non-citizen who has made:

   (a)  an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

   (b)  applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

   makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

   (c)  is not required to consider any information considered in the earlier application or an earlier application; and

   (d)  may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.

10. While s.416 states that the Tribunal is “not required” to consider any information considered in the earlier application and “may have regard to and take to be correct any decision that the Tribunal … made about or because of that information” it was contended that, despite this power, the Tribunal erred in a number of respects.

11. Reference was made to the fact that on 27 September 1996 the Tribunal wrote to the applicant advising him that the Tribunal “has considered all the papers relating to your case but it is unable to make a favourable decision on this information alone” and inviting him to a hearing.  It was contended that by this statement the Tribunal informed the applicant that it had taken into account all of “the papers”, which were said to include all of the independent country information before the first Tribunal.  It was submitted that in so advising the applicant the Tribunal misled him because it did not in fact take all this information into account.  That it did not do so was said to be apparent from the fact that the Tribunal made no reference to the country information relied on in the first Tribunal decision and because it did not engage in its own assessment of such information.  In light of this statement it was contended that the Tribunal misled the applicant into thinking that it would have taken into account both favourable and unfavourable aspects of the country information, as was said to be evidenced by his affidavit of 29 May 2006 stating that he assumed the Tribunal had considered all the papers.  The applicant’s affidavit stated that if he had not assumed this was the case he would have argued at or prior to the hearing why the member should have done so and not failed to refer to all documents, including reports, from the first Tribunal hearing. 

1. It was contended that the Tribunal should have taken into account not just aspects of the first Tribunal’s decision that were against the applicant, but also those that were in his favour, including aspects of the cited independent country information which supported his claims. 

2. More generally it was contended that the applicant was not and should have been given a reasonable opportunity to answer material or information in the possession of the Tribunal that was adverse to his claims consistent with the approach take in Lie v RRT [2002] HCA 30 at [61] per Gaudron J. The applicant’s argument in this respect is not entirely clear. It seems to be submitted that the applicant should have had the opportunity to put to the second Tribunal a different view of the independent country information than that taken by the first Tribunal. However the applicant was informed that on the information before it the second Tribunal was not able to make a favourable decision.

   
   

   The applicant was aware that on the information before it, the first Tribunal had not been satisfied that he had a well-founded fear of persecution for a Convention reason.  He was given the opportunity, and took that opportunity, to attend the second Tribunal hearing and to provide a submission after the hearing.  He had every opportunity to address independent country information or the approach taken by the first Tribunal if he wished to do so or to put to the Tribunal favourable aspects of the information.  In fact in the post-hearing submission he did so stating:

   “Immigration and RRT gets the information about Sikhs, all is from those media people and Journalists who are Hindus.  Hindu media will never say that Sikh people living in India their lives are in danger by Hindu people.” 

3. Even if, for the purposes of the applicant’s contention, it is accepted that all of the independent country information before the first Tribunal was before the second Tribunal and that this was confirmed by its reference to considering all the papers (and in its reference in the Tribunal hearing to the fact that it had the Department and Tribunal files before it), it has not been established that the Tribunal erred in a manner constituting jurisdictional error in advising the applicant that it had considered all the papers relating to his case but was unable to make a favourable decision on this information alone or misled him or that it erred in failing to address specifically and afresh items of information considered in the earlier application. 

4. The applicant had the opportunity to address relevant issues, information referred to by the first Tribunal, the first Tribunal’s interpretation of such information and to put further country information before the second Tribunal. The Tribunal informed the applicant (and his adviser) of the effect of s.416 in the hearing. If the applicant took issue with whether s.416 should be relied on by the Tribunal he had the opportunity to raise that concern. The Tribunal exercised its discretion in relation to the operation of s.416. It did not misunderstand the law in that respect. It considered whether there was any material not considered by the first Tribunal and addressed the ramifications of that material (relating to the 1996 elections).

   
   

   The Tribunal was of the view that all the other material presented by the applicant had been considered by the first Tribunal. 

5. It was also submitted that the first Tribunal had been selective in its use of the materials before it, that the second Tribunal had a discretion under s.416 and that if, as was said to be the case, the law had changed, either by statute or by case law or by Court decisions, then the second Tribunal should decline to adhere to findings of the earlier Tribunal (although it was accepted that the second Tribunal would still generally adhere to findings of fact). It was suggested in particular that the judicial approach to relocation had “moved on” from the time of the first Tribunal decision. On this basis it was submitted that the second Tribunal was required as an incident of procedural fairness to exercise its discretion to consider afresh the matters determined by the earlier Tribunal. No authorities were cited in support of this proposition or to indicate that there had been particular relevant changes in the law or interpretation of the law between the time of the first and second Tribunal decisions. Moreover the Tribunal did consider whether to exercise its power under s.416. It did not proceed on the basis that it was mandatory to accept the first decision as correct.

6. It is notable that there is nothing in the material before the Court to indicate that the applicant took issue with the first Tribunal’s treatment of independent country information during the course of the second review.  The Tribunal was not required to reconsider the information considered by the first Tribunal and was entitled to take its decision made about or because of such information to be correct.  No lack of procedural fairness is established in the Tribunal proceeding in that way. 

7. In oral submissions for the applicant reliance was placed on s.424 of the Act, on the basis that it provides that in conducting a review the Tribunal “may get any information” that it considers relevant and that if the Tribunal gets such information, the Tribunal “must have regard to that information in making the decision on the review”. It was said to be implicit in s.424 that if the Tribunal ‘got’ information it must have regard to it in making its decision by referring to it expressly in its decision. It was contended that the Tribunal did “get” all the information before the first Tribunal as it had the Tribunal file before it.

8. It was also contended that because of s.424 and the fact that the Tribunal informed the applicant in the letter of 27 September 1996 that it had considered all the papers relating to his case, it could not rely on s.416 but was required to consider the country information that had been before the first Tribunal in its reasons for decision. No authority was cited in support of these propositions.

9. Counsel for the respondent contended that it was not clear that the Tribunal sought or “got” any further information (other than giving the applicant the opportunity in the hearing to provide material after the hearing – which it referred to and “considered” in its reasons for decision). It was contended that the fact that the Tribunal had the Departmental file and the Tribunal file in relation to the earlier decision did not mean it had copies of all the country information referred to in the Tribunal decision before it. In any event it was submitted that s.416 made it plain that the Tribunal was not required to consider any information that was considered by the first Tribunal and submitted that if there was an inconsistency between s.416 and s.424, s.416 should prevail.

10. In effect the applicant contends that the second Tribunal should have conducted the review afresh as if there had not been a first Tribunal review. However there was no such obligation on the Tribunal in light of s.416. Its failure to proceed in the manner contended for by the applicant does not establish jurisdictional error.

11. First, for s.424 to be enlivened there must be “a positive act on the part of the Tribunal” (see SZDMC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 763 at [24] and [28] per Stone J. As Merkel J stated in Abedi v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 186 at [21], s.424(1) “deals with information that the RRT obtains on its own initiative pursuant to s.424”.  (Also see Applicant F v Minister for Immigration & Multicultural Affairs [2001] FCA 304 at [31] per Carr J suggesting that “gets” means “obtains” by its own initiative.  Stone J pointed out in SZDMC at [27] that this approach is consistent with the fact that under s.424 it is the Tribunal that must make the decision that it considers the information relevant. Neither party addressed any authority in relation to the scope of s.424.

12. However even if s.424 is applicable to information referred to in a prior Tribunal decision merely because the first Tribunal file is before the second Tribunal and assuming, as contended for by the applicant, that the Tribunal did have before it as part of the Departmental and Tribunal files the country information referred to by the first Tribunal decision, nonetheless neither a breach of s.424 nor any other jurisdictional error has been establish.

13. In the letter of 27 September 1996 the Tribunal stated that it had considered all the papers relating to the applicant’s case but was unable to make a favourable decision on this information alone. In that way it had regard to such material. It was not necessary for it at that point, or indeed, in the decision, to refer expressly to particular items of country information referred to in the first Tribunal decision. Its obligation was, consistent with s.416, to have regard to the information, subject to the power it had in considering the review application not to “consider” (in the sense of address afresh in the reasons for decision) any information considered in the earlier application. It was also entitled in making its decision to have regard to and take to be correct any decision the first Tribunal made about or because of that information. The specific power in s.416 was not displaced by the more general obligation in s.424 in the circumstances of this case. The Tribunal had regard to the information in the earlier Tribunal decision insofar as it was required to do so by s.416. The fact that the Tribunal did not consider afresh the independent information referred to in the first Tribunal decision was not only in accordance with s.416 but also with s.430 of the Act, which requires the Tribunal to set out its findings on those questions of fact which it considers to be material to the decision which it made and the reasons it had for reaching that decision.

    
    

    No failure to comply with s.424 or other jurisdictional error has been established on the basis contended for by the applicant.

14. Insofar as the applicant takes issue with the factual findings of the Tribunal, either in relation to the new claims or by reliance on the earlier Tribunal decision in the light of s.416, the applicant seeks merits review which is not available in this Court.

15. The final basis on which the applicant takes issue with the Tribunal decision is the contention in ground eight that the Tribunal erred in failing to find that the applicant could not relocate within India without losing a basic norm of human rights being the right to practise untrammelled his religion and observe the articles of faith of Sikhdom including uncut hair and wearing the turban. 

16. In written submissions it was contended that the applicant had made plain his well-founded fear of persecution as a Sikh and that while the Tribunal found that he disliked the prospect of returning to India for economic and isolation reasons, it had failed to pay attention to the applicant’s claims in this respect.  It was also contended that if the applicant had had the opportunity to attend the first Tribunal hearing (an opportunity which he did not take up) he would have provided reasons why he could not relocate. 

17. Insofar as this takes issue with the first Tribunal decision it does not establish jurisdictional error on the part of the second Tribunal. 

    
    

    The first Tribunal had found that it would be reasonable to expect the applicant to relocate within India.  The second Tribunal referred to his claims in this respect in the context of considering the applicant’s claims about new information.  In that respect it is important to note that the applicant told the Tribunal that the issues were still the same and that his adviser raised only the issue of the electoral success of pro-Hindu parties in the 1996 elections.  In considering these claims generally and in relation to relocation the Tribunal had regard to the fact that all the incidents of violence the applicant referred to in the hearing and in later material had occurred prior to the time of the earlier decision and had been dealt with in that decision and that beyond pointing to proposals to change some city names to Hindu names the applicant did not point to any evidence of persecution of Sikhs by pro-Hindu forces in recent times. 

18. Moreover the applicant’s claim that Sikhs throughout India lived in fear was contrasted with his statement at the hearing that his brother was able to live in safety in the area in which he lived, where the applicant also believed he would be able to live safely (although he suggested he would have difficulty in finding employment and travelling to other parts of India).  The Tribunal accepted that this evidence suggested there were areas in which Sikhs could live safely in India despite the rhetoric of parties such as the BJP.  It also found that the applicant’s fears of living elsewhere in India appeared to relate to the difficulties of getting established in a new community rather than to any specific fear of harm on the basis of his religion. 

19. In other words the Tribunal had regard to the applicant’s claims as to new information in relation both to his fear of persecution generally and the specific issue of the reasonableness of relocation.  

    
    

    Such material did not lead the Tribunal to the conclusion that it should do otherwise than take as correct the decision the first Tribunal made about or because of the information that was before it.  No error has been established in the manner contended for by the applicant which, as expressed, seeks merits review of the second Tribunal decision. 

20. As no jurisdictional error has been established it is not necessary for me to consider the respondent’s written contentions in relation to whether or not the Court should exercise its discretion not to grant the relief sought on the basis of delay.  No jurisdictional error has been established and the application should be dismissed. 

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  7 August 2006.