SZEGA v Minister for Immigration - [2006] FMCA 17

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEGA & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 17

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 474
Judiciary Act 1903 (Cth), s.39B

SZEGA & SZEGB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 346
SZEGA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 878
SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Randhawa v Minister for Local Government & Ethnic Affairs (1994) 52 FCR 437
Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicants:

SZEGA and SZEGB

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG2609 of 2004

Delivered on:

25 January 2006

Delivered at:

Sydney

Hearing date:

12 December 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicants appeared in person.

Counsel for the Respondent:

Mr J A C Potts

Solicitors for the Respondent:

Phillips Fox

ORDERS

The Refugee Review Tribunal is joined as second respondent.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2609 of 2004

SZEGA and SZEGB

Applicants

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

On 22 July 2005, his Honour Tamberlin J made orders setting aside the orders made by me on 24 March 2005 (SZEGA & SZEGB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 346) and remitted the matter for further consideration in accordance with the legal principles to be applied on judicial review by a Federal Magistrate (SZEGA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 878 dated 24 June 2005).
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 23 August 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 July 2004 and handed down on 4 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on

12 December 2003 to refuse to grant the applicants protection (Class XA) visas. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEGA” (applicant husband) and “SZEGB” (applicant wife).
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the Minister for Immigration & Multicultural & Indigenous Affairs; the first respondent

Background

The applicants, who are citizens of India, are husband and wife who arrived in Australia on 4 August 2003 and 13 September 2003 respectively (Court Book pp.33-35) (“CB”). On 17 September 2003 they lodged an application for protection (Class XA) visas (CB pp.1-27) with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. The application was refused by the delegate on 12 December 2003.
The applicants are both Hindus from Andhra Pradesh. They claim to have left India due to problems arising as a result of their marriage. The husband claims to belong to the Bagepalli community and the wife claims to belong to the Cingareddy community. The applicants claim that prior to marriage their courtship was conducted without the knowledge of either of the applicants’ parents. In November 2002 the respective parents were informed of the couple’s intention to marry. The applicants claim that:
a)The wife’s parents did not agree to the marriage and she was locked up and beaten.
b)The wife’s parents contacted members of the Telugu Desam party (specifically mafia members of that party) and warned the husband against further contact with his wife.
c)In December 2002 the couple fled their homes and married.
d)The wife’s parents have paid money to mafia people to kill both the applicants (CB pp.20-21).
The Tribunal noted both applicants’ travel details, and took oral evidence from each applicant individually but came to a joint decision on both applications. In respect of the husband, the Tribunal noted the following:
a)The husband stated that he had lived in his home town for ten years prior to his marriage. After his marriage in Turpeth in December 2002, the applicants lived in ‘other places’ including a friend’s house in the husband’s home town and a week in Madras in January 2003, prior to their first departure for Australia.
b)The husband stated that upon returning to India on 12 March 2003 he was in Madras for six to seven weeks before returning to Sydney on 4 May 2003 and he did not return to India (CB p.77).
The husband claimed he was in fear of his parents-in-law due to their connections with the Telugu Desam party and that they had utilised those connections to employ thugs to trace the couple with the intention of killing them (CB p.78). In Madras the couple came to no harm and although ‘they’ located the wife, no harm came to her either (CB p.78). The husband stated he could not relocate in India because he is a member of the Telugu community and his parents-in-law would find the couple through that community (CB p.78).
In respect of the wife, the Tribunal noted she had travelled to Australia on 9 February 2003 and departed for India on 12 March 2003 and returned to Australia on 13 September 2003. Her claims and evidence were in keeping with her husband’s, however she further claimed:
a)She feared her parents as they did not approve of ‘love marriages’ (CB p.79).
b)In August 2003 hit-men hired by her parents had confronted her friends in her home town while she was in Madras, and as a result of her fear she contacted the husband in Australia and then departed for Australia (CB p.80).
She could not relocate outside the Telugu community due to her inability to speak any other language (CB p.80)

The Tribunal’s findings and reasons

The Tribunal accepted that the applicants were targeted by thugs from the Telugu Desam party hired by the wife’s parents. However, the Tribunal found that their interest in the applicants was of a ‘very local nature’. The Tribunal cited independent evidence to suggest that Telugu Desam was State based and did not operate outside of Andhra Pradesh. Further, the Tribunal noted the applicants’ evidence that they had spent time in Madras and had come to no harm (CB p.85). The Tribunal was satisfied on the applicants’ evidence and the independent country information that no harm would come to them outside Andhra Pradesh (CB p.85). Given their youth, qualifications and language abilities, the Tribunal was satisfied that it was reasonable and feasible that the applicants could relocate (CB p.86).
The Tribunal noted that it was legitimate to take into account the applicants’ delay in lodging their application for protection visas. The husband had entered Australia three times and resided in Australia for four months prior to lodging an application for a protection visa. In light of this fact, the Tribunal did not accept that either applicant genuinely feared the wife’s parents or their thugs (CB p.86). Based on the applicants’ evidence, the Tribunal noted that any harm they feared was from a particular person or persons, namely the wife’s parents and the people they hired. The evidence indicated that these persons were interested in the applicants because of characteristics peculiar to them and not of any Convention grouping. Therefore, the Tribunal was not satisfied that the applicants had a well-founded fear of persecution for a Convention reason (CB p.83).
The Tribunal decided the application before it adversely to the applicants for three reasons:
a)it found that the applicants were not being targeted for a Convention reason, and were being targeted by the wife’s parents out of unreasoned antipathy;
b)the applicants could relocate within India and they would not be at risk; and
c)the applicants did not genuinely fear the wife’s parents or thugs.

Application for review of the Tribunal’s decision

On 23 August 2004 the applicants filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 14 December 2004 the applicants filed an amended application and on 8 February 2005 the applicants filed a further amended application setting out the following grounds:
1.The Tribunal made jurisdictional error as it failed to consider the refugee claim based on the applicants belonging to a particular social group.
Particulars
This particular social group is any one of the following:
a)Couples in India consisting of a man and woman who come from different community/caste/race, who eloped and got married
b)Couples in Andra Pradesh consisting of a man and woman who come from different community/caste/race, who eloped and got married
2.The Tribunal made jurisdictional error by not considering whether persecution based on caste is convention related.
Particulars
On CB 20.10 in answer to Question 41 the applicant says:
‘… though we are of same religion but there is a difference between our Communities. I belong to Bagepalli Community and my wife is from Cingareddy community …’
Caste is a variant of race. The applicant husband is from Bagepalli caste and wife is from Cingareddy caste. The Tribunal did not inquire whether the girl’s parents were angry because he is from a different community/caste.
3.The Tribunal made jurisdictional error by not considering whether persecution was based on political opinion.
Particulars
CB 77.30
The Tribunal in its decision said that:
‘The applicant’s prospective parents-in-law contacted people in the Telugu Desam party and the mafia people from that party, who warned the applicant against having any further contact with the applicant wife.’
The Tribunal failed to inquire whether the thugs from Telugu Desam party tried to harm the applicants because the applicant husband was attributed with a political opinion, most specifically ‘anti Telugu Desam opinion’.
4.The Tribunal made jurisdictional error as it based a key finding on no evidence. There is no evidence that the applicant wife was not harmed in Chennai.
Particulars
On page CB 85.20 The tribunal says: ‘The applicants themselves gave evidence at hearing that during the time they spent in Chennai (Madras) in 20034, neither the applicant nor the applicant wife came to any harm whatsoever’ (Emphasis added)
On page CB 80.10 the applicant wife says: ‘The applicant wife stated that the hit men actually went to the home of friends in Praddatur and threatened them there. The applicant wife stated that she never had any direct threats but she was afraid because she was [they were??] threatening her friends.’
On page CB 80.20 the Tribunal says: ‘The tribunal asked the applicant wife when the threats against her friends took place. The applicant wife stated that when she was in Chennai they were pressurized to give information about her whereabouts but they gave the hit-men an incorrect address.’
The harm the wife suffered was terrible fear she continued to feel when she heard from her friends that Telugu Desam criminals are after her.
5.The Tribunal made jurisdictional error as it unreasonably (in the Wednesbury sense) found that the applicants can relocate in India.

Particulars
On CB 87 the Triubnal said:
‘The tribunal accepts that the applicants were targeted by thugs from the Telugu Desam party, hired by the applicant wife’s parents-in-law in Andra Pradesh, however, it also accepts that their interest in the applicant was of very local nature. The tribunal notes that according to the independent evidence (see above) the Telugu Desam party is a state based party that does not operate outside Andra Pradesh. The applicants themselves gave evidence at hearing that during the time they spent in Chennai (Madras) in 2003, neither the applicant nor the applicant wife cane to any harm whatsoever. The tribunal is satisfied on the evidence before it, that the applicants do not have any profile that would place them at risk outside Andhra Pradesh. The Tribunal is satisfied on the applicants’ claims and the independent evidence, that the applicants can live in other parts of India other than Andra Pradesh …’
The applicant wife gave evidence that the Telugu Desam thugs were searching for her at Chennai. This shows that the applicants were not safe outside Andra Pradesh. Also even if the Telugu Desam party is state based there is no doubt that it has national status and influence throughout India. … (Errors included)

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Reasons

At the commencement of the hearing, the husband indicated that he was competent in English and did not require the assistance of an interpreter however, his wife had only limited English and may encounter some trouble understanding the proceedings. The husband indicated he would interpret issues for his wife in the Telugu language where necessary. I advised the husband to indicate to the Court if this difficulty arose and the Court would provide the husband with an opportunity to interpret for his wife. The husband attended a directions hearing on 30 August 2005 where orders were made that the applicants file written submissions prior to the final hearing by 28 November 2005. Despite this direction, the applicants have not filed and served any written submissions in support of their application. The applicants had filed written submissions for the previous hearing on 8 February 2005 and those submissions, containing extracts from various decisions, were substantially reproduced in the previous decision of this Court (SZEGA & SZEGB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 346 at [12]).
The first ground in the applicants’ further amended application identified two suggested particular social groups. Counsel for the respondents submitted that in relation to those formulations no claims based on particular social groups were expressly advanced to the Tribunal nor did it necessarily arise during the period the matter was before the Tribunal. The claim that was ultimately made was exemplified by the Tribunal record of what was said to it by both applicants at the Tribunal hearing. In the Tribunal’s decision under the heading “The Tribunal Hearing” (CB p.78), the Tribunal records the details of the hearing where the husband gave evidence:
“The Tribunal asked the applicant who he fears upon return to India. The applicant stated that he fears his parents-in-law. He stated that they have connections with the Telega Demas party and they have used their connections in the party to trace them and if possible kill them. They have hired thugs from the party to harm the applicant.
The Tribunal asked the applicant why he fears them. The applicant stated that he married against the wishes of his parents-in-law and now they wish to harm [the applicant].
The Tribunal asked the applicant if he came to any harm in Madras. The applicant stated that he was not harmed while staying in Madras. The Tribunal asked the applicant if his wife had any problems in Madras. The applicant stated that they found out where she was. The applicant stated that nothing happened to her in Madras.
The Tribunal asked the applicant when the problems with his parents-in-law began. The applicant stated that it was in November 2002. They did not agree to the marriage. They wanted to arrange a marriage for their daughter. The applicant stated that they once tried to man-handle him when he came to look in on his business in November 2002. The applicant stated that even after they married they were looking for the applicant and his wife to harm them. They tried to ruin the applicant’s business.
Counsel for the respondents submitted that there was not one word in the Tribunal’s statements, as indicated above, about differences in caste or differences in social status or being from different communities as the source of the animosity by the wife’s parents. The clear claim as articulated by the husband to the Tribunal was that the wife’s parents had not approved of the marriage, the applicants had married against the wife’s parents’ wishes and it was for that reason that they faced, what the Tribunal characterised as an unreasonable antipathy of the wife’s parents.
The wife gave evidence separately to the Tribunal and her evidence is recorded in the Tribunal’s decision under the heading “The Applicant Wife” (CB p.79). Under that section, the Tribunal adopted a similar line of questioning. The Tribunal asked the wife who she feared upon return to India and the wife stated that she feared her parents.
“They have hired hit-men from the ruling party (Telegu Desam) because she married a person other than the man they chose for her to marry. The applicant wife state that they do not approve of her marriage. They put her in a room for two days to stop her from marrying her current husband. The Tribunal asked the applicant why they don’t approve of her husband. The applicant wife stated that her parents do not approve of “love marriages” but rather they approve of arranged marriages. The applicant wife stated that they wanted her to marry someone else.”
Counsel for the respondents submitted that the versions from both applicants were materially similar. Both articulated the reason for their fear of returning to India as being the opposition in general of the wife’s parents to their marriage. The wife suggested that it was due to their disapproval of the non-arranged marriage and that they had, in fact, another suitor for marriage with her in mind. Counsel submitted the only other claims relevantly made were the ones in writing in the original protection visa application which are contained in the Court Book at pp.19-22. Question 41 of the visa application asks:
“What do you fear may happen to you if you go back to that country?” (CB p.20)
The handwritten response to that question is recorded as:
“We are Hindu by religion and belong to different ethnic communities and social groups.”

There is a reference to differences between their communities, followed by a reference to the husband meeting his wife at a marriage party. There is further description of the activities of the wife’s parents and the harm that was claimed to have been suffered at their hands. At Question 43 (CB p.21):
“Why do you think this will happen to you if you back?”
The handwritten response identifies the wife by name and states:
“[Applicant wife] (my wife) parents were deadly against our marriage and decided to execute me so they can punish their daughter for marrying with me against their will.
My in laws contacted mafia groups of ruling Telgu Desam party and given them money to execute me and if necessary to kill us both.”
Counsel for the respondents submitted that the nature of the claim made by the applicants was clarified by them in their evidence to the Tribunal. To the extent that something else might otherwise have been suggested by the opening paragraph in the answer to Question 41, the applicants made clear in unambiguous terms to the Tribunal what they feared on their return to India. Insofar as claims were made by the applicants, as they were ultimately pressed by the Tribunal, they were dealt with fully and adequately by the Tribunal. The respondents’ submission is simply that there was no claim in the terms now said to have been made, nor was such a claim sufficiently apparent from the material. In support of this submission, Mr Potts referred the Court to the Full Court decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) at [60] which summarised the position:
“In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):
‘But this does not mean the application is to be treated as an exercise in 19th Century pleading.’
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:
‘The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.’
His Honour, in our view, correctly stated the position when he said (at [18]):
‘The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.’
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.” (Emphasis added)
Counsel for the respondents submitted that neither of the particular social groups articulated by the applicants in Ground 1 Particulars (a) or (b) of their further amended application would comprise a particular social group within the meaning of the Convention. In Applicant S v Minister for Immigration & Multicultural Affairs per Gleeson CJ, Gummow and Kirby JJ at [36] laid down the following three requirements:
a)first, the group must be identifiable by a characteristic or attribute common to all members of the group;
b)second, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution; and
c)third, the possession of that characteristic or attribute must distinguish the group from society at large.
In the same case, McHugh J said:
[62]To qualify as “a particular social group”, the group must be a cognisable group within the relevant society, but it is not necessary that it be recognised as a group that is set apart from the rest of that society. In Applicant A, Dawson J said:
A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society. [Emphasis added, footnote omitted]
[63]This passage indicates that, for a group of persons to be “a particular social group”, it must be cognisable within the society in which the group exists. Nothing in the statement of Dawson J suggests, however, that the relevant society must itself recognise that the group is a group that is set apart from the rest of that society.
[64]A number of factors points to the necessity of the group being cognisable within the society. Given the context in which the term “a particular social group” appears in Art 1A(2) of the Convention, the members of the group, claimed to be a particular social group, must be recognised by some persons — at the very least by the persecutor or persecutors — as sharing some kind of connection or falling under some general classification. That follows from the fact that a refugee is a person who has a “well-founded fear of being persecuted for reasons of … membership of a particular social group”. A person cannot have a well-founded fear of persecution within the meaning of Art 1A(2) of the Convention unless a real chance exists that some person or persons will persecute the asylum-seeker for being a member of a particular class of persons that is cognisable — at least objectively — as a particular social group. The phrase “persecuted for reasons of … membership” implies, therefore, that the persecutor recognises certain individuals as having something in common that makes them different from other members of the society. It also necessarily implies that the persecutor selects the asylum-seeker for persecution because that person is one of those individuals. But it does not follow that the persecutor or anyone else in the society must perceive the group as “a particular social group”.
[65]The group must in fact be a social group, however, and it must be a particular social group. It is not enough that its members form a demographic division of the relevant society, such as people aged 33 or those earning above or below a certain amount per annum. As Gummow J pointed out in Applicant A, the words “particular” and “social” indicate that the term “a particular social group” “is not apt to encompass every broadly defined segment of those sharing a particular country of nationality.” A demographic division of persons may constitute a group because, for statistical or recording purposes, those persons may be properly classified or considered together. Nevertheless, such a group of persons is not necessarily “a particular social group” within the meaning of Art 1A(2) of the Convention. Many demographic groups may constitute “a particular social group” for the purposes of the Convention. Aged persons, for example, are a demographic division and in many — probably most — societies are also generally regarded as a particular social group. However, that is because aged persons are perceived both within those societies and by those living outside those societies as having a recognisable and independent social presence.
…
[69]… It is enough that the persecutor or persecutors single out the asylum-seeker for being a member of a class whose members possess a “uniting” feature or attribute, and the persons in that class are cognisable objectively as a particular social group.” (Emphasis added, footnotes omitted)
In a separate judgment, his Honour Callinan J, who dissented in the result, but not on this point, said at [96]:
[96]Because the article requires a form of singling out, the need to locate an applicant in a particular group, it imports the notion of difference, that is to say of the identification of a group that can be seen to be particular, and therefore separate from the rest of the population, and on that account the subject of differential and persecutory, and not merely discriminatory treatment, as unpleasant as the latter may be.”
Counsel for the respondents submitted, and I accept that submission, that neither of the groups postulated in the further amended application fits within what, in Australian law, is to be properly regarded as a particular social group within the meaning of the Convention.
In the Tribunal’s “Findings and Reasons”, the Tribunal ultimately concludes:
“The applicants did not claim and there is no evidence to suggest that their claims are Convention related – namely that they fear harm for reasons of their race, religion, nationality, membership of a particular social group or political opinion.” (CB p.83.1)
Counsel for the respondents submitted, and I accept that submission, that this paragraph is significant because it demonstrates the Tribunal’s understanding of the claim as advanced by the applicants and is clearly arising from the material before it. Quite reasonably the Tribunal did not regard any claim to have been advanced premised on a particular social group. The Tribunal made a further conclusion:
“The Tribunal cannot be satisfied that the applicants have a well founded fear for a Convention reason. In order to fall within the Convention, the persecution the applicants’ fear must be for one of the five Convention reasons. It is clear on the evidence provided by the applicants that they fear harm from particular persons – namely the applicant wife’s parents and the people they hired to harm them. The evidence supplied by the applicants at their hearings makes it clear that these persons (the parents-in-law and their hired thugs) are interested in the applicants because of attributes or characteristics which are peculiar to them, and not characteristic of any Convention grouping.” (CB p.83.2)
I accept that the claim as advanced has been dealt with fully and adequately by the Tribunal from the material it had before it. The first ground of the further amended application cannot be sustained.
Ground 2 of the further amended application claimed the Tribunal made jurisdictional error by not considering whether persecution based on caste is Convention related. Counsel for the respondents submitted that there was never any suggestion, either in the written material or at the hearing, that the applicants had been singled out because of caste and their caste was somehow a subset of a particular example of race. That claim simply did not arise and therefore the Tribunal did not refer to it expressly. Even though the people that the wife’s parents had invested to be the instruments of persecution were from a political party, there was nothing to suggest that it was politics rather than the wife’s parents hiring people for money that was the governing motivation of these people. In the Tribunal’s “Findings and Reasons” the Tribunal states:
“The evidence supplied by the applicants at their hearings makes it clear that these persons (the parents-in-law and their hired thugs) are interested in the applicants because of attributes or characteristics which are peculiar to them, and not characteristic of any Convention grouping.” (CB p.83.3)
The Tribunal is clearly of the view that despite the fact that these people were essentially political party members they were enlisted principally as hired thugs. The hired thugs had no political antipathy towards the applicants personally, they were hired for monetary gain. The second ground of the further amended application cannot be sustained.
Ground 3 of the further amended application claimed the Tribunal made jurisdictional error by not considering whether persecution based on political opinion is Convention related. As with Ground 2, there was never any suggestion, either in the written material or at the hearing, that the applicants had been singled out because of their political opinion. That claim simply did not arise and therefore the Tribunal did not refer to it expressly. It is not disputed that the wife’s parents had hired members of a particular political party to persecute their daughter and son-in-law for reasons personal to them. There was nothing to suggest that it was politics rather than the wife’s parents’ personal vendetta that led to the hiring of the people for monetary reward that was the governing motivation to pursue the persecution. The Tribunal quite clearly states in its “Findings and Reasons” under the subheading of “Are the applicants being targeted for a Convention Reason?”, the following conclusion:
“The Tribunal is satisfied that the applicants are being targeted by the applicant wife’s parents out of unreasoned antipathy. The Tribunal therefore cannot be satisfied that the applicants have a well founded fear of being persecuted for any of the Convention reasons.” (CB p.83.5)
As with Ground 2, Ground 3 cannot be sustained.
Ground 4 of the further amended application claimed the Tribunal based a key finding on no evidence, as there was no evidence that the applicant wife was not harmed in Chennai. The Tribunal finding on this issue was:
“The applicants themselves gave evidence at hearing that during the time they spent in Chennai (Madras) in 2003, neither the applicant nor the applicant wife came to any harm whatsoever.” (CB p.85.2)
The basis of the applicants’ complaint seems to be that there were threats made against friends or associates of, at least, the wife and probably both applicants. The asserted error is that there is no evidence for the above statement in the Tribunal’s “Findings and Reasons”. Counsel for the respondents submitted that the finding of the Tribunal was a perfectly understandable statement as the applicants personally had not been subjected to any harm and there was evidence to that effect which came from the applicants at the hearing.
The Tribunal recorded the wife gave the following evidence during the Tribunal hearing in respect of what happened to her when she was living in Chennai in 2003 for approximately seven months:
“The applicant wife stated that the hit-men came to her house and threatened her and she was scared and called her husband in Australia, and came to Australia. The Tribunal asked the applicant wife if they came to her house why didn’t they just kill her since they were contracted to do. The applicant wife stated that they actually came to the home of other friends and made the threats. The Tribunal noted that she had mentioned the hit-men coming to her house and could she explain this inconsistency. The applicant wife stated that the hit men actually went to the home of friends in Praddatur and threatened them there. The applicant wife stated that she never had any direct threats but she was afraid because she (sic) was threatening her friends.” (CB pp.79.10-80.1)
The finding made by the Tribunal was open to it given that that was the state of the evidence. There was no transcript or hearing tapes filed in these proceedings, nor have the applicants made any submissions that the material recorded in the Tribunal’s decision which challenges or suggests that the evidence recorded in the Tribunal’s decision is in any way inaccurate or different from the evidence given by the applicants during the Tribunal hearing.
The other issue arising under this ground was the applicants’ cavil with the fact finding of the Tribunal. This is a province of the Tribunal and is not the subject of judicial review of the Tribunal’s decision making process. The fourth ground in the further amended application cannot be sustained.
The fifth ground of review in the further amended application asserted that the Tribunal’s finding in respect of relocation was unreasonable in a Wednesbury sense: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation. In the Tribunal’s decision, under the heading “Relocation”, the Tribunal set out in some detail the relevant legal principles. This was followed by references to meaningful protection against the risk of persecution that can be provided inside India, followed by country information from India. The Tribunal then noted the circumstances of the applicants. There was some limited acceptance by the Tribunal of the applicants’ claims, however it also accepted the Telugu Desam Party is a state based organisation that does not operate outside Andhra Pradesh and that the interest in the applicants would be of a very local nature.
The applicants gave evidence that during the time they spent in Chennai in 2003, neither the husband nor the wife came to any harm whatsoever. This was recorded in the following statement:
“The Tribunal is satisfied on the evidence before it, that the applicants do not have any profile that would place them at risk outside Andhra Pradesh. The Tribunal is satisfied on the applicants’ claims and the independent evidence, that the applicants can live in other parts of India other than Andhra Pradesh, where they claim to fear harm, and that they will obtain a meaningful remedy against risk of any persecution they may face in Andhra Pradesh. The Tribunal is satisfied on the applicants’ own evidence and that of the independent evidence that the applicants would be out of the reach of their problems in other parts of India outside their home in Andhra Pradesh.” (CB p.85.3)
The Tribunal then quite properly considered reasonableness and referred to the decision of Randhawa v Minister for Local Government & Ethnic Affairs (“Randhawa”) regarding the necessity for relocation to be reasonable in all the circumstances. The Tribunal referred at length to what is stated in Randhawa and then makes the following statement:
“If it is not reasonable for a person who has a well founded fear in part of a country to relocate to another part, then the person’s fear of persecution in relation to the country as a whole is well founded. Alternatively, if it is reasonable for the applicant to relocate to another part of the country then that applicant’s fear is not well-founded.” (CB p.85.10)4
After that unobjectionable statement of principle from Randhawa the Tribunal made detailed consideration of the individual circumstances of the applicants. There is a reference to both of them being young, having employment qualifications and financial and personal ability to arrange a visa to travel to Australia and their ability to speak or write English and Telugu. The husband also speaks, reads and writes Tamil. In light of all these factors, the Tribunal was satisfied that relocation was a reasonable and feasible option for the applicants and made the following finding:
“The Tribunal does not accept that the applicants are at risk in every part of India, nor does it accept … that the applicants will face persecution for a Convention reason should they relocate.” (CB p.86.3)
Counsel for the respondents submitted, and I accept that submission, that the Tribunal’s finding on relocation was unobjectionable.
There is a third basis upon which the Tribunal rejected the applicants’ claims. This issue was not pleaded in the further amended application however I believe it should be considered and dealt with as the applicants are self represented litigants and the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. The Tribunal considered the circumstances in which the protection visa application was originally made. The applicants first arrived in Australia on 9 February 2003 and then returned to India on 12 March 2003. The husband returned to Australia on 4 May 2003 and stayed until 1 August 2003. The husband and wife returned to Australia again on 4 August 2003 and it was not until this second occasion of both applicants returning to Australia that the application for a protection visa was made, being lodged on 19 September 2003. This circumstance led the Tribunal to comment:
“In the present case the fact that the applicants did not make an application for protection in February-March 2003, and the applicant [husband] resided in Australia for four months without making an application for protection suggests to the Tribunal that neither applicant genuinely fear the applicant wife’s parents (and their thugs).” (CB p.86.5)

A genuine subjective fear is a necessary element in an applicant’s claim of fear of persecution. The Tribunal found that a subjective fear was not present in this case.

Conclusion

As none of the grounds pleaded in the further amended application can be sustained, the applicants’ claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 25 January 2006