SZHVL v Minister for Immigration
[2007] FMCA 1816
•8 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHVL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1816 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant claimed he had attempted to relocate after Tribunal decision – applicant sought impermissible merits review – Tribunal did not fail to direct its mind – country information is a matter for the Tribunal – no failure to conduct a fair hearing – credibility finding was not an error of fact – Tribunal was not one sided – no error in relocation finding – UNHCR Handbook not prescriptive in interpretation of Convention definition – Tribunal’s reasons were not vague – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.65, 36(2), 425(1), 424(3)(a), 424A(1), 422B, 430(1), 414, 411, 412. |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN[2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 SZATV v Minister for Immigration and Citizenship [2007] HCA 40 Januzi v Secretary of State for the Home Department [2006] 2 AC 426 Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 Shah v Minister for Immigration and Multicultural Affairs [2000] FCA 489 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 |
| Applicant: | SZHVL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3686 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 26 October 2007 |
| Date of Last Submission: | 26 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application made on 15 December 2005 and amended on 24 April 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3686 of 2005
| SZHVL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application filed on 15 December 2005 and amended on 24 April 2006, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 4 November 2005 and handed down on 29 November 2005, which affirmed a decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of India who arrived in Australia on 5 January 2005. On 24 January 2005 he lodged an application for a protection visa. On 4 August 2005 a delegate of the respondent Minister refused to grant a protection visa and on 23 August 2005 the applicant applied for review of that decision.
Applicant’s Claims to Protection
The applicant’s claims to protection are contained in his application for a protection visa (reproduced in the Court Book (“CB”) at CB 1 to CB 29), in the applicant’s application for review (CB 39 to 42) and in an accompanying statement (CB 43). The applicant claimed to fear religious and political persecution on the basis of his being an activist and organiser for his parish church, and chairman of the social action committee. He claimed he and his priest were involved in a dispute between two Hindu families and as a result, one of the participants involved in the fight, who was a “small” party leader of the SNDP and area member of the Rashtryia Swayamsevak Sangh (RSS) (Hindu parties), falsely accused him of arranging to have him beaten. Whilst the police found the applicant was innocent, the party leader subsequently arranged for five RSS members to beat him and accused the applicant of trying to convert people to Christianity. The police informed him that they could not do anything because of the strong political overtones of the matter. Further, the applicant claimed he decided to leave when Hindu party members threatened to kill him and damaged his property.
The Tribunal
The Tribunal accepted the applicant’s claims as to his and the priest’s dispute with the Hindu family, however, it found his claims as to fear ongoing persecution from these people was not credible. It found that there was a large and influential Catholic population in his district, and the BJP (which was the major political party linked to the RSS) was currently in opposition and had minimal support. This led it to conclude the applicant would be able to obtain adequate protection in his home district from the local forces of law and order. The Tribunal also considered that whilst it did not consider that relocation would be necessary, it did not see any difficulty with the applicant moving which would remove any residual problems which existed with those people with whom he was having a dispute. The Tribunal could not reach the requisite level of satisfaction that would mandate a protection visa being granted, and refused to grant a protection visa to him (s.65 and s.36(2) of the Migration Act 1958 (“the Act”)).
Application to the Court
The applicant’s application to the Court filed on 15 December 2005 seeks review on the following grounds:
“1. The Refugee Review Tribunal has failed to see that the applicant satisfies the criteria required under Article 1A(2) of the Convention.
2. The applicant satisfies the four key elements to the Convention definition as detailed in pages 2 to 4 of the Tribunal’s decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
3. In pages 5 to 8 of the decision the tribunal has stated about some country information, which are not relevant to the situation.
4. The Tribunal has failed to considered the real facts but has accepted the so called third party country information and dismissed the case of the applicant.
5. The Tribunal’s observation that the applicant’s claim to fear on-going persecution is not credible and is an error of fact. The Tribunal had completely erred and concluded against the applicant.
6. The Tribunal committed error in saying that the applicant could have moved away or relocated to some other place.
7. The Tribunal should have seen that t the applicant had faced lot of difficulties and if at all the Tribunal had some doubts, benefit of doubt should have been given to the applicant.
8. The reasons given by the Tribunal for the rejection are vague.
9. The Tribunal has not applied its mind in the manner as required.
10. The applicant seeks permission to file additional grounds, if required at a later stage.” [Errors in original.]
The applicant’s amended application filed on 24 April 2006 asserts the following grounds (which I note are largely repeated from the originating application):
“2. The Refugee Review Tribunal has failed to see that the applicant satisfies the criteria required under Article 1A(2) of the Convention.
The applicant satisfies the four key elements to the Convention definition as detailed in pages 2 to 4 of the Tribunal’s decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
Page 3 of the decision of the Tribunal refers to four key elements that are required to satisfy the Convention definition. The applicant states that he satisfies the four key elements and therefore entitled to get protection visa.
The first element – applicant must be outside his country.
The second element – the applicant must fear persecution. If the applicant returns to his countryhis life would be in danger.
The third element – the persecution which the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion.
The fourth element – the fear for a Convention must be a “well founded” fear. The applicant fulfils all the four elements.
2(a) The Tribunal has committed jurisdictional error and this court has the power to cancel the Tribunal’s decision. Because a reading of the decision will show that the Tribunal has not applied its mind at all.
3. In pages 5 to 8 of the decision the tribunal has stated about some country information, which are not relevant to the situation. The Tribunal had no considered the real situation butr has strangely accepted the so called third party sources.
4. The Tribunal has failed to considered the real facts but has accepted the so called third party country information and dismissed the case of the applicant. When this is the position, the Tribunal had violated the principles of natural justice. No fair and detailed enquiry was conducted. This will go to the root of the matter. Therefore the Federal Magistrate has the power to direct the Tribunal to consider the matter on reality and merits.
5. The Tribunal’s observation that the applicant’s claim to fear on-going persecution is not credible is an error of fact. The Tribunal had completely erred and concluded the case against the applicant. This is one sided and no fair opportunity has been granted to the applicant.
6. The Tribunal committed error in saying that the applicant could have moved away or relocated to some other place. The Tribunal should have seen the applicant wants to relocate to Australia to save his life. The Tribunal failed in saying that even the relocation is not necessary. This will prove the hasty approach of the Tribunal.
7. The Tribunal should have seen that the applicant had faced lot of difficulties and if at all the Tribunal had some doubts, benefit of doubt should have been of doubt should have been given to the applicant.
8. The reasons given by the Tribunal for the rejection are vague and without any details.
9. The Tribunal has not applied its mind in the manner as required. The Tribunal had committed legal error that requires proper consideration.”
The applicant has also attached to his amended application a letter to the Court which seeks to introduce further evidence on the issue of relocation, and a letter from the applicant’s wife and a newspaper article in the Malayam language. The applicant has also put before the Court his affidavit of 25 September 2007, giving evidence of events that are said to have occurred after the Tribunal’s decision and annexing material in support. The applicant asked that both his applications be read together. I agree with the first respondent’s submissions that this evidence was not before the Tribunal and as such, is not relevant to the question of whether the Tribunal made a jurisdictional error in affirming the decision of the delegate of the respondent Minister.
At the hearing, the applicant appeared in person. He was assisted by an interpreter in the Malayalam language. Ms A Mitchelmore appeared for the first respondent.
The applicant stated:
1)That he was unable to relocate in India. He had attempted to do so, by moving 40 kilometres away to his sister’s house, but the house had been bombed by his opponents.
2)He had told the Tribunal of the incidents which flowed from his and the local priest’s attempts to mediate in a dispute between two Hindu families. The Tribunal contacted the priest on two occasions but the priest could not properly explain. The Tribunal could not obtain the information it required and therefore made the “wrong” decision about his case.
3)The applicant said he wanted more time to present “records” of the “bomb” incidents. He said the letter from his wife (attached to the amended application) states that she has asked for relevant documents from the Court in India. [I ultimately understood this not to be a request for an adjournment before the Court, but as a basis for revisiting the matter to the Tribunal as “the matter is ongoing”.]
4)He had been given “plenty of time” to gather information before the Tribunal, but he wanted to submit information to the Tribunal about the matters that had occurred after the making of its decision.
5)In another incident (subsequent to the Tribunal’s decision), a priest had been murdered.
6)The authorities took no steps to protect him even though his “present predicament” is known to the Courts and government.
Ground 1 of Amended Application
Ground one of the applicant’s amended application asserts no jurisdictional error.
Ground 2 of Amended Application, (Grounds 1 & 2 of Originating Application) - Convention Criteria
In ground two of the amended application and grounds one and two of the originating application, the applicant claims the Tribunal failed to see that the applicant satisfied the criteria under Article 1A(2) of the [Refugees] Convention. I agree with the first respondent’s submissions that this is an attempt to re-agitate the merits of his application. In these circumstances, the applicant’s claims amount to a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)). These grounds plainly do not succeed.
Grounds 2(a) and 9, (Ground 9 of originating application) – Tribunal failed to apply its mind.
The applicant asserts that the Tribunal failed to “apply its mind”. To the extent that this claim seeks to assert that the Tribunal failed to consider the applicant’s claims or an integer of the claims, I agree with the Minister’s submissions that the Tribunal directed itself to the relevant legislation and case law on the meaning of “refugee” (see CB 54 to CB 55), and evaluated the applicant’s claims against those criteria, and as against country information to which it was entitled to have regard.
If by this claim the applicant seeks to assert the Tribunal was biased in failing to “apply its mind”, then with reference to the relevant authorities (see for example: Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 (“Jia”) at [72]), there is nothing before the Court by way of evidence, or indeed otherwise, to show that the Tribunal’s mind was so committed to a conclusion already formed such that it was incapable of being persuaded differently. On what is before the Court, the Tribunal’s mind was open to persuasion. At the hearing, the applicant was able to persuade the Tribunal to accept information as to his and the priest’s dispute with the Hindu family, but was unable to persuade the Tribunal that he would face ongoing persecution as a result of the dispute with the Hindu family (CB 61.1). It is trite to note that the applicant’s mere assertion that the Tribunal did not believe him is plainly not evidence of bias on the part of the Tribunal (Jia, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN[2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102).
Grounds 3 and 4 – Country Information
The applicant complains (in grounds 3 and 4 of the original application and grounds 3 and 4 of the amended application) of the Tribunal’s use of country information. The Tribunal is entitled to have regard to information it considers relevant. The use and weight that it gives to such information, and the assessment of country information is a factual matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 per Hely J at [16]). This complaint is not made out. I agree with the Minister’s submissions that the Tribunal was entitled to have regard to independent country information as to the political and religious composition of the region in India where the applicant lived, information which was relevant to the applicant’s claim that he could not avail himself of state protection.
Grounds 3 and 4 – Tribunal Failed to Conduct a Fair Hearing
The Tribunal invited the applicant to a hearing pursuant to s.425(1) of the Act. The applicant attended the hearing and gave oral evidence with the assistance of an interpreter in the Malayalam language. As to country information, pursuant to s.424A(3)(a) of the Act, the Tribunal was entitled to have regard to it without putting it to the applicant under s.424A(1) of the Act. Further, bearing in mind what was said by the High Court in relation to a fair hearing in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”), the determinative issue in this case was that the applicant was able to avail himself of adequate protection in his home area. While there is no evidence that the issue of state protection was raised at the hearing, the applicant went to the Tribunal hearing fully aware that this factor was in issue in relation to his claims (see the delegate’s decision at CB 37, and in particular at CB 37.9).
Further, the applicant’s criticism of the delegate’s decision made in writing to the Tribunal (CB 43) specifically addresses this issue. The Tribunal noted this in its decision record (CB 57.3). I understand from SZBEL that it was the fact that the Tribunal did not raise with the applicant at the hearing an issue determinative of the review that was not raised before the delegate or in the delegate’s decision that led to jurisdictional error on its part (see [43] of SZBEL).
Ground 5 – Tribunal’s credibility finding was an error of fact, Tribunal was one sided and no fair opportunity was given
Ground 5 of the originating application and the amended application are in similar terms, asserting an “error of fact” on the part of the Tribunal by “conclud[ing] against the applicant” in its finding that the applicant was not credible. It is well established that questions of fact including questions as to the applicant’s credibility are a matter for the Tribunal as the decision maker "par excellence" (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67], per McHugh J). I can see no error in this regard.
To the extent that the applicant’s complaints that the Tribunal was “one-sided” amount to an assertion of bias, I cannot see that such a complaint can be made out (see [13] above).
To the extent that the applicant claims no “fair opportunity” was given to him, I note that this is a decision to which s.422B of the Act applies to make the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214,SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62). As referred to above at [15], the applicant was invited to a hearing, and attended the hearing and gave oral evidence. I cannot see that the Tribunal failed to give the applicant a “fair opportunity”. This complaint is not made out.
Ground 6 – Relocation
Ground six of the originating application and the amended application are in similar terms and complain of the Tribunal’s relocation finding. The Tribunal, properly in my view (given the applicant’s claims as variously stated), understood the applicant to claim to fear harm from a Hindu family (who also had political connections and membership of a Hindu party) as a result of his, and a priest’s, intervention in a local dispute (CB 56.8 to CB 57.2). It accepted the information provided by the applicant in relation to this dispute (CB 61.2). It found that there was not a real chance of the applicant suffering harm amounting to persecution in India for any Refugees Convention reason and that the applicant did not have a well-founded fear of any such harm (CB 61.8).
On a plain reading of its analysis, this was based on three reasons. First, that the applicants fear to ongoing harm “by these people” was not credible. The Tribunal based this finding on country information before it that there was “a large and influential Catholic population in his district” and “significant Catholic institutions near his home town” (CB 61.3).
Second, and linked to the above, the Tribunal found that the political parties, with whom those the applicant feared were linked, were in opposition and had “minimal electoral support in the applicant’s electoral district which is overwhelmingly supported” by parties that did not support the Hindu parties.
In these circumstances, the Tribunal found that the applicant was able to obtain adequate protection in his home district from “the forces of law and order” (CB 61.4). It is not clear therefore why the Tribunal went on to also consider the possibility of the applicant’s relocation. The Tribunal’s findings as to the credibility of the fear and availability of adequate state protection, a factor which is relevant to the issue of whether the fear is well-founded (see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18) were not attendant with such doubt or lack of sufficient confidence as to require it to ask the so-called “what if I am wrong question” (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”); Wu Shan Liang). That is, to consider whether there was an alternative on which to base the decision to affirm the delegate’s decision.
Even if the Tribunal’s finding as to relocation in India being a reasonable option for the applicant was attendant with legal error, the Tribunal’s clear finding as to the credibility of the claim to fear harm and the availability of adequate state protection in his local area stand either separately, or certainly jointly, as an independent and unimpeached basis on which the delegate’s decision was affirmed (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965).
Nonetheless, I agree with Ms Mitchelmore’s submission that by its expression that there was no difficulty in the applicant moving a “short distance away”, the Tribunal found that as a practical matter, relocation was reasonable. The Tribunal considered the applicant’s move to a a number of specified locations, a move to any of which it found was reasonable and would remove any residual problem with those involved in the dispute. I note the recent endorsement by the High Court in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [19] of what was said in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 440, regarding the place of the concept of relocation in the Refugees Convention definition and that there could be no well-founded fear of persecution where the protection in an asylum seeker’s country was available to him and where he could reasonably relocate. I cannot see that the Tribunal made any error in this regard.
Ground 7 – Applicant should have been given benefit of doubt
Ground seven of the originating application and the amended application are in identical terms. The applicant complains that the “Tribunal should have seen that the applicant had faced lot of difficulties and if at all the Tribunal had some doubts, benefit of doubt should have been given to the applicant”. The relevant statutory regime (s.65 of the Act) requires the Tribunal to reach a level of satisfaction that all of the statutory elements relevant to the visa have been made out. In the case of a protection visa, this includes what is set out in s.36(2) of the Act. That is, that the applicant is a “non-citizen” in Australia to whom the decision maker is satisfied Australia has protection obligations under the Refugees Convention. On review before the Tribunal, it is for the applicant to persuade the Tribunal that all of the statutory elements are made out (Guo at 596).
While the “United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status” (Geneva, January 1992) makes reference (at paragraphs 203 and 204) to “benefit of the doubt” and the frequent necessity to give an applicant the benefit of the doubt, the Handbook has been generally held (other than for specific exceptions) to be a guide only and not a prescriptive interpretation of the Convention definition of a refugee in Australia (Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422; Shah v Minister for Immigration and Multicultural Affairs [2000] FCA 489).
Nonetheless, it is, as Ms Mitchelmore submits, appropriate to adapt a liberal attitude concerning proof of persecution in the context of an application for recognition as a refugee. But even within this, there is no obligation on the Tribunal to uncritically accept any or all of the applicant’s assertions (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437). The Tribunal’s conclusion on the evidence before it that the applicant could obtain the protection of the authorities in India was open to it. Ultimately however, despite the inference arising from the applicant’s ground for review, the Tribunal’s finding in this regard was not attendant with any or “some doubts”. The applicant appears again to be seeking impermissible merits review of the Tribunal decision (Wu Shan Liang).
Ground 8 – ‘Vague’ reasons given by the Tribunal
Ground eight of the originating application and the amended application are in similar terms. The applicant claims that the reasons given by the Tribunal for the rejection are “vague” and “without any details”. Section 430(1) of the Act sets out the requirements necessary for inclusion in the Tribunal’s decision record. I agree with the Minister’s submissions that the mere fact a written statement is brief does not result in non compliance with s.430(1) of the Act (NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279 at [15] per Jacobson J).
I note further that the Court should not approach the Tribunal’s reasons by construing them minutely and with an eye keenly attuned to the perception of error (Wu Shan Liang; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280).
In any event, the Tribunal did consider all of the applicant’s claims. It decided that he did not face a real chance of harm if he returned to India, based on findings which were open to it on what was before it. The reasons were neither “vague” nor lacking in detail. This ground is not made out.
Before the Court, the applicant sought to rely on material annexed to his application to the Court and on evidence given by way of affidavit as to matters which he said had occurred since the Tribunal’s decision, which go to the issue of his fear of persecution.
Despite the Court’s attempt to explain to the applicant that the appropriate decision maker as to the question of whether he had a well-founded fear of persecution for a Refugees Convention reason was the Tribunal, and not the Court, the applicant pressed that because his “matter is ongoing” the Court should remit the matter to the Tribunal for further consideration.
It is trite to emphasise the distinction between the Tribunal’s role and the role of the Court. The Tribunal was required to review the delegate’s decision (see ss. 414, 411 and 412 of the Act). On the material before it, the Tribunal discharged this obligation ultimately when it handed down its decision on 29 November 2005. In my view, it became “functus officio” at that date. The Court’s role (for the applicant’s benefit) does not extend to answering the question (in effect) as to whether he is a refugee. The Court’s role is to see whether the Tribunal performed its function to review the delegate’s decision according to law.
The applicant asks that the Court return his matter to the Tribunal because of events that have occurred since the Tribunal’s decision. Such a request ignores the situation that this Court can only return his case to the Tribunal if error is found in the way the Tribunal exercised its jurisdiction. Events occuring after the date of the Tribunal’s decision cannot assist the applicant in revealing jurisdictional error on the part of the Tribunal’s decision. Any insistance by the applicant in this regard does not rise above a request for the Court to substantiate its own findings and decision (based on subsequent events) which is for the Tribunal alone to make.
Before the Court, the applicant also stated that he had tried to relocate 40 kilometres away from his home town, but it was known to his opponents when he tried to relocate to his sister’s house, and her house had been bombed. To the extent that this relies on events after the Tribunal’s decision then the applicant cannot succeed in showing jurisdictional error. Nor can the fact that the applicant says he now has further documents (or wants more time) to submit to the Tribunal.
However, to the extent that in part this challenges what was said to be before the Tribunal, that is, that he claims (by implication) to have told the Tribunal he tried to unsuccessfully relocate, then the applicant does not appear to have claimed in his protection visa application, written statement to the Tribunal (CB 43 to CB 44), or at the hearing with the Tribunal (CB 57), that he had attempted to relocate 40 kilometres away from his home town or to have gone to his sister’s house. If anything, what is set out in the protection visa application at CB 29 is that if he decided to relocate, the Hindu party was a national organisation and he would be found and therefore he left India to seek refuge.
The Tribunal’s account of what occurred at the hearing is at CB 57.5. The applicant has not put any evidence before the Court to challenge that account or to supplement it with what else may have occurred. What the applicant is reported as having stated is consistent with the written claim that if (not that he had) tried to relocate, his opponents would find him. That the Tribunal found that he could reasonably relocate, on the circumstances before it, has been dealt with above, and I see no error in this regard.
The applicant also complained before the Court that the Tribunal’s decision was wrong because while it tried to contact “the priest”, in relation to what the applicant had told it about the incidents arising out of his and the priest’s attempts to settle the dispute between the two Hindu families, the priest could not “properly explain”.
The applicant’s complaint does not assist him in showing error on the part of the Tribunal. While the Tribunal said it would have liked to have independent confirmation of the events which the applicant described (CB 60.10), it nonetheless accepted the information provided by the applicant as to his and his priest’s dispute with the Hindu family.
I cannot see jurisdictional error in the Tribunal’s decision either based on what the applicant has put to the Court or otherwise. The application is dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 8 November 2007
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