SZFFN v Minister for Immigration
[2005] FMCA 871
•28 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFFN v MINISTER FOR IMMIGRATION | [2005] FMCA 871 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to have regard to relevant considerations or integers of the applicant’s claim – whether Tribunal addressed a wrong issue or applied the wrong test in considering relocation. |
| Migration Act 1958 |
| Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 SZAFW v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 173 Applicant WAEE v Minister for Immigration& Multicultural & Indigenous Affairs [2003] FCAFC 184 Lu v Minister for Immigration& Multicultural & Indigenous Affairs [2004] FCAFC 340 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Applicant S256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 170 Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 |
| Applicant: | SZFFN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3621 of 2004 |
| Judgment of: | Barnes FM |
| Hearing date: | 15 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Seymour |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3621 of 2004
| SZFFN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) made on 31 May 2004 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 on
19 October 1998 and applied for a protection visa on 18 March 2004. The applicant claimed that he was from a strict Sikh family, that he came to Australia to complete a degree and that he met a Muslim woman in Australia whom he married on 21 September 2000. Consequently he adopted the Muslim religion. He claimed to fear harm from his whole family especially his mother, because she was in the State Police Commandos and that he feared the police force as they could go anywhere in India to get him and easily have him killed.
He claimed that the Indian authorities could not or would not protect him because they knew he was Muslim, he was married to a Muslim and his mother was in the State Police Commandos and he would be easily traced.
His application was refused and he sought review by the Tribunal.
In his application for review the applicant claimed that because he had been gaoled in Australia after committing a crime his son was missing him. He considered himself to be a refugee because he had changed his religion from Sikhism to Islam to marry a Muslim woman. On
4 May 2004 the applicant wrote to the Tribunal addressing his claims. He claimed:
The Sikh community in Australia have already rejected my conversion to Islam even though Australia is an open-minded society, how would I fit among my family and my community in India, where Muslims and Sikhs have long been fierce enemies. The worst thing in India is for a Hindu or a Sikh to embrace the religion of Islam. Some people get burnt alive by members of their families or their religious sect and the authorities in India stand helpless and hopeless most of the time, unable to provide any protection.
He claimed that he did not need to go back to India to confront his family and his people. He also provided a letter of support from the chaplain at the gaol in which he was held, referring to his regular attendance at and devout participation in Christian religious services despite the fact that he was not a Christian.
The applicant attended a Tribunal hearing on 10 May 2004. In its reason for decision the Tribunal records that at the hearing the applicant stated that when he had said that the Sikh community in Australia had already rejected him ‘he meant that they do not want to socialise with him’. He confirmed that his mother was a member of the Punjab State Police Commandos and stated that his mother’s brothers and nephews were also members but his mother worked for immigration at that time as the police did immigration work. He claimed that his Sikh relatives on his mother’s and father’s side would be unhappy that he had changed his religion as his actions would cause his family to be ‘downgraded’ in society. He stated that he would be killed if he returned to India and that he had a general fear for his life from his mother’s relatives and also from his father’s side. He is recorded as stating that “he did not have a problem with the public, but with his relatives”. He claimed that he would not be protected by the police because his relatives were going to track him down and they happened to be police. The question of relocation was also discussed.
After the Tribunal hearing the Tribunal invited the applicant in writing to comment on information relating to the situation in India it considered may be the reason or part of the reason for deciding that he was not entitled to a protection visa. This information was addressed in a letter to the Tribunal from the applicant dated 31 May 2004. That response took issue with the accuracy of the independent information and reiterated that in his case there would be a ‘personal vendetta’ against him by his family.
In its reasons for decision the Tribunal summarised the applicant’s claims as follows:
The applicant’s claims are that he was a Sikh from a very strict Sikh family in India. Whilst in Australia he married a Muslim woman. His family in India became very angry when they heard about this and threatened this. His mother was part of the Punjab State Police Commandos and they can go anywhere in India and can easily kill him. His mother’s brothers and nephews are members of the Punjab State Police Commandos. His mother now works for immigration. The applicant does not believe that the Indian authorities can protect him as his family are members of the Punjab State Police Commandos. It is easy to trace him in India wherever he goes.
The Tribunal accepted that the applicant had married a Muslim woman and that they had a son and that he had converted to Islam. It noted that he had not claimed past persecution and found that he had not experienced any for a Convention reason.
It found that the potential claimed agent of persecution was the applicant’s family and that:
“persecution by private individuals or groups does not bring a person within the Convention unless the state either encourages or it appears to be powerless to prevent that private persecution”.
The Tribunal found:
“that the potential for harm is solely connected to or motivated by the personal relationship between the applicant and his family members”.
It accepted independent country information that India was a longstanding democracy with an independent judiciary and a Constitution providing for secular government and the protection of freedom. It found that the state would not encourage adverse action against the applicant, was aware of the potential for religious conflict and took reasonable measures to protect the lives and safety of its citizens and was not powerless to prevent any adverse action occurring against the applicant. As such it found that the applicant did not face a real chance of persecution should he return to India now or in the foreseeable future.
However the Tribunal went on to state that if (contrary to its findings) there were a Convention basis for the claimed future actions by the applicant’s family, including assistance from the police and/or the Commandos, it was satisfied on the evidence before it that it was reasonable to expect the applicant to live elsewhere in India to avoid any possible harm he may fear from his family or such authorities. The Tribunal referred to the principles in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 and accepted independent country information finding that there was no restriction on movement between the states of India and that there were Muslim communities in many parts of the country. The Tribunal had regard to the impediments to relocation raised by the applicant, including his claim that he would not be able to hide himself in India and that his relatives would locate him. The Tribunal noted that when it discussed relocation with the applicant he was not concerned initially with his own safety but stated that he would need a lot of money to relocate in India and would like to stay in Australia, make some money and return. Although the applicant had also stated that he had fear of being located by his relatives, the Tribunal found that the applicant had contradicted himself. It found on the basis of this evidence that the applicant “had no subjective fear of returning to other states in India and could relocate in another state”. It preferred his evidence that he would require money, without any reference to his own safety. It found his statement that he would like to return to India later to clearly indicate that he had no fear of persecution on his return. It made such a finding. It also found that the applicant’s relatives including his mother, would not track him down, this finding being supported by the applicant’s claim that he had not been threatened by his mother.
In considering relocation the Tribunal also had regard to the fact that the applicant was tertiary educated and could speak, read and write several languages and was ambitious and young. It found that despite his period in gaol in Australia he was readily employable in India. The Tribunal accepted that the applicant had a wife and child and three step-children in Australia who would not relocate to India but also accepted independent country information that putting to one side family or financial considerations, well-educated and readily-employable applicants could relocate in India. It found that the applicant could successfully relocate in India.
The Tribunal was also satisfied that the applicant would have the same level of protection as all other Indian citizens and would enjoy meaningful protection of the Indian police and other security institutions. It was satisfied that the protection within India:
“meets basic norms of civil, political, and socio-economic human rights and that the internal safety is not illusory or unpredictable and state accountability for the harm is established”.
The Tribunal was not satisfied that the applicant would encounter any difficulty in the reasonably foreseeable future if he moved to other parts of India where he was not known. There was no reason he could not start a new life in another part of India. The practical realities were such that he could relocate without difficulty, relocation being a reasonable and practical option for the applicant. The Tribunal was satisfied that it was reasonable for the applicant to live elsewhere in India and avoid the harm he feared and accordingly was not satisfied that he had a well-founded fear of persecution for Convention reasons. It did mention that there may be a matter for humanitarian consideration (by the Minister) having regard to the applicant’s wife and family in Australia.
The applicant sought review of the Tribunal decision by application filed in this court on 13 December 2004. He relies on an amended application filed on 25 January 2005. Ground 1 in the application is expressed as a number of alternatives as follows:
The decision of the Second Respondent dated 31 May 2004 was made in jurisdictional error in that the Tribunal:
(a) took into account irrelevant considerations;
(b) applied a wrong test; or
(c) failed to accord natural justice to the applicant
in finding that:
(i) the persecution feared by the applicant was “solely connected to or motivated by the personal relationship between the applicant and his family members”;
(ii) the potential claimed agent of persecution was only the applicant’s family;
because the Tribunal:
(d) failed to take into relevant considerations; or
(e) failed to consider an essential integer of the applicant’s case
namely, that the applicant had a well-founded fear of persecution as a member of a particular social group, namely as a Sikh to Muslim convert.
In essence this is a contention that the Tribunal failed to take into account relevant considerations or integers of the applicant’s case being his claim that he had a well-founded fear of persecution and that that fear was as a member of a particular social group being ‘Sikh to Muslim converts’. It was contended by counsel for the applicant that the applicant’s claim was that he feared persecution in India as a Sikh to Muslim convert and that he feared persecution from other Sikhs, in particular his family. It was contended that the Tribunal’s personal violence findings and personal relationship findings indicated that it failed to consider the applicant’s claim of a fear of persecution from other Sikhs, as it limited its consideration of the potential agents of persecution to the applicant’s family and failed to consider the role of the family as agents of persecution in their roles as members of the State Commandos. It was contended that in this way the Tribunal failed to fully consider the case presented by the applicant and hence failed in the task allotted to it by the Minister.
Counsel for the applicant tendered what he described as a schedule of claims made by the applicant. It was contended that the applicant’s case had always been that he feared his family primarily, but that there were certain other fears raised in relation to the Commandos and the Sikh community. However the Tribunal had found that the potential for harm was solely connected to or motivated by the personal relationship between the applicant and his family members. Its ultimate finding that the applicant did not face a real chance of persecution should he return to India now or in the foreseeable future was said to flow directly from the finding that the potential for harm was solely connected to or motivated by the personal relationship between the applicant and his family members. It was contended that such finding failed to take into account all of the integers of the applicant’s claims. In the alternative the complaint about the Tribunal decision was expressed as a contention that the Tribunal applied the wrong test.
It was contended that the references that the applicant made in his application for protection visa and at the Tribunal hearing to fear from the police Commandos generally at the request of the applicant’s family and the Sikh community generally were integers of his claims which had not been considered. (See SZAFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 173 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184). In WAEE the Court stated at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Consistent with what was said in WAEE at [47] it was contended that the inference that the Tribunal had failed to consider integers of the applicant’s claim could be drawn ‘from its failure to expressly deal with that issue in its reasons’. It was contended that this was not a case in which the reasons could be described as ‘otherwise comprehensive’ or that the issue had at least ‘been identified at some point’. It was submitted that the factors which the court in WAEE to express the view that the inference that the court had failed to consider a matter should not too readily be drawn, were not present. It was contended that there was an issue raised on the evidence advanced by the applicant which, if resolved one way, would dispose of the Tribunal’s review and hence the failure to deal with it raised a strong inference that it had been overlooked. It was also contended that the applicant’s claims to fear persons other than his family was not dealt with by any finding of greater generality or by rejection of a factual premise upon which the contention rested. Rather, the Tribunal had found that ‘the potential claimed agent of persecution is the applicant’s family’. It was submitted that this was not so, as it was clearly raised by the applicant that the more general Sikh community could be agents of persecution as could other police Commandos at the request of the family.
In oral submissions counsel for the applicant conceded that a factual finding was made by the Tribunal in relation to the claim about the extent of the involvement of police Commandos at the request of the family, albeit in the context of considering the issue of relocation.
It was contended that it remained the case that there was no consideration of the claim that the applicant feared harm at the hands of the Sikh community for being a convert. It was suggested that this was apparent from the Tribunal’s consideration of independent country information which dealt with Muslims rather than Sikh to Muslim converts in relation to relocation. It was also contended that at no place in the Tribunal reasons for decision did it deal with the applicant’s case that he was a member of a particular social group being a Sikh to Muslim convert.
It was submitted that the effect of the failure of the Tribunal to fully consider the case presented by the applicant was that the Tribunal failed in the task allocated to it by the Act and the applicant lost a fair chance of receiving a protection visa (see Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 at [6] per Black CJ and SZAFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 173).
There are a number of difficulties with this claim. First, as counsel for the applicant conceded in oral submissions, reading the Tribunal reasons for decision fairly and as a whole it is clear that the Tribunal considered but rejected the applicant’s claim about the role of the family as agents of persecution in their roles as members of the state Commandos and/or police. The Tribunal had regard to this claim, for which it found there was no Convention basis, in concluding that the potential harm was solely connected to or motivated by the personal relationship between the applicant and his family members. This is consistent with what the applicant claimed in his protection visa application and his application to the Tribunal and also with the Tribunal account with what occurred in the Tribunal hearing (and it is notable that the only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision). Critically, the Tribunal recorded that after it discussed independent country information with the applicant to the effect that a Sikh who converted to Islam probably would not have problems in Chandigarh or in Ludhiana or in Amritsar, the applicant stated “that he did not have a problem with the public, but with his relatives”.
I am not satisfied on the material before me that the manner in which the applicant put his claims or the material before the Tribunal raised a claim by the applicant to fear persecution as a member of a particular social group being Sikh to Muslim converts, beyond the claimed fear of his family as family and in their capacity as members of the police or Commandos. In other words while the claimed fear of his family was because he was a convert, it was not a claim that he made as a member of a particular social group. Not only did the applicant not put his case that way before the Tribunal, but also the Tribunal took the precaution of testing the breadth of the applicant’s claims at the hearing and, as set out above, the applicant unequivocally reaffirmed that the sole basis of his fear related to reprisals from his family. His subsequent reference to stating that “no-one stood in front of Commandos and said ‘You are wrong’” was clarified in the subsequent exchange. The applicant’s claim was that his family would use the police for a personal vendetta tracking him down through friends of friends, relatives of relatives and telephone calls to the police in other states.
The Tribunal undertook consideration of the family acting as agents of persecution from within their roles as agents of the state. It recognised that the applicant’s family were to be considered as the potential agents of persecution, acknowledged that family members are not usually agents of the state, but also clearly understood and considered the applicant’s claim that his family would have assistance from the police and/or Commandos in taking action against him. It is clear from the Tribunal discussion of what occurred in the Tribunal hearing that the applicant was not claiming to have a problem with the police per se but rather with his relations who would kill him because he had converted to Islam and who were able to use their contacts in and through the police force. He also clarified that when he said that the Sikh community in Australia had already rejected him he meant that they did not want to socialise with him and there was no suggestion that he claimed to fear persecution from the Sikh community in Australia.
It is clear from the Tribunal reasons for decision that the Tribunal understood that there was a religious basis to the applicant’s fear (both his religion as a Muslim and also as a convert from being a Sikh) but also understood that his fear was from individuals who happened to be his family members. At the hearing it sought to test exactly where that fear was being manifested or at whose hands that fear was being manifested. It acknowledged that the fear arose from the circumstances including the fact that the applicant was a Sikh from a strict Sikh family who had married a Muslim and converted. The Tribunal finding that the applicant’s fears related to his family as the potential claimed agent of persecution was open to the Tribunal on the material before it and does not reveal that the Tribunal failed to take into account relevant considerations or integers of the applicant’s claim in the sense considered by Allsop J in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 (also see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323).
It is the case that in his letter to the Tribunal the applicant spoke of rejection by the Sikh community and stated “How would I fit among my family and my community in India when Muslims and Sikhs have long been fierce enemies”. However he went on to refer to members of families mistreating (burning alive) family members because of conversion to another faith and the authorities in India standing by helpless and hopeless. Reading this letter as a whole it is clear that it retains the focus on the applicant’s fear of his family and does not raise a wider claim of fear as a member of a particular social group from those other than his family.
In all the circumstances of this case I do not consider it is appropriate to draw the inference that the Tribunal failed to deal with such a wider claim raised on the material before it. While the Tribunal did not deal expressly with the claims in terms of particular social group, the claim was not put in this way and its reasons were comprehensive. Moreover there was no evidentiary basis for such a claim, but rather a specific denial by the applicant that he had any problem with the public (that is, outside his family). If an inference is to be drawn, it is an inference to the contrary to that now contended for by the applicant to the effect that, as stated by the applicant, the only fear that he had related to a fear of his family. He put forward his fears on the basis of his conversion from one religion to another in the context of a fear at the hands of his family. While the Tribunal referred to the potential for harm being “solely connected to or motivated by the personal relationship between the applicant and his family members” it is not apparent from this finding that the Tribunal misunderstood the underlying religious basis, or more accurately religious conversion basis for the applicant’s fear from his family. Such an approach would be construing the Tribunal decision with an eye too finely attuned to seeking error (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
It has not been established that the Tribunal erred in the manner contended in ground 1 of the amended application.
Ground 2 of the amended application is that the Tribunal fell into jurisdictional error by addressing a wrong issue or applying a wrong test: “namely by consideration when it did not arise, and further in its application of, the ‘relocation principle’ in the circumstances, contrary to the decision of Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437.”
It was contended that the Tribunal erred in its application of the relocation principle, both in making the relocation finding (in that by doing so it was contended that the Tribunal addressed a wrong issue) and in its application of the principle (in that in doing so it applied the wrong test) and that in either event the Tribunal fell into jurisdictional error.
The first limb of this contention is that the Tribunal erred in making the relocation finding because it was not open to it to consider this principle because it stated that it was satisfied that the applicant had no well-founded fear of persecution for a Convention reason. It was contended that relocation only arises where an applicant has a well-founded fear of persecution for a Convention reason but that the chance of persecution is geographically limited and the state as a whole is able to provide the claimant with realistic protection (see Randhawa).
It was suggested that in this case there was not an occasion for the Tribunal to consider the relocation principle given its view on the personal violence finding and the personal relationship finding and consideration of an issue that should not have arisen indicated that the Tribunal fell into error constituting jurisdictional error. It was suggested that, as in Lu, it was possible to say that consideration of the relocation principle when it should not have been considered at all may have influenced the Tribunal reasoning in its entirety and hence the Tribunal constructively failed to exercise its duty and consider only the applicant’s claim according to the Migration Act 1958. It was contended that the Tribunal erred in considering that the relocation finding could be made as an alternative to the personal violence and personal relationship findings as the findings were mutually exclusive and the error rendered the entire reasoning process of the Tribunal subject to error.
In oral submissions counsel for the applicant suggested that the Tribunal consideration of relocation indicated a line of illogical reasoning which could compound other errors such that the applicant have lost a fair chance of a hearing. It was suggested that the illogocality arose because, having satisfied itself that the applicant’s well-founded fear was limited to a family relationship, it was not open to the Tribunal to start to consider the relocation principle. It was also suggested that the fact that the Tribunal went on to consider the applicant’s chances of being harmed by police Commandos after it had formed the view that there was no real chance of persecution from the family was a further illogicality that compounded the error.
No error is established in the manner contended. I am not persuaded that the Tribunal erred in addressing the relocation issue. Rather the Tribunal consideration of relocation provided a separate independent basis for refusing the application based on the reasonableness of relocation. It is not illogical for a Tribunal to reject a claim of a Convention basis for claimed fear but nonetheless to go on to consider (as an alternative basis for its conclusions) whether, if there were a fear for a Convention reason, such a fear would be well-founded and in so doing to consider the reasonableness of relocation consistent with the principles established by the Full Court of the Federal Court in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437.
There is in any event no ‘separate relocation principle’. Rather, as Black CJ pointed out in Randhawa at [269] – [270], the correct question is whether the applicant’s fear is well-founded in relation to his country of nationality and the further question of whether an applicant could relocate to another area of that country and be reasonably expected to do so is important because:
“notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person”.
In this instance the Tribunal properly considered the question of relocation and the reasonableness of relocation in determining whether, if the applicant had a fear for a Convention reason, such a fear was well founded in relation to the country of origin as a whole. Moreover it has not been established that the Tribunal misunderstood or broadened the nature of the claimed fear of persecution in considering relocation. Rather it is clear from the Tribunal discussion of the applicant’s claims and its summary of his concerns about his family and reference to his family’s membership of the police Commandos and their ability to go anywhere in India and kill him, that in considering his claims and finding that the potential for harm was solely connected to or motivated by the personal relationship between the applicant and his family members it took into account the possibility of assistance from the police and/or Commandos. The Tribunal did not act inconsistently with its own findings but rather provided an alternative basis for its conclusion. (See Applicant S256 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 170 at [18]).
It is well established that to the extent that a Tribunal makes a finding on relocation that cannot be impeached then that provides a separate independent basis for the Tribunal’s decision to be upheld. In that respect the applicant contended that the Tribunal erred in its application of the relocation principle because if the Tribunal consideration of the relocation principle had a proper basis it must, according to the applicant, follow that the Tribunal did accept that the applicant had a well-founded fear for a Convention reason from his family (since it rejected a claim that others in the Punjabi Commandos would assist) and that India could not provide effective protection for the applicant from this persecution. It was contended that on that basis the Tribunal had then appeared to limit its consideration of whether it was practical and reasonable for the applicant to relocate within India as a Muslim and so arguably it had failed to consider whether relocation was ‘reasonable’ given his membership of the particular social group of Sikhs to Muslim converts. It was also suggested that the Tribunal had failed to grasp an essential integer of the applicant’s claim in dealing with this issue of relocation being that Punjabi Commandos may of their own accord track down or threaten or assault the applicant as Sikhs enraged by the applicant’s conversion.
This latter point was not a claim that was made by the applicant, who clarified in the Tribunal hearing that his concern related to his family and the use and assistance they may be able to make of the police and/or Commandos. There was no claim by the applicant, and nor does the material before the Tribunal raise a claim, that individual Commandos or Commandos as a group may seek out and threaten or assault him as a member of a particular social group. As to the broader claim that the Tribunal arguably failed to consider whether relocation was reasonable given the applicant’s claimed membership of the particular social group of Sikh to Muslim converts, again this was not his claim. The Tribunal properly considered the applicant’s claim and the impediments to relocation which he raised. While the applicant expressed his claim in terms of his conversion from being a Sikh to a Muslim his claim was not put nor did it raise a claim that he feared harm from the public or indeed from sections of the public because of his conversion. Even in his written submission to the Tribunal the claim about persons being burned alive was a claim that members of their families burned them alive not that particular segments of the public provided a potential source of harm to converts.
Further, the Tribunal also found, albeit in the context of addressing relocation, that on the basis of his own evidence the applicant had no subjective fear of persecution on his return to India. (See Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 at 297). This finding itself provides an unchallenged independent basis for the decision, as in the absence of any subjective fear it cannot be said that an applicant has a well-founded fear.
No jurisdictional error has been established in the manner contended in ground 2 of the amended application.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 28 June 2005
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