SZEPQ v Minister for Immigration
[2008] FMCA 1231
•18 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEPQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1231 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of bias not proved – Court cannot review the Tribunal’s findings of fact – no breach of s.424A proved – no breach of s.430 proved – Tribunal did not need to have found a negative case against the applicant before it could affirm the delegate’s decision. |
| Migration Act 1958, ss.65, 424A, 424B, 430 |
| Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 |
| Applicant: | SZEPQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 249 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 22 August 2008 |
| Date of Last Submission: | 22 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr P. Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 249 of 2008
| SZEPQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. He alleges that while in India he, like his father, was actively involved in the Khalistan independence movement. The applicant alleges that he was a high profile member of the Khalistan Liberation Army (“KLA”) and was subsequently placed on a government blacklist. He alleges that he was often detained, interrogated and tortured by the Indian police as a result. The applicant arrived in Australia on 30 November 2003.
The applicant claims to fear persecution in India because of his Sikh religion and his imputed political opinion arising out of his role in the KLA and the Akali Dal Mann political party. The applicant also claims to fear persecution on the basis that his father was heavily involved in the Khalistan independence movement.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 27 February 2004. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the third such decision relating to the applicant. There was a previous Tribunal decision signed on 31 August 2004 which was quashed by order of the Federal Court on 10 February 2006 (Court Book (“CB”) pages 59, 73) and a second Tribunal decision signed on 14 November 2006 which was quashed by order of this Court on 29 May 2007 (CB 175, 195).
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 13 of the Tribunal’s decision (CB 248 – 257). Relevantly, they are in summary:
Protection visa application
In a statement lodged with his protection visa application, the applicant claimed that:
a)he fears persecution by the Indian government, police and political authorities;
b)while the applicant was in high school his father became the president of the district branch of the Khalistan independence movement. Due to his extensive involvement in the movement, his father’s name was put in the police records and the applicant’s family started to be harassed;
c)in 1987 his father was arrested and tortured by the CIA staff of the Jalandhar Unit Police and detained for fourteen days;
d)after his father’s death in 1989, the applicant joined and became an active member of the KLA. He participated in meetings at the state level and became president of the organisation. His name was put on a “hit list” as a result;
e)meanwhile, the Akali Dal party came to power. While the party believes in the Sikh religion it acts in collaboration with the BJP and the applicant was never safe in India;
f)one day, while working on his farm, ten to fifteen policemen took the applicant to the police station where they interrogated and tortured him for information on the whereabouts of Sikh terrorists. His brothers and uncle bribed the police to get him out; and
g)he got married and lived with his in-laws but the police came to know his whereabouts and again persecuted him. He fears that he will be killed by the police, like his father, or put behind bars.
Review applications
After lodging the review application, the applicant submitted a number of documents to the Tribunal as constituted on the second occasion, including:
a)a photograph of him with a number of other people, the caption stating “Panchayat [local government] member are honouring Mr [applicant] for holding the post of district president”;
b)a number of articles regarding the general situation in the Punjab, the particular situation of Sikh activists and the KLA;
c)a letter from Simranjit Singh Mann, president of the Shiromani Akali Dal (Amritsar) party, dated 1 July 2006 stating that the applicant was a permanent member of the party and would be persecuted if he returns to India;
d)documents which the applicant claimed were a copy of his Khalistan Liberation Army Identity Card issued in 1995 and a receipt for his membership fee, dated 1 February 1990; and
e)a letter to the applicant from a Mr Mittal, lawyer, dated 16 March 2004 stating that he had met with the applicant’s wife and mother. They allegedly told him that the police had come to the applicant’s village in search of him.
On 18 August 2006 the Tribunal as constituted on the second occasion wrote to the applicant inviting him to comment on potentially adverse information. In response, the applicant, amongst other things, submitted copy of an affidavit from a Jaswant Singh, which stated that the applicant was elected as Jilla President by residents of Vill Medda.
Tribunal as constituted on the third occasion
The applicant submitted a statutory declaration signed on 25 September 2007, with the following additional claims:
a)prior to “operation Bluestar” in 1984, his father joined the KLA and was elected district president in his local area. His duties were to encourage others to join the KLA and to spread party propaganda. As a result of these activities, the applicant’s family members were also know to the authorities;
b)he joined the KLA after his father’s death. He was a regular member and distributed propaganda and attended party meetings. After 1990 he started delivering speeches at party meetings;
c)from 1995-98 he was the president of the Jalandhar district of the KLA. His role of president was to co-ordinate the propaganda activities of the party, speak at meetings and incite people to put pressure on the government to establish an independent Khalistan state;
d)during the period that he was a KLA member, he was often detained, interrogated and tortured by the police;
e)he quit the party in 1998 due to extreme pressure;
f)in 1998 he joined the Shiromani Akali Dal (Mann) Party, which is committed to the establishment of an independent Khalistan state, but was not an office holder. He remains a member;
g)between 1998-2002 he was not harmed by the authorities. He believes this was due to the Shiromani Akali Dal (Badal) Party being in power;
h)in 2002 the Congress Party came to power and he again started to suffer persecution because of his previous high profile within the KLA and his membership of the Akali Dal (Mann) Party;
i)in the summer of 2002 he was approached by ten to fifteen police officers who questioned him about the location of Sikh terrorists. They interrogated and beat him;
j)he decided to leave his family and go underground. During this period the police harassed his family and detained and interrogated his wife. He continued to be the subject of ongoing police harassment. He approached a travel agent to help him obtain a visa to travel Australia; and
k)since his departure the authorities, who are interested in his whereabouts, have continued to harass his family.
The applicant also provided the following documents to the Tribunal:
a)general articles regarding the Sikh independence movement;
b)a death certificate for his father;
c)the photograph which had been submitted to the Tribunal as constituted on the second occasion;
d)an undated letter on Shiromani Akali Dal letterhead repeating the contents of the letter submitted to the second Tribunal from Simranjit Singh Mann;
e)an affidavit from a Jaswant Singh, a former “sarpanch” of the applicant’s village, stating that the applicant had been arrested many times by the police and was released with his assistance; and
f)a statutory declaration from the applicant’s wife declared on 10 October 2007.
The applicant appeared before the Tribunal on 27 September 2007 and made the following additional claims:
a)the KLA was not a political organisation nor did it use violence or terrorist acts to achieve its goals. The Indian government falsely labelled the KLA as a terrorist group;
b)KLA members were not given membership cards; they simply filled out a form. However, as the president, the applicant received a special card;
c)he gave speeches about the creation of Khalistan and the atrocities committed by the police against Sikhs. He also asked people to join the movement;
d)he was arrested for promoting the Khalistan movement but could not remember when;
e)he was the president in his village area;
f)his father spoke at meetings and rallies but as the applicant was young at the time, did not attend and did not pay much attention, he was not sure what those meetings and rallies were about other than the creation of Khalistan;
g)between 1984-87 his father was detained “countless times” as a result of being on a police blacklist;
h)his role in the Akali Dal (Mann) party was to attend meetings at the sub-district and district level. He was an ordinary member and did not hold office or give speeches for the party;
i)he was targeted when the Congress Party came to power in 2002 because of his previous membership of the KLA combined with his then current membership of the Akali Dal (Mann) party. The Congress Party reopened the files from 1995, when he was president of the KLA, and police came to his village quite often and interrogated him about his involvement in the KLA and membership of the Akali Dal (Mann) party; and
j)he was still a member of the Akali Dal (Mann) party and he would continue to support this party and the Khalistan movement if he returned to India.
The applicant’s wife gave evidence by telephone and claimed that she had been arrested many times because of the applicant’s pro-Khalistan involvement, however, as a poorly educated housewife, she could not remember when this occurred.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
Claimed membership of the KLA
a)the Tribunal did not accept the applicant’s claims regarding his membership of and involvement with the KLA, noting that:
i)his evidence on the KLA’s objectives, how it achieved its aims and its organisational structure was vague and lacking in detail. The Tribunal accepted that the applicant had in fact presented some information about the KLA to the Tribunal and that a number of years had passed since his last claimed involvement in 1998, however, given his claim that both he and his father were heavily involved with the KLA as district presidents over many years, the Tribunal expected the applicant to provide more detail than he did;
ii)his evidence on how the KLA achieved its goals of achieving an independent state of Khalistan and how he personally assisted in this cause was also vague and lacking in detail. The Tribunal considered that if the applicant had been district president from 1995-98 and he and his father had been heavily involved with the KLA as he claimed, he would have been able to describe in more detail the strategies he and the KLA used to achieve their goals;
iii)his evidence about the content of his speeches while he was district president was unconvincing and lacking in detail. The Tribunal had regard to the submission of the applicant’s representative that the applicant had volunteered to stand at the hearing while he explained the content of his speeches, but was not convinced that he actually gave those speeches as claimed. The Tribunal also had regard to the submission that the applicant found it difficult to represent his case years after the event and that he spoke to uneducated farmers who were not used to thinking in sophisticated ways, however, these submissions did not address the Tribunal’s concerns about the applicant’s inability to explain the content of his speeches;
iv)his evidence about the nature of the KLA contradicted country information referred to by the Tribunal and country information which was provided by the applicant himself. The fact that the applicant was unaware of the KLA’s methods of operation demonstrated to the Tribunal his limited knowledge of the KLA and this cast doubts on his claim that he or his father were involved with the KLA at all;
v)the Tribunal considered it reasonable that the applicant should be able to remember when he was arrested given that this formed a key part of his claims. That he was unable to do so cast doubt on his evidence that he was arrested at all;
vi)the applicant stated that he was issued with an identity card because he was the district president, however, information from the Department of Foreign Affairs & Trade (“DFAT”), which the Tribunal preferred, indicated that the KLA did not issue documents relating to identity or membership and did not retain any records. The Tribunal therefore gave the identity card and the membership fee receipt little weight;
vii)with respect to the photograph of Panchayat members, the Tribunal preferred the information provided by DFAT which indicated that the KLA was an illegal militant organisation and was not recognised by any local administration (Panchayat) or government. The Tribunal therefore gave this evidence little weight;
viii)given its concerns about other aspects of the applicant’s evidence, the Tribunal was not satisfied that the affidavits of Jaswant Singh and Mr Mittal supported the applicant’s claim to be an active member of the KLA; and
ix)the oral and written evidence provided by the applicant’s wife was vague and lacking in detail. The Tribunal noted that her statutory declaration simply adopted the applicant’s claims and there was limited evidence that she was speaking from personal experience. The Tribunal found her response, being that she was an uneducated housewife, did not satisfactorily explain why she could not remember significant events. Further, her evidence did not outweigh the other concerns the Tribunal had with the applicant’s evidence;
b)for these reasons, the Tribunal did not accept that the applicant was a credible witness, that he told the truth about his involvement with the KLA or that he had been a KLA member from 1990;
Claims regarding applicant’s father’s involvement with the KLA
c)the Tribunal did not accept that the applicant’s father had a prominent role in the KLA or the Khalistan independence movement, noting that the applicant’s claims in this respect too were vague and lacking in detail. For example, he claimed that his father spoke at meetings and rallies but was unable to describe what those meetings and rallies were about or how his father went about winning support for the cause. Further, he could not remember, even approximately, how many times his father was arrested. The Tribunal rejected the applicant’s explanation that he was only young when his father was involved in the KLA and did not pay much attention to what his father was doing and that he only became politically active after 1984, noting that:
i)the applicant was 23 years old when his father died;
ii)despite his claim that he was politically active, he did not attend any meetings with his father and was unable to explain his father’s activities in the KLA; and
iii)according to his own evidence he would have been politically active for at least 5 years before his father’s death in 1989;
d)the Tribunal was not satisfied that the affidavits from Jaswant Singh and Mr Mittal or the evidence of the applicant’s wife supported the claim that the applicant’s family was actively involved in the KLA, given that it had concerns about other aspects of his evidence as well as the evidence of his wife;
e)for these reasons, the Tribunal did not accept that the applicant had told the truth about his father’s involvement with the KLA and his family’s involvement with the Khalistan independence movement. Accordingly, the Tribunal did not accept that:
i)his family (especially his father) were heavily involved in the Khalistan independence movement for many years;
ii)his family was known to the Indian authorities because of his father’s political activities;
iii)his family were on a blacklist of the Indian authorities; and
iv)the applicant faced persecution in India because of his father’s involvement with the KLA or the Khalistan independence movement;
Claimed harm arising out of applicant’s Sikh religion
f)the Tribunal did not accept that the applicant had a well-founded fear of persecution for reasons of his Sikh religion, noting that:
i)he was unable to name any specific instances of persecution for this reason and only referred back to his KLA involvement which claims the Tribunal had already rejected; and
ii)his claims were not supported by the independent country information which indicated that Sikhs are able to practise their religion without restriction in every state of India;
Claimed harm arising out of the applicant’s membership of Akali Dal (Mann) party
g)the Tribunal did not accept that the applicant had a well-founded fear of persecution arising from his membership of the Akali Dal (Mann) party for the following reasons:
i)the applicant’s claim in this respect relied on his history as a high profile member of the KLA and his father’s involvement with the Khalistan independence movement combined with his own membership of the Akali Dal (Mann) party. As the Tribunal rejected the claim that the applicant had been a high profile member of the KLA, his residual claim was that he was an ordinary member of the Akali Dal (Mann) party;
ii)the Tribunal did not accept that the applicant was involved in high profile activities for that party, noting that, on his own evidence, he simply attended meetings;
iii)the Tribunal accepted that the applicant was an ordinary member of the party but found that ordinary membership in itself was not sufficient to bring him to the attention of the Indian authorities. The applicant’s claim that ordinary members of the party suffer persecution was not supported by the country information and his own evidence was that he did not experience any problems as an ordinary member between 1998-2002;
iv)the Tribunal did not accept that he was again targeted in 2002 simply because the Congress Party came to power. The Tribunal referred to the country information which indicated that relations between the Congress Party and Sikhs had improved. Further, the Tribunal did not accept that the applicant previously had a profile that would cause the Congress Party or the Indian authorities to target him specifically;
v)given its other concerns regarding the applicant’s evidence the Tribunal did not accept that the letters from Simranjit Singh Mann and the Shiromani Akali Dal party supported his claims. The Tribunal noted that the letters were general in nature and did not refer in detail to the applicant’s specific circumstances;
vi)for the above reasons and in light of the country information regarding ordinary Akali Dal (Mann) members, the Tribunal did not accept that the evidence of the applicant’s wife or the affidavits from Jaswant Singh and Mr Mittal supported the applicant’s claim that he was a high profile member of the party and was arrested and wanted by the police because of this involvement; and
h)the Tribunal accepted that the applicant continued to be an ordinary member of the party and might continue to be so upon his return to India, however, it did not accept that he would become a high profile party member or would engage in high profile support for the Khalistan independence movement if he returned. Accordingly, the Tribunal did not accept that he would come to the attention of the authorities if he returned to India.
Proceedings in this Court
The amended application pleaded the following grounds:
a)the Tribunal reached conclusions “contrary to the facts and all the information constructively available on file thus refuting the credibility and honesty of the applicant openly and acting biasly [sic]”;
b)“the Tribunal was unreasonable in holding that the Applicant was not able to provide certain information”;
c)the Tribunal failed to comply with s.424A of the Migration Act 1958 (“Act”);
d)the Tribunal breached s.430(1)(c) and (d); and
e)the Tribunal was manifestly unreasonable.
Dealing with each of these grounds in turn:
Findings were made contrary to the facts and demonstrated bias
The applicant particularised this allegation by reference to the following passage in the Tribunal’s decision record:
The Tribunal finds that the applicant has not given a credible account of key aspects of his claims. The Tribunal finds that the Applicant’s evidence about important aspects of his claims are vague and lacking in detail. For these reasons, the Tribunal does not accept that the Applicant is a credible witness and does not accept that the applicant is telling the truth about his involvement with the KLA.
The considerations which led to the quoted conclusion have been summarised above in [14(a)]. That evidence disclosed that the applicant was comparatively ignorant of the KLA, membership of which was essential to his claim to fear persecution; some evidence which he did give concerning the KLA was contradicted by independent country information; he was unable to recall when he had been arrested; the authenticity of the documents he submitted was thrown into doubt by independent information obtained by the Tribunal; and the photograph he submitted was given little weight as it purported to show the applicant receiving some form of official recognition in his KLA role which was unlikely to have happened given the independent information obtained by the Tribunal. In light of these matters the conclusion reached by the Tribunal was one which was logically open to it.
The applicant submits that the oral evidence he provided to the Tribunal was true but, absent a positive finding on the applicant’s allegation of bias, the Court cannot review the Tribunal’s finding of fact on the matters in question.
As to that allegation of bias, it is a serious matter which must be proved by cogent evidence. The applicant has adduced no evidence on the point and the only material before the Court touching on this issue is the Tribunal’s decision record. As there is no transcript of the Tribunal hearing for the Court to consider, nor any other evidence relating to the conduct of the Tribunal’s hearing, there is no basis to conclude that a fair-minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the Tribunal did not bring an impartial and unprejudiced mind to the resolution of the question it was required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
Similarly, there is no evidence on which the Court can conclude that the Tribunal approached the review with a mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might have been presented: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507.
Consequently, the first ground pleaded in the amended application is not made out.
Tribunal reached a conclusion that was unreasonable
The applicant particularised the second allegation made in the amended application by reference to the following passage in the Tribunal’s decision:
The Tribunal finds that the applicant’s claims about his father’s involvement with the KLA were vague and lacking in detail. He claims that his father spoke at meetings and rallies, but he was unable to describe what those meetings and rallies were about or how his father went about winning the support for the creation of Khalistan.
Rather than identifying jurisdictional error, this allegation seeks review of a fact found by the Tribunal. In this connection the Tribunal recounted the evidence given by the applicant concerning his father speaking at rallies, noted that the applicant was unable to provide convincing detail concerning those events and made the observation that the applicant’s evidence was vague and lacking in detail. A factual conclusion of this sort cannot be reviewed by the Court.
In his written submissions (contained in the amended application) the applicant implies that he gave evidence to the Tribunal which was sufficient to deal with its concerns on this point. He has not identified what that evidence was. Having reviewed the Tribunal’s decision record, I cannot identify what such evidence might be. The applicant has not suggested that he provided evidence to the Tribunal which was omitted from the summary of evidence set out in the decision record.
In all these circumstances, it cannot be concluded that the Tribunal failed to have regard to relevant material or reached a conclusion which was not open to it or that the second ground pleaded in the amended application demonstrates a basis upon which the Tribunal’s decision might be set aside.
Breach of s.424A
The applicant particularises the allegation that the Tribunal breached s.424A by reference to the following passage from the Tribunal’s decision record:
Secondly, the applicant’s own evidence was that he did not experience any problems as an ordinary member of the Akali Dal (Mann) party between 1998 and 2002. The Tribunal does not accept the applicant’s claims that he was again targeted in 2002, simply because the Congress Party came to power. As indicated by the country information quoted above, relations between the Congress Party and Sikhs have now improved (see BBC report, 16 March 2005). In addition, the Tribunal has not accepted that the applicant had a previous profile that would cause the Congress Party or the Indian authorities to specifically target him after the Congress Party came to power.
Thirdly, the applicant’s claims that ordinary members of the Akali Dal (Mann) Party would suffer persecution is not supported by the country information. The country information referred to above indicates that there is little evidence that members or supporters of the Akali Dal (Mann) Party in Punjab are being systematically targeted for arrest or other forms of mistreatment.
The applicant submits that the Tribunal should have given him a s.424A(1) notice which included in it the independent country information referred to above. However, s.424A(3)(a) provides an exception to the requirement to give an applicant particulars of information upon which the Tribunal might rely in affirming the delegate’s decision when that information is not specifically about the applicant and is just about a class of persons of which the applicant is a member. As a result, no jurisdictional error is demonstrated because the Tribunal did not give a s.424A(1) notice to the applicant particularising independent country information.
The applicant also submits in relation to the third ground pleaded that:
the Tribunal was supposed to provide the applicant more time to forward … fresh evidence in support of his case.
This may be a reference to the Tribunal’s obligation under s.424B(2) to provide an applicant a particular period within which to respond to a s.424A(1) notice. However, as the Tribunal as constituted on the third occasion did not give the applicant a s.424A(1) notice there is no substance in such an allegation.
Should it be that the applicant is alleging that he should have been permitted further time within which to supply information to the Tribunal following the hearing, it is to be noted that the applicant’s representative did provide a written submission following the hearing, as referred to at pages 12-13 of the Tribunal’s decision record. This submission is reproduced at CB 223-227. Neither that submission, nor the Tribunal’s summary of the hearing, suggests that the applicant sought additional time within which to provide further material.
For these reasons, the third ground pleaded in the amended application is not made out.
Breach of s.430
The applicant’s allegation that the Tribunal breached s.430 is particularised by reference to two paragraphs of the Tribunal’s decision, namely:
For the above reasons, the Tribunal does not accept that the applicant was a high profile member of the Akali Dal Party. The Tribunal has already rejected his claims that he was on a “blacklist” of the Indian authorities due to his earlier activities with the KLA. Therefore, the Tribunal does not accept that the applicant was on the Congress Party’s blacklist after it came to power in 2002. The Tribunal does not accept the applicant’s claims that the police came to his village after 2002 and interrogated him. The Tribunal does not accept that he was beaten and interrogated by police in the summer of 2002 or that the police detained and interrogated his wife after he left his home.
The Tribunal accepts that the applicant continues to be an ordinary member of the Akali Dal (Mann) Party and may continue to be a member on his return to India. However the Tribunal does not accept that he would become a high profile member of the Akali Dal (Mann) Party if he returned to India or engage in high profile support for the Khalistan independence movement. Therefore the Tribunal does not accept that he would come to the attention of the authorities if he returned to India, as the country information indicates that ordinary members are not targeted by the authorities.
In the amended application the applicant submitted that the Tribunal’s findings were “not based on any of the main questions of fact or any other facts or materials on which the Tribunal members decided”. He further submitted that the findings in question were made in the absence of evidence.
As to the first quoted passage, the Tribunal’s conclusion is based on the matters set out above at paragraph [14(g)]. The Tribunal concluded from, amongst other things, the applicant’s evidence that he was only an ordinary member of the Akali Dal (Mann) party and its rejection of the applicant’s claimed role in the KLA, that he was not on the Congress Party’s blacklist, that he would therefore not have been on any file from 1995 reopened by the Congress Party, and thus that he would not have been interrogated as alleged. The evidence on which this conclusion was based was set out in the Tribunal’s decision record, as were the relevant intermediate findings of fact. The Tribunal’s conclusion regarding the applicant’s alleged mistreatment by reason of his membership of the Akali Dal (Mann) party was clearly founded on that evidence and on those intermediate findings.
As for the second quoted passage, given that the Tribunal had rejected the applicant’s claims of being an important member of the KLA and given his evidence that he was only an ordinary member of the Akali Dal (Mann) party, it was open to the Tribunal to conclude that he would not become a high profile member of that party upon any return to India. That is to say, it was open to the Tribunal to conclude that the applicant’s behaviour in the future would be similar to his behaviour in the past as found by the Tribunal. The Tribunal referred to the relevant evidence and intermediate findings of fact on which it relied in reaching this conclusion.
For these reasons, the Tribunal did not breach s.430 of the Act.
A supplementary point raised by the applicant in this ground was that the Tribunal had taken into account irrelevant matters and information when dismissing his application. He does not identify what those matters and what that information might be. As this submission is unsupported by particularised examples of the irrelevancies the Tribunal is said to have taken into account, it does not disclose jurisdictional error on the Tribunal’s part.
Tribunal’s conclusion unreasonable
The allegation that the Tribunal’s ultimate conclusion was manifestly unreasonable was particularised by reference to the following two passages from its decision:
The Tribunal is not satisfied that the applicant has a well founded fear of persecution for reasons of his membership of the Akali-Dal (Mann) Party and his political opinion.
The Tribunal has considered each of the applicant’s claims individually and cumulatively. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for a Convention reason if he returns to India. The Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason.
The applicant’s submission in support of this final allegation in his amended application was expressed in the following terms:
The applicant is of the view that the Tribunal had gone to an extent to eliminate the applicant’s claims outright by taking a firm view that the applicant had manipulated and bring forth the false and misleading evidence and false claims. The Tribunal assessed the applicant as not having any risk without having had any cogent evidence to justify that the Tribunal’s conclusion is a serious lapse as the Tribunal has failed to make an assessment of the Applicant’s claims as against the Criteria set out Article 1(A)(2) of the 1951 UN Convention on Refugees. Therefore this may be considered as a serious jurisdictional error committed by the Tribunal.
These submissions appear to allege that the Tribunal:
a)approached the review having already pre-judged the issue;
b)did not have cogent evidence to justify its ultimate conclusion; and
c)failed to apply the correct test.
The first of these, the issue of bias on the part the Tribunal, has already been considered above at [20] and [21] and dismissed.
As to the second, the Tribunal’s ultimate conclusion was that it was not satisfied that the applicant had a well founded fear of persecution for a Convention reason. Contrary to the applicant’s submission that the “Tribunal assessed the applicant as not having any risk”, its finding was that it was not satisfied that he had the relevant fear. The matters which the Tribunal referred to in its decision record show that the factual findings the Tribunal made were open to it and its ultimate conclusion was logical and reasonable.
The applicant also appears to suggest that the Tribunal should have had evidence disproving his claims before it affirmed the delegate’s decision. Section 65 of the Act makes it clear that, unless the Tribunal is satisfied that an applicant meets the criteria for a protection visa, it has no alternative but to affirm the delegate’s decision. That being so, it is not necessary for the Tribunal to have identified a case contradicting the applicant’s claim or to have articulated a negative case against an applicant. All that is necessary is that the Tribunal not be satisfied that an applicant meets the protection visa criteria.
As to the third point, pages 2, 3 and 4 of the Tribunal’s decision record demonstrate a correct understanding of the provisions of the Convention and its application in the Australian context. Consideration of the Tribunal’s decision record discloses that not only did the Tribunal understand the relevant tests but that it applied them correctly. The fact that the applicant might disagree with the Tribunal’s factual conclusion does not demonstrate that the Tribunal misapplied or misunderstood the relevant tests.
Conclusion
For the above reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 18 September 2008
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