SZEWS v Minister for Immigration - [2005] FMCA 795

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEWS v MINISTER FOR IMMIGRATION

[2005] FMCA 795

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958, s.424A(3)

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 188
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437

Applicant:

SZEWS

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2129 of 2004

Judgment of:

Barnes FM

Hearing date:

17 May 2005

Delivered at:

Sydney

Delivered on:

17 May 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Jack Singh Solicitor & Associates

Counsel for the Respondent:

Mr A. McInerney

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.
That the applicant pay the respondent's costs fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2129 of 2004

SZEWS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 13 February 1997 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant is a citizen of India who arrived in Australia in April 1993 and applied for a protection visa. There were in fact two applications for refugee status. The first of these need not concern us as it is not in issue that the second application was valid. The application was refused. The applicant sought review by the Tribunal.
In essence the applicant claimed to be a Sikh from the Punjab and to fear persecution for reasons of his religion and political opinion. He claimed that he and his family had experienced past harassment at the hands of the police and security forces due to his perceived association with a pro-Khalistan group. The Tribunal summarised the claims made by the applicant both before the Department and at review. It noted that he attended a hearing and had the assistance of an interpreter. It referred to country information, particularly in relation to the situation of Sikhs in the Punjab and elsewhere in India. It found that the applicant had a subjective fear of persecution which related “in large part to the uncertainty of the security climate which characterised the Punjab region at the time of his departure and, in particular, to the incidents of harm which he and his family members experienced at the hands of the Punjabi security forces”. However it was not satisfied that such fear of persecution was well founded.
Despite accepting the genuineness of the applicant's fear, the Tribunal went on to find that country information from a variety of sources indicated that there had been ‘a dramatic and sustained improvement in the situation in the Punjab’ since the applicant left and that there seemed to be ‘consensus in the sources that the Indian authorities in the Punjab were now targeting, in the main, top Sikh militants and those with a degree of prominence in human rights reporting’. It found that the situation in the Punjab had become ‘much quieter’ despite some issues in relation to continuing police abuses. It accepted that a person who remained ‘on the records’ for Sikh extremist activity might still be of interest to the authorities.
In light of that background the Tribunal addressed the particular characteristics and claims of the applicant. The applicant had claimed to be a Sikh male from the Punjab region, in particular from a village which was perceived to be at the centre of an area of a perceived terrorist group, the Khalistan Commando Force (the KCF). The applicant initially claimed that he had joined the All-India Sikh Students Federation (AISSF) in 1985. He provided supporting documentary evidence from that organization, but claimed that he was perceived or imputed to have a political opinion of being a member of or in association with other bodies, in particular the KCF and/or Babar Khalsa. He claimed that he had been arrested and detained on many occasions. He provided arrest warrants in relation to a period in 1993 and also (in the course of the review process) an arrest warrant dated 1996. He claimed that during detention he was closely questioned about his alleged membership of these organisations; that his uncle and other relatives were members of the KCF and that he feared persecution should he return to India.
The Tribunal found that the difficulties he claimed to have experienced with the Indian security forces related “primarily to his detention and maltreatment by the police in connection with a crackdown on young Sikh males who may have been involved with the pro-Khalistan movement at a time of considerable tension between Sikhs and Hindus.” It accepted, subject to some specific concerns to which I will return, that the applicant's account of past detention and maltreatment by the security forces was credible ‘in broader terms’, being consistent with contemporary independent information about the conduct of the Punjab police. While noting that such conduct violated the applicant's human rights and must be condemned, it found it significant that he was released without charges being laid on numerous occasions of detention. This finding was made in the context of the Tribunal not accepting that warrants had in fact issued for the applicant's arrest either before or after his departure from India as discussed below.
However while the Tribunal accepted as credible in broad terms the applicant's account of detention and maltreatment and that it was plausible that as a young Sikh male he would have suffered harassment and mistreatment by the Punjabi security forces at the height of tension arising out of Sikh militancy in the 1980’s and early 1990’s. It was unable to accept that the applicant “suffered differential harm due to his imputed political profile”. It gave reasons for these findings noting that his testimony concerning instances of detention and harassment and the reasons for the interest of the security forces in him had been vague and inconsistent particularly in relation to what organisation he had belonged to and his association with other organisations. It had regard to the fact that all that he said could not be true as it was internally inconsistent. The Tribunal also found that the applicant’s oral evidence at the hearing about instances of detention and maltreatment was ‘hesitant and inconsistent’ in specified respects. These factors led it to the view that it seemed that the applicant had exaggerated and even altered his evidence over time in an attempt to enhance his claims. It therefore doubted that the applicant had suffered mistreatment at the hands of the security forces to the severity or with the regularity he had claimed. It also questioned whether he had the imputed profile of militant association which he had claimed. Its conclusions were strengthened by the fact that (as the Tribunal stated it had indicated to the applicant) it appeared implausible that he would have been in a position to marry in 1985 and father children in 1986 and 1988 if he had been leading a life on the run since 1981 as suggested and also that he had claimed to have been self-employed as a farmer in his village from 1975 until his departure in 1993. It also had regard to the fact that while the applicant’s father had left the Punjab because of police harassment he had returned to his village and apparently remained there for several months with no particular difficulties.
The Tribunal went on to consider the applicant’s claim that warrants had been issued for his arrest. Photocopies of two arrest warrants had been submitted – one dated 1993 and another dated 1996. The Tribunal stated:
I have been unable to accept these documents to be genuine due to a number of issues which throw considerable doubt on their authenticity.
The Tribunal referred to a number of factors, including the fact that only uncertified photocopies were provided, that the charges in the warrants were not identical, that it seemed implausible that the applicant could have been charged with a new set of offences three years after leaving the country, that a supporting letter from his advocate of 19 November 1996 referred to a different set of charges under different legislation (which it appeared may be in error in any event as that legislation had lapsed) and that the advocate also made other factual statements which contradicted aspects of the applicant's evidence. The Tribunal stated:
I am unable to find, therefore, that the letter from the advocate is a genuine document to which any weight may be given.
The Tribunal then noted comments from the Department of Foreign Affairs and Trade that documentation from India, whatever its nature, “should not generally be accepted at face value, as document fraud is widespread and takes a variety of forms including forgery and provision of ‘genuine’ documentation for a price”. It also had regard to its view that the applicant could not have passed through a departure point in India using his legally acquired passport in his own name if wanted by the authorities. It reached this conclusion based on independent country information. It acknowledged that the applicant had stated that he paid a bribe at the airport, but found it evident from his passport that normal immigration checks were conducted. It concluded that payment of a bribe was a routine requirement imposed by corrupt officials and would not have deterred the authorities from apprehending the applicant if he were genuinely of adverse interest.
Having regard to its findings about the documents submitted by the applicant, the Tribunal went on to state that it was unable to accept as credible the applicant's claim that photographs of persons being detained by the Indian authorities were of himself. It noted distinct differences in appearance between the Sikh men in the two photographs and found the evidence insufficient to establish that the applicant appeared in either photograph. It found that even if it accepted these as genuine photographs of the applicant, in view of other considerations (and this appears to be a reference to the conclusion that the Tribunal did not accept that the applicant suffered differential harm although it did find it plausible that he would have suffered harassment and mistreatment) it found that the photographs did not lead to a finding of well-founded fear on return.
The Tribunal noted the applicant's complaint about continuing to suffer pain and stiffness in his limbs as a result of past maltreatment, but critically, was unable to find that the applicant's fear of persecution was well-founded. It stated:
The elimination of militant activity and return to normalcy in the Punjab, the establishment of mechanisms to oversight the conduct of security forces and to address grievances arising out of their abusive conduct, together with a shift to more moderate platforms by political parties representing Sikhs now meeting with electoral success in the region, are all factors which combine to reduce to remote or insignificant the chance that the applicant will suffer persecution on return to India due to his imputed political opinion or religion.
The Tribunal's conclusions were said to be strengthened by the fact that the applicant's uncle (who appeared to be the target of the authorities and the reason for adverse interest in the applicant) had been detained some time ago.
Finally, the Tribunal addressed the issue of relocation. It had set out at some length the independent country information which suggested on balance that relocation was a viable option for a Sikh from the Punjab and found that should the applicant not wish to return to the Punjab it was open to him to relocate to another part of the Punjab or another state of India where there were concentrations of Sikhs. It did not consider relocation to be an unreasonable option for the applicant. The Tribunal was not satisfied that the applicant faced a real chance of persecution because of his religion or political opinion on return to India now or within the reasonably foreseeable future.
The decision of the Tribunal was made on 13 February 1997. I accept that as the submissions of the respondent state, in July 1999 the applicant was joined to the Lie class action before the High Court as a represented party, that his was one of the matters which on
25 November 2002 Gaudron J remitted as an individual application for an order nisi to the Federal Court of Australia and which on 20 February 2004 was dismissed by Emmett J. Subsequently these proceedings were commenced by the applicant on 12 July 2004.
The application filed on 12 July 2004 does not identify any ground of jurisdictional error, but rather seeks merits review. It repeats the applicant’s claim to fear that he would not be safe if he returned to India. No jurisdictional error is established on the basis set out in the application filed on 12 July 2004.
At a directions hearing held on 21 December 2004 it was ordered that the applicant file and serve any affidavit containing additional evidence relied upon, including any transcript of the Tribunal hearing by
18 February 2005. The applicant, who is represented, has not filed any such further evidence. The applicant was also ordered to file and serve any amended application giving complete particulars of each ground of review relied upon by 18 February 2005. Again, he did not do so.
In the hearing today the applicant’s solicitor initially sought to tender information about the situation in India and additional copies of what appeared to be warrants for arrest. He withdrew the tender when it became apparent that these would not assist the court to determine whether there was a jurisdictional error by the Tribunal.
A document was filed by the solicitor for the applicant on 3 May 2005, headed ‘final submission’ and ‘statement of particulars’. It purports to raise grounds for review in a manner that one might have expected to appear in an amended application. However when asked if he was seeking to rely on this submission as a form of amended application the solicitor for the applicant told the court that he was not in a position to address this document, claiming that it had been prepared by an unidentified barrister whom the applicant was now unable to afford. He sought an adjournment which was not granted. Initially he stated that he had nothing to say beyond what was in the document but then contended briefly that the Tribunal ignored the applicant’s evidence and did not believe him and denied him natural justice as discussed below. This leaves the applicant in a somewhat difficult situation. Accordingly, I have considered not only those matters that his solicitor did raise orally today but also the extent to which what appears in the document, headed ‘final submissions’ or ‘statement of particulars’ raises grounds for review.
As indicated the document purports to set out grounds for review and then particulars, but the particulars do not necessarily relate to the preceding grounds. The numbering is not consecutive and the document contains, without explanation of their relevance, extracts from two 1999 decisions of the Federal Court. However, the first ground is that the Tribunal did not observe procedures required by the Migration Act 1958 or the Regulations to be observed. No specific provisions are identified. Instead the ‘particulars’ set out Tribunal findings on certain matters and criticise the way the Tribunal approached matters of fact. They involve a submission that the Tribunal “failed properly, or at all, to set out its reasons for the decision, its findings on material questions of fact, and the evidence upon which those findings were based” in relation to specified matters. Such claims, in the way that they are raised, do not establish jurisdictional error (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 in particular, at [73] – [75] and [26] below) and it should be said that, having regard to the factual matters set out in the particulars and discussed below, if this is intended to raise a claim that the Tribunal fell into jurisdictional error in asking itself the wrong question, identifying the wrong issue, ignoring relevant material or relying on irrelevant material it does not in fact succeed.
I note in that respect that the only evidence before the court of what occurred in the Tribunal hearing (and the claims made in that context) is the Tribunal reasons for decision. The first issues in relation to which the Tribunal findings are criticised concerns the Tribunal treatment of the claims that the applicant “is an active and important member of AISSF and does not believe in the idea of separate state for Sikhs. The applicant has been accused of being a member of the KCF.” However the Tribunal addressed the applicant's claim of membership and involvement in the All-India Sikh Students Federation. This claim was put in a letter from that Federation which referred to him as being an ‘active’ member (rather than an “important” member, as the submission suggests). The Tribunal found vagueness and inconsistencies in relation to the specific claims of membership of various organisations (in particular the AISSF and KCF) that the applicant had made over the course of the primary application and the review process. It referred to particular inconsistencies about which organization he belonged to and when. However it accepted that the difficulties he claimed to have experienced related primarily to his detention and maltreatment by the police in connection with a crackdown on young Sikh males who may have been involved with the Pro-Khalistan movement at a time of considerable tension between Sikhs and Hindus. It also dealt with his claims of arrest on numerous occasions and detention (the second specific matter referred to in the ‘particulars’). The Tribunal accepted that the applicant had been detained and maltreated, but not that the mistreatment was as severe or as regular as claimed, or that he suffered differential harm. This finding also addressed the third issue in this part of the written submission being the claims of ‘torture’ and that he was ‘badly treated by the police’. As discussed further below it also addressed, but rejected, his claim that warrants had been issued for his arrest.
A further matter referred to in this claim was the Tribunal treatment of the claim “that due to computer technology [the applicant’s] name has been forwarded to all the Police Headquarters”. However there is nothing in the material before me to suggest that such a claim was in fact made. Nor did the Tribunal err as contended by rejecting the letter from the International Sikh Youth Federation or the All-India Sikh Students Federation from India without reasons. The Tribunal had regard to the inconsistencies in the applicant’s claims about membership of the KCF and AISSF in not accepting that he had suffered differential harm due to an imputed political profile. It found that the 1993 statement from the AISSF that the applicant had been “a very honest and enthusiastic Party worker” since March 1985 and that “the Party is very happy with his services” clearly could not be true “if, as the applicant claims [at the hearing] he left the AISSF after joining the KCF in 1981”.

In essence the applicant contends that the Tribunal failed to make findings on every item of evidence put before it. However, the Tribunal is not obliged to make findings on every item of evidence put before it. Rather the Tribunal is required to address the claims and the integers of the claims. It did so by the reasoning that I have referred to above. The Tribunal did consider the claims made by the applicant as contained in the material before the court and as recorded by the Tribunal as having been made in the Tribunal hearing. It set out findings on material questions of fact and referred to the evidence on which such findings were based.
The second and third grounds relied on in the written document are general claims that the Tribunal was in breach of the Act, failed to follow procedures and erred in interpreting or applying the law so that the Tribunal acted without or in excess of jurisdiction and was not authorized to make the decision. There are no particulars and such general claims are not established.
The next claim is that the decision involved an error of law being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts. The particulars are:
(i) The Tribunal erred in failing to consider on their merits the evidence of matters from the applicant but rejected the applicant's claim and consequently determined that these evidence was of no weight in relation to the following matters:
a)its treatment of the claims that he was a high level member of the All-India Sikh Students Federation an Organisation in India and his life is in real danger.
The Tribunal stated in its decision in page 20 that:
“We can confirm our advice that there has been a wholesale political resolution of the separatist problem in the Punjab, a quantum leap in the state officials’ awareness of human rights issues and in the recognition of the need to eliminate practices which breach India’s human rights obligation…”
c)(sic)its treatment of the claim that in India there is endemic corruption in the airports that allows people to travel overseas undetected by paying a bribe;
(ii)The Tribunal erred in law in interpreting or applying its obligations pursuant to s.430 of the Act especially concerning those set out in the particulars to Grounds of the application.
(iii)The Tribunal applied the wrong test in effectively requiring more than a real chance of persecution of the applicant before being satisfied that he had a well-founded fear of persecution.
The Tribunal stated in its decision:
“The Tribunal the Tribunal (sicis not satisfied that the applicant is a person to whom Australia has protection obligation under the Refugees Convention as amended by the Refugee Protocol.”
(iv) The Tribunal erred in law by incorrectly applying the ‘real chance’ test for well-founded fear of persecution to the facts as properly found by the Tribunal.
In essence the applicant's claims take issue with the merits of the Tribunal's findings. First it did not find that particular evidence was of ‘no weight’ in relation to the claims about membership of the AISSF and being in danger (although the weight to be given to evidence is, in any event, a matter for the Tribunal). Rather, it found the applicant’s mistreatment to be consistent with the crackdown on young Sikh males who may have been involved with the pro-Khalistan movement. This was essentially the nature of the claim he made. However the inconsistency and vagueness in the precise detail of his claim caused the Tribunal concern and prevented it from accepting the full extent of the claims of the applicant beyond detention and maltreatment by the security forces. The applicant did not claim to have been a ‘high level’ member of the AISSF. His claims in this respect were sufficiently addressed.
This part of the document also takes issue with Tribunal reliance on information about changes in conditions in the Punjab in an unspecified manner. No error is demonstrated in this finding or by the general claim of error in the treatment of the claim about corruption and bribery. The unparticularised claim that the Tribunal erred in law or in applying its obligations pursuant to s.430 does not establish jurisdictional error as contended. Nor is it established that the Tribunal applied the wrong test. The reference to the Tribunal’s ultimate conclusion does not establish that the Tribunal applied the wrong test or incorrectly applied the law in determining whether the applicant had a well-founded fear of persecution.
The final ‘ground’ is that there was no evidence or other material to justify the making of the decision in relation to a number of matters. The first of these is said to be a conclusion that the applicant ‘was not hijacked or tortured by the Congress Party’. There is no such conclusion expressed in the Tribunal decision. The Tribunal doubted that the claimed mistreatment at the hands of the Indian security forces was as severe or regular as claimed, although it accepted in broad terms the applicant’s claims of past detention and maltreatment by the security forces. The second particular is that there was ‘no evidence’ for the Tribunal lack of satisfaction that the applicant had a well-founded fear of persecution. This claim seeks merits review. It cannot be said that the Tribunal reached its ultimate conclusion in this regard ‘without proper evidence or justification’ in a manner constituting jurisdictional error.
The third particular relates to the rejection of the applicant’s assertion that there were in existence warrants for the applicant's arrest. This ground appears to assert that there was no proper evidence for the Tribunal finding that the applicant’s assertion that there were arrest warrants in existence was not ‘believable’. This claim, albeit expressed with a lack of clarity, raises the issue of whether the Tribunal erred in its findings and treatment of the claims by the applicant that warrants had been issued for his arrest, either before or after his departure. While such a ground was not elaborated on at all by his solicitor, it was addressed by counsel for the respondent.
First, the Tribunal did not find that the applicant’s assertion about arrest warrants was ‘not believable’ as contended in the statement of particulars. Rather it stated about copies of arrest warrants that it was “unable to accept these documents to be genuine …” for a number of reasons and that it was unable to find that a supporting letter from an advocate “was a genuine document to which any weight may be given”. It gave reasons for its findings which were open to it on the material before it. It cannot be said that there was no evidence or no proper evidence for such conclusion.
The respondent contended that while the Tribunal gave the arrest warrants no weight, it had not made a positive finding that the documents were fabricated. Rather it was not satisfied as to the genuineness of documents, so that no weight could be given to them.
It was suggested that such an approach should be distinguished from a situation where the Tribunal made a positive finding of fraud. It was acknowledged by counsel for the respondent that if the Tribunal was in fact making a finding that there was fraud or that it did not believe that the documents were authentic, that raised an issue of whether or not there had been any jurisdictional error.
In WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 188 at [55] their Honours drew a distinction between use of the word ‘genuineness’ as meaning ‘not authentic’ and ‘genuineness’ in a loose sense, intending to convey not that a document was a forgery but that the weight to be given to the content of the document provided no support to the genuineness of the applicant's claim. It was suggested for the respondent that the Tribunal used ‘genuine’ in this second sense of the word in relation to the arrest warrants. I do not find that argument very persuasive in light of the Tribunal findings that it did not accept that warrants were, in fact, issued for the applicant's arrest either before or after departure from India and its specification of matters which led it to be unable to accept that the documents were genuine “due to a number of issues which threw considerable doubt on their authenticity” (and compared to the treatment of the advocate’s letter in relation to which expressed … an inability to find that the letter was “a genuine document to which any weight may be given”).
The language that the Tribunal uses about the arrest warrants does not appear to be consistent with the proposition that genuineness was being used in a loose sense to convey simply that the weight to be given to the content of the photocopies of arrest warrants provided no support to the genuineness of the applicant's claim. It is not, however, necessary for me to express a firm view on this matter (on which the solicitor for the applicant did not address the court). However on the view most favourable to the applicant, even if the Tribunal did find that the documents were not authentic or that they were fraudulent documents, while as a matter of procedural fairness a Tribunal making such findings may be under an obligation to put to an applicant its concerns in that respect (consistent with authority such as WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 and WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 188) in this instance the evidentiary basis for any claim that such documents or views were not put to the applicant has not been established. There is no transcript of the Tribunal hearing before the court. This is not a case in which I consider it appropriate to infer from all the material before me that such matters were not put to the applicant in the course of the hearing (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 and compare Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264). The Tribunal summarised but did not attempt a full explanation of what occurred in the Tribunal hearing. There is no evidence that such issues were not raised with the applicant.
I also note in this respect that while the Tribunal refers to country information, in particular in relation to documentary fraud in India, such information would be within s.424A(3)(a) of the Migration Act 1958 and again there is no evidentiary basis for any claim of a lack of procedural fairness in relation to whether such material was put to the applicant. I note, moreover, that no such claim was raised directly on the material before the court, but it is addressed because of the rather unorthodox way in which the matter was presented to the court on behalf of the applicant. No jurisdictional error is established in the manner contended. There is no evidentiary basis for any claim of a lack of procedural fairness.
In oral submissions the applicant himself indicated that he felt that he could not return to India. His solicitor also took issue with the merits of the Tribunal decision. Merits review is not available in this court. These proceedings are not a rehearing and it is not for the court to determine whether or not the applicant is a genuine refugee. Nor is it open to this court to remit a matter for reconsideration on the broadly expressed ground of the interests of justice (as sought by the solicitor for the applicant) if no jurisdictional error has been established.
In oral submissions the solicitor for the applicant also contended that the documents that the applicant provided were not considered properly by the Tribunal. He referred to a number of documents in the material before the court. Those documents were summarized by the Tribunal. There is no dispute about the accuracy of that summary in the Tribunal's reasons for decision. While the Tribunal did not make findings in relation to each item of evidence that was submitted, I am satisfied that it did address the claims of the applicant insofar as they were raised either by this material or by what the applicant told the Tribunal or provided in written material.
The documents that the applicant provided fell into two main categories. The first category was those indicating that he was a member of AISSF. The applicant had initially claimed to have belonged to that group and to have an imputed membership of other groups (the KCF and Babar Khalsa) and that he was arrested and mistreated because of such association or perceived association. At the hearing he made inconsistent claims (such as leaving the AISSF after joining the KCF in 1981). The Tribunal dealt with these claims in relation to his association with what it described as an involvement with the pro-Khalistan movement. It had regard to the inconsistencies in his evidence about which group he had belonged to in India (in particular as to whether he had belonged to the KCF). It did not reject his claim to be a member of the AISSF (as stated in supporting documentation) but found it inconsistent with his claims he left the AISSF after joining the KCF in 1981. The vagueness inconsistencies, alterations and exaggerations in the applicant’s evidence and other factors led the Tribunal not to accept that the applicant suffered differential harm due to an imputed profile and militant association.
The other category of documents was the arrest warrants. As I have indicated, no jurisdictional error has been established in the Tribunal's consideration of those arrest warrants. The fact that the Tribunal did not accept all of the applicant’s claims does not establish jurisdictional error as contended.
The written submission and the solicitor for the applicant raised in relation to relocation the possibility that the names of people who were wanted might be recorded on computer. However there is nothing before the court to suggest that such a claim was raised in the course of the application or review by the Tribunal as an impediment or a circumstance of the applicant which needed to be addressed in the decision. The findings of the Tribunal in relation to relocation provide an alternative basis for its conclusion about the absence of a well-founded fear of persecution. It is clear from the Tribunal reasons for decision that the Tribunal was aware of the relevant authority (Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437). It set out at some length independent country information in relation to relocation of Sikhs to other parts of India. Such information was consistent with its conclusion on the evidence before it that it was open to the applicant to relocate and that that was not an unreasonable relocation. It is the case that the discussion of relocation was brief and did not specifically address any impediments to relocation. However there is nothing in the material before me to suggest that the applicant raised impediments to relocation elsewhere in India. The independent country information which the Tribunal relied on addressed various aspects of relocation and the treatment of Sikhs outside India in a manner which justified the Tribunal conclusions on the basis of that information. No jurisdictional error has been established by the applicant in the Tribunal treatment of relocation.
The solicitor for the applicant also took issue with the Tribunal's reliance on country information about fraudulent documents. He suggested that some documents from India were genuine. Again this claim seeks merits review, as does the contention for the applicant taking issue with what might be described as the ‘logic’ of the Tribunal findings in relation to the applicant's ability to depart from India legally using his own passport. However the Tribunal addressed the question of the claimed payment of a bribe at the airport in a manner which was open to it. It cannot be said that the findings give rise to a jurisdictional error as contended.
Finally, the applicant's solicitor provided an explanation for the discrepancies in the applicant's evidence on the basis that he may have been nervous. This submission was not of assistance to the court in considering whether or not the Tribunal made a jurisdictional error. The findings of the Tribunal were open to it on the material before it. It accepted the applicant's claims in a number of respects, albeit it found that exaggeration and alteration, vagueness and inconsistency led it not to accept the full extent of those claims. It also indicated some sympathy for the situation of the applicant but, properly, addressed the questions that it was required to address in determining whether or not the applicant had a well-founded fear of persecution.
As no jurisdictional error has been demonstrated the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The respondent seeks that he meets the costs of these proceedings. The respondent first sought costs for the whole of the proceedings, including the costs associated with a notice of motion which was dealt with by Federal Magistrate Smith on 13 December 2004. However on that day his Honour dismissed the notice of motion and ordered that no order for costs in the motion be made. In those circumstances and in the absence of written reasons for the decision of his Honour I do not consider it is appropriate that I make any order that the applicant pay such portion of the costs of the respondent that relate to the notice of motion.
In the alternative the respondent seeks costs in the sum of $5500. That is somewhat more than would be ordered in a straightforward matter of this nature. Putting aside the question of costs of the the notice of motion, on the material before me all that indicates that this matter has occasioned more work than any other such matter is the fact that the Tribunal decision in relation to which the applicant sought review was a decision that was made in 1997. The original application for a protection visa was made in 1993. I accept that the length of time that has elapsed and the difficulties of obtaining material added to the costs of the respondent. In light of the nature of this matter and other matters of a similar kind however, I consider that an appropriate amount for costs is the sum of $5,000.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 21 June 2005