S1983 of 2003 v Minister for Immigration

[2008] FMCA 1589

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1983 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1589

MIGRATION – Application to review decision of Refugee Review Tribunal – section 422B of the Migration Act not applicable – whether lack of procedural fairness – whether failure by the Tribunal to take relevant considerations into account – whether Tribunal misunderstood applicant’s claim – whether Tribunal acted unreasonably, drew inferences that were not available, misapplied the test for well-founded fear, asked a wrong question or erred in the manner in which it used independent information.

Migration Act 1958 (Cth), ss.422B, 424A, 425

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1
Applicant S1983 of 2003 v Minister for Immigration & Citizenship [2007] FCA 854
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Craig v The State of South Australia (1995) 184 CLR 163
Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Kioa and Others v West and Others (1985) 159 CLR 550
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909
Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82
S1983 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 209
Stead v State Government Insurance Commission (1986) 161 CLR 141
SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638
SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824
SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652
W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449
W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69
W412/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 99
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
WBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419

Applicant: S1983 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 194 of 2008

Judgment of: Barnes FM

Hearing date: 4 August 2008

Delivered at: Sydney

Delivered on: 28 November 2008

REPRESENTATION

Solicitors for the Applicant: Silva Solicitors

Counsel for the Respondent: Mr J Knackstredt

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That a writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the Refugee Review Tribunal dated 21 December 2007 in matter 071547736. 

2. That a writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 20 October 1997.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 194 of 2008

S1983 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal signed on 21 December 2007 and handed down on 8 January 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.

2. The applicant, a citizen of India, arrived in Australia in November 1994.  He applied for a protection visa in 1997.  In a statement accompanying his protection visa application the applicant described himself as belonging “to the Sindhi community” living in the state of Maharashtra “in the midst of the local Maharashtrians (sic).”  He claimed that his father had been killed by “Shiv Sena hooligans, the fundamentalist Hindu religious groups who hated me and my families (sic) being Sindhi community since we belong to the low caste.”  He claimed that he and his mother had experienced harassment, that the Shiv Sena people had burned down his shop and all his belongings and that he had to escape to save his life.  He claimed that he complained to police but they did not respond as they were supporters of the Shiv Sena.  He claimed he had received death threats from Shiv Sena members and feared the police and authorities could not or would not protect him.   

3. The application was refused by a delegate of the first respondent on 2 October 1997.  The delegate was not satisfied that the applicant had a genuine fear for his life given his delay in applying for a protection visa.  The delegate also found that any fear would not be well founded, there being no information that the Shiv Sena (which was an ultra-nationalist Hindu fundamentalist group responsible for violence against Muslims) had targeted “lower caste Hindus/Sindhis such as the applicant”, that if the applicant and his family had suffered harassment and violence by Shiv Sena hooligans there was no evidence they were targeted for a Convention reason such as “membership of the particular social group ‘Sindhis’” and that in any event the applicant could reasonably relocate within India.  The delegate considered the claim that the government encouraged fundamentalists “to kill and eradicate low caste people” to be fanciful, given the representation of lower castes in the government. 

4. The applicant sought review by the Tribunal.  He attended a hearing.  The Tribunal as originally constituted (T₁) affirmed the decision of the delegate of the first respondent on 31 May 1999.  The applicant sought judicial review on 8 October 2004.  On 13 March 2006 Graham J of the Federal Court of Australia (on appeal from the Federal Magistrates Court) made orders quashing the Tribunal decision and remitting the matter for reconsideration (see S1983 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 209).

5. The Tribunal as reconstituted (T₂) held a further Tribunal hearing.  The applicant’s migration agent submitted country information and other documents in support of the applicant’s claims.  By decision of 7 July 2006 T₂ affirmed the decision of the delegate of the first respondent.  The applicant again sought judicial review.  On appeal from this Court Branson J of the Federal Court of Australia made orders quashing the second Tribunal decision and again remitting the matter for redetermination (see Applicant S1983 of 2003 v Minister for Immigration & Citizenship [2007] FCA 854). It is that reconsideration that is the subject of these proceedings.

6. The applicant was invited to and attended a third Tribunal hearing on 9 November 2007.  A partial transcript of that Tribunal hearing is before the Court as an annexure to an affidavit of the applicant filed on 9 April 2008.  The transcript is incomplete because the recording by the Tribunal was apparently accidentally terminated during the hearing. 

7. Through his solicitor/migration agent the applicant provided a number of documents to the Tribunal in support of his claims, including country information and a statutory declaration dated 12 September 2007 in which he claimed to fear persecution based on the fact that he was a “Dalit” and not on the fact that he was a “Sindhi”.  He provided a copy of an affidavit affirmed by Associate Professor Rajagopalaiyer Jayaraman on 21 May 2007 that had been relied on as expert evidence in the proceedings before Branson J in relation to the T₂ decision.  Professor Jayaraman addressed matters such as the meaning of and distinction between being a Sindhi and being a Dalit and the meaning of “low caste”.  The applicant also provided a copy of a letter from the Town Peoples Panchayat, Bombay dated 25 July 1977 certifying that the applicant belonged to the “Khati” community from Sind that, according to his adviser, was said to mean that the applicant was a member of a Scheduled Caste.  This document was not in the Court Book.  A copy was provided to the Court after the hearing by the solicitors for the first respondent. 

8. In addition a considerable amount of material in relation to the applicant’s medical condition, a psychologist’s report dated 5 November 2007 and country information about Dalits in the Sindhi community were provided to the Tribunal by the applicant’s adviser. 

Tribunal decision

1. In its reasons for decision the Tribunal summarised the applicant’s original claims as set out in his protection visa application and the contents of his statutory declaration of 12 September 2007 as well as the claims made by him at the third Tribunal hearing.  The Tribunal recorded that it had listened to recordings of the first two hearings, but did not otherwise refer to the evidence at those hearings.  It recorded that at the third hearing the applicant claimed that his ethnic group was Sindhi and that his family had moved from Sindh (what is now Pakistan) to Bombay after the 1947 partition of India and Pakistan.  He also claimed to be a Dalit and low caste and to have been subject to harassment and persecution by high caste people all his life.  He believed this would happen anywhere in India. 

2. The Tribunal referred to discussion at the hearing of country information indicating that the caste system amongst the Sindhi was different from the general caste system of Hindus and of its suggestion that there did not seem to be a Dalit or untouchable group amongst the Sindhi.  In the hearing the Tribunal agreed to examine country information further.  It recorded that the applicant’s adviser was given the opportunity to make a further submission “indicating why he believed that the applicant both being a Sindhi also was an untouchable”.  This part of the hearing is not included in the incomplete transcript.  After the hearing the adviser provided a copy of a psychologist’s report and information intended to “substantiate” the claim that there are Dalits in the Sindhi community. 

3. In its findings and reasons the Tribunal referred to country information.  It summarised the applicant’s claims that he was a Sindhi and that he “also” claimed to be “a Dalit and/or a low caste person.”  It recorded that the applicant claimed that his father had been killed, his business destroyed and that he had experienced mistreatment all of his life “from higher caste persons” and that the authorities did not protect low caste persons from harm by high caste persons.  He claimed that should he return to India he feared further mistreatment and that the authorities would not protect him and that even a modicum of discrimination would in his case be serious harm because of his frail health.

4. The Tribunal noted that “the applicant in his evidence refers to himself variously as a Dalit, a low caste person and as a Sindhi and has provided a document to the Tribunal referring to himself as a member of the Khati community”. 

5. Based on the applicant’s evidence about his parents moving to Bombay with other members of the Sindhi community at the time of partition and country information on the presence of the Sindhi in India the Tribunal accepted that the applicant was a Sindhi.  

6. However the Tribunal stated:

   The Tribunal does not accept that the applicant is a Dalit or untouchable for the following reasons.  The Tribunal notes that in his evidence the applicant used the term low caste and Dalit interchangeably.  The Tribunal notes that the country information on the caste system indicates that Dalit refers to persons outside of the caste system; persons considered to be untouchable, whereas low caste refers to persons within the caste system but in the lower levels of the caste system.  The Tribunal sought to clarify with the applicant and the adviser whether the applicant saw himself and was seen by others as a Dalit and untouchable or as a person within the caste system but in the lower levels.  Neither the applicant nor adviser provided clear responses other than indicating that they were using the terms loosely. 

   The applicant provided a document to the Tribunal indicating that he belongs to the Khati community.  The Tribunal notes that the country information indicates that the Khati are positioned in the middle to low range of the caste system.  In respect to the Khati there is no evidence to indicate that the Khati are treated akin to untouchables. 

7. The Tribunal accepted country information, including a report from the Department of Foreign Affairs and Trade (DFAT) referred to in its decision, which was said to indicate that “the caste system within the Sindhi community in India is a weak construct” and that none of the three castes that do exist within the Sindhi community “were seen as having untouchable status by those within the Sindhi community or by non-Hindu-Sindhis”.

8. The Tribunal stated that it had put this country information to the applicant at the hearing.  The Tribunal did not place weight on the information the applicant’s adviser had provided after the hearing which made reference to Dalits within the Sindhi, as it was said to relate to Pakistan and not to India.  The Tribunal concluded that while it accepted that the applicant may be a member of one of the “lower order castes” it did not accept that he was an untouchable or a Dalit. 

9. Nor did the Tribunal accept that the applicant had been subject in the past to ongoing mistreatment at the hands of higher caste persons by reason of his holding a lower caste status.  It found his evidence to be unconvincing.  It found that in his oral evidence the applicant had “referred in a very general and non-specific manner to past mistreatment at the hands of higher castes persons” and that he did not elaborate in a “meaningful way” about claimed past harm or provide specific detail or particulars of incidents of mistreatment, other than in relation to two specific incidents being the killing of his father in 1975 by the Shiv Sena and the burning of his shop in the early 1990s. 

10. On the basis of country information about the past targeting of Sindhis in Bombay by the Shiv Sena, the Tribunal accepted as plausible that the applicant’s father was targeted in some manner by Shiv Sena supporters in 1975.  However it noted that country information indicated that since the 1990s relations between the Sindhis and the BJP and Shiv Sena had improved and that the Sindhis had been accepted and integrated into the Mumbai community.  The Tribunal did not accept that the experiences of the applicant’s father in the 1970s gave rise to a well-founded fear of persecution should the applicant return to Mumbai now.  It noted that the DFAT information indicated that there were currently no known incidents of discrimination or harm to Sindhis in Maharashtra (the state in India in which the applicant had lived).

11. The Tribunal did not accept that the applicant had a well-founded fear of harm for a Convention reason on his return to India.  It made this finding on the basis of country information “in respect to the circumstances of Sindhis and the circumstances of lower caste persons in India” and on the basis of the applicant’s own evidence as to what harm he claimed to fear on return to India.  It found the applicant’s evidence about who would wish to harm him, the reason he would be harmed and the nature of any future harm he feared to be “equivocal and ambiguous”, noting that he had “stated variously” that he would be required to declare his lower caste status and that higher caste people on recognising his status would then seek to harm him, but that he also claimed Muslims would seek to harm him because he was Hindu. 

12. While the Tribunal accepted that the applicant suffered from depression and anxiety which may place some limits on his capacity to give evidence, it did not accept that this would prevent him from indicating who and what he feared.  It noted that he had been assisted at the hearing by his adviser and found that he was given ample time to respond to questions and/or take adjournments.

13. The Tribunal found that country information on the Sindhi in particular and on lower caste persons in India as a whole did not support the applicant’s claim that he faced discrimination, harassment or mistreatment on his return to India “because of his caste position or ethnic group (Sindhi) or a combination of these.” 

14. The Tribunal addressed the applicant’s adviser’s contention that in light of the applicant’s poor medical condition even low-level discrimination or mistreatment would amount to serious harm.  It accepted that the applicant was in poor health.  However given the “unsatisfactory nature” of the applicant’s oral evidence as to why and who would harm him on return and country information “about the caste system in general and the caste system in particular among the Sindhi” it did not accept that the applicant faced discrimination, harassment or mistreatment “of any degree” on his return to India because of his caste position and/or his ethnicity.

15. The Tribunal acknowledged that medical services available to the applicant in Australia may be better than those likely to be available in India and that this may give rise to humanitarian considerations, but was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason on his return to India. 

This application

1. The applicant sought review by application filed on 29 January 2008.  He relies on an amended application filed on 9 April 2008.  There are ten grounds in the amended application, several of which contain a number of discrete particulars.  Mr Silva, the solicitor for the applicant, clarified in written submissions that grounds seven, eight and ten were not pressed.  In oral submissions he further clarified that ground five and particulars five to eight to ground one were not pressed. 

Procedural fairness

1. The first ground in the amended application is that the Tribunal made a jurisdictional error as it denied the applicant procedural fairness. It is not in dispute that s.422B and s.424A of the Migration Act 1958 (Cth) are not applicable because the applicant’s initial application to the Tribunal was made on 15 October 1997, which was before those provisions came into effect. Ground one was put on the basis of common law principles of natural justice or procedural fairness.

2. The applicant contended that included in the country information that was considered by the Tribunal was information that was adverse to him which the Tribunal recorded that it accessed after the hearing of 9 November 2007 and which was not put to him at the hearing (or otherwise).  Particulars one to four to ground one refer to four such items of country information cited in the Tribunal reasons for decision: 

   i)“Central List of Other Backward Classes: Maharashtra” (undated) from the National Commission for Backward Classes website which was accessed by the Tribunal on 3 December 2007;

   ii)an entry on the Khati Community in Vol XXX, Part 2 of the 2004 Indian Ministry of Cultures, Anthropological Survey of India “People of India: Maharashtra” which was accessed by the Tribunal on 3 December 2007;

   iii)Sharma, K.L. “The Social Organisation of Urban Space: A case study of Chanderi, a small town in central India” in Contributions to Indian Sociology (2003) vol.37, no.3; and

   iv)Oommen, T.K. “Rural Community Power Structure in India” in Social Forces (1970) vol. 49 no.2. 

   The information itself is not before the Court, but is summarised in the Tribunal decision.  No issue was taken by either party with the accuracy of this summary.

1. Item (i) is from the website of India’s National Commission for Backward Classes on which the Khati were listed as an “other backward caste” in Maharashtra state and variously referred to as carpenters, blacksmiths and sometimes engineers.  The Tribunal recorded that reports from other states referred to Khati communities which were economically and socially disadvantaged, but also to the fact that some were said to enjoy political prominence.  It was said that no reports could be located which referred to incidents in which Khatis had been harassed or attacked by upper castes or by any other community. 

2. Item (ii) is the Ministry of Culture’s 2004 ethnographic survey of all communities in Maharashtra.  The Tribunal recorded that according to the entry on the “Khati” community, the Khati work as blacksmiths and carpenters.  The Tribunal stated that no mention was made of the Khati being treated as untouchables, although the survey noted that in earlier times “these people” used to live at the outskirts of villages where garbage was dumped, that “Khat” means garbage and that the name Khati originated from this.  The Tribunal also recorded that the entry made no mention of any relationship “between the Khati and the Sindhi identity”.

3. Item (iii) is a 2003 study of a small town in Madhya Pradesh in central India.  According to the Tribunal the study found the Khati in that town were established in the “middle castes, above both the lower castes and the untouchable communities”. 

4. Item (iv) is a 1970 anthropological study of a caste-Hindu village in the state of Rajasthan.  It was said to have found that the Khati community, although small and economically marginal, was “politically prominent”. 

5. The applicant submitted that, as considered in Kioa and Others v West and Others (1985) 159 CLR 550 and Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57 per Gaudron J at 99, principles of natural justice require that a person whose interests were likely to be affected by an exercise of power be given the opportunity to deal with any matters relevantly adverse to that person’s interests which the decision-maker proposed to take into account. It was recognised that (as McHugh J stated in Miah at [140]): “This does not mean that all material which comes before the decision-maker must be disclosed”, but submitted that (as Brennan J indicated in Kioa v West at 629): “in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”.

6. The solicitor for the applicant contended that in determining whether material was relevant and significant to the decision it was appropriate to have regard to the Tribunal findings and reasons (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69]). On this basis, the particularised items of country information were said to be adverse to the applicant and hence credible, relevant and significant to the decision such that they had to be put to him. In particular, it was said that insofar as these items addressed the status of Khatis in the caste system they were critical to the decision of the Tribunal.

7. In its reasons for decision the Tribunal referred to the fact that at the hearing the adviser had provided a document dated 25 July 1977 from the Town Peoples Panchayat (Bombay) certifying that the applicant belonged to the Khati community from Sind which had been “declared as one of the Backward Class Communities vide item 73 of Schedule III “Other Backward Communities” attached with the Government Resolution Political and Services Department No. 490/46 dated 1st November 1950.”  In a submission to the Tribunal of 14 November 2007 the applicant’s adviser referred to the fact that this letter pointed out that the applicant’s caste was in Schedule III and contended that this meant that the applicant was of a Scheduled Caste which was said to be within the definition of “Dalit” in a US Library of Congress Glossary extract also provided to the Tribunal.

8. However in its findings and reasons the Tribunal relevantly stated:

   The applicant provided a document to the Tribunal indicating that he belongs to the Khati community.  The Tribunal notes that the country information indicates that the Khati are positioned in the middle to low range of the caste system.  In respect to the Khati there is no evidence to indicate that the Khati are treated akin to untouchables. 

   After discussing information in relation to the caste system in the Sindh community and placing no weight on information the applicant provided after the hearing, which made reference to “Dalits within the Sindh” as it was said to relate to Pakistan, the Tribunal accepted that the applicant may be a member of “one of the lower order castes” but did not accept that he was an untouchable or Dalit.  It then rejected his claim that he was subject to past mistreatment as a lower caste person or that he had a well-founded fear of harm on that basis.  It made that finding on the basis of country information “in respect to the circumstances of Sindhis and the circumstances of lower caste persons in India”, as well as the applicant’s evidence.  It noted that the country information on the Sindhi in particular “and on lower caste persons in India taken as a whole” did not support the applicant’s claim to face discrimination, harassment or mistreatment in India because of his caste position and/or ethnic group.  As set out above, based on the applicant’s evidence and country information “about the caste system in general and the caste system in particular among the Sindhi”, it did not accept this claim. 

9. The applicant submitted that in making such findings the Tribunal relied in part on the information relating to the Khati community in the four items of country information it accessed after the hearing, yet it failed to put this information to him for comment, thus failing to accord him natural justice.  It was submitted that in such circumstances the Court should grant relief as it could not be said that the breach could have no bearing on the outcome of the Tribunal review (see Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Minister for Immigration and Multicultural Affairs and Another; Ex parte Miah (2001) 206 CLR 57 at [213] per Kirby J; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1 at [84] – [85] per Kirby J; Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 at [96] and Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at [41] – [45] per Sackville J).

10. The first respondent did not dispute that the substance of these four items of information was not put to the applicant in the Tribunal hearing or thereafter.  Counsel for the first respondent accepted that the appropriate test as to whether and to what extent adverse information was required by principles of natural justice to be disclosed to a review applicant was whether an opportunity had been given to the applicant to deal with “adverse information that is credible, relevant and significant to the decision to be made” (see Kioa v West and Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572 at 629).

11. However the first respondent submitted that what was central to the Tribunal decision in this instance was its finding that no Dalit or “untouchable” group existed within the Sindhi community.  In coming to that conclusion the Tribunal was said to have relied upon other independent information (relating to caste generally, to the Sindhi community and to the caste system within the Sindhi community) the substance of which had been raised with the applicant in detail during the hearing.  The adviser had been given an opportunity to provide post-hearing submissions on such matters.  It was contended that the Tribunal did not rely on the information relating to the Khati community in particulars (i) to (v) of ground one and hence that this information was not relevant and significant to the decision to be made such that it had to be brought to the attention of the applicant. 

12. The first respondent’s contention was that the linchpin upon which the Tribunal decision rested was two-fold:  first it found that the applicant was a Sindhi and second it found (albeit not expressly) that the Sindhi community did not contain “Dalits” or “untouchables” (terms which it was said to have accepted were synonymous).  It was submitted that the Tribunal’s reasoning was in effect that as the Sindhi did not contain an untouchable class and the applicant was a Sindhi, he could not therefore possibly be an untouchable and hence he did not have a well-founded fear of persecution.  On this basis, while it was accepted that independent country information about caste generally, the Sindhi community and the caste system within the Sindhi community was information relevant to the Tribunal decision, it was submitted that the information in relation to Khati was not “relevant and significant to the decision to be made” as considered in NAMW.  The information on the Khati was said to be irrelevant to the decision because of the Tribunal’s finding that there were no Dalits or untouchables within the Sindhi community.  It was said to follow logically that if there were no Dalits within the Sindhi community, because the applicant was a Sindhi the Khatis could not be Dalits.  It was also submitted that there was evidence before the Tribunal that the Dalits or untouchables were not a caste and that this was sufficient to dispose of the part of the claim that related to the applicant’s claim to be a Khati, on the basis that as the Khati were part of the caste system they could not be untouchables. 

Resolution

1. It is necessary to have regard to the applicant’s claims before the Tribunal as well as to the reasons for decision.  While the claims in the protection visa application made no reference to the applicant belonging to the Khati community, the 1977 document presented to the Tribunal at the hearing certified that the applicant belonged to the “Khati” community from Sind.  The partial transcript of the hearing in evidence before the Court does not include the part of the hearing in which the adviser gave the Tribunal this document.  The Tribunal described its understanding of what occurred at the hearing as follows:

   In regards to whether or not the applicant was in fact a Dalit of a particular low caste, the advisor provided to the Tribunal a document dated 25 July 1977 from the Town Peoples Panchayat (Bombay) certifying that [the applicant] belongs to “Khati” community from Sind which has been declared as one of the Backward Class Communities.  [Emphasis added].

2. However in his post-hearing written submission of 14 November 2007 the adviser stated that he had been asked to provide “any information that would substantiate the fact that there are ‘Dalits’ in ‘Sindhi’ community”.  He provided a number of documents, including an extract from the Library of Congress, Glossary on India and pointed out to the Tribunal that the letter dated 25 July 1997 referred to the applicant’s caste as being in “Schedule III” meaning that the applicant was of a Scheduled Caste “thus fitting with the definition [of Dalit] in the Glossary” as:  “Sanskrit word meaning burst, split, broken, crushed or destroyed but, since the nineteenth century, often taken to mean downtrodden; used in reference to Untouchables (Harijans, q.v.), outcastes, Scheduled Castes (q.v.), and others living in a reduced social state”.

3. The applicant claimed to be a Dalit who belonged to the Khati community from the province of Sindh (which after partition became part of Pakistan).  His claim based on the 1977 document was not simply that he was a Dalit of “a particular low caste,” but rather that as he belonged to the Khati community from Sindh (also called Sind), he was of a Scheduled Caste and in that sense a Dalit.  Consistent with this claim the affidavit of Associate Professor Jayaraman provided to the Tribunal stated that the Dalits comprised a “category” beneath the four main “high” castes in India “traditionally excluded from religious and ritual practices” who were “also called the Low Castes, the Untouchables, the Harijans or the Scheduled Castes”; that Dalits “include Low Caste Sindhis” and that “In normal usage ‘Low Caste’ has become synonymous with ‘Dalits’”.  Professor Jayaraman also stated that the Sindhi community in India could be divided into four “groups”, including Dalits and that “Dalits or Low caste Sindhis are generally believed to be descendants of indigenous populations that were historically enslaved by various invading people.”  

4. The Tribunal appears to have rejected the notion that the terms “low caste” or “Dalit” could be used interchangeably.  However, as contended for the applicant, even if the Tribunal was of the view that there was a distinction between Dalits and low caste persons and that there were no Dalits within the Sindhi (an issue discussed further below), that did not dispose of the applicant’s claim to be a low caste person.  In its findings and reasons the Tribunal addressed the fact that the applicant had provided a document indicating that he belonged to the Khati community.  In relation to that claim it observed: 

   … country information indicates that the Khati are positioned in the middle to low range of the caste system.  In respect to the Khati there is no evidence to indicate that the Khati are treated akin to  untouchables. 

5. It is apparent that the Tribunal did not reject the applicant’s claim to be a Khati from Sindh.  The Tribunal then explained why it rejected the claim that the applicant was a Dalit: on the basis of information that none of the three castes in the Sindhi community were seen as having untouchable status and because country information provided by the applicant after the hearing which referred to Dalits within the Sindhi was said to relate to Pakistan and not to India (although I note that the Library of Congress Glossary definition of Dalit was from the Area Handbook Study on India).  On this basis the Tribunal gave that information no weight.  

6. In reaching these conclusions the Tribunal did not address the affidavit of Professor Jayaraman, in particular his evidence that there were four groups, including Dalits, in the Sindhi community in India.  Rather, the Tribunal found that it “therefore” accepted that whilst the applicant may be a member of one of the “lower order castes”, it did not accept that he was an untouchable or Dalit.  This finding is linked to the Tribunal’s earlier discussion about the Khati and its view, based on the country information it accessed after the hearing, about the status of Khati as positioned in the middle to low range of the caste system.

7. The Tribunal then addressed the applicant’s claims about past mistreatment and future fears as a lower caste person. It did not accept that he had a well-founded fear of harm for a Convention reason on return to India based on country information on the circumstances of the Sindhi “and the circumstances of lower caste persons in India” and his evidence.  The information relevant to this finding clearly included the information on the circumstances of the Khati.  The Tribunal also found that country information on the Sindhi in particular and “on lower caste persons in India taken as a whole” (which, again, included the information on the Khati in Maharashtra Madya Pradesh and Rajasthan) did not support the applicant’s claim that he faced discrimination, harassment or mistreatment on his return to India because of his caste position or ethnic group or a combination of those factors.  Again this finding is linked, at least in part, to the applicant’s claim to be a Khati which the Tribunal did not reject and the country information about the circumstances of Khati communities in India. 

8. It is clear that the Tribunal relied on the country information referred to in the particulars to ground one in relation to the Khati to form the view that the Khati were positioned in the middle to low range of the caste system and to reach a conclusion about the circumstances of such lower caste persons in India.  It is also apparent from its conclusion that there was “no evidence to indicate that the Khalti are treated akin to untouchables” that it in part relied on that country information about treatment of the Khati in various parts of India to reject the applicant’s claim that as a member of the Khati community from Sindhi he was a Dalit or untouchable.  As the Tribunal relied on aspects of that information, procedural fairness required that it had to be put to the applicant for comment.

9. The information about the Khati was relevant and significant to the decision.  The Tribunal clearly proceeded on the basis that the applicant was a Khati.  It rejected his claim to be a Dalit or untouchable in part because of its view that the country information indicated that the Khati were in the middle to low range of the caste system and hence not “outside the caste system” as the Dalit were found to be.  Clearly it regarded this information as credible.  It also implicitly concluded that there were no Dalits within Sindh (or at least did not accept the information the applicant had provided to that effect which was said to relate to Pakistan).  More directly, it rejected his claim to fear persecution as a Khati from Sindh in part on the basis of the information that addressed the status and treatment of members of Khati communities in India. 

10. Hence, by failing to put the substance of this information to the applicant for comment the Tribunal denied him procedural fairness and fell into jurisdictional error.  The Tribunal’s failure to put this information to the applicant meant that he was denied the opportunity to address credible and significant information relevant to the issues of whether as a Khati he was to be considered a Dalit or untouchable, whether the “Khati” were distinct from Dalits or untouchables and the circumstances of lower caste persons in India.  Had such information been put to the applicant for comment he might have been able to address matters such as the relevance of the information to Khatis from Sindh (as distinct from Khatis from Maharashtra or elsewhere in India) and pointed to Professor Jayaraman’s evidence and the claim that the Khati from Sindh were listed as a Scheduled Caste.  It cannot be said that the breach had no bearing on the outcome (see Applicant NAFF of 2002 at [85] per Kirby J). The first respondent made no submission that if jurisdictional error was established, relief should nonetheless be refused. The decision should be set aside and the matter remitted for redetermination. I have, however, also considered the other grounds relied on by the applicant and addressed in detail by both parties.

Relevant considerations and/or relevant materials

1. The second ground in the amended application is that the Tribunal failed to take relevant considerations and/or relevant materials or information into account.  There are three particulars which describe documents provided to the Tribunal by the applicant which were said to be critical to the decision:

   i)the affidavit of Associate Professor Jayaraman sworn on 21 May 2007;

   ii)an extract from the Glossary to the US Library of Congress, Federal Research Division, Country Studies, Area Handbook Series on India, in particular the definition of a “Dalit”; and 

   iii)a copy of an undated news report and picture from Associated Press displaying dead bodies with a description “Murdered in their sleep:  June 17’s attack was Bombay’s eighth caste atrocity in six months”.  Below the picture are the words “Caste Struggle: After centuries of discrimination, India’s Dalits including low caste Sindhis (who came from so called Pakistan) are fighting back using vote and civil disobedience to claim their rights”. 

1. The applicant submitted that the Tribunal was obliged to consider each of these documents in its deliberations and that in not so doing it deprived itself of the opportunity to consider relevant evidence which could corroborate the applicant’s claims in a material respect (see W412/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 99 at [19] and W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69).

2. It was submitted that this was not a situation where the material in issue was so insignificant that a failure to take it into account could not have materially affected the decision (see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24). It was submitted that the Tribunal’s failure could also be seen as a failure to have regard to relevant considerations and generally that the failure to have regard to this material constituted a jurisdictional error in the sense considered in Craig v The State of South Australia (1995) 184 CLR 163 at 179 per McHugh, Gummow and Hayne JJ, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088.

3. The first respondent submitted that although it was not necessary for the Tribunal to advert expressly to every piece of evidence before it (see WAEE at [46]) these three items were in fact taken into account by the Tribunal. It was also contended that to the extent the applicant submitted that the Tribunal should have preferred the evidence contained in the three documents in issue over other evidence, the Tribunal was entitled to determine the weight to be given to a particular piece of evidence or whether to accept or reject it, consistent with what was said in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]. The first respondent submitted that the findings of the Tribunal were open to it on the evidence before it, so that disturbing them would amount to impermissible merits review (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]).

4. It is relevant to have regard to the nature of each of the items of evidence in issue in determining whether any of these items was material which gave rise to an obligation on the Tribunal to address it in its reasons for decision or whether a failure to do so reveals that the Tribunal did not address the claims advanced by the applicant. 

Professor Jayaraman’s evidence

1. The affidavit of Associate Professor Jayaraman was admitted into evidence in the proceedings before Branson J in the Federal Court (see Applicant S1983 v Minister for Immigration and Citizenship [2007] FCA 854) in relation to the distinction between the concepts of Sindhi and Dalit. Professor Jayaraman attested to his experience, evidence and independence and the fact that he had been asked to be an “expert witness.”  Branson J had regard to this evidence in finding that the previous Tribunal (T₂) had proceeded on the basis that it was essentially the same to be a Sindhi and a Dalit when this was not the case and hence that it had misunderstood and so failed properly to deal with the claims advanced by the applicant (at [53]). 

2. After the matter was remitted to the Tribunal, a copy of Professor Jayaraman’s affidavit was provided to the Tribunal under cover of a letter from the applicant’s adviser dated 12 September 2007.  It was accepted by both parties that the decision of Branson J in Applicant S1983 was before the Tribunal. Relevantly, her Honour took Professor Jayaraman’s affidavit into account as evidence of the distinction between Sindhis and Dalits. Branson J pointed out at [49] that Professor Jayaraman explained:

   (a)     the term Sindhi comes from the place named Sindh which is a province of Pakistan;

   (b)     in India a Sindhi is someone whose family came from the Sindh province before the Partition;

   (c) the Partition was a division of colonial India and Pakistan by the British rulers at the time of Independence in 1947;

   (d)     if someone says he is a Sindhi it is like someone saying he is a Scot or Welsh;

   (e)     in the caste system in India which is based on a Varna (colour model) there are four castes called high caste; at the top are the Brahmin, the priest and arbiter of what is right and wrong in matters of religion; next come the Kshatriya, the soldier and administrator; then the Vaisya, the artisan and commercial class; and finally the Sudra, the farmer and peasant class;

   (f)      beneath the four main castes is a fifth category, the Dalits, consisting of people who were traditionally excluded from religious and ritual practice; they are also called the Low Castes, the Untouchables, the Harijans or the Scheduled Castes;

   (g)     Dalits means oppressed, downtrodden and exploited social group and includes Low Caste Sindhis; and

   (h)     in normal usage Low Caste has become synonymous with Dalits.

3. Professor Jayaraman also explained that the Sindhi community in India could be divided into four groups, the last of which was Dalits, elaborated on the meaning and nature of each of these groups and stated that the Dalits or low caste Sindhis were generally believed to be the descendants of indigenous populations historically enslaved by various invading people. 

4. This evidence went to the critical issue of the meaning of “Dalit” and the distinction between the Dalits and the Sindhi that was relevant to the applicant’s claims given that, as recognised by Branson J and reiterated by the applicant in his statutory declaration of 12 September 2007, his claimed fear was based on being a Dalit and not on being a Sindhi as such.  It also addressed the scope of the concept of “Dalits” and alternative nomenclature for those people beneath the four main castes in India.  

5. The first respondent contended that while the Tribunal did not expressly refer to the affidavit (or its contents) in its reasons, it nonetheless took it into account.  This was said to be apparent from the fact that the affidavit was referred to in the applicant’s statutory declaration set out in the decision.  It was submitted that a fair reading of the Tribunal’s reasons disclosed that it was aware of evidence that suggested Dalits existed within the Sindhi community and acknowledged it as an issue of contention.  Reliance was also placed on the fact that the Tribunal stated in its reasons that it had “considered the evidence as a whole” in coming to its conclusion. 

6. In his statutory declaration the applicant simply stated: “I am providing a copy of the affidavit provided by Professor Jayaraman to the Federal Court which clarifies this matter about what is meant by the word ‘Sindhi’ and ‘Dalit’.  I am also happy to explain further during the proposed hearing if there is any issue in relation to this.” 

7. There is no suggestion that during the Tribunal hearing the Tribunal raised with the applicant any concern about the accuracy of Professor Jayaraman’s evidence or, indeed, any other issue about that evidence.  It did not refer to it in the findings and reasons.  The fact that the Tribunal set out the content of the applicant’s statutory declaration is not of itself such as to establish that in its findings and reasons it took into account the affidavit referred to therein.  Indeed, contrary to this contention, in considering whether there were Dalits within the Sindh in India, the meaning of Dalit and whether Dalits were within the caste system, the Tribunal made no reference to the express consideration of these issues by Professor Jayaraman corroborative of the applicant’s claims.

8. Further, the Tribunal references (at Court Book pages 310 and 317) to evidence suggesting that Dalits existed within the Sindhi community relate to the country information the applicant’s adviser provided after the hearing which made reference to Dalits within the Sindh.  The Tribunal did not place weight on this information on the basis that “it related to Pakistan not India”.  This observation could not include the information from Professor Jayaraman which was provided to the Tribunal before the hearing and which did not simply relate to Pakistan.  In particular Professor Jayaraman stated that Dalits were a “category” beneath the four main castes in India and included “Low Caste Sindhis”, that the Sindhi community “in India” could be divided into four groups, one of which was “Dalits” and that in normal usage “Low Caste” had become synonymous with “Dalits”.  

9. It is apparent from the Tribunal’s account of what occurred in the hearing that it was aware that there was an issue as to whether the Sindhis contained a Dalit or Untouchable caste.  The Tribunal raised with the applicant its concern as to how he could claim to be both a Sindhi and a Dalit.  It recorded the applicant’s adviser’s explanation about the Dalit “label” being loosely applied, referring to people at the bottom of the caste system.  It was critical of a lack of clarity in the use of the terms “Dalit” and “untouchable” by the applicant and his adviser.  It also referred to the fact that the adviser had provided to the Tribunal the 1977 document certifying that he belonged to the Khati community from Sindh which had been declared to be one of the backward class communities which was said to be in relation to whether or not the applicant was in fact a Dalit of a particular low caste. 

10. The Tribunal referred to country information from DFAT about Sindhis in the state of Maharashtra in India (where the applicant had lived before coming to Australia).  DFAT reported on enquiries made of two prominent representatives of the Sindhi community in Maharashtra and their responses to the effect that there were no castes within the Sindhi community.  The advice was that Sindhis had been divided into three castes in the past which did not have a rigid hierarchy and that none of those castes were seen as having untouchable status by those within the Sindhi community or by non-Sindhi Hindus.

11. On this basis the Tribunal (which accepted that the applicant was a Sindhi) appears to have proceeded on the basis that the Sindhi community did not include Dalits or Untouchables.  Hence it did not accept that the applicant was an untouchable or a Dalit.  Thus it did not address whether he had a well-founded fear of persecution on that basis.  However, in reaching this conclusion the Tribunal made no reference to the evidence consisting of the affidavit in which Associate Professor Jayaraman stated, among other things, that the Sindhi community in India could be divided into four “groups”, Rajputs, Jats, Ashrafs, and Dalits which Professor Jayaraman explained as follows:

    Of these Ashrafs are Muslims and others are Hindus.

    The word ‘Rajput’ means Sons of Kings and they claim to belong to Kshatriyas.  ‘Jats’ claim to belong to Sudras.  Jats belong to land owning farming communities.  Ashrafs who are Muslims are presumed to have a superior status derived from their foreign Arab ancestry.  Though Ashrafs do not fall within the Hindu caste groups defined by Hindu religious ideology they are treated as though they are higher caste.  Dalits or Low caste Sindhis are generally believed to be the descendants of indigenous populations that were historically enslaved by various invading people. 

12. Reading the Tribunal decision fairly and as a whole (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259), the Tribunal’s general statement that it had considered “the evidence as a whole” does not in this instance of itself or in conjunction with the other factors referred to by the first respondent establish that the Tribunal took this particular evidence into account.

13. I am not persuaded that the Tribunal did take the content of the Professor Jayaraman’s affidavit into account given the absence of any reference to such expert evidence of direct relevance to issues under consideration and corroborative of the applicant’s claim.  Importantly, this affidavit was provided to the Tribunal not simply as country information, but rather as expert evidence corroborative of the applicant’s claims to be a Dalit in relation to the distinction between a Sindhi and a Dalit, the caste system in India generally and among the Sindhis in India.  The Tribunal did not reject the evidence of Professor Jayaraman.  However there is nothing in the decision to indicate that the Tribunal considered Professor Jayaraman’s evidence as to matters such as the presence of Dalits within the Sindhi.  This was a factor critical to the Tribunal’s rejection of the applicant’s claim to be a Dalit.  Had the Tribunal accepted that the applicant was a Dalit it would then have had to consider whether he had a well-founded fear of persecution on that basis (see Branson J in S1983 at [56]).

14. The Tribunal did not explain why it reached the view that there were no Dalits within the Sindh in India contrary to Professor Jayaraman’s evidence.  While it referred to information about the existence of three “castes” within the Sindhi community it did not address Professor Jayaraman’s evidence about four “groups” in the Sindhi community in India (including groups he described as Muslim Ashrafs and Dalits or Low Caste Sindhis), thus failing to address evidence directly  relevant to the applicant’s claim. 

15. Further, while the applicant’s oral evidence on caste was addressed by the Tribunal (which was critical of the fact that neither the applicant nor his adviser provided clear responses as to whether he saw himself or was seen as a Dalit and untouchable outside the caste system or rather as a person within the lower levels of the caste system and the fact that they had used the terms low caste and Dalit interchangeably), it made no reference to Professor Jayaraman’s evidence that “in normal usage ‘low caste’ has become synonymous with ‘Dalits’”. 

16. The Tribunal failed to consider Professor Jayaraman’s affidavit which was relevant and independent evidence having the capacity to corroborate the claims made by the applicant in material respects (see W412/01A at [19]). This is not a case in which it was unnecessary to have regard to the corroborative evidence in the sense considered in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [49] per McHugh and Gummow JJ (see SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638).

17. Nor is this case one in which the Tribunal had regard to but determined not to give weight to the evidence in issue.  It did not reject it, yet it ignored it in its findings and reasons.  In so doing it failed to consider relevant evidence having the capacity to corroborate the applicant’s claims, thus falling into jurisdictional error in the manner considered in W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449 at [30] per Carr J with whom Lee and Finkelstein JJ agreed. Hence this is an alternative basis on which the matter should be remitted to the Tribunal for reconsideration.

The Library of Congress Glossary

1. The second particular to ground two relates to the extract from the glossary to the USA Library of Congress Federal Research Division, Country Studies, Area Handbook on India, a copy of which was provided to the Tribunal by the applicant’s adviser after the hearing.  The attention of the Tribunal was drawn to that part of the glossary which provided a definition of the word Dalit(s) as follows:

   Sanskrit word meaning burst, split, broken, crushed or destroyed but, since the nineteenth century, often taken to mean downtrodden; used in reference to Untouchables (Harijans, q.v.), outcastes, Scheduled Castes (q.v.), and others living in a reduced social state.

2. The applicant’s adviser submitted that the letter from the Town Peoples Panchayat which referred to the applicant’s caste being Schedule III meant that he was of a Scheduled Caste thus fitted in with the definition of Dalit in the Glossary. 

3. It was contended for the applicant that the Tribunal failed to consider the Glossary definition of Dalit at all and that this constituted a jurisdictional error.  It was said to be necessary for the Tribunal to consider this definition because of the high reputation of the source and because, apart from Professor Jayaraman’s explanation, there was no other authoritative definition of Dalit in the information considered by it.

4. The glossary extract was directly referred to by the Tribunal in its  listing of material before it including the submission from the adviser of 14 November 2007 containing country information about Dalits in the Sindhi community in Pakistan.  This information was said to be sourced from Wikipedia, Sikh Spectrum and the Library of Congress.  In its findings and reasons it placed no weight on the country information provided by the applicant after the hearing which made reference to “Dalits within the Sindh.”  The Glossary is not such information.  Counsel for the first respondent accepted that the Glossary definition of Dalit was neither accepted nor rejected by the Tribunal. 

5. The extract from the Glossary was in the nature of independent country information.  It is well established that the choice and assessment of independent country information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10), as is the weight to be given to any piece of evidence (WBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 and Lee).  Even if the Tribunal relied on incorrect country information, such an error of fact would not of itself amount to an error of law or a jurisdictional error (NAHI).  It is also well established that the Tribunal is not obliged to refer in its reasons to “every piece of evidence and every contention made by an applicant” as the Full Court of the Federal Court stated in WAEE at [46], although the Court went on to clarify this general statement by reference to the fact that “[i]t may be that some evidence is irrelevant to the criteria and some contentions misconceived”.  The Tribunal’s failure to refer to this item of information does not constitute jurisdictional error. 

6. As the first respondent contended, given the almost identical but more detailed information was obtained by the Tribunal elsewhere and set out at length in its reasons for decision (in particular a May 2007 report produced by the UK House of Commons Library) about Untouchables also being “referred to as Harijans (‘children of God’), Dalits (‘the oppressed’) and Scheduled Castes (referring to their special status in the Constitution)”, it was not necessary for the Tribunal to make an express finding about whether it accepted or rejected the Glossary definition.  The fact that the Tribunal did not refer to this particular item of country information in the findings and reasons part of its decision does not establish that the Tribunal misunderstood the applicant’s claim or otherwise fell into jurisdictional error.  It is for the Tribunal to determine whether or not to place weight on such evidence or to make findings about it (see Lee at [27]).

Picture with caption

1. The final piece of information relied on in the particulars to ground two is an undated news item from Associated Press consisting of a picture of dead bodies described as “Murdered in their sleep: June 17’s attack was Bombay’s eighth caste atrocity in six months”.  Below this appeared the following text:

   Caste struggle

   After centuries of discrimination, India’s Dalits including low caste Sindhis (who came from so called Pakistan) are fighting back using vote and civil disobedience to claim their rights.  [Emphasis added].

2. This material was apparently provided to the Tribunal as previously constituted at a hearing on 14 June 2006 together with other country information.  It was contended that this news item clearly indicated that the Dalits included low-caste Sindhis in India and that the text and picture were capable of substantiating the applicant’s contention.  This was said to be contrary to the Tribunal view that there were no Dalits within the Sindh, which was said to be the thrust of the Tribunal’s findings.  The applicant submitted that because this item was relatively contemporary (although the copy in evidence before the Court is undated) and stated specifically that Dalits included low-caste Sindhis this meant that it was a critical piece of information and had to be addressed by the Tribunal. 

1. However, as the first respondent contended, the Tribunal referred generally to information provided by the applicant in relation to the treatment of low-caste people in India.  For the same reasons given in relation to the Glossary, it was not a jurisdictional error for the Tribunal to fail to make a specific finding about the content of a particular item of country information of the nature of this news report. 

Dalit or untouchable

1. The third ground in the amended application is that the Tribunal made a jurisdictional error “as it misunderstood what is meant by a “Dalit or untouchable”.  The particulars to this ground are as follows:

   The Applicant’s claim is mainly that he was a Dalit/low caste and he was persecuted because of that. 

   The Tribunal held that he was not a Dalit or untouchable and in making this finding it made an error of law as it misunderstood its meaning.

   At page 19.8 of its decision (CB 316.8) the Tribunal stated that:

   The Tribunal does not accept that the applicant is a Dalit or untouchable for the following reasons.  The Tribunal notes that in his evidence the applicant used the term low caste and Dalit interchangeably.  The Tribunal notes that the country information on the caste system indicates that Dalit refers to persons outside of the caste system; persons considered to be untouchable, whereas low caste refers to persons within the caste system but in the lower levels of the caste system.  The Tribunal sought to clarify with the applicant and the adviser whether the applicant saw himself and was seen by others as a Dalit and untouchable or as a person within the caste system but in the lower levels.  Neither the applicant nor adviser provided clear responses other than indicating that they were using the term loosely

   The Tribunal misunderstood the littoral (sic) saying that Dalits are outside the caste system which is intended only to be understood under the Hindu religious philosophy but the true and real life meaning is that Dalits are so low or at the bottom in the caste system that they are considered inconsequential in society in general.

2. The applicant pointed out that the Tribunal itself referred to information from the 2007 UK House of Commons Library Report to the effect that “the different castes are categorised into four groups (varnas) and the ‘Untouchables’”.  It was submitted that it could not be inferred by the Tribunal that Dalits could not be referred to as “low caste” because they were outside the caste system.  It was said that there was no country information before the Tribunal to the effect that the Dalits were not also referred to as low caste.  The affidavit evidence of Professor Jayaraman to the effect that there were four high castes and beneath the four main castes was the fifth category of Dalits who were traditionally excluded from religious and ritual practices (also called the Low Castes, the Untouchables, the Harijans or the Scheduled Castes) was said to be to the contrary.  Further, Professor Jayaraman had stated that “Dalits include Low Caste Sindhis” and that in normal usage “low caste” had become synonymous with “Dalits”.  Reference was also made to the Library of Congress Glossary definition of Dalits and the newspaper cutting referred to in ground two

3. The applicant contended that the Tribunal had drawn an inference that was not available on the evidence before it, as discussed in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [14] – [32] and had fallen into error in the manner considered by Greenwood J at [32]:

   A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.

4. Insofar as this ground repeats the substance of the complaint in ground two and in effect contends that the Tribunal misunderstood the claims because it overlooked the three documents considered in that ground, what was said in relation to the Glossary in particular (b) to ground two is relevant. 

5. As to the issue of whether or not the meaning of Dalit was misunderstood by the Tribunal, as the first respondent submitted, the Tribunal findings were open to it on the evidence before it, in particular the May 2007 Report on India from the UK House of Commons Library cited in its reasons for decision.  While the applicant contended that there was no information before the Tribunal which established that Untouchables were not part of the caste system, that document stated clearly that in the hierarchical order of the traditional caste system there were different “Varnas” or groups categorised into four groups, the lowest of these being the Shudras and that beneath the Shudras and “therefore outside the caste system are the Adi-Shudras or Untouchables” (emphasis added).  Thus there was evidence before the Tribunal to suggest that Untouchables (who the Report continued were also referred to as Dalits or Scheduled Castes) were outside the traditional caste system.  It has not been established that there was no evidence to support the finding or that the Tribunal drew an inference not available on the material before it or otherwise erred in the manner considered in SZDTZ.

6. Insofar as this ground seeks merits review or takes issue with the fact that certain independent country information was preferred by the Tribunal over other information that does not establish a jurisdictional error. 

7. In addition, the part of the Tribunal decision referred to in these particulars reveals an unsuccessful attempt by the Tribunal to clarify with the applicant and his adviser the sense in which they used the terms “low caste” and “Dalit” in light of the country information to which it referred.  It was open to the Tribunal to have regard to the absence of clear response to its questioning.  The applicant does not contend that he or his adviser put to the Tribunal an explanation such as is now provided in the particulars to ground three.  No jurisdictional error is established on this basis. 

Unreasonableness and unfairness

1. Ground four in the amended application is that the Tribunal made a jurisdictional error “in the way that it dealt with the applicant’s evidence.”  There are five particulars to this ground.  The first particular to this ground is as follows:

   (i)     The Tribunal unwisely diverted the Applicant when the Applicant tried to describe certain incidents and then held against the Applicant for not describing them.  Thus the Tribunal was unreasonable and unfair to the Applicant. 

   (a)     Transcript page 15.29

   Tribunal:   They had a fight.

   Applicant: Yes.  Not ordinary fight.  Big fight. 

   Advisor:    Please explain.  Take your time and explain (indistinct) take your time and relax.

   Tribunal:   So it was on 21 November and it was in the morning.

   Applicant: Yes.

   Tribunal:   What happened after the fight?

   (b)     Transcript page 19.33

   Tribunal:   When you say “they” burnt your shop, who burnt your shop?  Who is “they”?

   Applicant: From high-caste.  High-caste people.

   Tribunal:   So did anything else happen, apart from your shop being burnt?

   (c) Transcript page 19.36

   Applicant: The harassment, persecution was every time.  Every day they used to harass my mother, me.  One day they hit me here.  There is a mark.  A dominant mark here.  Scar. 

   Tribunal:   So when you left India, you left on your own?  You didn’t take your mother?

2. The Tribunal did not accept that the applicant had been subject to ongoing mistreatment at the hands of high caste people by reason of his holding a low caste status.  Among other things, it found his evidence to be unconvincing.  The Tribunal found that in his oral evidence he had referred in a very general and non-specific manner to past mistreatment and that he had not elaborated in a meaningful way about the incidents of harm or provided specific detail of particular incidents.  It was submitted that the Tribunal erred in the manner in which it dealt with the applicant’s evidence and used its interpretation of the applicant’s evidence to find that the applicant was lying. 

3. The applicant contended that it was apparent from these extracts from the Tribunal hearing that the Tribunal had not allowed the applicant to give specific detail because it had diverted to topics said to be completely irrelevant to the matters in issue.  For example, it was contended that when the applicant had started to explain what had happened in a fight on 21 November 1975 between high caste people and his father (particular (i)(a)), after he had responded to a question about the time of the fight the Tribunal asked about what happened after the fight, rather than giving the applicant the opportunity to elaborate on why and how the fight happened and what had occurred.  It was contended that if the Tribunal was to take the view that the applicant had not given details of incidents it should not divert him in the hearing and then treat his failure to provide details as a reason for not accepting his claims, particularly given his state of health, of which the Tribunal was said to be aware. 

4. In relation to extract (b) it was contended that instead of asking for further details in relation to the burning of the shop being discussed, the Tribunal diverted by asking whether anything else had happened, notwithstanding that the incident was said to be a critical issue about which the Tribunal needed to know more. 

5. In relation to extract (c) from the transcript, the solicitor for the applicant pointed out that the applicant was describing the fact that apart from his shop being burnt he had been hit and he had a scar.  The Tribunal was said not to have asked any relevant questions, but rather to have diverted to ask about whether the applicant left India on his own or with his mother.  It was contended that this meant that the applicant had not been able to provide particulars at the hearing because the Tribunal had diverted but then held him responsible for the failure to provide particulars.  

6. The solicitor for the applicant clarified that it was not contended that there had been a failure to comply with s.425 of the Migration Act 1958 (Cth).  Rather it was submitted that the inference that the applicant was lying because he did not provide particulars was not available because the Tribunal itself diverted and hindered the applicant.  It was said that the Tribunal had drawn an inference that was not available and had also made a finding in the absence of any evidence in the sense considered in SZDTZ at [32] per Greenwood J (set out [82] above).

7. However, as the first respondent submitted, the Tribunal referred to each of these pieces of evidence in its reasons for decision and made general findings about these matters.  It did not find that the applicant had been “lying” about specific past incidents.  Rather it did not accept that he had been subject to ongoing mistreatment as claimed.  It accepted as plausible that the applicant’s father had been targeted by Shiv Sena.  It did not reject the applicant’s claim about the events surrounding the burning of his shop in the early 1990s, but found that relations between the Sindhis and the BJP and Shiv Sena had improved since that time.  It also had regard to information that there were currently no known incidents of discrimination or harm to Sindhis in Maharashtra. 

8. In any event, it is for an applicant to satisfy a Tribunal of his or her case and a Tribunal is not required to elicit that case by question and answer (Dranichnikov at 1100 per Kirby J; Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at 1918 – 1919 per Gummow and Heydon JJ). No lack of reasonableness or procedural fairness or other error is established on the basis that the Tribunal ought to have elicited further evidence from the applicant which was not initially forthcoming. Nor has it been established that the Tribunal drew an inference (that the applicant’s evidence was unconvincing) that was not available, based on these extracts from a lengthy Tribunal hearing.

9. The second particular to ground four is that the Tribunal drew inferences that were not available in the following finding:

   The Tribunal does not accept that the applicant was subject in the past to ongoing mistreatment at the hands of higher caste persons by reason of his holding a lower caste status.  The Tribunal finds the applicant’s evidence to be unconvincing.  The applicant in his oral evidence referred in a very general and non-specific manner to past mistreatment at the hands of higher caste persons.  He did not elaborate in a meaningful way about claimed past harms or provide specific detail or particulars of incidents of mistreatment over and above two specific incidents.  The applicant referred to two specific incidents, that of the killing of his father in 1975 by the Shiva Sena and the burning of his shop in the early 1990’s.  (bold added)

10. Contrary to the applicant’s contention, it is not apparent that the Tribunal drew an inference that was not available by assuming that because the applicant was “unable” to elaborate on other past mistreatment this undermined the two incidents on which he elaborated.  The Tribunal did not conclude that it was not satisfied that the specific events in question took place.  Rather it did not accept that the applicant had been subject to “ongoing mistreatment at the hands of higher caste persons by reason of his holding a lower caste status”.  The Tribunal drew a distinction between these specific incidents and ongoing mistreatment.  It also had regard to changed circumstances in Mumbai and country information.  It was open to the Tribunal to find that the applicant’s evidence about past mistreatment at the hands of higher caste persons was general and non-specific, apart from the details he provided of the killing of his father in 1975 and the burning of his shop in the early 1990s. 

11. The third particular to this ground is as follows: 

    The Tribunal denied procedural fairness to the Applicant by not appreciating serious health problems affecting the applicant during the hearing in that it did not assist the applicant to focus his answers on his past treatment.  In fact the Tribunal hindered the Applicant from focusing on his past treatment.

12. Reference was made to the following discussion in the transcript of the Tribunal hearing (page four of the transcript):

    Hearing Officer:    Just speak loud enough for the recording.

    Applicant: Yes, because I’m – because of my sickness I’m not talking properly …

    Tribunal:  Okay.

    Applicant: … getting pain here in the brain.  (emphasis added in particulars)

    Tribunal:  Okay.

    Applicant: So maybe I will ask him to …

    Tribunal:  You don’t need to talk too loud.  I think it will pick it up.  Okay.  So I’ll just start and have a look at your passport, which looks like it’s a new one.  You had it issued here in Sydney.

13. Reference was also made to the following exchange at page 20.3:

    Tribunal:  So what do you think would happen to you now, if you were to go back to India.

    Applicant: First of all, I’m very weak.  I cannot fight with those people.  High-caste people.  They will again harass me and all those things will happen to me again.  I cannot bear this persecution.

    Advisor:    Are you all right?

    Applicant: I’m getting pain because this …

    Advisor:    You want to have a break?  May we have a break?  Five minutes?  Five, 10 minutes?

    Tribunal:  Yes.  Okay.  We will have an adjournment until 11 o’clock.  Is that all right?

    (bold added)

14. In its decision the Tribunal had regard to a psychologist’s report indicating the applicant was suffering from depression and anxiety.  It also noted that he was medically unwell.  However while it accepted that the applicant’s depression and anxiety may place some limits on his capacity to give evidence, the Tribunal did not accept “that it would prevent him from indicating what and who he feared harm from.”  It had regard to the fact that the applicant was assisted at the hearing by his adviser and found that he was given ample opportunity to respond to questions and/or take adjournments. 

15. It was submitted however, that the Tribunal should have been more considerate and asked the applicant questions in a “procedurally fair” way so that he could provide all the information he could, given that he had serious health problems and “brain pain” that this needed to be taken into account by the Tribunal in providing the applicant with a fair hearing.  It was contended that the fact that the Court did not have the whole of the transcript of the hearing meant that any inference should be drawn in favour of the applicant, as it was not the applicant’s fault the transcript was missing. 

16. However, as the first respondent submitted, the evidence before the Court does not support the complaint made by the applicant.  On the contrary, it appears from the partial transcript that the applicant was given ample opportunity to have adjournments so that he could compose himself sufficiently to give evidence.  There is no suggestion that the Tribunal did not respond to any requests for an adjournment.  I also note that prior to the hearing the Tribunal had stated that the hearing date itself was capable of being rescheduled to accommodate the applicant and the availability of the applicant’s adviser on a number of occasions. 

17. The evidence is not such as to establish that the applicant’s medical condition was such that he was unable to participate meaningfully in the hearing.  There is no evidence from the applicant as to what occurred in the part of the hearing that was not recorded.  The Tribunal’s account of the hearing does not support this ground.  It is apparent from the decision that it had regard to the applicant’s medical condition, but was not of the view that this had prevented him from availing himself of the invitation to a hearing to give evidence and address determinative issues.  There is no evidence that the concerns now raised were raised with the Tribunal at or after the hearing.  This aspect of ground four is not made out. 

18. The fourth particular is that: “the Tribunal misapplied the test for well founded fear since it required a very high certainty for the past events, instead of basing it on real chance or at most balance of probabilities”. 

19. This is elaborated on by particulars that the “very inadequate evidence” the Tribunal relied on to find that it did not accept that the applicant had been subject in the past to ongoing mistreatment at the hands of higher-caste persons by reason of his holding a lower-caste status “was such that it demonstrate the misapplication of the test or that in reality it was not satisfied that they did not take place or that it did not take place because of his caste (sic)”. 

20. The applicant submitted that it could be inferred the Tribunal was not confidently satisfied that the past events did not take place given the inadequacy of the evidence cited by the Tribunal to support its findings (see S20/2002 at [36] per McHugh and Gummow JJ).  The applicant accepted that the attribution of greater weight to one piece of information as against another was not necessarily inconsistent with the correct application of the test for well-founded fear stated in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, but submitted that this was only appropriate when the question of whether each persecutory event of significance had occurred was assessed “on real chance and not on probability.” 

1. The first respondent submitted generally that it was not necessary for the Tribunal to be confidently satisfied that an event did not take place before it could make a finding about it.  Rather, if the Tribunal could not come to a state of positive satisfaction about an applicant’s claim the application must be rejected (Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17]).

2. In any event, as set out above, the Tribunal’s findings related to whether the applicant was subject to past “ongoing mistreatment”.  The finding complained of was open to the Tribunal on the material before it.  It is apparent on a fair reading of the decision that the finding was based largely on the generality and vagueness of the applicant’s claims about past harm, other than the two specific incidents referred to by the Tribunal.  It has not been established that it misapplied the test for well-founded fear by requiring “certainty” that past events had occurred.  This aspect of the ground is not made out. 

3. The fifth particular to ground four is that the Tribunal was “illogical in the sense that even assuming that the applicant was not able to elaborate on other past mistreatments, finding that this would undermine the two most serious incidents he elaborated on” (sic).  This contention was not elaborated on in written submissions.  In oral submissions the applicant referred generally to SZDTZ but did not address this particular.  In any event, the Tribunal did not assume that the applicant’s inability to elaborate on other mistreatments undermined the incidents he elaborated on.  Rather it found that circumstances had changed.  This aspect of ground four is not made out on the submissions of the applicant.  The combination of matters particularised in ground four do not establish that the Tribunal made a jurisdictional error in the way that it dealt with the applicant’s evidence.  Ground five in the amended application is not pressed. 

Whether Tribunal failed to have regard to relevant considerations or asked the wrong question

1. Ground six in the amended application is that the Tribunal made a jurisdictional error as it: (a) failed to take relevant considerations into account and (b) asked a wrong question.  The particulars to this ground are as follows:

   The Tribunal stated at page 20.2 of its decision that:

   The Tribunal put this country information to the applicant at the hearing and notes that the applicant through his adviser has provided subsequent to the hearing country information which makes reference to Dalits within the Sindh.  However, the Tribunal does not place weight on this information as the Tribunal notes that it relates to Pakistan not India.  [Emphasis added in particulars].

   That information referred above (sic) says:

   … Some Sindhi nationalists also fear that the train link would lead to an exodus of Sindhi Hindus to India, resulting in a further decline of the ethnic Sindhi population.  Most Sindhi Hindus are Dalits daily wage labourers living in abject poverty.  Life for the few remaining “upper” caste Sindhi Hindus is also not easy.  The day I reached Larkana, a major town in interior Sindh, newspapers reported the murder of a local Hindu businessman by dacoits.  Such stories are not rare.  [Emphasis added in particulars].

   (a)     failed to take relevant considerations in that it failed to consider the fact that Pakistani and Indian Sindhis are one people and the historic caste division is the same as the Indian Sindhis came from Pakistan.  Tribunal’s assertion that there are no Dalits within Sindhi community simply could not be supported.  Indian Sindhi community moved to India from Pakistan.  The Tribunal even accepted that, “That is the applicant indicated that his parents had at the time of the partition moved to Bombay with other members of the Sindhi community”.  The Tribunal used the distinction between Sindhi Hindus and their caste system within Pakistan and India where nothing significant existed.

   (b)     Asked the wrong question in that the question is not “Whether the information relates to Pakistan or India?” but whether it relates to “Sindhi people”.

2. The applicant contended that rather than rejecting the post-hearing information because it related to Pakistan, the Tribunal had to take a broader approach and consider the credibility of the information in question.  It was acknowledged that had the Tribunal given some weight to this information there would be no complaint.  It was submitted that the Tribunal erred in saying that it would not have regard to this information because it related to Pakistan, because the Sindhi community originated from Pakistan. 

3. The applicant submitted that if the Tribunal discussed a piece of information and said that it gave it no weight, that could nonetheless constitute a failure to take a relevant consideration into account on the basis that this was information that was by its nature critical and hence needed to be taken into account.  Reference was made to the approach of the High Court in S20/2002 in relation to corroborative evidence.  It was contended that the information provided by the applicant was country information which was corroborative of the applicant’s case and hence that it had to be taken into consideration.  The applicant contended that giving no weight to information was akin to not taking into consideration that particular information, which was said to be of importance to the case because it referred to Sindhis being Dalits and hence was something that the Tribunal had to address.

4. However, as the first respondent contended, the weight to be given to a particular item of country information is a matter for the Tribunal.  It is not a jurisdictional error for the Tribunal “to base a decision on country information” that is not true, and the question of the accuracy of such information is one for the Tribunal (NAHI at [10] – [12]). Not only the choice but also the interpretation of country information is “a factual matter for the Tribunal alone” (SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652 at [20] per Middelton J). The Tribunal’s decision to place no weight on the independent country information provided after the hearing cannot be said to be a failure to have regard to relevant considerations. I note that there was other independent country information before the Tribunal to the effect that there were significant differences between the Sindhi Diaspora in India and Hindus who continued to live in Sindh in Pakistan, in particular the 2007 study by Professor Daniel Gold of an area in India to which both Sindhi and Maharashtrian communities had migrated, which pointed out that for both Maharashtrians and Sindhis the caste or caste-like distinctions now found in the communities were no longer quite what they had been in their homelands, having been transformed by different experiences of Diaspora. The information before the Tribunal also contained the view that caste had ceased to be important for the Sindhis who had been integrated into the Hindu society of independent India as one caste.

5. The Tribunal’s decision was not to “disregard” the information referred to in this ground.  Rather it placed no weight on it.  This does not amount to failing to have regard to relevant considerations.  Nor has it been established that in so doing the Tribunal asked the wrong question.  To the extent that the applicant contended that the Tribunal ought to have found differently, disturbing the findings of the Tribunal on this basis would amount to impermissible merits review (NAHI at [10]).

Whether Tribunal dealt with the applicant’s case

1. Grounds seven and eight in the amended application were not pressed.  Ground nine is that the Tribunal made a jurisdictional error as it dealt with a case “different from that put forward by the Applicant.”  The particulars to ground nine are that the applicant’s case was that he was (a) very poor and (b) lived among high caste people and not among Sindhis, but that the Tribunal dealt with the applicant as if he were from “a prosperous middle class” and “part of Sindhi community living together in neighbourhoods.” 

2. Reference was made to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) (2004) 144 FCR 1 at [63] as follows:

   It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.  It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.  The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.  Every case must be considered according to its own circumstances.  Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be "subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected": Applicant WAEE.  [Emphasis added].

   It was submitted that the Tribunal had misunderstood the applicant’s claim and dealt with it on a different basis than was put to it. 

3. However, as counsel for the first respondent contended, the Tribunal’s decision did not rest upon a finding that the applicant was prosperous or middle class and lived among Sindhi people.  Rather, the Tribunal decision in this respect rested essentially on an implicit finding that there were no Dalits within the Sindhi and a finding that the applicant was a Sindhi.  On this basis, whether he was poor or rich or lived with other Sindhi people was not relevant to the ultimate outcome, as the applicant’s claim was that he feared persecution as a Dalit, not as a Sindhi.  Had the Tribunal accepted the applicant was a Dalit, but then misunderstood his claims about his circumstances, the contentions of the applicant would have required closer consideration.  However there is nothing in the findings and reasons to suggest that the Tribunal did find that the applicant was prosperous or middle class or lived among Sindhi people, notwithstanding that there was country information in the form of a comment that Sindhis were generally a strong and well-off community.  Such information did not state that all Sindhis were in such circumstances and it has not been established that the Tribunal took such a view.  Further, while there was country information before the Tribunal to the effect that the Sindhis were by and large a prosperous middle class community, there is nothing to suggest that the Tribunal was of the view that all Sindhi people were prosperous or that the applicant was prosperous.  To the extent that the applicant complained that the Tribunal ought to have found differently, disturbing the Tribunal’s findings on this basis would amount to impermissible merits review. 

4. However as jurisdictional error has been established, the application should be remitted to the Tribunal for reconsideration. 

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  28 November 2008