SZGDN v Minister for Immigration
[2006] FMCA 1793
•15 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGDN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1793 |
| MIGRATION – Review of Refugee Review Tribunal decision – no reviewable error. |
| Migration Act 1958, s.424A Judiciary Act 1903, s.39B |
| W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472; 112 ALR 641 Abalos v Australian Postal Commission (1990) 171 CLR 167; 96 ALR 354 Plaintiff s157 of 2002 v The Commonwealth of Australia (2003) 195 ALR 24 |
| Applicant: | SZGDN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1045 of 2005 |
| Judgment of: | Turner FM |
| Hearing date: | 13 October 2006 |
| Date of Last Submission: | 13 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2006 |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondents: | Mr L. Leerdam of Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs in this matter fixed at $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1045 of 2005
| SZGDN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 26 April 2005 seeking to review the decision of the Refugee Review Tribunal (the “Tribunal”) affirming the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 26 July 2006.
Background
The applicant claimed to be a devout Moslem “of the “Wahabi caste”, from Triplicane in Chennai...He had married in 1990 and had two children.
He claimed that Moslems formed a minority in Tamil Nadu, as in India. Triplicane was riot-prone, and Hindu fanatics and fundamentalists, such as the BJP and RSS, constantly threatened the lives of Moslems and Christians. Minorities could not voice their grievances. Anyone with a Moslem appearance was robbed and beaten by thugs. Moslems were particularly at risk on annual Hindu religious days. He claimed to be a typical victim of Hindu fanatics in Chennai” (Court Book (“CB” at pp. 103 & 104).
The applicant claimed that Hindus “wanted to kill him for the main reason that he helped the poor with the earnings from his business, which was ‘flourishing and improving a lot’. If he had not left India he could have been killed by fanatics in Chennai. As he was good at business, there were also Hindu business rivals who were keen to see his business close ‘for their upliftment’ – these people joined hands with fundamentalists and fanatics to foment trouble in his personal and professional life” (CB at pg. 104).
The applicant claimed there were a number of incidents in which he was directly involved. He claimed that:
·“one day a person deliberately bumped into him and picked a quarrel, and the applicant understood from this that “he was a person hired for money to threaten me by a Hindu fanatic”.
·He had been robbed and beaten by hooligans in Mumbai.
·He was drinking tea at a hotel when two strangers sat nearby and ordered coffee. They asked him his name, and questioned him about the quality of his tea and other “irrelevant questions”. He believed that these were the coercive methods of Hindu fanatics.
·He was walking with friends on a beach in Chennai when some “rowdies” mocked them. He and his friends left the beach. He told his friends that these were methods used by Hindu fundamentalists to create “fear psychosis” in him.
·During a riot in Chennai in 1991 Moslem shops were attacked. He was injured and robbed of money and jewellery.
·Members of the RSS extorted money from him and other business-owners. Most refused, and complained to the police and sympathetic politicians. The extorters developed a grudge against those who complained, and one day some of his friends were beaten up, and were told that he would be killed if he was caught.
·The above people searched his father’s home, so the applicant left his wife at her father’s house and fled to Bangalore in Karnataka state, where he was given a job at the Islamic Research Centre. However, his wife was threatened in Chennai. His son became ill but she was too frightened to leave the house and take him to a hospital. His son died. The families blamed the applicant for this tragedy.
·The applicant returned to Bangalore but was unable to attend to his work properly, so moved to Mumbai (Bombay) in Maharashtra state, where he started a business. The Babri mosque was demolished at this time [6 December 1992], and Hindus attacked Moslems everywhere. He was living in a Hindu area so had to flee to Mumbai at this point. He then moved to Delhi to find work, without success because of the general tension, then with a friend started a rice export business from Bhuvaneswar in Orissa state. In April 1993 he visited his wife in Chennai as she had given birth to their daughter, then he returned to Orissa state, where his business was going very well.
·The business was destroyed as a result of a cyclone, and he returned to Chennai, where he re-started his business and rejoined his social life.
·He heard that the same people wanted to eliminate him so, with his wife and daughter, hid in a different place. However they came there and the family escaped. The applicant reported this to the police, who said they could take no action “as the people involved were not identified properly”. The applicant believed that the assailants and the police were “hand in glove”.
·He and many others formed a self-protection committee, called the Chennai Vazhal Pudur Makkal Nala Sangam. A few days later he and others intervened to protect a Moslem being attacked by a Hindu.
·A few days after this he heard that a person was planning to kill him. A person entered his house and told him that if he disclosed anything to anybody, or to the police, he would be killed.
·During the Hindu Deepavali festival fireworks were thrown into his house. He asked his committee to help but they said they could not, so he wrote many letters to political parties, without success. His business suffered.
·On 13 September 1998 he was rung at home and asked to meet a person about a business deal. As he and a friend approached the shop, an auto-rickshaw struck his scooter. He believed this was pre-planned. The drunken passengers stopped and manhandled them. Members of the public intervened and rescued them both, handing over one of the culprits to the police. The applicant and his friend were admitted to hospital for a day. The hospital authorities told the police, who investigated. The police arrested one of his assailants (Vasu), while the other two, expecting arrest, had got “anticipatory bail”.
·After the applicant’s release from hospital, he received several telephone calls at night from people “threatening me with dire consequences to my personal life and family members” if he gave evidence against Vasu. People knocked on his door. He believed they intended to murder him. Fearing for the children’s safety, his wife could not take them to school. He was warned to tell the neighbours or the police about anything. As a result, when he gave evidence in court he told the magistrate he knew nothing. He did not identify his assailant.
·To avoid these problems he moved from state to state within India. However “wherever I went there was also some kind of disturbance or other” so he could not stay there.
·Within a few months a general election was called. The BJP formed an alliance with the state-based AIADMK, the Congress Party allied with the state-based DMK. He and his friends supported the DMK. The Congress and the DMK won nationally and at state level respectively [on 13 May 2004], as a result of which he received threatening phone calls.
·The DMK said they would help with this problem. As he and others left the DMK office a gang in an auto-rickshaw followed them. The police said they could do nothing about this.
·The applicant contemplated suicide. He borrowed money and moved from one place to another, leaving his wife and two daughters behind. He was advised to come to Australia and did so.
·As a result of all these problems he had incurred large debts.
In support of these claims he submitted a photocopy of a First Information Report, apparently dated 15 September 1998, and five other photocopied pages. These were uncertified copies, all of poor quality, and untranslated. He also submitted a photocopy of an Indian passport issued in his name on 31 October 2002.
He claimed to fear being killed by BJP and RSS thugs, or arrest, jail and torture by police” (CB pp.104-7).
The applicant arrived in Australia on 6 September 2004. On 13 October 2004 he lodged an application for a protection visa with the Department of the first respondent. On 16 November 2004 a delegate of the first respondent refused to grant the application for a protection visa.
On 7 December 2004 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence to the Tribunal on
27 January 2005.
On 5 April 2005 the Tribunal handed down its decision dated 8 March 2005, affirming the decision of the Minister’s delegate refusing to grant the application for a protection visa.
In considering the applicant’s claims, the Tribunal found the following:
“I am satisfied, and find, that the applicant is a national of India.
Competency to give evidence in the Tribunal context often arises in a situation where the applicant has a psychiatric condition, psychological disorder or an intellectual disability which may affect their ability to recall or give evidence. Such a condition may result in inconsistent, incoherent or illogical testimony which may reflect poorly on the applicant’s credibility or the reliability of testimony. In the present case the applicant spoke of an attempt to end his life shortly before he left India last year. He also referred to two particularly distressing incidents in his life (the sudden death of his child, and a serious assault in 1998) and referred to his parents and wife dissociating themselves from him and being angry with him. He said that his longer term memory had been affected as a result of the 1998 assault, although he believed he could recall significant events. Having taken oral evidence from him during the hearing of some three hours, I observed some of his evidence appeared to be somewhat disordered and illogical. Unfortunately he has no friends of relatives in Australia who could provide a clearer account to the Tribunal of the circumstances which brought him to this country, and the Tribunal must rely on his own account of his history and the relevant independent evidence about the situation in India as it might affect him. I have considered whether a report by a qualified doctor or psychiatrist about the applicant might prove of assistance in this case. However, as such a report cannot assist in establishing precisely what difficulties the applicant has actually faced in India and the reason for them, and as these are key issues on which the Tribunal must make findings, I do not consider that such a report might offer any practical advantage to the Tribunal in performing this task.
I accept that the applicant is a Moslem. Of his claim that in Triplicane Hindu fanatics constantly threaten the lives of Moslems, and “anyone with a Moslem appearance” was robbed and beaten by thugs, that evidence is not consistent with the independent evidence from the U.S State Department, which reports attacks on Moslems by Hindu extremists in recent years in Gujarat state and also in Coimbatore, another city in Tamil Nadu, but not in Chennai, or Triplicane in particular. Nor is it consistent with the report from DIMIA, which states that in Tamil Nadu communal violence has remained largeley (sic) confined to the Coimbatore area. I therefore consider his claim to be exaggerated, and do not accept that Moslems in Triplicane, or Chennai generally, are facing widespread serious harm to the extent that any Moslem in this area has a well-founded fear of persecution for reason of his or her religion.
As to the situation for Moslems in India generally, the evidence from the U.S State Department reflects tensions between religious groups and some outbreaks of appalling communal violence directed at Moslems from which the police did not protect them, as noted above particularly in Gujarat state. However it also reports “generally amicable” relations between the various religious groups among the substantial majority of citizens across the country. I am satisfied that Moslems are not the target of serious discrimination or other serious harm uniformly across the country. I am satisfied, and find, that merely being a Moslem in India is not sufficient to give rise to a well-founded fear of persecution for the Convention reason of religion.
I have regard to evidence (DIMIA 2003) that the Islamic Youth Association had begun attacking Hindu nationalist leaders and politicians in Tamil Nadu in the 1980s and that violence escalated in 1993 when Al-Umma bombed an RSS office in Chennai killing 11 people. Although the Tribunal has no specific reports of any violent incidents in 1991 in Chennai during which Moslems were attacked, given that there were obviously some tensions at the time it is possible that the applicant was injured and robbed there in 1991 by Hindus, and that in 1992 he and other private traders complained about extortion threats, and were threatened as a result. The applicant claimed that he then left Tamil Nadu, although I am unable to establish where he went (in writing he stated that he went to Bangalore and got a job, although at the hearing he said that he was in Bombay). It was also around this time, while he was away, that his child died in Chennai, and his family held him responsible because he was not at home. I accept that the applicant was very deeply distressed by these events and that, being unwelcome at his home and fearing some harm by Hindu extremists, he began to move from place to place around the country.
I accept that while back in Triplicane the applicant was assaulted in 1998, although his evidence was that his assailants, travelling in an auto-rickshaw, were drunk and that their vehicle struck his bicycle as he rode it along the road, after which they assaulted him. His evidence about the circumstances in which the incident occurred has varied, but in my view it has the hallmarks of an ordinary accident leading to an assault by the inebriated passengers of the vehicle. I cannot be satisfied that it was anything more than that, and therefore am not satisfied that it was a pre-planned attack on him by Hindu extremists, whether connected with a political party or not, for any of the reasons set out in the Convention. I accept that the police charged his assailants and that, because they had threatened him after the incident, he chose not to give evidence against them. However, I accept that the applicant found this incident very distressing and that he may have interpreted it in the way he has claimed.
The applicant claimed in writing that Hindu fanatics in Chennai wanted to kill him mainly because of his charitable work. His explanation was that Hindu nationalists did not want him to become popular. While I am satisfied that he did use part of his income to assist poor people in Triplicane, it is unclear from his account why this might have led to his being targeted by Hindu extremists, particularly as he was giving what little money he had to Hindus as well as Moslems, was not involved in proselytising and was rarely in Triplicane until 1992. Further, there is evidence of several well organised Moslem groups involved in bombings and other terrorist activities in this period in Tamil Nadu, and one would expect their members to be the target of Hindu extremist retaliation, rather than the applicant. In any case, although at one point he gave evidence that he had been giving away his savings until he left India for Australia, he also said at another stage at the Tribunal hearing that he had not done any charitable activities at all since 1998. It appears to me that he was being more precise in his latter response, and I propose to rely on it. Taking all the above factors into account, it appears highly unlikely, and I am not satisfied, that anyone might have wished to harm in subsequent years for a reason arising from his having been involved in charitable activities in the past.
When I put this to him he belatedly claimed that in fact people now wanted to harm him because of his support for the DMK party in Tamil Nadu, and they had increased their threats to him after the ADMK party recently lost power in an election. He claimed to have travelled around Tamil Nadu for some three months with DMK supporters in the lead up to the election (which I am satisfied was held in May 2004). I have considerable difficulty believing this claim, for a number of reasons – firstly because he did not mention it early in the hearing when listing where he was residing over the years in India (instead claiming to have been in hiding in other parts of the country), secondly because his participation in this campaigning activity had not been mentioned in his written account, and thirdly because it sits uncomfortably with his evidence that he was not a member of any political party in India. However, he has stated that he had difficulties with his longer term memory and it may be that he has had some involvement with this party, which is now the ruling party in Tamil Nadu. As to whether he was being threatened in the lead up to his departure from India in 2004 as a result of these political activities, that is inconsistent with his evidence that he was “small fry”, and it is also very difficult to accept that anyone from Chennai could have located him in order to make such threats, given his evidence that he was moving from one city to another, or indeed that they might have bothered to do so. Therefore, while I am satisfied that the applicant was fearful of being harmed by Hindu extremists or Hindu supporters of another political party, I do not consider that that fear was well-founded before his departure from India.
I have considerable difficulty accepting that the applicant was at risk of any Convention-related harm in the Chennai area at the time he left India for Australia in 2004. However, if I am wrong on this point, I am satisfied for the following reasons that the chance of his being harmed for a Convention reason elsewhere in India is remote.
The applicant gave evidence that for some years he had moved around India “all the time”, sometimes spending just 10-20 days in one lodging place. He considered himself to be in hiding, and was prompted to move whenever he “felt fear” or saw “suspicious persons”. However he does not claim to have been threatened or harmed by Hindu extremists or anyone else outside the Chennai area of Tamil Nadu during the ten years prior to his departure for Australia. That is consistent with his evidence that he was a “small fry” in terms of his political profile even in Chennai. Local Hindu extremists in his district in Tamil Nadu would appear to have neither the means nor the desire to locate him elsewhere. I am not satisfied that he was at risk of politically-motivated harm outside the Chennai area in the lead up to his departure from India in 2004. Despite incidents of violence and discrimination during 2003/4, relations between various religious groups in India generally were amicable last year among the substantial majority of citizens. Therefore, while I am satisfied that he was fearful of being harmed anywhere in India by Hindu extremists or Hindu supporters of another political party, I find that that fear was not well-founded.
As to his fear of the police, I am satisfied that there is no “official case” (as he stated) against him. However he has claimed that the police were searching for him after the above-mentioned election, and that he knew this because they came to his home in Chennai on one occasion. I cannot be satisfied, if they did, that the reason arose from his religion, political opinions or activities or any other Convention-related reason. If he was of any interest to them, and in particular if they had wished to arrest him as he claimed at one point, they would have done so when he traveled (sic) in and out of India via the airport. I am satisfied that security checks would have readily identified him (DFAT 1992). I find that he does not have a well-founded fear of being persecuted by agents of the State of India for a Convention reason.
I consider that the applicant could reasonably be expected to relocate within India. It is a large and populous country. As to whether it would be reasonable to expect him to relocate, I rely on the following. Firstly, according to his own claims he has traveled (sic) extensively around India, speaks English and Hindi (both of which are spoken widely) and is confident that there are Tamil-speaking communities in other parts of India. Secondly, there are no official restrictions on moving from one state to another there (U.K. Home Office, Country Assessment: India, October, 2001). Thirdly, there are large Moslem communities in several states in India. Fourthly, he appears to have the qualities necessary to enable him to relocate. He willingly moved to Australia, a country in which he neither spoke the language fluently nor had any friends or relatives.
The applicant has clearly suffered some serious personal difficulties and hardships in India, and I feel considerable sympathy for him. However for the above reasons I am satisfied, and find, that it would be reasonable for the applicant to relocate within India and that, if he did so, his fear of Convention-related persecution would not be well-founded” (CB pp. 122-6).
The application
In his application dated 26 April 2005, the applicant set out 9 grounds as follows:
1.The tribunal made his decision in bad faith.
2.The tribunal deprived me of the natural justice.
3.The tribunal decision denied the evidentiary proof of my claim.
4.The tribunal’s decision did not reflect the material facts of my claim.
5.The tribunal has given a decision, which was preset in the back of it’s (sic) mind.
6.The tribunal mixed up many facts with this decision which affected the decision.
7.The tribunal concentrated in particular fact, while ignored many other facts in this condition.
8.The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.
9.I will provide more details later.
In his amended application filed on 26 July 2005, the applicant set out the following grounds and particulars;
That the RRT decision was effected to take into account a relevant consideration when it assessed weather (sic) the delegate of the Minister raised reasonable grounds for not granting a protection visa.
Particulars:
The tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to India based on the member of a particular social group Muslim minority in India. I was persecuted because my religious believe and involvement with the DMK politics in India. I was persecuted by the authority & Hindu extremists, RSS. I was attack by RSS & BJP in India. Now BJP & RSS ACTIVISTS are very strong. If I persecuted by the authority it is not possible for me relocate any other place in India. I will be persecute if I return back to India because of my political & religious opinion. It is a convention based persecution. I provided documentary evidences to establish my persecution. But tribunal did not properly consider my evidences with the Migration Act 1958.
I was persecuted because of my politics and religion. I refer CB pages 58-74. It is true I did not collect more relevant documentary evidences to prove my persecution. Because I have no one to help me to collect documents.
The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
The tribunal did not observe Migration Act 1958 properly to making the decision.
The Tribunal fail consider my evidences with the proper way which the migration Act 1958 provided in my claims.
I will provide more details to support my judicial review application in my outline of submission.
Particulars:
The Tribunal did not provide me adequate particulars of the independent information.
The Tribunal did not provide me an adequate opportunity to respond the substance of the information.
The Tribunal finding that the totality of the country information does not show that DMK politicians & Muslim minority are not persecuted in India.
I attend the Tribunal hearing & I provided oral evidence to support my claims. Only the credibility reason the Tribunal did not consider my genuine claims.
Without the proper consideration of my statement and oral evidence if the tribunal made decision the decision effected by the procedural fairness. I refer High Court Judgment plaintiff S157 v Commonwealth of Australia (4 February 2002).
I repeat the claims as relief which I provided in my application under judiciary act 1903.
I will provide the transcript of my RRT hearing audio cassette to establish my judicial review application. At present I have no fund to prepare the transcript of the tribunal hearing.
Grounds in the application
GROUND 1: alleges that the Tribunal made its decision in bad faith.
The Court finds nothing in the material or decision or circumstances to support this ground.
The applicant was asked if he wanted to put anything further to the Court in support of his application, but declined to do so, and relied on what is in his application and amended application.
The Court rejects this ground.
GROUND 2: alleges that the Tribunal deprived the applicant of natural justice.
The applicant put in written statements to the Department and to the Tribunal and gave evidence before the Tribunal on 27 January 2005 (Decision page 4). He was assisted by a Tamil-speaking interpreter during a hearing of some 3 hours.
The Tribunal considered all the material, as demonstrated in its 28 page decision.
The transcript of the hearing is not before the Court.
The Court finds that the applicant was not denied natural justice. He had adequate opportunity to put his case, and he gave oral evidence. There is no evidence to suggest bias or that the matter was prejudged.
The Court rejects this ground.
GROUND 3: asserts that the Tribunal denied the evidentiary proof of the applicants claim. It is clear from the 28 page decision of the Tribunal that it gave extensive consideration to the evidence, documents and material. The Tribunal then made its findings, which were properly open to it on the evidence, documents and material before it.
The Court rejects this ground.
Ground 4: asserts that the Tribunal’s decision did not reflect the material facts of the applicants claim.
The Court rejects this ground for the same reason that are stated in ground 3.
Ground 5: The Tribunal has given a decision which was preset in the back of its mind.
There is no evidence on material to support this allegation. The Tribunal gave full consideration to the case of the applicant and expressed its reasons for affirming the decision of the delegate of the Minister not to grant a protection visa.
The Court rejects this ground.
Ground 6: asserts that the Tribunal mixed up many facts with this decision which affected the decision. The applicant did not point to anything to support this ground. The decision sets out careful consideration of the applicants claim.
The Court rejects this ground.
Ground 7: asserts that the Tribunal concentrated on particular facts, while ignoring many other facts in this condition. The applicant did not establish that the Tribunal gave consideration to irrelevant matters, placed undue weight on certain matters, or ignored relevant matters.
The Court rejects this ground.
Ground 8: asserts that the Tribunal made up its mind without any inquiry regarding any claim and it did not believe any genuine convention based refugee claim.
It is clear from its decision that the Tribunal gave extensive consideration to the applicant’s claim. It then reached conclusions which were open to it.
The Court rejects this ground.
Ground 9: states that the applicant will provide more details later.
The applicant filed an amended application which is considered below. At the hearing the applicant was asked if he wanted to say anything further to the Court. He replied that he would rely on what he “have given in my application”.
This ground is vague and doesn’t demonstrate any jurisdictional error by the Tribunal.
The Court rejects this ground.
Grounds in the amended application
Ground 1: asserts that the RRT decision was effected to take into account a relevant consideration when it assessed weather (sic) the delegate of the Minister raised reasonable grounds for not granting a protection visa.
The Court understands this ground to be filled out by the particulars that follow it, and each particular will be considered as a separate ground.
Ground 2: asserts that the Tribunal did not “…properly consider in assessing the chance of my persecution and persecuted on my return to India based on the member of a particular social group Muslim minority in India. I was persecuted because my religious believe and involvement with the DMK politics in India. I was persecuted by the authority & Hindu extremists, RSS. I was attack by RSS & BJP in India. Now BJP & RSS ACTIVISTS are very strong. If I persecuted by the authority it is not possible for me relocate any other place in India. I will be persecuted if I return back to India because of my political & religious opinion. It is a convention based persecution. I provided documentary evidences to establish my persecution. But tribunal did not properly consider my evidences with the Migration Act 1958”.
The Tribunal’s decision discloses that it took into account the applicants assertions that he would be persecuted if he returned to India. The Tribunal rejected those assertions (Decision pages 24-7) and it was open to it to do so.
The Court rejects this ground.
Ground 3: asserts that the applicant was “persecuted because of my politics and religion. I refer CB pages 58-74. It is true I did not collect more relevant documentary evidences to prove my persecution. Because I have no one to help me to collect documents”.
The Tribunal considered the applicant’s assertions of persecution because of politics and religion but did not accept them, as it was open to it to do so (Decision pages 24-7).
The Court rejects this ground.
Ground 4: asserts that “The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief”.
The decision of the Tribunal shows that it considered all the material properly before it, and reached conclusions based on that material and evidence given by the applicant.
The Tribunal reached conclusions that were properly open to it.
The Court rejects this ground.
Ground 5: asserts that “The tribunal did not observe Migration Act 1958 properly to making the decision”. There were no submissions made to the Court to demonstrate that this was so. The Court finds no error in the way the Tribunal handled the applicant’s case.
The Court rejects this ground.
Ground 6: asserts “The Tribunal fail consider my evidences with the proper way which the migration Act 1958 provided in my claims”. It is clear from the Tribunal’s decision that is considered the evidence before it. Nothing was put to demonstrate that the Tribunal failed to deal with the claim properly under the Migration Act.
The Court rejects this ground.
Ground 7: states that “I will provide more details to support my judicial review application in my outline of submission”. No outline of submission was provided to the Court by the applicant. The applicant was invited by the Court to say anything further in support of his application (Transcript line 32) but he declined and said, “I will rely on what I have given in my application”.
The Court rejects this ground.
Ground 8: asserts that “The Tribunal did not provide me adequate particulars of the independent information”. The transcript of the hearing before the Tribunal is not before the Court. The country information before the Tribunal was general in nature and was not about the applicant in particular. Section 424A Migration Act did not require the Tribunal to give the applicant a copy of that information.
The applicant has not provided any detail to support this allegation, and as such, it cannot be found to have been made out.
The Court rejects this ground.
Ground 9: asserts that “The Tribunal did not provide me an adequate opportunity to respond the substance of the information”.
The transcript of the hearing before the Tribunal was not before the Court. The applicant has not provided any detail to support this allegation and the Court finds it not made out.
This Court rejects this ground.
Ground 10: asserts that “The Tribunal finding that the totality of the country information does not show that DMK politicians & Muslim minority are not persecuted in India”.
The Tribunal, after discussing the country information, found that the DMK politicians and Muslim minority are not persecuted in India (Decision pp. 24-26). That is a finding of fact which is properly open to the Tribunal on the information before it. This ground is not made out.
The Court rejects this ground.
Ground 11: states that the applicant attended the hearing and gave oral evidence and (in my words) “for reasons of credibility”, the Tribunal did not find his claims to be genuine.
It is not the function of judicial review by a court to review the findings of fact by the Refugee Review Tribunal, unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence”, or which was “glaringly improbable”. In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, Tamberlin and R D Nicholson JJ stated at paragraph 64:
“The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge ``has failed to use or has palpably misused his advantage'’ or has acted on evidence which was ``inconsistent with facts incontrovertibly established by the evidence'’ or which was ``glaringly improbable.'’
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 ; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”
The Court finds that the conclusions of the Tribunal were properly open to it. This ground is not made out.
The Court rejects this ground.
Ground 12: alleges (in my words) that his statement and oral evidence were not given proper consideration and therefore the applicant was denied procedural fairness. The applicant refers to the judgment in Plaintiff s157 of 2002 v The Commonwealth of Australia (2003) 195 ALR 24.
The transcript of the hearing before the Tribunal is not before the Court, but it is clear from its decision that the Tribunal did give proper consideration to the applicant’s material and oral evidence. Having decided that, the Court does not need to go to the decision in Plaintiff s157 of 2002 v Commonwealth of Australia. This ground is not made out.
The Court rejects this ground.
Ground 13: The applicant repeats his claims in his “application under the Judiciary Act 1903”.
The applicant’s application states that it is made under s39B Judiciary Act 1903 and the Migration Act 1958. Section 39B Judiciary Act details the original jurisdiction of the Federal Court of Australia in relation to various matters. This ground does not raise any issues under which the decision of the Tribunal can be impugned.
The Court rejects this ground.
Ground 14: states that the applicant will provide the transcript of the tribunal hearing and an audio cassette, to the Court. The applicant did not produce either if those items. This ground raises no basis to impugne the decision of the Tribunal.
The Court rejects this ground.
The Tribunal found against the applicant on two separate bases: First, that the applicant had no well-founded fear of persecution (Decision pages 24-27); and second, that, even if the Tribunal was wrong as to the finding, it was satisfied that the applicant could relocate within India (Decision pages 26-7).
To succeed on this review the applicant must show that the Tribunal erred in reaching both these conclusions. For the reasons detailed above the Court finds that the applicant has not shown the Tribunal erred in reaching either conclusion.
The Tribunal concluded at page 28 of its decision that, “Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol. Therefore he does not satisfy the criterion set out in s.36(2) of the Act for a protection visa”.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Dian Neligan
Date: 15 December 2006
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