SZFUJ & Ors v Minister for Immigration - [2006] FMCA 1159

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFUJ & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1159

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

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 414, 415, 420, 422B, 423, 424, 425, 481, 483A
United Nations Convention relating to the Status of Refugees 1951

Applicant A v Minister for Immigration (1997) 190 CLR 225
Applicant S v Minister for Immigration (2004) 206 ALR 242
Htun v Minister for Immigration (2001) 194 ALR 244
Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24
Minister for Health v Thomson (1985) 8 FCR 213
Minister for Immigration v Khawar [2002] HCA 14
Minister for Immigration v Lay Lat [2006] FCAFC 61
Minister for Immgiration v Respondents 152/2003 [2004] HCA 18
NAIZ v Minister for Immigration (2005) 140 FCR 270
Randhawa v Minister for Immigration (1994) 52 FCR 437
SAAP v Minister for Immigration [2005] HCA 24
Sean Investments Pty Limited v McKellar (1981) 38 ALR 363
Sellamuthu v Minister for Immigration (1999) 90 FCR 287
Solomon Woldie v Minister for Immigration [1997] 1292 FCA
SZCIJ v Minister for Immigration [2006] FCAFC 62
VUAN v Minister for Immigration [2005] FCA 1638
WAEE v Minister for Immigration [2003] FCAFC 184

First Applicant:

SZFUJ

Second Applicant:

SZFUK

Third Applicant:

SZFUL

Fourth Applicant:

SZFUM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG535 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

18 July 2006

Delivered at:

Sydney

Delivered on:

27 September 2006

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

Counsel for the Respondents:

Ms R M Henderson

Solicitors for the Respondents:

Mr O Young of Blake Dawson Waldron

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 1 March 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG535 of 2005

SZFUJ, SZFUK, SZFUL & SZFUM

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application was filed in the Sydney Registry of the Federal Magistrates Court on 1 March 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 31 December 2004 and handed down on 25 January 2005, affirming a decision of the delegate of the first respondent made on 25 August 2004 refusing to grant the applicants a Protection (Class XA) visa. The applicants seek relief against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZFUJ” (applicant husband), “SZFUK” (applicant wife), “SZFUL” and “SZFUM” (applicant husband’s sons).
The applicants have not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].

Background

The Tribunal decision of Sue Zelinka, reference number N04/49893, provides the following background information. The applicants are husband, wife and their two sons who claim to be citizens of India. They arrived in Australia on 1 July 2004. On 12 August 2004, they lodged an application for a Protection (Class XA) visa with the Department of Immigration under the Act. On 25 August 2004, a delegate of the Minister refused to grant a protection visa and on

27 September 2004, the applicants applied to the Tribunal for a review of the delegate’s decision.(Court Book (“CB”) 101).
The information on the protection visa application indicates that the applicant husband is a businessman from Patiala in Punjab State and of the Hindu faith. He lived in one address in Patiala from his birth until 1995 and then at another from 1995 until his departure. He married in 1989 and his two sons were born in 1990 and 1994 respectively.

He has trade qualifications in welding, but has not worked in that trade since his marriage. Instead he has been self-employed in property sales. His wife is a tailor and of the Sikh faith. Their two sons were both at school and are Hindu. The applicant husband claims that their inter-religious marriage (he being Hindu and his wife being Sikh) met with the disapproval of both sets of parents. He claims that his parents attempted to poison his wife, while her parents tried to have him killed on several occasions. Both the applicant husband and wife have been assaulted by people whom they believe were contracted to do so by their parents. In 2003, their children had hot water thrown at them by their grandparents without resulting in much harm. The applicant husband complained to senior police officers who did not listen to him. He claims he cannot afford to bribe the officers, which is the only way to get their attention. The family decided there was no hope for them in India and came to Australia. Neither the husband nor the wife informed their respective parents of their departure or destination.(CB 104)

Tribunal’s Findings and Reasons

After reviewing all the material provided by the applicants, both in their application and at a formal hearing, the Tribunal made the following findings:
The applicant husband and wife are involved in an unhappy relationship with their parents and other family members. They have remained living with their family members, or close to them, almost continuously through the last 15 years. They refuse to lay any charges against their family members. The applicants have moved away from their immediate home districts twice in the last 15 years, at no time further than the neighbouring state (Muzaffarnagar is about 160 kms from Patiala). On both occasions, they voluntarily left Uttar Pradesh state and returned to Patiala. There is no evidence that leads the Tribunal to believe that any harm befell them when they were in Uttar Pradesh.
The Tribunal is of the view that their troubles will cease if they live anywhere other than in the immediate vicinity of their families. The applicants speak Hindi, a language widely spoken in India…It is not unreasonable that the family relocate to another part of India. Indeed, the applicant husband agreed that they could settle in somewhere like Delhi, but feared that t he families might find their address and kill them. This appears to be an irrational claim – a mere assertion – as no such pattern of behaviour was exhibited on the other two occasions when the applicant couple left their families. Indeed, it seems that the harm is related to proximity rather than distance. Furthermore, there is no reason why the applicants could not seek the assistance of authorities if attempts were made to harm them.(CB 111.2)
On all the evidence before it, the Tribunal is not satisfied that the adult applicants have a well-founded fear of persecution for a Convention reason. They are not refugees.(CB 112.3)

Application for Review of the Tribunal’s Decision

On 1 March 2005, the applicants filed an application for review under s.39B of the Judiciary Act. On 27 June 2005, the applicants filed an amended application which contains the following grounds:
1. The Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.
The applicants submits, in particular, that the Tribunal did not act according to substantial justice and the merits of the case in:
·    Its treatment of the claims that tribunal member did not consider the facts of the case that the main applicant is Hindu by birth and his wife is Sikh which is not acceptable to the parents of both parties and to the local communities in India. Therefore the applicants has a well founded fear in India, which the Tribunal did not consider in connection with making of the decision. The Tribunal did not consider the main applicant’s written statement made before the Refugee Review Tribunal which applicants are relying upon. The Tribunal also ignored the verbal interview of 16 November 2004, in which the main applicant tried to explain their situation in detail.
·    Its treatment of the fact that Tribunal member did not act according to the natural justice and the merits of the case. Natural justice was not adopted and applied for by the Tribunal and all the real facts of the case were ignored.
·    Its treatment of the claim that Tribunal did not adopt the proper legal procedure or follows the Guidelines and rules while deciding the case.
·    Its treatment of the applicant’s claim that there was no evidence or other material to justify the Tribunal’s decision. The Tribunal member considered the case laws and the material which is not relevant to this matter.
·    Its treatment of the applicant’s claim that the decision was an improper exercise of the powers conferred by the Act and the regulation.
·    Its treatment of the applicants’ claim that The Honourable member of the Tribunal took the narrow meaning of the Refugee Convention instead of broad meaning.
·    Its treatment of the applicant’s claim that the decision involves an error of law being incorrect interpretation of the applicable law or an incorrect application of the law to the facts as founded by the Tribunal. The Tribunal member did not apply the Migration act and decided this case without considering applicable law.
·    Its treatment of claim that applicants did not breach any visa conditions or any Australian law and there is no criminal record. Applicants are law abiding citizen and highly respective person in their community. The applicants are decent residents and has never been in trouble with the Police.
2.The Tribunal did not have jurisdiction to make the decision.

Reasons

Mr Kumar appears for the applicants. In respect of the claim that the Tribunal failed to consider the applicants as a social group, Mr Kumar submits that the question that the Tribunal had to consider but failed to, was whether the applicants belonged to a particular social group and would have state protection upon relocation within India. Mr Kumar submits that the applicants’ marriage put them in a particular social class, that of those who married across faiths. Any relocation has to be considered in this context. Mr Kumar submits that the Tribunal failed to properly identify this social group. Also that when a particular social group is identified, the risk of persecution ought to be assessed as against such a group.
Ms Henderson submits that the material before the Tribunal did not form a basis for characterising the applicant husband and wife’s fear in any manner other than a fear of persecution by their parents.

The Tribunal found that the applicants’ problems arose from “prejudice within their own families”.(CB 112.2)In the context of the United Nations Convention relating to the Status of Refugees 1951 (“the Convention”), a social group cannot be defined solely by reference to a shared fear of persecution: Applicant A v Minister for Immigration (1997) 190 CLR 225; Applicant S v Minister for Immigration (2004) 206 ALR 242. I agree with Ms Henderson, that Mr Kumar’s contention that the applicants constitute a social group, is misconceived and that ground cannot be sustained.
In relation to the claim regarding relocation, Mr Kumar submits that the Tribunal did not consider all the relevant factors. He argues that an assessment must also be made as to whether or not an applicant can effectively relocate to another part of his or her country and receive protection there. Mr Kumar submits that a Tribunal must ask whether or not an applicant’s fear of persecution is well-founded in relation to the country of nationality as a whole, not simply to the region in which he or she lives. In order to do so, it is first necessary to assess the claim against the particular part of the country in relation to which the claim is made, look at the reasonableness of relocation or the internal flight alternative, and come to a determination. Mr Kumar argues that this Tribunal only identified the applicants’ ability to speak Hindi for the purposes of relocation and failed to consider other factors.(CB 111.5)
Mr Kumar submits the applicants have not demonstrated ability to reside in another state within India and the Tribunal did not address this in its finding that the applicants may relocate to another state.

The applicants did go to neighbouring Muzaffarnagar and remained there for a few months.(CB 109.5) Mr Kumar submits that the Tribunal was required to look at the practicality of relocation: NAIZ v Minister for Immigration (2005) 140 FCR 270. The factors which are necessary to consider for reasonableness of relocation include physical or financial barriers, but extend beyond those: Solomon Woldie v Minister for Immigration [1997] 1292 FCA. Mr Kumar contends that while the Tribunal identified the applicant husband’s occupation as one which could be undertaken elsewhere in India, it failed to make proper enquiries in relation to this. The Tribunal did not explore any financial or practical aspects of the relocation with the applicants.
Ms Henderson submits that Mr Kumar seeks to move that the Tribunal did not consider “all the relevant factors” by citing matters which he says ought to have been considered but were not mentioned in the Tribunal decision. Ms Henderson referred the Court to Sean Investments Pty Ltd v McKellar (1981) 38 ALR 363 at 374-375 where Deane J stated:
As has been seen, a failure to take a relevant consideration into account in the exercise of a power is, under s 5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.
A relevant consideration, or relevant factor, is one the decision-maker is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. In Randhawa v Minister for Immigration (1994) 52 FCR 437, Black CJ described the matters to be addressed in broad and general terms. His Honour did not list specific factors which must be taken into account when making a finding about relocation. His Honour said that the decision-maker must consider both whether the applicant could relocate and whether he could be reasonably expected to do so, cautioning that “the practical realities facing a person who claims to be a refugee must be carefully considered”: at 442D-E. Moreover, His Honour observed that “the extent of the decision-maker’s task will be largely determined by the case sought to be made out by an applicant”: at 443C.
The Tribunal dealt with the issue of relocation and made the following finding:
The Tribunal is of the view that their troubles will cease if they live anywhere other than in the immediate vicinity of their families. The applicants speak Hindi, a language widely spoken in India. The applicant husband has been able to work consistently, saving the fares for all his family since they made the decision in mid-2002 to leave India. It is not unreasonable that the family relocate to another part of India. Indeed, the applicant husband agreed that they could settle in somewhere like Delhi, but feared that the faimilies might find their address and kill them. This appears to be an irrational claim… (CB 111.5)
Ms Henderson submits that this passage shows that the Tribunal turned its mind to the relevant issues. Ms Henderson submits that Mr Kumar’s contention – that the Tribunal failed to consider relevant factors – is no more than an attempt to have the Court review the factual conclusions of the Tribunal. Ms Henderson drew the Court’s attention to the passage from the Tribunal decision above and its use of the expression “not unreasonable”, while the term “reasonable” was used in Randhawa v Minister for Immigration. The difference in language does not indicate error. Justice Branson (with North J agreeing) said in NAIZ v Minister for Immigration at [22]:
I do not accept the applicant’s submission that there was no probative evidence on which the Tribunal could conclude that it would not be unreasonable for the appellant to relocate within Fiji.[emphasis added]
In Minister for Health v Thomson (1985) 8 FCR 213 the Full Court of the Federal Court held that the Minister for Health did not err by requesting a committee to investigate whether certain medical services were reasonably necessary for the adequate medical care of a doctor’s patients, even though the statutory test was whether the services were not reasonably necessary.
I agree with the submissions of Ms Henderson that this ground cannot be sustained.
In relation to the claim that the Tribunal failed to accord procedural fairness, Mr Kumar submits that the Tribunal appears to have considered the issue of relocation but did little to point out the importance of this issue to the applicants. The Tribunal merely stated:
The Tribunal put it to the them that the difficulties that they faced were all family problems and they could have resolved by moving well away from their families – for example, to New Delhi…(CB 107.2)
Mr Kumar contends that other than putting to the applicants “that the difficulties…could have resolved” by their relocation, the Tribunal did not put any aspects of relocation to the applicants. Mr Kumar refers the Court to VUAN v Minister for Immigration [2005] FCA 1638 at [4] - [6] per Merkel J:
4.The main ground of appeal is that the RRT failed to accord procedural fairness to the appellant by failing to put him on notice that relocation in Russia was an issue on which the outcome of his case might turn. It was common ground that, at the date of its decision, a failure by the RRT to accord procedural fairness to the appellant could found a claim of jurisdictional error on its part.

5.Procedural fairness requires that a decision-maker bring to a party’s attention the critical factor on which the decision is likely to turn so that the party may have the opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587, 629 and 634 and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at 177–178 ([27]).

6.In Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 [70] I stated:
The overriding principle is that the decision-maker must bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa per Mason J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481. It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant’s attention, or that the applicant is on notice of its “essential features”: see Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 247; Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123; Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230; McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600–601; Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540 at 548.

Mr Kumar argues that the Tribunal at its hearing did not ask the applicants whether there were factors which would make it reasonable for them to relocate to another part of India so as to avoid the persecution claimed. He submits that this amounts to a denial of natural justice.
Ms Henderson submits that Mr Kumar acknowledged that the Tribunal raised with the applicants the relocation option. However, Mr Kumar contended that the Tribunal then “did not put any factors” to the applicants which amounted to jurisdictional error. Ms Henderson submits that this claim falls under s.422B of the Act. The Full Federal Court held in SZCIJ v Minister for Immigration [2006] FCAFC 62 that s.422B and similar provisions in the Act exclude the common law natural justice hearing rule. Ms Henderson submits that it is therefore not open to the applicants to rely upon a claim of denial of procedural fairness in their challenge to the Tribunal’s decision.
In SZCIJ v Minister for Immigration at [7] – [8], Heerey, Conti and Jacobson JJ stated:
7. In another decision handed down today, Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61, we have dealt with the same point in relation to s 51A of the Act, which is the equivalent of s 422B in relation to visa applications at Departmental level (see also s 357A in relation to reviews by the Migration Review Tribunal).
8. For the reasons given in Lay Lat at [59]-[67] we hold that the common law natural justice hearing rule did not apply…
Their Honours in Minister for Immigration v Lay Lat [2006] FCAFC 61 at [60] – [67] made the following observations:
60. The question of the proper construction of s 51A and the corresponding provisions of ss 357A and 422B has been the subject of a number of judgments of single judges of the Court.
61.The authorities in which the ambit of these provisions has been considered are: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 (“VXDC”) at [22]–[31] (Heerey J); NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at [50]–[87] (Lindgren J); Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 at [21]–[23] (Hely J); Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 at [23]–[37] (Gray J); WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [47]–[59] (French J); Applicant M17 v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 85 ALD 597 at [83] (Ryan J); SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [1]–[18] (Branson J); WAID v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 220 at [57] (French J); SBTC v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 260 at [19] (Finn J); SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [27]–[29] (Edmonds J); Katisat v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1908 at [45]–[49] (Bennett J).
62.Reference has also be made to this question, by way of obiter remarks, in a full court authority; see NAMW v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 140 FCA 572 at [139] (Merkel and Hely JJ).
63.We do not propose to repeat or analyse the division of opinion as to the ambit of the provisions which is revealed in those authorities. The differing views are fully set forth in the passages from the judgments to which we have referred.
64.It is true that the words “in relation to the matters it deals with” might be thought to be ambiguous or, perhaps, as Heerey J said in VXDC, obscure. However, reference to the Explanatory Memorandum and the Second Reading Speech makes it plain that s 51A and the related provisions of the Act, were intended to overcome the effect of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; ; Ex Parte Miah (2001) 206 CLR 57 (“Miah”).
65.Heerey J set out in VXDC at [23]–[25] the relevant passages from the majority judgments in Miah and the salient portions of the Explanatory Memorandum and the Second Reading Speech. The words “exhaustively state” are, as Heerey J pointed out, picked up in the Explanatory Statement from the majority judgments in Miah. We agree with the observation at [30] in VXDC that the drafters of the Explanatory Statement and the Minister could hardly have made the intention of the 2002 amendments any clearer.
66.What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
67.Other aspects of the common law of natural justice, such as the bias rule are not excluded; see VXDC at [27].
I believe the argument in respect of relocation advanced by Mr Kumar cannot be sustained for a number of reasons. The only evidence supporting this argument is the material that appears in the Tribunal decision. The transcript of the Tribunal hearing has not been tendered as evidence and the details of any exchange between the Tribunal member and the applicants is unknown to the Court. The Tribunal in its decision is not required to record the entire thought process of the Tribunal member: WAEE v Minister for Immigration [2003] FCAFC 184 at [46]. Further, Mr Kumar’s reliance on VUAN v Minister for Immigration can be distinguished on the facts and that decision was subsequently superseded by the Full Federal Court in Minister for Immigration v Lay Lat.
The Tribunal did discuss the availability of state protection for the applicants in its decision under the heading ‘Findings and Reasons’.(CB 110.5) It noted that the appilcants sought police assistance only once and accepted that at that time, the Punjabi police had a poor reputation. The Tribunal relied on country information to support a finding that this is no longer the case and the Punjabi police would act appropriately if the applicants were to make a complaint.
Mr Kumar submits that the Tribunal’s consideration of this issue was cursory and limited to the state of Punjab rather than the whole of India.(CB 110.4-111.1) he submits that the applicants’ fear of persecution came not from the government of India but from private individuals who were not agents of the state. Mr Kumar submits that if the state is unwilling or unable to protect persons such as the applicants, a consideration of the effectiveness of state protection available to an individual is enlivened. Ms Henderson argues that this criticism is not supported by the Tribunal decision. The Tribunal discussed the situation in the Punjab because it was there that the applicants claim to have made their complaint and to have received no satisfactory response. However, the Tribunal in its reasons did note the availability of assistance from authorities if the applicants were to relocate.(CB 111.7) The argument that the Tribunal did not address the availbility of state protection in India generally cannot be sustained.
Mr Kumar relies on Minister for Immigration v Khawar [2002] HCA 14 regarding persecution from non-state agents. However, the circumstances of the applicants in this case and those of the applicant in Minister for Immigration v Khawar are not comparable.
The applicants’ case does not involve the state tolerating or condoning persecution of an individual. Nor is there any indication that the state is unable to take adequate steps to prevent persecution. The ill treatment of the applicants was at the hands of their parents, in-laws or other family members.
Similarly, Mr Kumar relies on the decision of Minister for Immgiration v Respondents S152/2003 [2004] HCA 18 which requires that there be effective protection from non-state agents at the place where an applicant seeks asylum. Mr Kumar submits that the issue of state protection has not been addressed by the Tribunal. However, the Tribunal’s conclusion is clearly that there is state protection.
Mr Kumar submits that the Tribunal appears to have taken the view that it does not need to address this issue because the Convention reasons do not apply to the applicants’ situation. Mr Kumar argues that the Tribunal misdirected its enquiry in so doing. Mr Kumar argues that the evidence is that the applicants sought protection and the authorities failed to deal with the complaint. The applicants’ fears are well-founded should have access to such protection as stated in Minister for Immgiration v Respondents S152/2003.
The Tribunal, after considering that the applicants troubles would cease if they lived anywhere other than in the immediate vicinity of their families, considered the applicants are equipped to do so. The Tribunal observed:
Indeed, it seems that the harm is related to proximity rather than distance. Furthermore, there is no reason why the applicants could not seek the assistance of the authorities if attempts were made to harm them.(CB 111.7)
This finding makes clear that the Tribunal did not overlook the availability of state protection in India generally. The observation was made in the context that the applicants had moved away from their families on two previous occasions and suffered no detriment during those times. I am not satisfied that this claim can be sustained.
Mr Kumar submits that there has been a constructive failure by the Tribunal to exercise its jurisdiction and that it did not review the application pursuant to ss.414 and 415 of the Act. Mr Kumar argues that the Tribunal must consider the claim by reviewing all the material available to it and reach a decision: Htun v Minister for Immigration (2001) 194 ALR 244. Section 414 of the Act then imports ss.423, 424 and 425 of the Act: Sellamuthu v Minister for Immigration (1999) 90 FCR 287.
Mr Kumar contends that the Tribunal exceeded its jurisdiction and constructively failed to exercise it, by not having regard to relevant considerations in assessing whether there was a real chance of persecution of the applicants for a Convention reason if they were to return to India. He argues that the Tribunal did not conduct a review as required by ss.420 and 481 of the Act, thus falling into jurisdictional error.
I agree with the submission made by Ms Henderson that the allegation of constructive failure to exercise jurisdiction does not progress beyond bare assertions. The claim does not raise any material on which the Court can base a conclusion that the Tribunal erred. This ground must fail.

Conclusion

Mr Kumar, counsel for the applicant, relies on the amended application which is supported by written and oral submissions. The amended application contains two grounds of review, the first of which includes eight particulars. Mr Kumar in his written and oral submissions before the Court, addressed these issues under five separate headings.

Ms Henderson, counsel for the respondents, responded to each of these five categories of alleged jurisdictional error by the Tribunal. I am satisfied none of those five issues claimed can be sustained. I believe that the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.

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

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 26 September 2006