SZJSA v Minister for Immigration

[2007] FMCA 1891

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJSA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1891

MIGRATION – Review of decision of the Refugee Review Tribunal – applicant’s claims vague and lacking in detail – no failure to consider – no breach of the rules of natural justice – no failure to understand applicant’s claims – no evidence of bad faith or bias on the part of the Tribunal – Tribunal did not apply the “wrong test” – no illogicality on the part of the Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958, ss.65, 36(2), 424, 430, 439, 440, 422B, 91R(2), 420

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 46
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
Lee v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Muin v Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601; [2002] HCA 30
SZKNJ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 1439

Applicant: SZJSA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3369 of 2006

Judgment of: Nicholls FM

Hearing date: 12 November 2007

Date of Last Submission: 12 November 2007

Delivered at: Sydney

Delivered on: 16 November 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr P Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”

2. The application filed on 16 November 2006, and amended on 30 April 2007, is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $4,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3369 of 2006

SZJSA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) filed on 16 November 2006, and amended on 30 April 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 5 October 2006 and handed down on 26 October 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The respondent Minister has filed a bundle of relevant documents in this matter (“Court Book” (“CB”)) from which the following can be discerned. The applicant is a citizen of India who arrived in Australia on 31 March 2006. In May 2006 he applied for a protection visa. On 3 June 2006, a delegate of the respondent Minister refused to grant a protection visa to the applicant. On 22 June 2006, the applicant applied for review of the delegate’s decision.

The applicant’s claims to protection

1. The applicant is a citizen of India who sought protection in Australia because he feared persecution in India because of his Muslim religion, his membership of the Students Islamic Movement of India (“SIMI”) and his help for poor Hindus which “angered” the RSS, a Hindu political organisation.

The Tribunal

1. The application for review is reproduced at CB 49 to CB 52. In support of his claims, the applicant provided a statement to the Tribunal dated 12 July 2006 (CB 55), a number of medical certificates (CB 56 to CB 62), and a further submission dated 17 July 2006 (CB 63). He also supplied a number of photographs which he claimed showed that his house had been ransacked by Hindu extremists (see CB 91 to CB 96). The applicant attended a hearing before the Tribunal on 30 August 2006. The Tribunal’s account of what occurred is set out in its decision record (CB 116.8 to CB 120.10).

2. The Tribunal found that the applicant “was not a credible or forthright witness in presenting his case” (CB 123.7):

   “The applicant was evasive and did not respond to the questions posed by the Tribunal.  The applicant’s evidence was often confusing and given after much prompting by the Tribunal.”

3. While the Tribunal noted that there were significant discrepancies between the applicant’s written evidence provided with his primary visa application, and written and other evidence given to the Tribunal, it accepted the applicant’s explanation for these discrepancies. It did not rely on any discrepancy between his protection visa application and his other evidence (CB 123.8) as part of the reason for its decision to affirm the delegate’s decision. While the Tribunal accepted, based on independent information before it, that there was tension between Muslim and Hindu nationals in various states of India, including the applicant’s home state of Tamil Nadu, that notwithstanding this, the applicant’s change of evidence on a number of occasions during the hearing that it conducted with him, his claims of attacks which were vague and lacking in detail, and his evasiveness, raised doubts about the veracity of his statements, and caused the Tribunal to reject the applicant’s claim that he was a target for Hindu extremists.

4. The Tribunal found some aspects of the applicant’s explanations implausible and some of his comments to be inconsistent (see CB 124.9). It found medical reports provided by the applicant in support of his claims, and specifically his claim to have been attacked by political opponents, as being “not helpful.” It could not accept the veracity of some of these documents. For example, one report predated the date on which the applicant claimed to have been attacked.

5. The Tribunal nonetheless did accept some medical evidence. It accepted that the applicant had sustained some injury, but could not be satisfied that these injuries were sustained as a result of the claimed attack on him. It therefore gave these latter documents little weight (CB 125.3).

6. It did not accept that the applicant had been threatened by Hindu extremists prior to 2003, nor that he was a continuous target of these extremist groups. It did, however, accept that Hindu extremists attacked the applicant in 2003 (CB 125 to CB 126). In this regard, however, and given that the applicant’s evidence was “unclear and inconsistent,” it did not accept that the applicant reported incidents in 2003 to the police as he claimed and that they refused to take any notice. In any event, it found that as a result of the elections in May 2006, independent country information before it suggested that the applicant would be able to receive state protection (CB 126.7).

7. The Tribunal drew “no adverse conclusions from the applicant’s apparent lack of knowledge about SIMI.” But found that there was no evidence before it that the applicant may face persecution as a result of his membership (CB 126.5).

8. It had regard to photographs provided by the applicant which he claimed showed that his house had been “ransacked” by Hindu extremists. It found that: “nothing in the photographic material … corroborates the applicant’s claim that the house was ransacked by Hindu nationalists.” It reasoned that the photographic evidence depended on this claim and given that the Tribunal did not accept many of the applicant’s claims, it found that the photographs were of “little probative value” (CB 126.7).

9. The Tribunal also considered, in light of S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, whether the applicant would face a real chance of persecution on return to India given the finding that he had been subjected to physical harassment in 2003, and that he had ceased his relevant activities since that time out of fear of this harassment. It did not accept that the applicant was of any interest to Hindu extremists since that time, and did not accept therefore that the applicant faced a real chance of persecution for his work, either actual or perceived. In all, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention and therefore affirmed the decision under review.

Application to the Court

1. By way of amended application filed on 30 April 2007 the applicant puts forward six grounds of review. (There are two grounds numbered “three.”)

   “1.The Tribunal Applied The wrong test:

   a)By requiring independent evidence of the fact before the Tribunal would accept a claim being made b the applicant the Tribunal was, in fact, placing too high an onus of proof on the application and failing to give the applicant the benefit of the doubt.

   b)The Tribunal left out individual elements of the Applicant’s claims and tested whether they individually amounted to persecution rather than looking at the claim as a whole to determine whether the claim so considered amounted to persecution.

   2.The Tribunal failed to internalize the circumstantial ground of the review application and in weighting both the subjective and objective claims of the review application and in a reviewing the huge supporting facts and documents and such has breached section 424, section 430, section 439, section 440 of the Act.

   3.The Tribunal in its decision on of 5 October 2006 failed in its written statement that a breach of the rules of natural justice, therefore it rises the ground under section 476 of the Migration Act.

   3.(4).In Tribunal’s own country information report (page 16), the counsellor for SIMI while arguing the ban on SIMI has on court record said that, ‘center’s opinion based on intelligence [not legible] with no concrete evidence to substantiate it.  Moreover till to date not a single SIMI activist has been convicted in any crime that provides ample proof that activities of the organization were not illegal.’  This was proclaimed well after the Applicant organization SIMI was already banned by the Indian Authorities and thus the authorities motivation behind the Applicant’s fear of prosecution to inflict serious harm.

   4.(5).The Tribunal member failed to understand or ignored knowingly that the applicant was an active member of SIMI.

   5.(6).Despite the severity of the ‘privative clause’, an opportunity for review can lie under section 39B Of the Judiciary Act (Cth) 1903, which rely on the original jurisdictional Of the Court.  However, review under s.39B is gained the decision of the Refugee Review Tribunal dated 31 May 2006 can be review, if the following four factor are observed.

   a)The decision maker acted in good faith.

   b)The decision is reasonably capable of reference to the power granted to the decision maker – this is unlikely to be an issue given that, to argue to the contrary, it would have to be shown that the decision maker did not have the authority to make the decision concerned, for example,  had not had authority delegated to him or her Minister for Immigration and Multicultural Affairs or had not been properly appointed to the Tribunal.

   c)The decision relates to the subject matter of the legislation (i.e. the Migration Act.) this again is highly to be an issue, given that a major purpose of the Migration Act is the making of visa decisions.

   d)Constitutional limit are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act. this is highly unlikely arise.

   From the above factors the only one of any real significance is the first, the Tribunal did not act in good faith.  My claim that the decision maker acted in bad faith.” [Errors in Original]

The hearing before the Court

1. At the hearing the applicant appeared unrepresented and was assisted by an interpreter in the Tamil language. Mr P Cleary of Counsel appeared for the first respondent. The applicant has also filed written submissions in this matter on 1 November 2007 which appear also to address matters not raised in the amended application. I also have before me written submissions filed on behalf of the first respondent on 6 November 2007.

2. At the hearing the applicant stated that he is a refugee. He complained that he gave “all the evidence” to the Tribunal to show this. He pressed his refugee claims to the Court: that he sought to convert others to Islam, this angered the Hindu nationalists and they took vengeance by, amongst other things, torturing him. After he fled to Bombay, Hindu fundamentalists made attempts to kill and kidnap him. He brought the originals of photographs he had submitted to the Tribunal. He did not know the whereabouts of his family. There was no protection in India. He wanted a “good decision” from the Court to ensure his (and his family’s) safety.

Ground One – Onus of proof and failure to consider

1. In ground 1(a) the applicant asserts that the Tribunal placed too high an onus of proof on him and failed to give him the “benefit of the doubt.”

2. The relevant statutory regime within which the Tribunal operates (ss.65 and 36(2) of the Act) requires (in the case of a protection visa matter) that the Tribunal reach a requisite level of satisfaction that the applicant, in effect, meets the definition of “refugee” as set out in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees. (See United Nations, Treaty Series, volume 189, p.137.) (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

3. The amended application does not state from where the concept of “benefit of the doubt” has been imported. In all probability it derives from paragraphs 203 and 204 of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining the Refugee Status (Re-edited, Geneva, January 1992) (“the Handbook”).

4. These guidelines provide that (p.48 of the Handbook):

   “… it is hardly possible for a refugee to ‘prove’ every part of his case ….  It is therefore frequently necessary to give the applicant the benefit of the doubt.”

5. The guidelines continue however:

   “204.The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.”

6. I note that while some parts of the Handbook have been adopted by Courts in Australia, the Handbook remains as a useful guide, and does not have binding authority (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Dawson J, Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 per Finn J).

7. As stated above, the Tribunal must reach a requisite level of satisfaction that the applicant meets the definition of refugee. Before the Tribunal it is for the applicant to persuade the Tribunal that all the relevant statutory elements are made out (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559).

8. While it is nonetheless appropriate for the Tribunal to adopt a liberal attitude concerning proof of persecution, there is no obligation on the Tribunal to uncritically accept any, or all, of the applicant’s assertions (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437).

9. The Tribunal accepted some parts of the applicant’s evidence, but plainly rejected other parts. As Mr Cleary submits: “The Tribunal is entitled to accept or reject or give weight to the evidence proffered as it thinks appropriate in all the circumstances” (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 46 at [27]). The Tribunal’s conclusion that there were discrepancies in the applicant’s claims, that the applicant was evasive and his evidence lacked detail such as to raise doubts about his credibility, are factual findings for which it gives reasons. Its rejection of various pieces of evidence (some of the medical reports and photographs) as supporting his claims were similarly findings of fact consistent with its role as the decision-maker “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J).

10. The Tribunal’s findings were plainly open to it on what was before it. No error is demonstrated in these circumstances (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ). The Tribunal’s findings, adverse to the applicant, were open to it. It gave reasons. In the circumstances the applicant plainly seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”).

11. In ground 1(b), the amended application complains that the Tribunal did not look at the applicant’s claims as a whole to determine whether the claims amounted to persecution, but dealt individually with various parts of his claims. The Tribunal is required to assess whether the applicant’s fear of persecution is well-founded. This not only requires consideration of relevant claims, but in addition any cumulative effect when these are taken together. There may be situations that when each claim is considered individually it does not give rise to a well-founded fear of persecution, but when some or all claims are taken together the situation changes.

12. However, in the circumstances of this case, I can only agree with the Minister’s submission that this complaint does not succeed. The Tribunal comprehensively went through each aspect of the applicant’s claims. However, it ultimately found: “having considered the evidence as a whole the Tribunal is not satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol” (CB 127.4). Having accepted some aspects of his claims and rejected other key aspects, even when taken together the evidence was not such as to persuade the Tribunal to the applicant’s favour.

Ground Two – Breach of ss.424, 430, 439 and 440 of the Act

1. Ground 2 alleges breaches of ss.424, 430, 439 and 440 of the Act. No particulars whatsoever are provided in the application. Nor do the written submissions make reference to any of these sections.

2. In any event:

   1)Section 424 provides that the Tribunal may obtain any information that it considers relevant. But there is no obligation on it to do so. Nor does the applicant say what information the Tribunal should have obtained pursuant to this section. No error is revealed in the case before the Court.

   2)Section 430 provides that the Tribunal must prepare a written statement that sets out the decision, its reasons, its findings on material questions of fact, and refers to evidence or other material on which the findings were based. Plainly, the Tribunal has done this. I cannot see that it has failed to comply with s.430 of the Act.

   3)Section 439 relates to an officer of the Tribunal, or an interpreter providing services in connection with a review by the Tribunal, and restrictions on disclosure of confidential information. Plainly, no such issue arises in the case before the Court.

   4)Section 440 relates to restrictions on publication, or disclosure of certain matters that may have been before the Tribunal. Again, no such issue arises in the current matter.

   This ground is not made out.

Ground Three – Breach of the rules of natural justice

1. In ground 3 the amended application complains, without any particularity whatsoever, that the Tribunal, in writing its statement (of reasons), breached the rules of natural justice. I note that this is a case to which s.422B of the Act applies (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 (“Lay Lat”) at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 (“SZCIJ”) at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 (“SZFDE”) at [48]). In any event, I cannot see any such breach by the Tribunal on the material before the Court.

Ground Four – Country information

1. In the second described ground 3(4), the applicant’s complaint makes no sense whatsoever. He refers to the “Tribunal’s own country information report (see p.16).” He does not identify the report. Nor is it clear to which report the applicant refers. “Page 16” (CB 127) of the Tribunal’s decision record makes no reference to any country information report, if this is what is meant by the reference to “page 16.” In any event, I could not discern, in any of the reports before the Tribunal, as taken from the Tribunal’s decision record, any reference to the matters as quoted in the wording of this ground. This complaint does not succeed. Similarly, nor does paragraph 3 of the written submissions (addressed apparently to the same issue) assist the applicant.

Ground Five – Tribunal failed to understand the applicant’s claims

1. In ground 4 (5), the applicant complains that the Tribunal failed to understand, or ignored that he is an active member of SIMI. The Tribunal found that the applicant was a member of SIMI, but found that he was not actively involved in that organisation, and that his sole purpose for joining it was to seek safety for himself and his family (CB 126.4). This was a finding which on the material before it was open to the Tribunal to make, and for which it gave reasons. This Court cannot conduct merits review of the Tribunal’s decision (Wu Shan Liang). This ground also fails.

Ground Six – Bad faith and bias

1. In ground 5(a) (6) the applicant complains that the Tribunal member acted in bad faith. Again, no particulars are provided in the amended application. In written submissions the applicant asserts that the Tribunal member’s findings demonstrate bias.

2. Whether alleging a lack of good faith, or bias, the applicant is required, as submitted by Mr Cleary, to comply with the requirement that such allegations must be “distinctly made and clearly proven” (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22]; see also Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 (“SBBS”), Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102).

3. The applicant puts forward no evidence to support such a serious claim. He refers only to the Tribunal’s findings in its decision record. Again, as Mr Cleary submits, it is a rare and extreme case for an allegation of bias, or lack of good faith, to be apparent from nothing else than the reasons for decision of the decision maker (SBBS). It will be an exceptional and rare case where bias can be demonstrated solely from the Tribunal’s decision record (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]). On what is before the Court, this ground is not made out.

4. I also note the matters asserted in ground 5 (6), parts (b), (c) and (d). Although the applicant states in the amended application that only part (a) is of any real significance, these matters are unparticularised, and I can only agree with Mr Cleary, that they are largely meaningless.

Additional complaints raised in the applicant’s written submissions

1. In written submissions, in addition to the matters already dealt with above, the applicant:

   1)Asserts the Tribunal did not consider his oral evidence and breached s.424A of the Act.

   2)Asserts a breach of s.91R of the Act.

   3)Complains that the Tribunal acted “illogically.”

   4)Asserts that the Tribunal failed to find he satisfied the definition of “refugee.”

   5)Makes reference to ss.414, 415 and 420 of the Act.

   6)Complains that the Tribunal failed to properly analyse “future harm” that the applicant might face.

2. I understand the complaint that the Tribunal did not consider his oral evidence before rejecting his claims and failed in its obligation pursuant to s.424A as a complaint that although he had brought the written statement attached to his protection visa application to the Tribunal, it rejected his application on this basis without considering his oral evidence. Somehow this involved a breach of s.424A of the Act.

3. First, there is no breach of s.424A(1) of the Act by reference to the statement attached to the protection visa application. The applicant submits that he brought the statement attached to the protection visa application to the Tribunal for its consideration. There was no prompting from the Tribunal to do this. In these circumstances, the exception in s.424A(3)(b) of the Act would operate to exclude the obligation pursuant to s.424A as the applicant, on his submission now, would have voluntarily provided the statement to the Tribunal for the purposes of the review.

4. It is not clear whether, whoever drafted the submissions for the applicant, confused this statement with another written statement that he gave to the Tribunal (compare CB 27 to CB 28 and CB 55 or even CB 63)).

5. In any event, the Tribunal while noting that there were “significant discrepancies” between the written statement attached to the protection visa application and written and oral evidence provided to the Tribunal, did not rely on any such inconsistencies to find against the applicant and these did not form part of its reasons for affirming the delegate’s decision (see CB 123.9). (See also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [17]). I cannot see that s.424A(1) was enlivened in these circumstances.

6. But even further, with reference to SZBYR (at [18]), the Tribunal’s disbelief of the applicant’s evidence, even if it had arisen from the statement attached to the protection visa application is not “information” within the meaning of s.424A(1) of the Act. Nor for the same reason was the obligation in s.424A(1) of the Act enlivened by the Tribunal’s disbelief of the applicant’s evidence arising from inconsistencies between the applicant’s written statement given to the Tribunal and his oral evidence, and inconsistencies within that oral evidence itself.

7. The applicant also asserts that the Tribunal failed to consider whether the persecution that the applicant faced involved serious harm given that there was a threat to his “life and liberty” (s.91R(2)(a) of the Act).

8. I accept Mr Cleary’s submission that the Tribunal did understand the relevant test that it was required to apply. The Tribunal reminded itself of this test by what it set out at CB 114 in its decision record.

9. The Tribunal rejected much of what the applicant claimed based on the adverse view that it took of his credibility. This was open to it on what was before it. It did however, accept his evidence that he was attacked by Hindu extremists on one occasion in 2003 (CB 125.4). But for equally clear reasons which it gave (including the applicant’s own evidence that “there were no attacks on him since 2003”: CB 125.5) it found that there was not “a real chance of the applicant being attacked or physically harmed in the foreseeable future” (CB 125.7).

10. Having found that there was not a real chance of harm to the applicant as a result of this incident in 2003, the Tribunal was not required in the circumstances before it to engage in any additional, or fine, consideration of whether this harm was serious harm for the purposes of s.91R of the Act. This complaint does not assist the applicant.

11. The applicant also complains that the Tribunal acted “illogically” when it concluded that: “the Tribunal is not satisfied that the applicant is of any interest to the Hindu extremists.” The applicant’s stated reasons for this submission are, in effect, that the Tribunal rejected his claims to have been a member of the SIMI, and an active member of an associate group (DMK), that he had been tortured by Hindu extremists and that his family had suffered greatly, physically and financially. Even to the extent that a ground of illogicality may be available to the applicant (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30), this complaint does succeed.

12. No such illogical or indeed irrational elements are apparent in the Tribunal’s analysis. The Tribunal dealt with each aspect of the applicant’s claims:

    1)The Tribunal accepted that the applicant had joined SIMI. On what was before it, it was not “illogical” or a failure in properly apportioning weight to find that he did so for the sole purpose of seeking protection. The Tribunal drew “no adverse conclusions” from the applicant’s apparent lack of knowledge about SIMI. It found however, that the applicant would not face persecution as a result of his membership.

    2)I cannot see that the applicant had claimed to have been “tortured by the extremists.” No claim of torture appears in the record of his claims (see CB 27 to CB 28, CB 55, CB 63, CB 116.8 to CB 120.10). In any event, the Tribunal dealt with the applicant’s claims to have suffered harm if that is what he now means by reference to “torture.” No lack of logic or failure to “properly weigh” these claims is apparent.

    3)The complaint that the Tribunal did not act logically in concluding that the applicant did not have a well-founded fear of persecution is, with reference to the Tribunal’s decision record, not made out and really amounts to no more than a further request for impermissible merits review.

13. In written submissions in the same paragraph (paragraph 5) as that dealt with immediately above, the applicant also asserts that the Tribunal acted “illogically” in its finding that the applicant did not have a well-founded fear of persecution because it failed to weigh properly that he was an “active member of DMK.”

14. First, I cannot see that the applicant ever claimed to a member of the DMK (see CB 27 to CB 28, CB 63, CB 116.8 to CB 120.10).

15. Second, in what must be seen as an ironic twist, the applicant’s (or whoever drafted or put together the submissions for the applicant) complains now would only serve to reinforce the Tribunal’s finding that after the May 2006 elections, effective state protection would be available to the applicant in his home state (CB 126.9). The reason being that country information showed that at these elections a “DMK-led Alliance came to power in Tamil Nadu” (CB 126.8).

16. The applicant’s complaint (paragraph 6 of the written submissions) that the Tribunal failed to see that the applicant (the submissions refer to “applicants”) satisfied the refugee definition set out in Article 1A(2) of the Convention is nothing more than a request for impermissible merits review (Wu Shan Liang).

17. The submissions also claim a lack of procedural fairness, and that the applicant’s case is the same as that in: “Muin” (Muin v Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601; [2002] HCA 30 (“Muin”). The submission is that he was denied procedural fairness because he had been misled into believing that the Tribunal had read some information contained in the “Part B” documents.

18. There is nothing to show that the applicant had been misled into believing that the Tribunal had read information which had been in the “Part B” documents, presumably a reference to “Part B” of the protection visa application. Nor are there any relevant agreed facts before the Court now as was the situation in Muin. I also note as submitted by Mr Cleary that this is a matter to which s.422B of the Act applies (Lay Lat, SZCIJ and SZFDE, as noted above at [31]). In all, this complaint does not assist the applicant.

19. The mere references in the submissions to ss.414 and 415 do not assert error on the part of the Tribunal.

20. Finally, the applicant makes reference to s.420. The submissions claim that the Tribunal failed to analyse properly the “future harm,” given that it found that the applicant was a member of SIMI, and that it had also accepted as plausible that the applicant, as a Muslim and a supporter of the DMK, had faced past difficulties.

21. Plainly, the Tribunal did consider the applicant’s situation in relation to his claimed fear of harm, and whether it amounted to persecution should he return to India. It found that it rejected some of his claims on credibility grounds. It accepted some aspects of the applicant’s claims. In particular that he had been subjected to physical harassment in 2003. In this regard it found that effective and adequate state protection would be available to him if he were to return to India. Further, it did consider whether the applicant would face a real chance of persecution if he resumed his social work activities, which he had ceased in 2000. The Tribunal ultimately found that the applicant was not of interest to Hindu extremists, and did not accept that he faced a real chance of persecution if he were to resume performing social work of the kind that he performed in the past. The Tribunal did not make a finding accepting that the applicant was a supported of the DMK, as is submitted. This is not surprising because no such claim was made by the applicant. This complaint also does not succeed.

22. I cannot discern jurisdictional error in the Tribunal’s decision arising from what the applicant has put before the Court, nor otherwise. This application is dismissed.

Postscript

1. At the hearing before the Court, the applicant was unable to assist further with matters asserted in the amended application or the written submissions. He stated that these documents had been prepared by others from whom he had sought help.

2. In written submissions (see paragraph 25) the Minister notes that the very same grounds set out in the amended application before this Court were presented to another Federal Magistrate recently in SZKNJ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 1439. This is unfortunately a too common occurrence in matters of this type involving unrepresented “refugee” applicants, and has been the case for some time.

3. I can well appreciate and understand that newcomers to this country usually from a non-English speaking background with little or no understanding of English would reach out to seek assistance from any quarter. I make no critical comment whatever about the applicant in this regard.

4. But providing pro forma applications and “cut and paste” written submissions, containing what I described to the applicant as a “shopping list” of complaints presented in an unhelpful manner with little relevant particularity or meaning, and as clearly in this case, in some instances bearing no relevance to facts of the case.

5. Whether those who provided these documents did so out of motives of monetary gain, itself reprehensible in preying on vulnerable people, or even if they acted out of motives to simply assist the applicant, it does not assist the applicant by creating false hope, or further the interests of justice or its administration, for this Court to be presented with this type of material.

6. Mr Cleary submitted that he understood that this issue was under active consideration by those in the Minister’s Department who relevantly advise him.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  16 November 2007