SZCGD v Minister for Immigration

[2006] FMCA 716

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCGD v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 716

MIGRATION – Refugee – impermissible merits review sought – Tribunal relied on independent country information – weight given to information is a matter for the Tribunal – Tribunal’s reference to the applicant’s “written submissions” in its findings falls within s.424A(3)(b) – republished claims – inconsistency between information or omission of information – separate and independent basis – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424A, 424A(1), 424A(2), 424A(3)(a), 424A(3)(b)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8
NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
SZDXC vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
MZWPK vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256
VCAD vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1
Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437

Applicant: SZCGD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2829 of 2003

Judgment of: Nicholls FM

Hearing date: 12 April 2006

Date of Last Submission: 04 April 2006

Delivered at: Sydney

Delivered on: 12 April 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms. S. A. Mason

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2829 of 2003

SZCGD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised)

1. I have before me an application filed in this Court on 19 December 2003 seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 3 November 2003 and handed down on

   
   

   27 November 2003 to affirm the decision of a delegate of the respondent Minister made on 21 February 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.

2. The applicant is a citizen of India who arrived in Australia on

   
   

   6 February 2003. The applicant’s claims are set out in his application for a protection visa reproduced at Court Book (“CB”) 1 to 24, and particularly in a statutory declaration at CB 25 to CB 27, a separate statement at CB 53 to CB 55 submitted to the Tribunal subsequent to the lodging of the application for review (CB 42 to CB 44), and in the Tribunal’s report of the hearings it conducted with the applicant on

   
   

   28 and 29 October 2003 (CB 66.4 to CB 74.2).

3. The applicant claimed that he and his father were targeted by local authorities in Chennai, Tamil Nadu, because his father was a prominent member of the Muslim League. He claimed that in 2002 he and his father were detained and accused of converting Hindus to Islam. He further claimed that he was beaten by a policeman whilst in detention and that he subsequently lodged a complaint with the Human Rights Commission (in India), which “let the matter pass without further action” after he was unable to provide evidence of the assault. He claimed that nonetheless this complaint was discovered by the local authorities who harassed him and threatened to arrest him. He also claimed that he was arrested and detained for a month, in May 2002, and falsely accused of inciting communal violence in a particular village. The applicant further claimed that he had had an intimate relationship with a Christian woman, whom he wished to marry. He claimed that she and her family demanded that he convert to Christianity before their marriage. He claimed that his family opposed the marriage and that he would be ostracised by them and the Muslim community if he married a Christian. He claimed that he was threatened and may have been harmed or killed by Muslims if he converted to Christianity. The applicant claimed that as a person of Tamil ethnicity he can only live in Tamil Nadu in India, because he will have language difficulties, and that he may be mistaken for a Sri Lankan and a member of the LTTE, in other areas of India.

4. The Tribunal’s “Findings and Reasons” are set out at CB 74.2 to CB 78.2. The Tribunal:

   1)Accepted the applicant’s claim that he and his father had been targeted by local authorities and accused of converting Hindus to Islam and that he had been detained and threatened. I noted the applicant’s claims that he would suffer similar harassment in the future (CB 74.3 to CB 74.7).

   2)Accepted the applicant’s claim that he had had an intimate relationship with a Christian woman, that this had caused problems with his family and that he had been threatened with death if he married this woman (CB 74.8 to CB 75.2).

   3)Was not satisfied that his claims to have been threatened by local police, that he would be changed under federal anti-terrorism legislation, or that he cold not live elsewhere in India, were credible (CB 75.3 to CB 75.4).

   4)Found that the applicant (by his own admission) fabricated some claims in his written submission to enhance his application (CB 76.2).

   5)Did not accept as credible the applicant’s claim that he was detained for three months, or that he was subsequently harassed by the authorities because he was involved with the Muslim League (CB 76.3).

   6)Did not accept as credible the applicant’s written claims that he was involved in political activities in India with either the Muslim League or any other political group (CB 76.4).

   7)Accepted the claim that Hindu-Muslim violence is an ongoing problem in India (CB 76.7).

   8)But did not accept the applicant’s “universal claim” that all Muslims are harmed by Hindus or denied protection by the authorities in India. The Tribunal further found that “some states are more dangerous for Muslims than others” and there are “many states” where “Muslims can live safely” (CB 76.8).

   9)It was also not satisfied that Muslims in India “suffer discrimination of such nature or extent as to constitute persecution for Convention purposes”.

   10)Although it accepted the applicant’s claim that he was harassed and assaulted by the police in Chennai and made a subsequent complaint, found that the applicant did not pursue the complaint, and that he was not of interest to the authorities in Chennai or elsewhere in India when he left the country (CB 77.2).

   11)Was satisfied that the circumstances under which the applicant and his father were detained, due to their link with the Muslim League, no longer existed as the applicant ceased involvement with his father’s activities before leaving India. Therefore, the Tribunal found that the applicant was not at risk of harm by the authorities in Chennai at the time he left, nor if he returned in the reasonably foreseeable future (CB 77.4).

   12)Accepted the applicant’s claims that Christians and Muslims do not commonly intermarry and that the respective communities disapprove of such marriages. However, the Tribunal found the applicant’s fear in this regard was not well founded, in that “all these matters” (that is the applicant’s claimed fears) were mere speculations on the part of the applicant as he had not made any decision regarding marriage or religious conversion (CB 77.8).

   13)Found that the applicant’s difficulties in India were restricted to his community in Chennai, and that he could avoid the harm he anticipated by relocating elsewhere in India, specifically as he “has the skills, knowledge and ability to relocate in India” (CB 77.9).

   14)Found that it was not satisfied, on the evidence as a whole, that the applicant was a person to whom Australia owed protection obligations, nor that he had a well founded fear of persecution in India for any Convention related reason (CB 77.9 to CB 78.1).

5. The applicant’s originating application to this Court contains the following unparticularised grounds:

   “The RRT asked irrelevant question from the applicant during the interview and took into account irrelevant facts to reach to the decision.

   The applicant was denied natural justice.”

6. Before me today the applicant appeared unrepresented with the assistance of an interpreter in the Tamil language. Ms. Mason appeared for the respondents. At the hearing the applicant stated that he would rely on his amended application and made no additional submissions. In the context of the paucity of the applicant’s arguments before the Court, and the lack of any evidence to support the assertions made in the amended application, I do note that the applicant was referred to a lawyer on the panel of the Court’s Legal Advice Scheme. The lawyer’s report on the Court’s correspondence file is that the applicant “failed to appear” for a consultation, but that written advice was prepared and sent to the applicant by post on 2 August 2004.

7. The applicant’s amended application filed in this Court on 9 August 2004 essentially seeks impermissible merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)). However, I will deal with each complaint separately below.

8. The applicant’s first complaint is with reference to the Tribunal’s decision record at CB 76.5:

   “The Tribunal is satisfied by information from external sources, as well as the applicant’s statement at the hearing, that there are Tamil communities outside Tamil Nadu and those groups are not subjected to harassment or other harm by the wider community.”

   The applicant complains that he “never said that Tamil communities outside of Tamil Nadu are not subjected to harassment or other harm”. The different aspects which arise from this complaint are:

   1)The Tribunal’s account of what occurred at the hearings with the applicant, reproduced in its decision record (CB 67.9 to CB 74.3). The applicant has provided no evidence to challenge or contradict the Tribunal’s account. The Court can only proceed on the material and evidence before it (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

   2)The Tribunal’s relevant account is particularly at CB 73.7 to CB 74.3. It reveals that in the context of discussing the applicant’s claims, set in Muslim-Hindu conflict and relations, the Tribunal put to the applicant that his difficulties in India were confined to his community and family in Chennai. The Tribunal was clearly focused at this part of the heairng on whether the applicant could safely relocate to another part of India. The Tribunal records the applicant’s replies, which in the subsequent exchange with the Tribunal included:

   “The applicant agreed that many Tamils live in Bangalore but he stated they had problems there because of the ‘water issue’.”

   The Tribunal noted independent country information in relation to the water issue, and finally commented that:

   “… despite the water issue, many Tamils live in Banglore without experiencing harassment from the wider community.”

   The Tribunal further noted the applicants comment that the “water issue” was an “ongoing source of conflict”.

   3)When seen in context the Tribunal finding at CB 76.5 (on which the applicant bases this ground of complaint) is an accurate reflection of what was said at the hearing. Further, as Ms. Mason submits, when seen in context of the sentence that precedes it,:

   “The Tribunal also does not accept the applicant’s claim that the only place where Tamils can live safely in India is in Tamil Nadu.”

   the Tribunal was not attributing its conclusion to the applicant. The Tribunal was not stating that the applicant made any comment that Tamil communities outside Tamil Nadu are not subjected to harassment. A fair reading shows that it said that the applicant agreed there were Tamil communities outside Tamil Nadu. That the Tribunal was satisfied they were not subjected to other harm by the wider community was based on information from external sources.

   4)That this may further be seen as a complaint about the Tribunal’s treatment of the independent information available to it then I accept the respondent’s submissions that there is nothing in this material that reveals jurisdictional error. In terms of the relevant statutory requirement such information relied on by the Tribunal clearly comes within the exemption set out in s.424A(3)(a) from the requirement for the Tribunal to put such information to the applicant in writing. In terms of procedural fairness at general law (if these principles were to apply) then the Tribunal discussed this external information at the hearing and he was able to comment on it.

   5)I note Ms. Mason’s reference to Gray J., in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:

   “The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”

   The Tribunal is entitled to rely on independent country information, and the weight that it gives to such information is essentially a matter for the Tribunal. On what is before me this complaint is not made out.

9. The applicant’s second complaint is that the Tribunal at CB 76 accepted that Hindu-Muslim violence is an ongoing problem in India and that Muslims are discriminated against by Hindus, and that Muslims are a disadvantaged group. Yet, the applicant complains that the Tribunal was also not satisfied by the evidence before it that such discrimination constitutes persecution for a Convention reason. The applicant complains that “this opinion of the member is not satisfactory”.

10. Ms. Mason submitted that there is nothing in this which particularises any jurisdictional error and that the ground cannot be made out. At the hearing before me I provided the applicant with an opportunity to specifically explain what his complaint was. He did not add anything further.

11. If the complaint is that the applicant is simply disagreeing with the “opinion of the member” then this does not rise above impermissible merits review (Wu Shan Liang). If he seeks to assert some inconsistency or illogicality in the Tribunal’s thinking, then to the extent that such a ground is available to the applicant, I can see no illogicality or contradiction in what the Tribunal has done in this regard. A noting (at CB 76.7) that Muslims are subject to discrimination is not inconsistent with not being able to be satisfied, based on independent evidence before it, that discrimination of such nature and extent constitutes persecution for a Convention reason. To the extent that this may be characterised as a finding, it is a finding that was clearly open to the Tribunal on the material before it. It is the function of the Tribunal to make such findings. This complaint also fails.

12. The applicant’s third complaint is that the Tribunal was “incorrect” in its assessment that he was “not at risk of harm in the reasonably foreseeable future, due to my father’s activities in Chennai”. The applicant did not provide any elaboration of this complaint.

13. I agree with Ms. Mason’s submissions that this is a simple merits challenge and therefore clearly does not succeed. The Tribunal’s decision record reveals it considered the applicant’s claims as they arose from his association with his father’s activities in Chennai, accepted (CB 74.7) that his father was targeted by local authorities and was a prominent member of the Muslim League, and further accepted that he had been harassed as a result of activities arising out of this involvement. But the Tribunal saw this harassment as arising out of activities in January 2002, circumstances that had ceased by the time he left India. At CB 77.3 the Tribunal stated:

    “The Tribunal is satisfied that the circumstances that led to the harassment during that period no longer exist. The applicant is not involved and he ceased to be implicated in any of his father’s activities before he left India. The Tribunal finds that the applicant was not at risk of harm by the authorities in Chennai at the time he left the country, nor is he at risk of harm in the reasonably foreseeable future, due to his father’s activities in Chennai.”

14. Further, as Ms. Mason submits, even if the Tribunal had made some incorrect factual finding (although none is evident) then this of itself is not sufficient to constitute jurisdictional error (Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [31] and NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [37]).

15. The applicant’s fourth complaint is that he was in a relationship with a Christian woman. The Tribunal accepted that intermarriages of Christians and Muslims in India are not common and that those communities do not approve of such marriages. The applicant claims it “disagreed” that he would be targeted by his “own people” if he were to marry the Christian woman. The applicant complains that the “opinion” of the Tribunal is “contradictory in itself and is not clear”.

16. The Tribunal addressed this issue in its decision record at CB 77.5. It accepted that such relationships are a source of disapproval in India and accepted that he would be targeted if he converted to Christianity if he were to marry her. But ultimately the Tribunal found that what could happen to the applicant fell into the category of “mere speculation” as the applicant had not made any decision as to the marriage or the religious conversion. It could not be satisfied therefore that the fear of persecution was well founded.

1. I cannot see that the Tribunal’s finding was contradictory or unclear, particular when this part is read in context of the decision record as a whole. The Tribunal’s finding was open to it. This complaint also does not succeed.

2. The applicant’s ground as set out in his amended application do not reveal error on the part of the Tribunal. However given that the applicant was unrepresented before me (and further did very little to support his claims before the Court) it was nonetheless appropriate that the Court separately consider whether on the material before it jurisdictional error could be discerned in the Tribunal’s decision. In this regard I raised with Ms. Mason at the hearing whether the Tribunal’s reference to the applicant’s “written submissions” in its decision record (CB 75.3) applied to the statutory declaration (reproduced at CB 25 to CB 27) which was put to the first respondent’s Department with the application for protection visa. If so whether the Tribunal relied on this material with out seeking comment in writing from the applicant, as required by s.424A(2) of the Act. The issuing is whether the Tribunal relied on information which was the reason, or part of the reason, for its decision which should have been put to the applicant for comment in writing in light of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (“SAAP”), Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 and as confirmed in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”).

3. The Tribunal, at CB 75, notes that the applicant claimed in written submissions that he was involved in political activities with his father and that in 2002 he and his father were detained. At the hearing the applicant “introduced” a claim that local police in Chennai threatened to charge him under federal anti-terrorism legislation and further that he could not live elsewhere in India. The Tribunal was not satisfied these claims were credible.

4. The primary submission of the respondent put forward by Ms. Mason was to refer to the applicant’s written statement to the Tribunal, reproduced at CB 53 where the applicant states:

   “I [applicant’s name] wish to add more details relevant to my statutory declaration submitted earlier.”

   Ms. Mason’s submission was that the applicant’s statement is “reasonably clear”. He wished to have his previous statutory declaration considered, and wishes to add further details to that statutory declaration. Therefore, she argued, the applicant has advanced his statutory declaration (which had been put initially to the respondent’s Department and not to the Tribunal) for the purposes of the Tribunal hearing and for the purposes of his application to the Tribunal, as well as putting the written submission to the Tribunal for the same purpose. In effect, the applicant “republished” to the Tribunal the original claims made to the Minister’s Department.

5. While I am not entirely persuaded that this is as clear on its own as to the applicant’s intentions, I was persuaded by the additional arguments put forward by Ms. Mason. First the reference used by the Tribunal in its decision record at CB 75 is “written submissions” as opposed to “statutory declaration”. This is consistent with the reference made (at CB 67.3) under the heading “Tribunal file” where the Tribunal states that it received a submission from the applicant dated 25 September 2003. This is a reference to the written “submission”, as opposed to a “statutory declaration” to which it could have referred. Further, under the heading of “Department file” (CB 66.6) when referring to the applicant’s claims the Tribunal makes no reference to “submission” or “written submission” in reference to the statutory declaration. When taken together I am persuaded that the applicant sought, and the Tribunal proceeded on the basis, that all of his claims for protection in Australia put to the Tribunal at the time of the lodging of the written submissions to the Tribunal be considered (CB 53 to CB 55). In all therefore, I take the view that what is referred to as “written submissions” encompasses all of the applicant’s claims as ultimately put to the Tribunal and falls within the exemption set out in s.424A(3)(b) from the requirements set out in s.424A(1) and (2).

6. I also accept as relevant Ms. Mason’s further submission that when one turns to the substance of what was actually said to be included in the “written submission”, it is a claim that the applicant was involved with his father's political activities, and that in 2002 he and his father were detained for three months. Ms. Mason again referred to the content of the applicant’s written submission to the Tribunal (at CB 53 to CB 54), which states:

   “I belong to an orthodox Muslim family.  My father is the local president of the Muslim League which participates in elections having alliances with the political parties which form governments after election victories.” …

   “My father and I were preaching Islam and enlightening oppressed people helping then to embrace Islam.” …

   “We were taken to Court and sentenced to 3 months jail.”

   Her submission was that the information that the Tribunal relied on was information that was in the document that the applicant put to the Tribunal which clearly falls within the exemption in s.424A(3)(b) of the Act. Therefore, while this information relied on was contained initially in the statutory declaration it was actually repeated “irrespective of the adoption and the nomenclature” that us used to describe the document. Ms. Mason’s submission in this regard therefore, was that in any event the information referred to by the Tribunal was in this document, so there is no error of the “SZEEU kind”. I accept this submission which in my view is an accurate reflection of what the Tribunal has done.

7. I had also raised with Ms. Mason whether this part of the Tribunal’s decision record reveals any error in that the Tribunal relied on information in the protection visa application and compared this with what the applicant said at the hearing before the Tribunal and relied on any inconsistency or omission. In SZEEU at [221] to [225] Allsop J. states:

   “[221] I do not regard the operation of s 424A(1) as limited to circumstances where the information imports some positive factual finding. To the extent that cases such as MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1256 at [14] and SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1138 [19]-[23] say as much, in my respectful view, they limit too narrowly the operation of the section. That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b).

   [222] In my view, it is necessary to exercise care in applying what was said in VAF by Finn J and Stone J at [24(iii)] that the word information does not:

   “… extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc.”

   [223] Their Honours referred to WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29] in support of that proposition. Reference to those paragraphs of WAGP makes clear what was being decided in that case. The argument that was rejected in WAGP was that "information" encompassed what was not mentioned to the Tribunal as a matter of evidence. This was a clear application of the distinction between information and mental processes. The argument sought to manufacture "information" out of the consideration and assessment by the Tribunal of the applicant’s oral evidence to the Tribunal. I do not see Finn J and Stone J in VAF in [24(iii)] of their reasons as requiring a formalistic analysis of information such as prior statements depending upon whether its or their relevance is from the text or from the absence of text. Where there are things such as a prior statement or a visa application form, the information for the purposes of s 424A will be that a document in that form was provided. That information may have relevance to the Tribunal for all sorts of reasons. Such relevance is not limited to whether the information leads to a positive factual finding based on its terms. It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant.

   [224] I adhere to and adopt what I said in the above respects in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1200 to which I would only add that, as I read her Honour’s reasons, Branson J concluded as her Honour did in NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 223 (discussed in WAGP and SZECF) because of her Honour’s view that it was the unsatisfactory nature of the oral evidence before the Tribunal, alone, that was the reason for affirming the decision.

   [225] If the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that may well engage s 424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision.”

8. I accepted Ms. Mason’s submissions and could not see that this part of the Tribunal’s reasoning involved any reliance on inconsistency with, or omission from, any earlier account (if the reliance was on information contained in the protection visa application as opposed to what I have found above).

9. Firstly, at CB 75.3, I do not see that the Tribunal is comparing any inconsistency or making anything of the omission. The Tribunal, in my view, recounts what the applicant put in writing and then recounts what further relevant aspects were “introduced” at the hearing. The Tribunal did not find these claims to be credible. But this was not based on any comparison between two inconsistent accounts. It was based on the applicant’s statement at the hearing with the Tribunal that “some of his written claims helped him” (CB 76.3). It was not the comparison of the two accounts which led the Tribunal to find this part of the applicant’s claims were fabricated, but the applicant’s specific information provided at the hearing with the Tribunal, information that comes within s.424A(3)(b) of the Act.

10. Secondly, in later and separate part of its analysis (CB 77.3), the Tribunal considered these claims, (that is, his father’s political activities and the claims of harassment and detention in January 2002) and found that by the time the applicant left India (in a clear sense, irrespective of what may have occurred in the past) the applicant had “ceased to be implicated in any of his father’s activities” and “was not at risk of harm by the authorities in Chennai at the time he left the country”.

11. Further, in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 North J., found that where one part of a Tribunal’s decision is infected by jurisdictional error, if another separate and independent basis for sustaining the Tribunal’s decision was evident, then relief sought by an applicant could be refused. At [33] he stated:

    “As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.”

    This was followed and applied by Hely J., in SZDXC vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 [12] and [17] and Heery J., in MZWPK vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [13] and cited with approval by one member of a Full Court in VCAD vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [22]. The critical issue therefore, if the Tribunal had breached the requirement of s.424A (as understood in the context of SAAP) in relation to one basis upon which the decision was made, is whether there is one or more other bases on which the decision was based, which cannot, or are not impeached. In SZEEU Allsop J. relevantly stated at [233]:

    “If it can be shown that there was a basis for the Tribunal’s decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternatives referred to in [58] of Aala to warrant withholding of relief.”

12. In the case before me the Tribunal, (with reference to Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 – authority on the issue of the approach to be taken in making a finding on the reasonableness of an applicant safely relocating to another part of the country of claimed persecution) found the applicant could in any event relocate to another part of India. This was based on the finding that the claimed difficulties were, and continued to be, “restricted to his community in Chennai”. The Tribunal earlier had looked at these claims, both as they were specific to the applicant (possible marriage to the Christian woman etc) and generally a Muslim living safely in some other parts of India, and found any (subjective) fear of harm “he anticipates” could be avoided by relocation. This relocation finding does constitute, in any event, a basis to sustain the Tribunal’s decision.

13. In all therefore I can see no jurisdictional error in the Tribunal’s decision such as to cause the granting of the relief sought by the applicant. The application to the Court is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date: 22 May 2006