SZDQH v Minister for Immigration - [2004] FMCA 1065

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDQH v MINISTER FOR IMMIGRATION

[2004] FMCA 1065

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister not to grant a protection visa to the Applicant – applicant a citizen of India.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A

Dranichnikov v MIMIA (2003) 197 ALR 389
NABE v MIMIA (2004) FCAFC 263
NAFF of 2002 v MIMIA (2004) HCA 62
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1992) FCR 437
Browne v Dunn (1893) 6 R 67

Applicant:

SZDQH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1539 of 2004

Delivered on:

21 December 2004

Delivered at:

Sydney South

Hearing date:

15 December 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr King

Counsel for the Respondent:

Mr Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That a writ of certiorari is to issue, quashing the decision of the Refugee Review Tribunal dated 2 April 2004 and handed down on
29 April 2004.
That a writ of mandamus is to issue requiring the Refugee Review Tribunal to determine the matter according to law.
That the Respondent is to pay the Applicant’s costs in the sum of $2,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1539 of 2004

SZDQH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal that was made on 2 April 2004 and was handed down on

29 April 2004.
The decision affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant is a citizen of India who arrived in Australia on 28 July 2003. Less than a month later, on 25 August, he lodged an application for a protection visa. On 17 October 2003 a delegate of the Minister refused to grant a protection visa and on 3 November 2003 the Applicant applied for a review of that decision.
The background is that the Applicant was born and educated in the Indian state of Tamil Nadu. He claims to belong to a particular caste known as the Dalits or Schedule caste. His family is one of the few educated families in the community. His father was a teacher. His father was in fact involved in politics.
There was a refugee camp for Tamils from Sri Lanka opposite the family's rice fields and the refugees used to visit the family's well. They worked in the rice fields and the family provided some assistance to the refugees. The Applicant's mother was also a person involved in politics, in local politics. She was an independent candidate in the municipal elections. In the year 2001, before the election, a former member of parliament called Eli Parummal and his supporters attacked the Applicant's family home. All the men were pulled out of the home. The Applicant and his brother were hospitalised and the home was damaged.
The people who were responsible for the damage or whom the Applicant says were responsible for the damage, the former member of parliament and other people, they were charged with arson and assault. They were released on bail and the Applicant makes some claims against the police on the basis that he says they were politically interfered with.
There was a further attack on the family's home on 15 October 2002 whilst the Applicant and his brother were not present at the time. There was an attack on the home and whilst the attackers were charged by the police for what the Applicant says were lesser crimes, the Applicant's father and his brothers and relatives were charged with quite serious charges including attempted murder. The Applicant says that he was originally included but that did not proceed. He said his father and his relatives were arrested and they were actually held in custody until they were released on bail through the High Court in Madras. The Applicant says that he fears that if he remains in India he will be arrested, detained and could be tortured whilst in custody. He claims he will be accused of association with a Sri Lankan terrorist group called the LTTE and that he could be arrested and detained under the Prevention of Terrorism Act.
It is his view that the government in India is against the LTTE and he also claims that his political enemies had exercised influence on the police and he claims that he is in a vulnerable position because of his caste situation and because of imputed association with the LTTE. He claims that Dalits are subject to discrimination by the police, by the criminal justice system and by politicians and he claims that he cannot relocate to other parts of India because he does not speak Hindi and also because he is a Dalit, a member of a Schedule caste.
The Applicant attended the hearing which took place on 4 March 2004. He gave oral evidence. He was assisted at the hearing by an interpreter in the Tamil language. He told the Tribunal that he suffered from post-traumatic stress syndrome. His adviser had told the Tribunal that the Applicant suffered from post-traumatic stress syndrome. The Tribunal asked the Applicant if he was in a fit state to continue with the hearing and he indicated that he was. He said that he spoke Tamil, he spoke a little English. He said he did not speak Hindi.
The Tribunal member asked the Applicant a number of questions. Those questions concerned a written statement of his claims that he had provided. The Tribunal asked him about the particular caste that he belonged to, which is a Schedule caste although his father had been a teacher and was clearly well educated and in fact the family generally have been fortunate to have a good education.
The Tribunal member asked him about the attack on his home in 2001 and the Tribunal member asked him a number of questions about his father's political opponents or his parents' political opponents and about the people who he said had threatened his mother and about the attacks that had allegedly occurred on 18 October 2001. The Tribunal member asked the Applicant about a particular youth welfare organisation about which he had been a member and what he had done. The Tribunal member then put to the Applicant a number of matters that did not necessarily favour the Applicant's case. For instance, at page 118 of the Court Book the Tribunal member says:
I put it to the Applicant that after his complaint the police must have come to these people and investigated the complaint. He disagreed and told me that the police did nothing. I put it to him that the attackers would only have known he had made the complaint if it had been investigated by local police. The Applicant told me the police were corrupt and probably gave them the information. I put it to him that personal rivals damaged his organisation's office, that he and his colleagues complained to the police and the police investigated the complaint. The Applicant also said the Tribunal - in fact the Applicant said, I asked the Applicant whether he knew how many people were involved in the attack on his colleagues?
There were a number of questions asked by the Tribunal Member. As I said, some of those indicated matters that were not to the benefit of the Applicant's case. At page 119, in the last sentence of the last paragraph, the Tribunal member says:
I put to him that I found it difficult to accept that he went to a different home every few days during the period of October 2002 to July 2003.
At the end of the hearing, which apparently originally took place on the 24 February, the Tribunal member says - and this is at page 121 of the Court Book:
I asked him if he had any final comments to make relating to his claims and the applicant replied.
She then said:
I asked the Applicant why his adviser had indicated that he suffered from post-traumatic stress syndrome and he replied about his symptoms.
Following the hearing of 24 February the Applicant submitted a medical report written by his general practitioner. The GP stated the Applicant was a patient who felt that the Applicant suffered from post-traumatic stress syndrome due to harassment and the recent burning of his home in India.
On 4 March the Tribunal held a further hearing in the presence of the Applicant to hear evidence by telephone from the Applicant's general practitioner. The practitioner gave evidence to the Tribunal that he thought the Applicant suffered from post-traumatic stress disorder, that he had later referred him to a psychiatrist and described the symptoms.
In the decision the Tribunal referred to the country information including information set out on page 123 of the Court Book about the Dalits who are a Scheduled caste, formerly called Untouchables.
The Tribunal member in findings reported a diagnosis by the general practitioner of post-traumatic stress syndrome and she goes on, at page 126 to comment about claims made here differed somewhat from the written claims made by the Applican:
Further, he did not raise any claims relating to his fear of persecution for reason of imputed pro LTTE opinion. I have considered this claim even though he did not raise this claim at the hearing.
The Tribunal member accepted that the Applicant and his family belonged to a caste designated as the most backward caste included as a Scheduled caste. She went on to say:
That the Applicant's father was a well-regarded member of the community.
On page 128 is perhaps one of the more controversial findings. At the first paragraph on that page the Tribunal member says:
I accept that Eli Parummal was hostile to the Applicant because of the Applicant's charitable work and that of his father. I find that the hostility arose from personal animosity and jealousy exacerbated by a past history of conflict between the Applicant, his father and Eli Parummal and his supporters.
The Tribunal went on to find that there had been attacks in July 2002. In October 2002 there was a finding the Applicant's father and brothers and employees were involved in a dispute with the supporters of Eli Parummal although the Applicant was not present. The Tribunal went on to find that the Applicant – the Tribunal did not accept the Applicant was charged with any offence in relation to the incident, that he had left India without restriction. If he had been falsely charged he could have easily proved his whereabouts on the night in question. He said that he had not been charged but feared that he would be charged if he returned to his local area. The Tribunal did not accept that the Applicant was in hiding from October 2002 until he left Tamil Nadu for Australia and that he moved every two or three days.
At page 129 the Tribunal said, in the second full paragraph:
I do not accept that the essential and significant reason for the previous mistreatment was either the Applicant's political opinions or because he was a member of a backward or Scheduled caste.
The Tribunal went on to say:
I find that the attacks on the family home in 2001 and 2002 and the assault on the Applicant took place for reasons of the personal animosity of a Eli Parummal towards the Applicant's father because it was of his highly respected position in the community.
She went on to say:
I have also considered the Applicant's claim that because the family were members of a backward caste they were not able to access the protection of the police and other state authorities against the claimed mistreatment but the Tribunal did not accept that reasonable protection was denied to the Applicant for reasons of his membership and the fact that caste or any other convention based reason.
She did say, at the bottom of page 129:
That protection available to an Applicant in his own country must be effective but this does not require that the authorities of that country must provide an absolute guarantee of protection.
The Tribunal did give consideration, on page 131, to the Applicant's position as a member of a backward caste. She accepted his evidence that there are continuing social problems for persons from the lower castes, although she noted that his family were well regarded in the community and she did not accept that he faced a real chance of persecution for reasons of his membership of a lower backward caste if he returns to India now or in the foreseeable future. She considered his written claim that he may face persecution from the government because he had been sympathetic to and given charitable assistance to Sri Lankan refugees. She went on to say:
He did not mention this claim at hearing and I find that this claim is based purely on speculation.
That then is the finding and reasons given by the Tribunal. The Applicant, through his counsel, Mr King, referred the Court to a determination of whether a group to which the Applicant claims to belong as a particular social group is in fact a question of law and relied on the decision in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs reported in (2003) 197 ALR 389. Their Honours said at 394:
There are several steps that had to be taken. First, the Tribunal needs to determine whether the group or class to which an Applicant claims to belong is capable of constituting a social group for the purposes of the convention. That determination, in part, at least involves a question of law. If that question is answered affirmatively the next question, one of fact, is whether the Applicant is a member of that class.
There then followed the questions whether the Applicant has a fear, whether the fear is well founded and if it is, whether it is for a convention reason.
The Applicant submits that he had a well-founded fear of being persecuted for reasons of membership of a particular social group or political opinion and the thrust of that submission was that the Tribunal simply failed to address the question whether there was a relevant group of whether he had been persecuted for reasons of political opinion.
The submission goes on to the failure of the Tribunal to make findings about the full extent of the claim as a jurisdictional failure and refers to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (Number 2) (2004) FCAFC 263. Where it was said:
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 on that basis can constitute jurisdictional error.
The Applicant also submitted that Tribunal rejected a claim of a convention-based fear of persecution for an illogical reason and failed to perform its statutory duty. That conclusion was that the persecution of the Applicant was for reasons of personal animosity, it was illogical and contrary to common sense having regard to the history of political discrimination against his family as Tamils and Untouchables, leading them to be placed on a suspected terrorist list under India-wide legislation.
There is a further claim in the submission that the procedural fairness of the Tribunal member continually putting the Minister's case to the Applicant without fairly putting to the Applicant, within the reasonable compass of it, his own case. There are claims about the Tribunal asking the wrong questions and focussing on the wrong questions.
At the hearing, counsel for the Applicant submitted further grounds. Ground C the Refugee Review Tribunal failed to afford procedural justice to the Applicant, particulars which were acting as a prosecutor and not in the judicial fashion and secondly, failure to comply with s.422B of the Migration Act and considering the whole of the case. There was ground D, failure to consider the convention ground of political opinion.
I have had opportunity to read the Respondent's outline of submissions prepared by Mr Smith of counsel. He points out in paragraph five of the submissions, that the Tribunal accepted the majority of the Applicant's factual claims but made the following findings, which were critical to its decision:
a)The harm the Applicant and his family had suffered in the past was not for reasons of one of the matters set out in article 102 of the Convention but rather personal animosity arising out of jealousy.
b)In particular, the police have not refused protection for any convention reason.
c)The Applicant and his family will, in the future, be able to access effective state protection.
d)There is no real chance that the Applicant will face persecution for reason of his charity work or association with local Tamils and
e)It would be reasonable to expect the Applicant to relocate.
In the submissions, counsel for the Respondent referred to two grounds in the application, the first being that the Tribunal erred in its finding that the Applicant's father was afforded effective protection in respect of false charges arising out of an attack on him. The second is that the Tribunal erred by failing to make any findings as to whether the Applicant feared persecution by reason of his membership of the social group constituted by his family. The submission was that neither ground has any merit.
In respect to the second submission, the Tribunal was obliged not to consider any persecution experienced by other members of the Applicant's family that was not for one of the convention reasons and that was set out in s.121 of the Act. The submission was that there was no jurisdictional error because the Tribunal properly understood its task and undertook that task in accordance with law.
I had the advantage of substantial oral submissions from Mr King, counsel for the Applicant and then from Mr Smith of counsel for the Respondent. The Applicant, Mr King, submitted that the Tribunal failed to address the legal requirement of fear and for reason of membership of a social group and for reasons of political opinion. He pointed out that the Tribunal had essentially accepted the Applicant's story but had airbrushed the fact or the facts and denuded the facts of any political content. And he said the personal history of the family was replete with political involvement He said the gravamen of the Tribunal's decision was that it was the troubles inflicted on his family all happened for reasons of personal animosity. The story was generally accepted but it was replete, as I said, with political involvement but the Tribunal preferred an alternative explanation.
As far as membership of a class is concerned; the submission was that the first task is to determine whether there is a group or class to which the Applicant claims to belong, is a social group for the purposes of the convention. He referred me to LTTE supporters, members of a caste, members of the family as a social group. He submitted that each social group was capable of being a social group for the purpose of the convention.
The next question he asked was:
Was the Applicant a member of that class?
The evidence was that the Tribunal had accepted that the Applicant was a member of a backward caste and the third question was:
Was there a fear?
The Tribunal accepted that there was and there was certain evidence of that. There was a diagnosis of post-traumatic stress disorder.
Counsel for the Applicant also submitted there was a lack of procedural fairness and a failure to comply with s.425 in that whilst there was a hearing, that it was conducted in such a way that it was not a hearing as laid down by the legislation.
For the Respondent, Mr Smith of counsel, pointed out that there was procedural fairness in that there was a hearing that was held, there could be no criticism of the way in which the hearing took place. He referred to the decision of Minister for Immigration and Multicultural Affairs v NAFF 2004 HCA 62 and the consideration by the Court of the meaning of s 425 of the Act. The rule in Browne v Dunn (1893) 6 R 67, as he said, does not arise in inquisitorial positions and he referred also to the findings of the particular social group.

There was no evidence, he said, that the LTTE, as a social group, was raised as an issue before the Refugee Review Tribunal. The Tribunal did accept that the group of scheduled casts, of Dalits, was in fact a group to which the Applicant belonged and the Tribunal not only accepted that the group existed and that it could be a social group, that the Tribunal accepted that the applicant was a member of it. What it did not accept was that the Applicant was a member of that group for the purposes of being persecuted.
As far as the group being a member of the family was concerned; the Tribunal did accept that the applicant was a member of the family that the cause of the harm to the family was personal animosity and jealousy and not for political opinion, therefore not for a convention reason. He reminded the Court again of the provisions of s.91S how the Tribunal must disregard any harm not caused for a convention reason to another member of the family.
Mr Smith also referred me to the fact that in any event it could reasonably be expected that the applicant could relocate within India. This was a point that was raised with the Applicant and of course this is a matter that was referred to in the decision – well-known decision in Randhawa v Minister for immigration, Local Government and Ethnic Affairs (1992) 52 FCR 437.
In reply, Mr King reminded the Court that the hearing that was conducted was not a hearing in the sense of s.425 of the relevant legislation, it was a Tribunal member putting her pre-conceived doubts to the Applicant. There was a duty to act fairly. Where the Tribunal is acting as an inquisitor there is this duty to act fairly.
We will deal with these matters not necessarily in the order in which they were argued. In my view there is no issue as to the fact that the Tribunal accepted that the Applicant was a member of a Scheduled caste and the Tribunal adverted to the fact that the Scheduled caste had suffered from social discrimination. This was evident on the country information and was made clear in the Applicant's own evidence.
There is certainly evidence that the Tribunal accepted that the Applicant was a member of his own family; his family of course, as the facts show, has had a political involvement and has been subject to what appear to be a couple of quite nasty attacks on members of the family, including the Applicant himself and on the family's home. Where the Tribunal departed from the applicant was on the reasoning for it.
As to the question of procedural fairness; I do not agree with the Applicant's contention that the Tribunal did not conduct a hearing or a review as required by s.414 or did not conduct a hearing as required under s.425 of the Act. The decision of the High Court of Australia, in particular the decisions of their Honours McHugh, Gummow, Callinan and Hayden JJ in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) HCA 62 sets out in paragraphs 22 to 24 the nature of proceedings before the Refugee Review Tribunal. Paragraph 22 refers to the fact that the legislation provided for an inquisitorial merits-based review by an independent Tribunal.
As might be expected in view of the importance of the proceedings, particularly for persons in the position of the Appellant or the Applicant in this case, the legislation is detailed and provided for procedures of some solemnity. In paragraph 23 their Honours said:
Once an Applicant had made a valid application for review of the delegate's decision, the Act imposed on the Tribunal a duty to review that decision. Section 414, sub s (1).
Their Honours also set out that there were provisions by which the Applicant for review might supply and the Tribunal might seek information as set out in ss.423 and 424. The Act also imposed duties on the Tribunal to supply the applicant with certain information for comment, s.424A to 424C. Section 425 (i) compelled the Tribunal to invite the Applicant to appear before it and detailed provision was made about the terms of that invitation.
On the evidence before me, I am satisfied that the Tribunal did comply with those procedural requirements. Sub section (1) of s.425 places an obligation on the Tribunal to call the applicant for a hearing.

Sub-section (2) relieves the Tribunal of that responsibility if the Tribunal is in a position, inter-alia, to make a decision in favour of the Applicant on the basis of the material it already has. Well of course in this case the Tribunal clearly was not in a position or felt it was not in a position to make a decision in favour of the Applicant on the basis of the information it had. The only way it could have done that of course was by reviewing that decision on the papers under s. 414 of the Act.
On perusing the papers the Tribunal did not find itself in a position where it could rule in the Applicant's favour. The Tribunal then called the Applicant to attend a hearing. The Applicant did attend. The Applicant gave evidence through an interpreter. The Tribunal did act as an inquisitor and not as an independent judicial authority because the Tribunal is not a Court and the Tribunal did ask the Applicant about his case. Mr King submitted today, in summing up in effect his submissions of the last occasion, that the question that the Tribunal should have asked first was in fact asked last; whether there was anything else that the applicant wanted to say to the Tribunal? With respect, I disagree. It is quite common in proceedings, whether they are conducted before a Tribunal or a Court, for an Applicant to be asked whether there is anything else that the Applicant wants to put for consideration. That appears to me exactly what the Tribunal did. And the wording of the decision makes that quite clear. Third paragraph on page 121 of the Court Book the Tribunal says:
I asked him if he had any final comments to make relating to his claims.
And the Applicant did, as he was entitled to do. And the very basis of that statement was to allow the Applicant the opportunity to put something that had not been put before or to sum up an argument or to clarify something or to stress a particularly strong point. The criticism has been made of the Tribunal member that she put to the Applicant questions which related to the Respondent's case. In my view that is appropriate for a decision maker involved in an inquisitorial process. There seems to be little point in putting matters relating to the Applicant's case because the applicant, at the risk of sounding flippant, should know what the Applicant's case is and that the Applicant has an obligation to put that case to the decision maker. It is not up to the decision maker to make the Applicant's case for him or her. What a decision maker must do, in fairness, is to put matters that appear from the material not to support the Applicant's case to give the Applicant an opportunity to reply to that material.
And it is quite clear throughout these proceedings that that is exactly what the Tribunal member did. Because the Applicant did reply through the interpreter, he did give an explanation as it turned out. At times the Tribunal member did not accept that information or did not accept that reply but it was certainly open to the Tribunal not to do that. It is also noteworthy, at page 119 of the Court Book, that the Tribunal member did put to the Applicant her doubts as to the veracity of parts of his explanation, especially about going into hiding and moving from one home to another. As she says:
I put it to him that I found it difficult to accept that he went to a different home every few days during a period of October 2002 to July 2003.
On the following page, page 120, the Tribunal member asked the Applicant how it was possible for him to obtain a passport if there were charges against him? He replied to that by saying, well there weren't charges against him, just complaints in his home area.
In my view what the Tribunal has done was nothing more than put to the Applicant material that was opposed to his case to give him the opportunity to explain it and put her own concerns about the evidence to the Applicant and give him the opportunity to meet those concerns. In other words, to give him the opportunity to persuade the Tribunal that the doubts raised were not valid doubts.
In my view, procedural fairness insofar as following the requirements of the Act and the duty of the inquisitor have been met.
That leaves two points. There is the point made about the diagnosis of post-traumatic stress disorder. This was a diagnosis given by the Applicant's general practitioner and the general practitioner gave evidence that the Applicant had been referred to a psychiatrist within the last four weeks prior to the hearing. There was nothing to indicate that the Applicant did not suffer from post-traumatic stress disorder. There was evidence that that is in fact what he did suffer. It would certainly follow that if a person suffers from post-traumatic stress syndrome or disorder that the reasons for that were those set out by the Applicant in his case; harassment, burning his home, personal attacks, attacks on his family.
As Mr Smith of counsel pointed out, this diagnosis, whilst a diagnosis which supports claim that the Applicant was in fear through events that have happened does not support and cannot support the further step that the fear arose from events which took place because of a convention reason. There was no alternate explanation given for post-traumatic stress syndrome such as a motor vehicle accident or something other than that but there does not need to be.
There is no doubt that the Tribunal did accept the fact that there had been attacks upon the applicant, upon the Applicant's family and upon the Applicant's home and that these explained the post-traumatic stress disorder.
The diagnosis does not go the extra step in showing that they were brought about from attacks or violence committed or threatened for a convention reason.
The convention - the point made by the Applicant was a fear of being imputed to be a supporter of the LTTE. The Tribunal rejected this concern on the basis that there was lack of evidence in saying it was merely speculative. In my view that finding by the Tribunal is borne out by the evidence.
The Tribunal raised the point about relocation and of course there was a reference to Randhawa's case (supra). The Tribunal asked the Applicant whether he could relocate and he gave an explanation. He said he could not relocate within India because of one, his inability to speak Hindi. He speaks the Tamil dialect and some English. And also because his position as a member of a Scheduled caste.
Now, in my view, the Applicant's explanation as to why he could not relocate is an explanation that it is difficult to see how the Tribunal could have rejected it. The only evidence about relocation was language and caste membership and there is evidence, which the Tribunal accepted, about the Applicant being a member of the class of Dalits, a member of a Scheduled class and the country information accepted by the Tribunal related to social disadvantages suffered by members of that caste.
The Tribunal relied heavily on the fact that the Applicant's family had done well, had obtained an education. But that does not support a finding that they would not be subject to persecution by means of their membership of a caste. It is difficult to see how the Tribunal arrived at the finding that membership of a Scheduled caste for which there was considerable evidence which would not of itself act as a disadvantage in relocating them in India especially when combined with the evidence of the inability to speak Hindi.
That gets back to the point which is perhaps the main point made by Mr King of counsel for the Applicant. The attacks on the Applicant's family on more than one occasion, on his father, on his brothers and on one case on the Applicant himself and the attacks on the family home by supporters of the person Eli Parummal another politician. The attacks included threatening of the Applicant's mother when she was running as a candidate in the municipal elections.
This is explained away by the Tribunal as personal animosity. In my view there is no basis for that finding. There is a basis for a finding that attacks were made on the Applicant's father, who had a history of being involved in politics, on the Applicant's mother, who was involved in politics, by people who were accepted as political opponents. The Applicant's family are members of a Scheduled caste who have achieved education and a good reputation despite the handicap, admitted by the Tribunal, of being a member of a Scheduled caste in India.
The stripping out of the explanation, a political background for the attacks by a political opponent, the designation of the attacks as purely personal animosity appears to me to be a finding that is not supported by the evidence. The evidence points overwhelmingly in the opposite direction.
Now, it is certainly a case that the Tribunal is the decision maker on the facts and that it is not for the Court to substitute its own view of the facts or that of the Tribunal. But if the finding of fact is such that it appears that the Tribunal has misconceived the Applicant's case, if the Tribunal has asked itself the wrong question, this goes beyond a mere finding of fact. This is an error which goes to jurisdiction. In my view the arbitrary and almost inexplicable attribution of attacks by political opponents on the applicant's parents and family has been governed by personal animosity rather than political rivalry is not a conclusion that the Tribunal could have reached without having misunderstood the very nature of the Applicant's case, because that is the very nature of the Applicant's case. And, in my view, this error was an error which goes to jurisdiction and in my view is a jurisdictional error.
I am obliged therefore to find, in this case, which relies very much on its own individual facts, that there is a reviewable error. Accordingly, I make orders as at the commencement of these Reasons.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 28 January 2005