SZDTV v Minister for Immigration

[2005] FMCA 1150

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDTV v MINISTER FOR IMMIGRATION [2005] FMCA 1150

MIGRATION – Refugee – misunderstood meaning of, reason for, definition of refugee status – notion of Convention nexus and persecution – internal relocation – meaning of well founded.

Migration Act 1958, ss.91R(1)(a), 65
Federal Magistrates Court Rules 2001,Rule 21.02(2)(a)

Randhawa v Minister for Immigration and Local Government Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Rajaratnam v Minister for Immigration and Multicultural Affairs [2001] 62 ALD 73
SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545
Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingham (1999) 93 FCR 220

Applicant: SZDTV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1736 of 2004

Judgment of: Nicholls FM

Hearing date: 14 June 2005

Date of Last Submission: 3 June 2005

Delivered at: Sydney

Delivered on: 26 August 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. T. Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Refugee Review Tribunal to be joined as second to these proceedings.

2. The application is dismissed.

3. The applicant to pay the first respondent’s costs set in the amount of $3500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1736 of 2004

SZDTV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 26 May 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 April 2004 and handed down on 13 May 2004 to affirm the decision of the delegate of the respondent Minister made on 16 December 2003 to refuse a protection visa to the applicant.

2. The applicant is a citizen of India, who arrived in Australia on
   12 November 2003 and applied for a protection visa on 11 December 2003. His claims to protection are set out in a statutory declaration reproduced at Court Book 25 to CB 39, which was attached to his application for a protection visa, and in the Tribunal’s report of the hearing it conducted with the applicant on 19 April 2004, which is at CB 65.6 to CB 71.6. The applicant, who is a Hindu, claimed to fear harm from Hindu extremists following his agreement to sell a plot of land in his hometown, on behalf of his brother-in-law, to a Muslim. This provoked controversy in his local town and he claimed to have been confronted by a Hindu mob led by a local political figure. He further claimed he was pressured not to sell the land to the Muslim buyer but to sell it to the Hindu leader for a lesser price, which he was reluctant to do. He was subsequently accused of the murder of the Muslim man, and the Hindu leader produced witnesses to prove that he had argued with the Muslim man over taking back the advance from the sale of land. He claims to have been placed in prison and released after 14 days. At the hearing before the Tribunal the applicant clarified that his fears centred on two groups. The first being the “RSS” (the Hindu party) with which the Hindu leader was affiliated on one side, and the Muslim League on the other.

3. The Tribunal accepted much of what the applicant claimed. It accepted that the sale of the land provoked a local controversy in his hometown and appeared to accept the events as described by the applicant involving the crowd in front of his house and that the various contacts with the police all occurred. However in its decision record at CB 74.3, after looking at a number of other issues the Tribunal said:

   “Accordingly, given all the above and from the claims made by the Applicant, the Tribunal has not been able to satisfy itself the essential and significant reason for the difficulties that the Applicant has experienced in regard to his involvement in the sale of his brother-in-law's property were serious harm amounting to persecution for a Convention reason. Moreover, the Tribunal is also satisfied that if for any subjective reason he does not wish to return to Varkala, [his hometown] he would be able to go elsewhere in Kerala [his home district] or indeed anywhere else in India in safety.”

4. The application to this Court, made on 7 June 2004, does not advance any grounds for review. It is a mere assertion that the applicant's claims are true, and a statement that the applicant does not agree with the decision made by the Tribunal and is seeking reconsideration. While the applicant filed an amended application on 5 November 2004 asserting a number of grounds, he confirmed at the hearing before me that he now wished to rely solely on the matters asserted in a further amended application filed on 26 May 2005, which had been prepared with the assistance of a lawyer on the panel of the Court’s Legal Advice Scheme, from whom the applicant had received advice dated 20 May 2005. The applicant was assisted at the hearing before me by an interpreter in the Malayalam language. The further amended application asserts one ground, that the Tribunal decision was affected by jurisdictional error in that the Tribunal misunderstood the definition of refugee as set out in Article 1A(2) of the Convention relating to the status of refugees. The further amended application particularises this complaint in four ways:

   1)The Tribunal misunderstood the meaning of “for reasons of” in the definition of refugee status.

   2)The Tribunal confused the notion of Convention nexus with the notion of persecution.

   3)The Tribunal misunderstood the test for “internal relocation” as set out in the decision of the Full Federal Court in Randhawa v Minister for Immigration and Local Government Ethnic Affairs (1994) 52 FCR 437.

   4)The Tribunal misunderstood the meaning of “well founded” in Article 1A(2) of the Refugees Convention.

   At the hearing before me the applicant was unable to add anything to the further amended application and sought to rely on it as presented.

5. The applicant’s first complaint is that at CB 73.6 the Tribunal found that the local controversy provoked by the sale of the land was:

   “As much about the purchase of his brother-in-law’s land for a cheap price as it was about a communal inter-ethnic issue.”

   The applicant's complaint is that it was on this basis that the Tribunal has concluded that the essential and significant reason for the controversy was not a Convention related reason. The applicant asserts that if there are two reasons for the claimed persecution which are of equal weight, then it cannot be said, just on this alone, that either one of them is not the essential and significant reason for that persecution. 

6. It is well established that an applicant who is seeking a determination that he is a refugee pursuant to Article 1A(2) of the Refugees Convention must establish a fear of persecution, but must also show that the persecution which is feared, is for one or more of the reasons enumerated in this article. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 570. Further, Article 1A(2) has been qualified by s.91R(1)(a) of the Migration Act the effect of which is that the Convention reason or reasons must constitute at least the essential and significant reason, or reasons, for the persecution. The term “persecution for reasons of” involves the concept of persecution and the concept of the causal connection to the relevant characteristic of the person being persecuted. Further, the harm feared need not be solely attributable to a Convention reason, but pursuant to s.91R(1)(a) of the Act, where the harm feared is attributable to a number of motivations, it will be insufficient that a Convention ground or grounds constitute a minor motivation. To come within Article 1A(2), as qualified by s.91(1)(a) of the Act, the Convention ground or grounds must constitute at least the essential and significant reason for the persecution. The extract from the Tribunal’s decision record quoted in the further amended application appears to present the finding that the local controversy was as much about extortion for personal gain by the Hindu leader as it was about communal inter-ethnic conflict which presumably the applicant now is seeking to say is the Convention related reason.

7. In Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111, a majority of the Full Federal Court said, at [48], that:

   “…extortion can be a multifaceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct.”

   Further, there is authority for the proposition that the Tribunal is required to determine whether or not it was satisfied that those seeking retribution against an applicant were doing so as an aspect of a broader political or racial campaign against the applicant or were doing so for reasons unrelated to that campaign. In SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 Selway J. said at [12]:

   “In my view the attempt by the Tribunal to draw a distinction between Convention based reasons and retribution involves a jurisdictional error. In Minister for Immigration & Multicultural Affairs v Singh (2002) 209 CLR 533 (‘Singh’) the High Court held, although in a slightly different context, that where an act of revenge or retribution is derived from or arises out of a political act or campaign then the act or revenge or retribution may be a political act.”

8. Therefore, where the harm feared is multifaceted it is necessary for the Tribunal, in order to satisfy Article 1A(2), as qualified by s.91R(1)(a) of the Act, to consider whether the essential and significant reason for the harm is a Convention reason. As I understood the applicant's argument it is that the extract from the Tribunal’s decision record shows that the Tribunal found that there were two reasons for the local controversy provoked by the sale of the land. One was the purchase of the land for a cheap price, that is, an extortion for private reasons, and the other was the purchase by the Hindu leader of the land in a context of communal inter-ethnic tension. The applicant complains that the wording used by the Tribunal shows that there were two reasons for the persecution of equal weight and that in these circumstances it cannot be said that either one of them is not the essential and significant reason for that persecution, without an examination of both of those reasons to determine whether each of them is an essential and significant reason.

9. Mr. Reilly who appeared for the respondent Minister submitted that the applicant's complaint was based on a misreading of the Tribunal’s decision record, and that the relevant passage was not the extract quoted from CB 73.6. The submission was that this extract is not the ultimate conclusion by the Tribunal, but is simply the commencement of the Tribunal’s reasoning process as to why the applicant's fear of harm from Muslim or Hindu extremist groups was not well founded. The crucial sentence according to Mr. Reilly’s submission is the one found at CB 74.3:

   “Accordingly, given all the above and from the claims made by the Applicant, the Tribunal has not been able to satisfy itself the essential and significant reason for the difficulties that the applicant has experienced in regard to his involvement in the sale of his brother-in-laws property were serious harm amounting to persecution for a Convention reason.”

   Mr. Reilly concedes that this is a poorly expressed sentence because at the start of the sentence the Tribunal talks about the reasons for the applicant's difficulties in the past, but then at the end seems to conclude that there is no serious harm. In this sense the Tribunal begins by talking about the essential and significant reason which is clearly a matter concerning Convention motivation, but then ends with a reference to serious harm. The respondent's position is that this sentence needs to be read in context and with the principles set out in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6 in mind, and that the conclusion that the Tribunal comes to is that there is not any fear of harm at all. Therefore, when read in context of its decision record what the Tribunal has found is that the applicant did not have a well founded fear of persecution and therefore did not need, and was not looking to, the absence of a Convention motivation, but to the absence of a well founded a fear of persecution. This, Mr. Reilly submitted, is the fair construction of the Tribunal’s reasons having regard to the totality of what it said at CB 73 to CB 74. If this construction is accepted then the issue of any error because of Convention motivation would disappear. This is so because the Tribunal’s decision was not on the basis of Convention motivation or the absence of such Convention motivation, to reject the applicant claims, rather it has found the applicant's fears of persecution for whatever reason, were not well founded.

10. With respect to the Tribunal, it must be said, as was acknowledged by Mr. Reilly, that this part of the Tribunal’s decision record is not a model of clarity. It does not pursue in a sensible sequence the separate issues of the harm feared and the Convention nexus of that fear of harm to a Convention reason. The Tribunal begins its explanation for its decision at CB 71.6 under the heading of “Findings and Reasons” by recounting the applicant's claims in relation to the land, which was the subject of the sale, the applicant's Hindu religion, and the proposed sale to a Muslim man and the opposition by the Hindu extremist leader and his supporters. The Tribunal accepted the applicant's actual claims in this regard and accepted the applicant's claims that he understood the motivation of the Hindu leader for his actions was that he was using religious unrest and provocation to exploit and snatch the land for a cheap price by frightening the applicant and his family. The Tribunal also accepted the claims made in the applicant's protection visa statement in relation to the murder of the Muslim man and that the Hindu leader had produced witnesses to prove that the applicant had argued with the murdered man over taking back the money for the land sale. At CB 72.8 the Tribunal restates the applicant's claims that he had been threatened by the police, by the Hindu extremists with the threat that he would vanish like his brother-in-law, and that the Muslims on their part threatened that if he did not sell the land they would murder him. But the Tribunal noted, at the hearing before it, that when questioned in relation to the brother-in-law the applicant replied that he had “not come back yet” and that while the applicant had no idea where he was he clearly did not say that he had been murdered. The Tribunal relied on the applicant’s statements at the hearing that the brother-in-law was working in a number of different parts of India and had not returned to their home town and it was not able to satisfy itself that he had come to any harm nor that the applicant had a well founded fear of serious harm amounting to persecution for a Convention reason based on being threatened with harm in the same way that his brother-in-law had been allegedly threatened and dealt with. The Tribunal also recorded that at the hearing before it (CB 73.2) the applicant stated that the police knew he had not done anything wrong in relation to the murder of the Muslim man, and clarified that it was not the police who were his problem, but the Hindu extremists and the Muslim League. The Tribunal found that it accepted these claims made at the hearing over the claims made in the protection visa statement, and that the applicant's claims centre on his fear of attack from the Hindu Party and the Muslim League.

11. It is therefore at CB 73.5 that the Tribunal turns to look at the applicant's claim of harm, if he were to return to India, on the part of the Hindu extremists or the Muslim League because of his involvement in the sale of the property. The Tribunal then looked at the applicant's claims to fear harm on return to India in relation to the sale of land and the issue of whether he would be killed by the Hindu extremists or the Muslim League. In this context, it is clear that, as Mr. Reilly submits, the extract complained of by the applicant, comes at the beginning of the Tribunal’s consideration of the applicant's claims as clarified at the hearing, and with the focus on what would happen to him if he were to return to India. It is also clear from what the Tribunal said, following the extract complained of, and linking it to the Tribunal’s record at CB 72.1, that the Tribunal said that it accepted the applicant's claim that the applicant's understanding of the motivation by the Hindu leader was the sowing of seeds of religious unrest and provocation for the purpose of exploiting and snatching the land for a cheap price and that the Hindu extremist leader's real motive was to be able to acquire the land cheaply. In recounting the applicant's claims as to conditions in his home town, the Tribunal noted the situation relating to his wife and daughters, that there were no claims that he came under any pressure to sell his own land and that while outlining in considerable detail the verbal arguments that he had with the crowd of Hindu extremists that he did not claim that he had ever been attacked physically, abused or tortured by the Hindu extremists, the Muslim League or by the Hindu leaders’ supporters. The sentence at CB 74.3, when read in the context of what precedes it, that is, that he had not suffered any harm in the past, can be seen as a finding that he would not suffer any harm in the future based on any of these reasons. I accept Mr. Reilly's submission that when read in context, the extract (CB 73.6) complained of by the applicant is not the ultimate finding in relation to the question as to the real chance of harm to the applicant were he to return to India based on his fears arising from events that have occurred in the past.

12. Further, the Tribunal’s expression of its acceptance that the controversy was as much about the purchase of the land for a cheap price as about a communal inter-ethnic issue must also be looked at as explained in the what follows in the brackets after the statement complained of at CB 73:

    “(for example, the Tribunal has already accepted the Applicant’s claim that he understood the motivation for this was he “Sudharan Moorthy was sowing the seeds of religion unrest and provocations to exploit and snatch out plot for a cheap price by frightening us” and that Sudharan Moorthy’s real motive was to be able to acquire the land cheaply).”

    The Tribunal’s loosely expressed statement complained of by the applicant should be also understood by the explanatory example given by the Tribunal which clearly was that the Tribunal saw the controversy, as the applicant himself had put it, as the Hindu extremist leader “sowing the seeds” of religious unrest so that he could acquire the land cheaply. When seen in this light the real motivation for the controversy as seen by the Tribunal and based on what the applicant himself had said was for private gain and inter-communal violence.

13. The applicant's second complained, based on the Tribunal’s statement at CB 74.3, is that the Tribunal confused the notions of “for reasons of” and “persecution”. The argument is that while being part of one definition arising from the Refugee Convention they are separate questions which need to be dealt with separately. This ground also fails for the reasons set out above in relation to the first complaint. As I have said above, the Tribunal found against the applicant because he was unable to satisfy the Tribunal that his fears of persecution were well founded. The Tribunal was not making a finding that any fear that the applicant had was well founded, but failed because it was not for a Convention reason. The Tribunal found that he applicant did not have a well founded fear. In these circumstances it did not need to go on and consider any Convention nexus. The Tribunal’s sentence is poorly expressed, both grammatically and contextually. When read literally, the sentence does not appear to make sense as Mr. Reilly submitted, because it starts with a reference to “reasons of” and ends by talking about “persecution”. But when understood in the context as set out above, then clearly this was a finding about the chance of a well founded fear of persecution rather than a finding on a Convention nexus. I agree with Mr. Reilly that the deletion of the words, “the essential and significant reason”, would not only make sense grammatically, but far more importantly make the rest of the sentence clearer in the context in which it appears. With respect to the Tribunal, Tribunal decision records are meant to inform as to what the Tribunal has done, and the reasons for its findings. The Tribunal decision record before me suffers from imprecise language in parts, but when looked at as a whole, and when looking at these imperfections in context, I cannot see that the Tribunal erred in the way that is alleged by the applicant in his first two particulars in the further amended application. 

1. The applicant's third complaint is that the Tribunal misunderstood the test for internal relocation as set out in the Full Federal Court decision in Randhawa and particularly with a reference to Black CJ. at 442:

   “Given the humanitarian aims of the Convention this question was not to be approached in a narrow way. In her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.”

   The applicant asserts that in the case before me the Tribunal merely asked whether the applicant would be able to go elsewhere in his home state or elsewhere in India in safety and makes a reference to the Tribunal’s decision record at CB 74.3:

   “Moreover, the Tribunal is also satisfied that if for any subjective reason he does wish to return to Varkala, he would be able to go elsewhere in Kerala or indeed anywhere else in India in safety.”

2. Mr. Reilly’s submission was that the Tribunal’s reference to the issue of relocation was put in the alternative to its findings that the applicant does not have a well founded fear of persecution in his home town. Mr. Reilly relies on the use of the word “moreover” to support this submission as the Tribunal uses this as the introduction to the issue of relocation. Having found there was no error in what the Tribunal did in finding that there was not a well founded fear of persecution the Tribunal did not need to go on and consider the issue of relocation. But even if it had needed to do so, I cannot see that the Tribunal’s consideration of the issue falls into the error as claimed by the applicant. It is true the Tribunal begins its consideration at CB 74.3 by posing the question, but it is also clear that the Tribunal then went on, and in particular at CB 74.5 to look at the issue of whether it would be reasonable for him to live somewhere else other than his home town, either in his state or elsewhere in India. The Tribunal, looking at the applicant's own claims, also looked at issues of language, his education, other personal circumstances and also the situation if he were to be pursued to other parts of India by the Muslim League or the Hindu extremists for any personal reason. It found that such a small local controversy over the sale of his brother-in-law's land was not of such nature as would cause these groups to look for him elsewhere. While the decision in Rhandawa is clear authority that the Tribunal needs to turn its mind to the reasonableness of relocation, it is my view that the Tribunal in the case before me has satisfied this requirement.

3. The applicant's fourth complaint is that the Tribunal misunderstood the meaning of “well-founded” in Article 1A(2) of the Refugees Convention. The applicant claims that unless the Tribunal has no real doubt that its findings of fact were correct, then it must consider the possibility that its findings were inaccurate, or that the reasons for the harm claimed to have been suffered by the applicant were for a Convention reason. The applicant relies on Guo and Minister for Immigration and Multicultural and Indigenous Affairs v Rajalingham (1999) 93 FCR 220 per Sackville J. at 240-241. The applicant claims that in the case before me the Tribunal in its findings, for example at CB 74.2 and CB 75.3, only went so far as to not to be able to be satisfied. The applicant claims that in expressing its findings in this way, the Tribunal did not show that it had no real doubt about its findings and in these circumstances should have gone on to consider the possibility that it was wrong, and to consider whether there was a Convention reason for the harm claimed to have been suffered by the applicant.

4. In assessing whether an applicant has a well founded fear of persecution for one of the Convention reasons, the Tribunal would need to weigh the material before it and make findings, before it considers whether or not an applicant's fear of persecution on a Convention ground is well founded. In Guo, the High Court considered the issue of fact-finding and the application of the real chance test. The Court held relevantly, that where a Tribunal finds that it is only slightly more probable than not that an applicant has not been harmed for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well founded fear of future persecution. What has commonly come to be known as the “what if I'm wrong test” was explained by the full Federal Court in Rajalingham, the Court held at 240:

   “When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution.”

   But the Tribunal, if it has no real doubt that its findings, both as to the past and future are correct, is not bound to consider whether its findings might be wrong, and is not bound therefore to ask the “what if I am wrong” question. This is not a question that needs to be asked separately in relation to each and every case before the Tribunal nor in relation to each finding and conclusion it makes. It is clear therefore, as Mr. Reilly submitted at the hearing before me, that the test to be applied is whether the Tribunal’s reasons reflect an uncertainty by the Tribunal in the findings that it has made, consistent with the Tribunal’s obligation to correctly apply the principles for determining whether an applicant has a well founded fear of persecution. The speculation, that is, the reasonable speculation, in which the Tribunal must engage, may require it to take account of the possibility that past events might have occurred even in circumstances where it thinks that they probably did not. The issue then, in the case before me, is whether the Tribunal’s decision record shows such uncertainty, or possibility, that its findings may be wrong, to then require it to consider the additional aspect of what the situation would be if it were wrong.

5. The applicant's assertion is that the Tribunal’s use of expression in its findings that it “was not able to be satisfied” show the requisite level of uncertainty and doubt on its part to have caused it to have asked the “what if I am wrong” question. The Tribunal certainly uses these words. However, I do not accept the applicant's assertion in the case before me that the reasons for the Tribunal’s decision do not show that the Tribunal had no real doubt about its findings. Firstly, this appears to turn around what was said in both Guo and Rajalingham, in making the test a double negative. The test is that there must be no real doubt. But, second and far more important, I cannot see that the Tribunal findings, even in those places where the Tribunal expresses itself with the term that “it was not satisfied”, shows the requisite level of uncertainty or doubt to require the application of the “what if I am wrong” question. The Tribunal’s use of this phrase clearly derives from s.65 of the Migration Act, which requires a decision maker to reach a level of satisfaction as to the relevant criteria for the visa applied for, before the visa should be granted. Relevantly, in the case of a protection visa application, it needs to be satisfied that the criterion set out at s.36(2) of the Act, (the Article 1A(2) definition of refugee) is satisfied. In making findings on the way to its ultimate conclusion as to whether it is satisfied, or not, that an applicant for a protection visa relevantly meets the criterion to be recognised as a refugee, the Tribunal needs to be careful to express these findings in an unambiguous way. In this regard the use of phrases such as; “I find”, “I accept” (or the negative), they go a long way to showing the Tribunal understood what it was doing and leave no doubt as to its findings and as to how it proceeded to reach, or not reach, the ultimate requisite level of satisfaction on the critical issue of well founded fear of persecution for a Convention reason.

6. In the case before me it is quite understandable that the applicant would seek to argue doubt on the part of the Tribunal. But in understanding what the Tribunal has done, regard should be had to the whole of the Tribunal’s decision record and the use of the phrase complained of needs to be read in context to obtain its real meaning and import. In the case before me the Tribunal accepted much of what the applicant had put before it. But I cannot see any doubt about its critical findings in relation to the harm feared from the Hindu leader and his followers and the Muslim league. As I have set out above it is clear the Tribunal saw the Hindu leader’s motivation as being one of exploitation and that the harm feared from the Muslim League was not serious harm amounting to persecution for a Convention reason. The use of the phrase “has not been able to satisfy” at CB 74.2 when seen in the context of what proceeds it (and the Tribunal actually says “given all the above”) is a finding that the difficulties experienced by the applicant in the past were not serious harm amounting to persecution for a Convention reason. Similarly, the use of the term “has not been able to satisfy” at CB 75.3 needs to be seen in context. The Tribunal is dealing with a specific claim made by the applicant that he received a “trashing” (later more correctly referred to as “thrashing”) by an unknown mob on 29 October 2003. [This is probably a reference to the applicant’s claim in a statutory declaration attached to his protection visa application copied at CB 38.9] that:

   “On 29.10.03 I was waylaid by an unknown mob at Beach Road, Varkala and escaped after getting some thrashing.”

   The Tribunal looks at this claim in the context of the applicant’s claim at the hearing before it that land disputes involving Hindus and Muslims exist throughout India. When read in context of the whole of the Tribunal’s decision record, it is clear the Tribunal looked at this claimed instance of harm in the context of relocation and the context of a more general claim (possibly) of fear of being caught up in random communal violence. Given the lack of detail as to who attacked him or why, the Tribunal found that even if the thrashing took place there was nothing to show a Convention nexus. For the reason outlined, this ground is also not made out.

7. The Tribunal’s decision record could certainly have benefited from greater precision and structure, but on what is before me the Tribunal looked at all of the applicant’s claims as put by the applicant, and in relation to these claims the Tribunal found that they did not amount to a well founded fear of persecution should the applicant be returned to India. Moreover, the Tribunal found that the applicant could reasonably relocate to another part of India. For the reasons set out above the applicant's grounds are not made out nor could I see any other error on the part of the Tribunal. This application is accordingly dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:  Wagma Aziza

Date:  22 August 2005