SZCYT v Minister for Immigration & Citizenship
[2008] FCA 737
•22 May 2008
FEDERAL COURT OF AUSTRALIA
SZCYT v Minister for Immigration & Citizenship [2008] FCA 737
Migration Act 1958 (Cth)
Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565
SZCYT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1248 OF 2007
SZJYG & Anor v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2032 OF 2007
BUCHANAN J
22 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1248 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZCYT
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
22 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The appeal is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2032 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJYG
First AppellantSZJYH
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
22 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The appeal is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1248 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZCYT
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2032 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJYG
First AppellantSZJYH
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
22 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BUCHANAN J:
These appeals were heard consecutively. SZCYT, SZJYG and SZJYH are, respectively, husband, wife and their son. Each was an applicant for a protection visa. Some of the procedural history is common as, of course, are their family circumstances. It is therefore convenient to deal with those matters together until it becomes necessary to trace the course of events separately.
SZCYT came to Australia on 10 April 2001 on a visitor’s visa and departed again on 8 July 2001. More than a year later, on 5 October 2002 he arrived again in Australia. On 15 October 2002 he made an application for a protection (Class XA) visa which was refused by a delegate of the Minister on 13 February 2003. On 12 March 2003 he made an application for review of the delegate’s decision to the Refugee Review Tribunal (‘RRT’).
Shortly after SZCYT made his application for review both SZJYG and SZJYH arrived in Australia, on 14 March 2003. About one month later, on 17 April 2003, an application was made for protection visas for them also. That application was refused by a delegate of the Minister on 11 June 2003. An application for review of the delegate’s decision was then made to the RRT on 18 June 2003.
Initially the RRT dealt with both applications for review together. At first a hearing was offered on 18 September 2003. SZCYT sought a deferral of the hearing on medical grounds. The suggestion appeared to be, with support from a medical certificate, that he was severely depressed and wished a deferral of nine months or so. The RRT decided to go ahead with a telephone interview which took place on 23 September 2003. A further hearing was held on 12 December 2003.
On 10 February 2004 the RRT handed down a decision in which it affirmed the decisions of the delegates which were under review. An application for judicial review was made to the Federal Magistrates Court of Australia (‘the FMCA’) and on 10 May 2006, by consent, the decision of the RRT was set aside. Evidently it was accepted that the RRT had committed jurisdictional error, although the nature of that error is not identified in the order made by the FMCA when it set the decision aside.
Thereafter review of the delegate’s decisions by the RRT proceeded separately in a formal sense although arrangements for hearing the reviews were co-ordinated. On 25 July 2006 the RRT, differently constituted by a second member, conducted a hearing in each review. The hearings were conducted by videolink. SZCYT and SZJYG were in Griffith, New South Wales and the Tribunal member and an interpreter were in Sydney. Their evidence was taken consecutively. First SZCYT gave evidence in his review, then SZJYG gave evidence in the review proceedings concerning herself and her son.
On 15 August 2006 the RRT wrote to SZCYT drawing his attention to discrepancies in various parts of the material before it including the evidence most recently given by SZCYT and by SZJYG. The letter to SZCYT included the following (at the beginning):
‘You gave evidence at the Tribunal hearing on 25 July 2006, and your wife gave evidence to the Tribunal on the same date. A summary of the evidence provided by you and your wife on that date is attached.
The evidence of both you and your wife relates to events that you and your wife experienced in India before your departure for Australia. The evidence you gave at your hearing in July 2006 is different in some key respects from the evidence you gave in your Protection Visa application and from the evidence you or your wife on your behalf gave at your Tribunal hearing in September and December 2003. It is also different in some key respects from the evidence your wife gave at the Tribunal hearing of July 2006 about the same or similar events experienced by you both in India.
The major discrepancies in your evidence are set out below. The information that is set out below would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.’
(and towards the end):
‘The information set out above at pages 1-4 is relevant because of the numerous significant differences in the information you provided in your Protection Visa application, the evidence you gave at the Tribunal hearings of December 2003 and July 2006, and the evidence your wife gave at the Tribunal hearings of September 2003 and July 2006. These major discrepancies could lead the Tribunal to form the impression that you are not a credible witness, and therefore that your claims are not true.’
The following day the RRT wrote to SZJYG in very similar terms. There were some different discrepancies mentioned because the two applications for protection visas were not identical but in substance their attention was each drawn to the different account they had given in their applications for a protection visa and their evidence about their common circumstances in India.
Separate decisions were handed down on 12 October 2006 affirming the decisions of the delegates to refuse each of the applications for a protection visa. An application was made in each case to the FMCA seeking judicial review of the decision of the RRT. Each application was dismissed. In each case an appeal was filed against the decision of the FMCA. They are the appeals which are the subject of this Judgment.
It will be necessary to trace the history of each matter separately after the second decision of the RRT in each case but first I should identify what was said by both appellants in the two appeals before me. They were heard consecutively but SZCYT and SZJYG were each present, at their request, for the whole of the proceedings in each matter. No written submissions were filed by the appellant in either appeal. They each made a short oral submission. Each complained about the conduct of a legal representative who they said was responsible for the late filing of SZJYG’s application for judicial review before the FMCA. That complaint does not require attention in these appeals because that late filing did not constitute a barrier to the FMCA entertaining the application for judicial review, as I shall explain. The primary submission that each made amounted to an entreaty that their matters be returned to the RRT and be dealt with together in a way which permitted SZJYG to assist her husband in the presentation of his review application. For his part SZCYT claimed that his illness caused him to be confused in the evidence that he gave, if he did not have his wife’s assistance.
These submissions reflect an unstated appreciation that inconsistencies and discrepancies in the various versions of events given to the RRT told against the claims for protection visas. However, no jurisdictional error is thereby identified.
SZCYT
The decision relating to SZCYT contained a detailed summary of various accounts given by him and by his wife in the material provided with SZCYT’s application for a visa, his evidence at the earlier RRT hearing conducted by telephone on 23 September 2003, the evidence given by his wife at that hearing, evidence given by SZCYT to the RRT on 12 December 2003, evidence given by his wife at that hearing, evidence given by SZCYT at the video hearing on 25 July 2006 and evidence given by his wife by video on that same day. The circumstances in which this later evidence was given were described by the RRT in its decision in the following terms:
‘The applicant under review and his wife, also an applicant, attended a hearing by video on 25 July 2006. It was explained that they would each give their evidence separately, and that they would be provided with a summary of each other’s evidence for comment. The applicant gave evidence first. His wife was then asked to give evidence. An interpreter in Hindi assisted the Tribunal.’
At various times SZCYT has said that he is suffering from a depressive illness. His claim has been supported by certificates given by medical practitioners in Griffith. It also received some support from a report provided to the RRT on 31 October 2003 by Dr Matthew Large, Consultant Psychiatrist, which had been sought by the RRT.
The RRT accepted, in its decision, that SZCYT had been diagnosed as having a serious depressive illness.
After dealing in some detail with the material before it, including the evidence of SZCYT and his wife and country information, particularly concerning the situation of Sikhs in Punjab and elsewhere in India the RRT stated its ‘Findings and Reasons’. The following passages have been extracted from those ‘Findings and Reasons’:
‘The Tribunal accepts that the applicant has been diagnosed as having a serious depressive illness, for which is [sic] currently receiving medication, and which has had an effect on his ability to provide a full and coherent account of his experiences in the past. Nevertheless, a consultant psychiatrist, Dr Matthew Large, said in October 2003 that he believed that the applicant was able to give evidence, and that his view was that the applicant would be able to comprehend the Tribunal’s proceedings. Dr Large’s report was provided to the Tribunal prior to the applicant’s Tribunal hearing of December 2003. The applicant does not claim that his evidence at the Tribunal hearing of July 2006 was adversely affected by his illness, and the Tribunal formed the impression that his account of his claims at the hearing was lucid and coherent.
Serious discrepancies in the applicant’s claims over time, and discrepancies between his own evidence and that of his wife have been identified by the Tribunal (differently constituted) and by the present Tribunal. These discrepancies have been pointed out to the applicant, most recently in accordance with s424A of the Act in August 2006, and his comments sought. The applicant has said, in effect, that the adviser whom he and his wife engaged before they lodged their Protection Visa application was either incompetent or remiss in his handling of their cases, and that as a result a truncated version of their claims was originally submitted and they were wrongly advised in relation to their first hearing before the Tribunal. Neither the adviser’s incompetence nor the applicant’s depressive illness, in the Tribunal’s view, adequately explain a number of the discrepancies in evidence, such as the nature of the injuries sustained by the applicant as a result of police mistreatment, the frequency, timing and duration of arrests and detentions between 1985 and 2001, and events preceding and following his trip to Australia in 2001.’
and:
‘The accounts given by the applicant and his wife of events after the applicant left Punjab and went to live in the state of Maharashtra are, in the Tribunal’s view, lacking in credibility.’
and:
‘The applicant was in Australia for some three months from April to July 2001, but did not apply for a Protection Visa during this time. When asked why he did not do so, the applicant’s wife told the Tribunal in September 2003 that they had a good business, their life was peaceful, and the police had only come once or twice; the applicant himself told the Tribunal in December 2003 that his relatives in Australia told him to go home to India; the applicant told the Tribunal in July 2006 that he was told in Australia that it would take some time to lodge a protection visa application, and that his wife was being harassed and bashed in India while he was away. In the Tribunal’s view, the applicant did not lodge a protection visa application in 2001 because he was not then fearful that serious harm would befall him if he returned to India.
The applicant has claimed that after he returned from Australia, he found his wife in detention, and that he himself was detained for a period on his return. This has not been a consistent claim, and the Tribunal does not accept it.’
and:
‘The Tribunal is required to consider whether there is a real chance that the applicant will be persecuted if he returns to India in the foreseeable future. It has found that he has been persecuted in the past for reason of his ethnicity and religion, and his imputed political opinion as a Sikh.
The Tribunal has taken into account the country information, which indicates that the situation for Sikhs, even in Punjab, has substantially improved, and bears no comparison with the situation in the decade from the mid-80s to the mid-90s. The Tribunal has been unable to find any evidence that Sikhs in India are at risk of persecution for reasons of their ethnicity or their religion, as distinct from their political opinion, real or imputed. The applicant has never, on his own evidence, been involved with a political group, and certainly not with a militant Sikh group.’
and:
‘The alternative source of persecution given by the applicant in his evidence over time is that he has been pursued by the head man of his local village in Punjab since 1984 … when asked at the July 2006 hearing when he had last seen Kedar Nath, the applicant said that it was in 1985 … Even if the applicant were at risk of serious harm in Punjab, the Tribunal notes the information regarding relocation in India, particularly the information provided by the Home Office which indicates that there are millions of Sikhs successfully living in other states in India (pages 20-21). It has taken into account the fact that Punjabi authorities will attempt to pursue high profile individuals who have been involved in militant action, but it is satisfied that the applicant does not fit that description. The applicant and his wife are still comparatively young people and have relatives in Mumbai, where they themselves have lived for periods of time. The applicant ran a successful business for many years in Maharashtra. In these circumstances, the Tribunal finds that it would be reasonable for the applicants to return to another state in India in preference to Punjab, where the applicant has not lived for twenty years, if he continued to fear the Punjabi authorities or any individuals in Punjab, such a Kedarnath, the Hindu village headman.
The Tribunal has also considered whether the applicant’s wife’s experiences may result in a real chance of the applicant being persecuted if he returns to India in the foreseeable future. While the Tribunal has given the applicant the benefit of the doubt in accepting that he was subjected to harassment in the period up to 2001, and that therefore his wife and son were also likely to have experienced this harassment, it has not accepted that the applicant or his wife were subjected to arrest and detention in Maharashtra in 2001, at the time of, and immediately following the applicant’s trip to Australia … the Tribunal rejects the claim that the applicant’s wife was subjected to serious harm after the applicant’s departure for Australia in both 2001 and 2002. It is not satisfied on the evidence before it that there is a real chance that the applicant will be persecuted for reasons of his membership of a particular social group, namely his wife’s family, if he returns to India in the foreseeable future.’
and:
The Tribunal recognises that the applicant’s depressive illness is a serious problem for him, and that he is likely to receive better management of his condition in Australia than in India. However, this is a humanitarian consideration, and the Tribunal’s role is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa. A consideration of his circumstances on other grounds is a matter solely within the Minister’s discretion.’
On 3 November 2006 SZCYT made an application for judicial review of the RRT decision to the FMCA. The application was heard on 21 March 2007. In a judgment delivered on 18 June 2007 (SZCYT v Minister for Immigration & Anor [2007] FMCA 858) Turner FM dismissed the application. It appears from his Honour’s judgment that SZCYT had sought joinder of his application for judicial review with that of his wife but a motion to that effect was refused on 8 March 2007. At the hearing before the FMCA, SZCYT was represented by counsel. The grounds in his application as recorded by Turner FM were as follows:
‘In his application, the applicant set out three grounds as follows:
1)That the Tribunal erred in law due to following conclusion it made: “The Tribunal recognises that the Applicant’s depressive illness is a serious problem for him…However, this is a humanitarian condition and the Tribunal’s role is limited to determining…protection visa”.
2)That the Tribunal exceeded its jurisdiction when concluded: “The Tribunal is not satisfied on the evidence before it that there is a ‘real chance’ that the Applicant will face be persecuted for reasons of his membership of a particular social group, namely his wife’s family…”
3)The Tribunal misconceived the Applicant’s claims when concluded: “The alternative source of persecution given by the Applicant in his evidence over time is that he has been pursued by the Head Man of his local village in Punjab since 1984.”’
Further matters were argued at the hearing. Each was rejected. It is not necessary to repeat the reasons which were given which are recorded in the judgment.
The present appeal against the judgment of the FMCA was filed on 29 June 2007. The grounds of appeal may be summarised as follows:
1.the RRT exceeded its jurisdiction by concluding that the appellant was capable of giving a lucid and coherent account of his circumstances;
2.the RRT did not take the appellant’s mental illness into account when considering a question of relocation;
3.the RRT failed to properly ascertain if relocation was possible in a practical sense.
None of these grounds was addressed at the hearing of the appeal and, in any event, none should be accepted. It is apparent that the RRT was conscious of the difficulties for SZCYT arising from the depressive illness with which he had been diagnosed. Based upon Dr Large’s report and its own observations the RRT was entitled to form and act upon its view that SZCYT was not disabled from a fair hearing as a result. It is clear that this issue was not overlooked either when the RRT was considering the question of relocation. In further passages the RRT said:
‘In making its finding about relocation, the Tribunal has also considered whether the applicant’s depressive illness is likely to affect either his capacity to relocate or his vulnerability to persecution in India … It is clear that the situation for people like the applicant suffering from depressive disorders is far from ideal, however, while there is a lack of adequate resources for mental health in India, there is no evidence that those in the applicant’s situation face negative discrimination so serious as to amount to persecution in a Convention sense in India. While the applicant’s depressive condition is likely to impact upon his ability to relocate successfully in India, it does not, in the Tribunal’s view, prevent successful relocation, in the sense of relocation to an area in which the applicant will not have a well-founded fear of Convention-related persecution.’
There is no substance in any suggestion that SZCYT’s illness was not taken into account when considering the question of relocation. Similarly, there is no substance in the suggestion that the RRT did not attend properly to the question of whether relocation was possible in a practical sense.
The judgments which are, in effect, attacked by the appeal are not judgments for this Court. Fact finding and the making of the necessary judgements are matters for the RRT under the Migration Act 1958 (Cth). Judicial intervention is not authorised unless jurisdictional error is shown. Furthermore, normally error must be shown in the judgment under appeal. Neither of those conditions are satisfied in the present case.
As I earlier recorded, no written submissions were advanced on the hearing of this appeal. The short oral submissions amounted to a request for SZCYT and his wife to have a chance to mount another, co-ordinated, case before the RRT.
SZJYG AND SZJYH
The claims of these appellants were required to be assessed separately from those of SZCYT in the sense that they did not stand or fall upon the success of his application. In the ‘Findings and Reasons’ of the RRT in relation to the claims of SZJYG and SZJYH the following appears:
‘The applicant’s claims to refugee status are founded on her own alleged persecution in India mainly for reasons of her membership of a particular social group, that is, her husband’s family, as well as her ethnicity, religion and imputed political opinion as a Sikh. The Tribunal rejects that the applicant’s claim to have been persecuted in the past in India, though it accepts that she has been harassed on occasion by the authorities.’
and:
‘Given the country information relating to the harsh repression of Sikhs which continued for the next ten years after 1984, the Tribunal is prepared to give the applicant and her husband the benefit of the doubt and accepts that they were subjected to harassment from time to time by the authorities until her husband came to Australia in 2001. The Tribunal does not accept that the harassment experienced by the applicant was sufficiently serious as to amount to persecution in a Convention sense.’
and:
‘The Applicant’s principal claim to refuse status rests on her claim to have been seriously harmed by the authorities in either 2001 during and after her husband’s first visit to Australia or after her husband’s departure for Australia in 2002.’
and:
‘The applicant had claimed in her original Protection Visa application that she was at risk essentially because the Indian authorities were looking for her husband, and that if she returned to India with him their lives would be in danger because of his past activities. She made no claims that she herself had been harmed.’
and:
‘The Tribunal is not satisfied that the applicant suffered harm sufficiently serious as to amount to persecution in a Convention sense in the past.
The Tribunal is required to consider whether there is a real chance that the applicant will be persecuted if she returns to India in the foreseeable future.’
and:
‘The Tribunal has been unable to find any evidence that Sikhs in India are at risk of persecution for reasons of their ethnicity or their religion, as distinct from their political opinion, real or imputed. The applicant has never, on her own evidence, been involved with a political group, and certainly not with a militant Sikh group. She has not, in the Tribunal’s view, ever been persecuted in India. The Tribunal has also made a decision on the applicant’s husband’s claims to protection, stating that it is not satisfied that he has a well-founded fear of persecution in India.
In making this decision regarding the applicant’s husband, the Tribunal has found that the husband does not have a well founded fear of persecution by the Indian authorities, and has also considered whether there is a real chance that he will be vulnerable to an alternative source of persecution given by both applicants in their evidence over time.’
and:
‘Even if the applicant’s husband were at risk of serious harm in Punjab, and the applicant and the applicant son were therefore also at risk, the Tribunal notes the information regarding relocation in India, particularly the information provided by the Home Office which indicates that there are millions of Sikhs successfully living in other states in India (page 17). It has taken into account the fact that Punjabi authorities will attempt to pursue high profile individuals who have been involved in militant action, but it is satisfied that the applicant’s husband does not fit that description. The applicant and her husband are still comparatively young people and have relatives in Mumbai, where they themselves had lived for periods of time. The applicant’s husband ran a successful business for many years in Maharashtra. The applicant son is now 13 years of age. While the applicant claimed at her hearing in September 2003 that her husband would be arrested anywhere he went, the Tribunal has found that he is not at risk of persecution from the Indian authorities. The applicant also claimed at her hearing in July 2006 that it was not easy to move with a small child. The Tribunal does not accept that the applicant son is now a small child, at 13 years of age. While the applicant has also said that she feels that there is no peace of mind in Bombay, the Tribunal does not accept that this would prevent the applicant from returning there, given that the Tribunal has found the applicant is not at risk of persecution. In these circumstances, the Tribunal finds that it would be reasonable for the applicant mother and son to return to another state in India in preference to Punjab, where they not [sic] lived for many years, if she and her husband continued to fear the Punjabi authorities or any individuals in Punjab, such as Kedarnath, the Hindu village headman.
and:
‘The Tribunal recognises that the depressive illness of the applicant’s husband is a serious problem for him and for the applicant, and that he is likely to receive better management of his condition in Australia than in India. It recognises that the burden of care on the applicant wife is therefore likely to be greater on her in India than in Australia. However, this is a humanitarian consideration, and the Tribunal’s role is limited to determining whether the applicant satisfies the criteria for the grant of a protection visa. A consideration of her circumstances on other grounds is a matter solely within the Minister’s discretion.’
An application was made to the FMCA for judicial review of the RRT decision. Curiously, in light of the fact that the decision was handed down on the same day as her husband’s and that his application for judicial review was made on 3 November 2006, the application was not made until 28 December 2006. I referred earlier to the submission made in each of the present appeals complaining that late filing of the application was the fault of a legal representative. It is not necessary to give any attention to this issue because an application to the competency of the appeal was dismissed, applying the decision of a Full Court of this Court in Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565. Although the Minister formally submitted before the FMCA that SZKKC was wrongly decided, and that formal submission was maintained in the present proceedings, it was properly conceded that I should not, in the present case, depart from the reasoning in SZKKC. The High Court has granted special leave to appeal from the judgment of the Full Court in SZKKC but no application has been made that the present appeal should be adjourned to await the outcome of those proceedings.
The application before the FMCA was heard on 18 June and 4 July 2007 and was dismissed by Scarlett FM on 27 September 2007. The applicants were represented by counsel.
In the proceedings before Scarlett FM there were three grounds advanced, each of which was rejected. His Honour took the view that ‘the applicants’ grounds are essentially challenging the Tribunal’s factual findings but there was sufficient evidence for the Tribunal to warrant the factual findings that were made’.
There were three grounds of appeal in this Court. The first appeared to suggest that the RRT made an error in relation to an explanation given by SZJYG about some of the discrepancies drawn to her attention. The contention arises from the following passage in the decision of the RRT:
‘Serious discrepancies in the applicant’s claims over time, and discrepancies between her evidence and that of her husband have been identified by the Tribunal (differently constituted) and by the present Tribunal. These discrepancies have been pointed out to the applicant, most recently in accordance with s424A of the Act in August 2006, and her comments sought. The applicant in response has said, in effect, that the adviser whom she and her husband engaged before they lodged their Protection Visa application was either incompetent or remiss in his handling of their cases, and that as a result a truncated version of their claims was originally submitted and they were wrongly advised in relation to their first hearing before the Tribunal. Neither the adviser’s incompetence nor the applicant’s stress because of her husband’s depressive illness adequately explain, in the Tribunal’s view, a number of the discrepancies in evidence, most importantly the events preceding and following the husband’s trip to Australia in 2001, including the applicant’s alleged arrest and detention for six weeks, and the events following the husband’s departure for Australia in 2002.’
This is not a point which was argued before the FMCA. The RRT’s conclusion that the explanation was insufficient to deal with the discrepancies is an evaluation which does not raise a jurisdictional issue.
Ground 2 referred to allegations of harassment by the village headman, Kedar Nath, and suggests that even though that is accepted to be for a private reason (I infer rather than a Convention reason) the RRT failed to address if there was adequate State protection. However, as Scarlett FM recorded, ‘the Tribunal rejected the applicant’s claim that the applicant husband faced a real chance of harm from his former village headman in the Punjab and the applicants’ second ground does no more than take issue with the Tribunal’s factual findings’. No error in this analysis has been identified.
The third ground suggested, as did the appeal in SZCYT, that the RRT had failed to consider the practicality and reasonableness of relocation. The contention cannot survive a fair reading of the RRT’s decision and must be rejected.
No written submissions were advanced on the hearing of this appeal. I have already referred to the oral submissions. They do not raise any jurisdictional issue for consideration.
CONCLUSION
Each of the appeals against the judgments of the FMCA must be dismissed. They must be dismissed with costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 22 May 2008
The Appellants appeared for themselves Counsel for the Respondents: Mr Martin Smith Solicitor for the Respondents: Australian Government Solicitor
Date of Hearing: 28 April 2008 Date of Judgment: 22 May 2008
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