SZJTD v Minister for Immigration
[2007] FMCA 810
•9 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJTD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 810 |
| MIGRATION – Court will not admit into evidence new documents not put before the Tribunal – applicant must prove that all statutory elements are made out – Tribunal has discretion under s.424 to obtain information it considers relevant – no duty to obtain that information. |
| Migration Act 1958 (Cth), ss.424, 474 |
| Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZJTD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3484 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 9 May 2007 |
| Date of Last Submission: | 9 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Mr Z. Chami of Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3484 of 2006
| SZJTD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 24 November 2006 for an order to show cause and seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant has not filed an amended application but describes his affidavit filed on 18 April 2007 as an amended application.
The applicant was born on 5 April 1974 and claims to be from India and of Rajput ethnicity and Hindu faith (“the Applicant”).
The applicant arrived in Australia on 10 October 2005 on a visitor’s visa.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 30 May 2006. In this application he claimed that he would be persecuted because of his membership of a political party, the Indian National Lok Dal (INLD). The applicant claimed that as he was an active member of the party, he was being targeted by Congress Party workers. He claimed that they attacked him at a petrol station and that he had been falsely framed by the police. The applicant claimed he feared that he would be killed if he returned to India, and that he feared for his safety and that of his family (CB 19).
This application was refused by a delegate of the first respondent on 20 June 2006.
On 18 July 2006 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 before the Tribunal on 5 October 2006.
On 17 October 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 74-83) (emphasis added):
On the basis of the available information the Tribunal is satisfied that the applicant is a citizen of India and that he is outside that country. He has a valid passport for India and his claims are assessed on the basis he is an Indian national. The applicant therefore meets the first Convention requirement of being outside his own country.
The applicant claims to have been persecuted by state police and by local Congress party supporters in the state of Haryana, because of the applicant’s membership of the Indian National Lok Dal party (INLD). He makes the specific allegation that he was being targeted by Congress Party workers and that he was attacked at a petrol station before he came to Australia. He further alleges that the state he lives in, Haryana, is in a state of total breakdown. No evidence was produced to support this allegation.
In terms of the specific claims made by the applicant, they are in summary:
· There is the claim that he is a member of the Indian National Lok Dal Party; he claims that he is a member of the party who speaks on behalf of the party at neighbouring villages, he states he has no special office in the party and is an “ordinary person”.
· The applicant claims that the start of the hostilities towards him as an incident probably in June 2005 when he was shot at by members of the Congress Party at a petrol station. In his application he said this occurred “before he came to Australia”, at the hearing he said it was two to three months before he came to Australia. Asked to be more specific he thought May or June, but finally said June 2005. He described the incident at the petrol station as “being attacked”. Asked to elaborate he said he was followed by two or three people who he claims sought to kill him. He was on his bicycle and some people threw knives at him and then fired at him with a revolver. He said as a consequence his father had a heart attack and urged him to escape to Dehra Doon to be out of the way. Asked if the incident was witnessed he said it was, and asked if he could produce statements from witnesses he said he could not. Asked if the incident was in the press, he said it was not because the Congress Party controlled the press and so they would not report it. Asked if he reported the incident to the police he said to tried to make a report but the local police refused to accept it.
· The applicant both in his original application and at the hearing reiterated that he feared he would be killed.
· Asked at the hearing whether there were other incidents the applicant said there were. He said he was attacked again while staying at Dehra Doon. He said he was not present but neighbours reported that a car from Haryana came with a red light and came to his house.
· The applicant also stated that his wife was harassed when she was in Utranachal with her parents. He was not able to produce any detail of the nature of this harassment.
· The applicant also recalls that “later” no date is given, he went to his brother’s house and he was fired on again and the police took no action. The applicant was not able to supply any more details of this shooting. Asked why he has no supportive evidence of this and other attacks the applicant said that “he was having problems and the attacks came suddenly”.
· The applicant also claims that he spoke to journalists about the attacks on him but they would not report his case as they feared the local member of parliament and they would lose their jobs.
· The applicant said he had reported his situation to local bodies but they would not help him.
· The applicant said that he had contemplated legal action but “in India nothing would happen”.
· The applicant alleges that both the local MLA and his son have been behind the attacks on him, that is Lal Singh and Ram Krishnan.
· The applicant claims that he contemplated legal action but felt this would be ineffective as “in India nothing would happen”.
· The applicant claims that the police told him they would frame him for a crime if he made a report of an incident. The applicant also claims that the Station House Officer beat him up.
· The applicant claims that the police and the Congress Party were associated in their attempts to harm him and kill him.
· The applicant also claims that he was fired at when he visited Bihar. He was unable to give a date for this incident, but stated that labourers in a brick field shot at him. He said they knew who he was, as a neighbour told him these labourers had a photo of him.
· Asked whether he had considered relocation and whether he could go to another part of India, the applicant replied that he could not as the Congress were in power federally and in most states and they would follow him wherever he went and would kill him.
· The applicant claims not only being shot at by Congress Party workers, and beaten by police, but that his father’s collapse and his uncle’s death were related to the incident of the shooting in the case of his father, and the refusal of a Protection visa in the case of his uncle. He also alleges that his father will die if this appeal is refused.
The Tribunal considered each of the claims made in the original application and at the hearing, and in the light of country information.
· The Tribunal accepts that the applicant is involved with the Indian National Lok Dal Party. Whilst he was unable to produce his receipt for membership, it is credible, in the light of country information, that a farmer with 25 acres in Haryana would be likely to be a member. The applicant had a reasonable knowledge of the party, its founder, its leader, its time in power in his home state and was also able to state its main objectives of reducing poverty, relieve rural debt etc. He was able to give a concrete example, the refusal of the Prime Minister to grant the subsidy on urea fertiliser, as the reason for the IDLK Party withdrawing from the coalition. The Tribunal accepts that the applicant probably campaigns for the party but on his own admission is not an office bearer in the party or major spokesman for the party. The Tribunal also accepts claims by the applicant that he would go to villages and talk to people about their problems and endeavour to gain their support for his party.
· The Tribunal found a lack of detail concerning the incident at the petrol station. The applicant was vague as to when this event occurred. The Tribunal would find it reasonable that the date on which such a dramatic event occurred should be remembered by the applicant. While initially the applicant described that he was “being attacked”, he later said that people fired at him 2-3 times. Asked to elaborate on the incident he said he was on his bicycle and that knives were first thrown and then shots fired. The Tribunal asked whether being near a petrol station many people witnessed the incident, the applicant said they did but was unable to produce any statements from any witness to it. Asked if the incident was reported in the press the applicant said it was not because the Congress Party controlled the press. The Tribunal pointed out to the applicant some other incidents involving shots being fired which were in the press. The applicant reiterated that Congress would suppress the press. Asked if he had reported the incident to the police, he said he tried but they refused to accept his report. The Tribunal regarded the incident implausible given the lack of any verification from any other source. That no witness would make a statement, that any press in the area would refuse to report the incident and that the police would refuse to accept a report of the incident, in all is implausible. The applicant has not provided evidence to the Tribunal that there is widespread corruption in Haryana. Country information suggests that such a shooting incident as stated by the applicant would be one normally reported by the press. There is no country information that the police force in Haryana or India is especially corrupt. The applicant was unable to name to the Tribunal, his attackers, merely describing them as Congress Party workers acting on instructions, presumably the instructions of the local Member of Parliament or his son. The applicant has provided no evidence to the Tribunal to support the statement that the applicant’s father also tried to report the incident to the police but was prevented from doing so. It would have been reasonable for example for the father to have submitted a statement.
· In regard to the incident at Dehra Doon, the applicant stated he was attacked, but that he was not present at the time, and so relies on the account of neighbours that a car came from Haryana with a red light, to attack him. No details of how they knew these people would attack him is given, nor is there any statements submitted to the Tribunal from these neighbours. It would have been reasonable for the applicant to have requested from people who witnesses the incident to have sent him a statement to this effect which he could have submitted to the Tribunal. It might have required some neighbours to have dictated to another person if they were literate. The applicant was not able to specify to the Tribunal how many neighbours were involved, or even details as to what kind of red light was on the car.
· In regard to the harassment of his wife the applicant was unable to provide any detail as to when this took place and the nature of the harassment or provide any supportive evidence of the event. It would have been reasonable for the Tribunal to have received more details from the applicant as to the form this harassment took, although asked, the applicant did not specify the nature of the harassment. His wife could have submitted a statement to him which could have been submitted to the Tribunal. The report of this harassment as given at the hearing by the applicant lacked plausibility.
· The applicant was unable to provide to the Tribunal any details about the shooting said to have occurred at his brother’s house. For example the Tribunal would have reasonably expected such details as the date on which the event occurred, the time of day or night, the number of people he thought were involved. The Tribunal would have expected it reasonable for the applicant to have requested a statement from his brother or other friends of the family who witnessed the incident to be able to submit to him a statement which could have been passed on to the Tribunal.
· The applicant provided to the Tribunal no details of the journalists or papers they represent, who he told of his problems. Country information on India in such reports as the UK Home Office ( US Department of State, Amnesty International, suggests that India enjoys a relatively free press. While some newspapers or media outlets in India may well have strong associations with political parties, Indian is known as a nation with a free press. There are innumerable newspapers of different types and in different languages, and ranging from local newspapers, to national newspapers, in addition are many radio stations and television stations both state wide and national. India is known as a nation with a free press and there is no overt evidence of a media or press controlled by the Congress party. The applicant besides making the assertion was not able to provide any supportive evidence of his assertion. While the Tribunal understands that these matters may be hard to prove, if other people held a similar view to the applicant they could have stated so and supported his allegations. A statement from an office bearer of the local branch of the party to which the applicant belongs could have been sought. Has such an allegation been made in any other forum? Has a letter to the editor of a paper been written about a lack of freedom of the press? The applicant has not mentioned any paper by name, yet there are numerous newspapers, in different languages in all parts of India. The applicant is from a small village is more likely to be familiar with local newspapers, yet he has not cited them. Country information on the Indian press indicates that India has a relatively free press. The US Department of State Report for 2005 (released in March 2006), states that the “law provides for freedom of speech and of the press and the government generally respected these rights in practice with some limitations.” The limitations referred to, were under the Official Secrets Act and related to areas where there was insurgency such as Jammu and Kashmir. For these reasons the Tribunal cannot accept the claim of the applicant about journalists refusing for political reasons to print his story.
· The applicant has provided no details as to which local bodies he reported the incidents to, and there is no supporting evidence that he did report the incidents. The Tribunal could reasonably have expected the applicant to have named the local authority he reported the incident to, as to whether it was the local police, the local municipal authority, or some other local or provincial body. Did he report it to the administration of the political party he states he belongs to? It would be usual for a friend or family member to have accompanied the applicant to the place where he made such a report, and such a person could have provided a statement stating that they went with the applicant and narrated the story.
· Despite the statement of the applicant there is no evidence that is Lal Singh and Ram Krishnan are involved in the alleged incidents against the applicant. The Tribunal accepts that this may be difficult for an applicant to do but these are serious allegations against public figures and they cannot be accepted simply on the say so of the applicant without at least a context which would make them reasonable.
· The applicant states he contemplated taking legal action but implied that this would be useless. Country information indicates that India has a legal system which is competent and well regarded.
· The applicant provided the Tribunal with no detail as to allegation that the police would frame him for a crime if he made a report of an incident. There is no detail to support the applicant’s claim that he was beaten up. There is no medical evidence that he was beaten or statements from people who could attest to such a beating. Perhaps his brother who was a policeman could have provided a statement indicating whether such an event, framing a complainant, was possible from his experience. The applicant was not able to state how he was beaten up nor list the injuries he sustained. The Tribunal would expect more detail to be provided of such an incident of being beaten up by police. The applicant did not specify how many policemen beat him up and in what way.
· The alleged incident in Bihar where labourers in a brick field fired shots at him, and that he was told they had a photo of him and so identified him, is not supported by any evidence and the Tribunal finds the incident implausible. That the applicant should be in an area far away from his home village, in a different state, and happen to be fired on by labourers in a brick field does not ring true. While the applicant has suggested that he “was told” they had a photo of him, how could they identify a person, presumably at a distance, when many people would pass by? How would these labourers have known that such a person was coming past that field? No detail of the number of labourers, the location of the brick field, or the number of shots fired were provided. Who knew he was going to that part of Bihar and that he would go past that field?
· The claim by the applicant that he could not relocate because the Congress Party was in power federally, and they would follow him anywhere was not substantiated by any evidence and the claim lacked credibility. Furthermore while many states and provinces in India are under Congress Party government, not all are. The applicant also claims that as Congress is in power in India federally, this means he would be caught by Congress workers all over India. The Tribunal did not find this claim credible. It was difficult to accept that the Congress officials in the applicant’s area of Haryana, would be able to orchestrate a national alert through all the branches of their party throughout India to trace the movements of a person who describes himself as an “ordinary member” of an opposition party.
· The applicant describes himself both as “just a member” and at another time as an “ordinary member” and an “ordinary person”. The Tribunal does not accept that that someone who is not a high ranking or high profile member of what is now a minor opposition party, should attract such attention. It was not believable that he as a farmer, and ordinary member of a political party should be subject to persistent shootings (which were never reported), and that he was followed to Dehra Doon, Bihar and parts of India he visited, and that his photograph had been widely distributed to these parts of India. That he should be shot at and beaten up by both Congress workers and the police so regularly, without any of the incidents gaining any reportage, strained the credulity of the Tribunal. There is no supporting evidence or documentation of any kind that backs up the assertions. The Tribunal found it hard to accept on the information provided that the applicant’s father took ill because of the original incident, and that his uncle died because of the visa refusal, and that his father will die if he does not gain a Protection visa.
The Tribunal realises that an applicant may have trouble in many circumstances providing corroborative evidence, but the applicant’s claims need to have some detail or be able to refer to some factors which support the claim for them to have credibility. The Tribunal has also considered other information.
The party that the applicant claims affiliation with, the Indian National Lok Dal party or INLD was founded by a Haryana state politician, Devi Lal in October 1996 and was called initially the Haryana Lok Dal (HLD). In the 1998 elections it backed the Vajpayee government but withdrew its support in February 1999. Lal’s son, Om Prakash Chautala, became the leader of the party and chief minister of the state of Haryana in July 1999. The INLD won the state elections of 2000 with the BJP joining the Chautala administration as junior partner. However at national level the INLD broke with the BJP before the 2004 election and won no seats. The INLD also lost control of Haryana state at the March 2005 state elections.
(see Banks, A.S. & Muller, T.C. (eds) 2006, Political Handbook of the World 2006, CSA Publications, New York, p. 517 and following).
The Indian National Lok Dal party appears to exist only in the state of Haryana, having been in power in that state and also being part of the BJP coalition for one term having some federal seats from the state of Haryana, but after 2004 the party had no federal seats. (see
Statistical Report on General Elections, 2004, to the 14th Lok Sabha, Volume 1 National and state abstracts and detailed results, Electoral Commission of India, New Delhi Reference)
In its manifesto for the 2005 Haryana state elections the INLD promised the creation of youth employment and interest – free loans for the youth. That institutional provision for sanitation would be made for villages. The INLD promised to keep all farmers in Haryana debt free. They promised insurance for agriculture, cattle and health of farmers would be extended. The party has also promised uninterrupted power to all villages in the next five years and said farmers in Haryana would get power at cheaper rates. Government employees would be granted housing facility at low interest rates so every staffer has a home after retirement. (see ‘INLD manifesto promises 500,000 jobs’ 2005, Hindustan Times, source: HindustanTimes.com, 20 January 2006)
Condensed information on the Indian National Lok Dak is also contained in the Wikipedia site:
Indian National Lok Dal, a political party in India, based in the state of Haryana. The party president is Om Prakash Chautala. The party was a member of the National Democratic Alliance, and thus part of the BJP-led government. In the Lok Sabha elections 1999 INLD had an electoral alliance with BJP in Haryana. Each party contested five of the ten seats in the state. All ten got elected.
In 2000 Chautala was elected as Chief Minister of Haryana for the fifth time. In the 2000 state assembly elections in 2000 INLD won 47 out of the 90 seats (in total the party had 62 candidates). Later INLD broke its relation with BJP, and left NDA and the government. In the Lok Sabha elections 2004, the party contested all ten seats in Haryana on their own. None of the INLD candidates got elected.
However, in the 2005 Haryana state assembly elections, INLD lost its majority, winning just 9 out of the 90 seats compared to the Congress party's 67 seats.
(‘Indian National Lok Dal’2006, Wikipedia, 9 July 2006)
The Congress Party is currently governing the Haryana state after it won 67 out of 90 seats in the 2005 state elections. (see: Ahuja, Ramesh 2005, ‘Congress celebrates win’, The Hindu, 28 February – Reference; Vinayak, Ramesh 2005, State: Haryana, ‘The battle within’, India Today, 14 March – Reference); ‘Statistical Report on General Election, 2005, to Legislative Assembly of Haryana, Election Commission of India, New Delhi. - Accessed 17 August 2006)
In a by-election in June 2005 in Haryana state the Congress candidates won with massive majorities in all three seats contested, with candidates from the other parties including the INLD losing their deposits. (see Hindustan Times 6 June 2005)
In terms of any violence associated with the INLD there is a newspaper article dated in the New Kerala Online newspaper, 22 August 2006 which refers to a Punjab police officer in Rohtak, Haryana who was arrested for firing at a guard at the INLD office. The guard was unhurt, the police officer who was drunk was arrested by the local police and charged with murder.
There is another instance of violence reported in an article in The Hindu, by Rajesh Ahuja, of 4 February 2005 in which it refers to a few stray incidents of poll violence in the Narwana constituency in which the driver of a Congress candidate was murdered. Where there were minor clashes between Congress and INLD supporters, local police and troops brought the situation under control.
There were no reported cases of any police collusion in violence against INLD party members. There was an investigation into former Chief Minister and INLD leader Om Prakash Chautala by police over matters of a disproportionate assets case. The matters being investigated by the Central Bureau of Investigation. (see Hindustan Times 4 May 2006)
While there have been instances of violence associated with elections in the applicant’s state of Haryana, they are few and there is no evidence from country research sources of violence by Congress Party workers in that state, nor is there any evidence of police violence to members of political parties, other than the instance of the drunk policeman against an INLD guard. There are mechanisms within India such as Ombudsmen, to deal with complaints against the police. India remains a multi-party parliamentary democracy and while there are political arguments between parties and groups and sometimes within a party, which may at times be heated, there is no evidence of regular violence associated with such differences. There is no evidence that the Congress Party, because it is in power federally, has a network that would persecute a person such as the applicant. Nor is there any evidence of police acting on a national scale to pursue individuals belonging to any particular political party.
While there was no supporting evidence to back up the assertions, research on those parts of India relevant to the applicant, Haryana, and the Punjab, would suggest that in the area the applicant lives and in his political circles there is no suggestion that there is any regular violence let alone persistent persecution of political opponents.
Overall country information suggests that India continues to be a multi party, parliamentary democracy, where “the government generally respects the rights of its citizens.” (US Department of State Country report India, 2005, issued March 2006). The US report goes on to outline areas where there are problems, Jammu and Kashmir, Nagaland, Manipur, Assam and part of Tripuna. They do cite excessive use of force by police against insurgent groups in these areas, and strong and often unlawful actions against active and violent secessionist movements in these areas. No abuses or major problems are cited for Haryana or the areas mentioned by the applicant.
The applicant states he is a farmer, farming his own land. Country information reports, such as by the US Department of State, indicate that there is freedom of movement in India. While the Tribunal does not accept the applicant’s contention that the Congress Party has a national network that works with the police that would track his movements, not all state governments have Congress Party governments in power. The applicant describes himself as an “ordinary person” and an ordinary member of his political party. He does not claim to hold high office or to be a major political figure that might attract national attention from a rival political party. It is not plausible that the Congress Party would mount a national campaign against a minor member of a political party from a rural village. The political party to which the applicant is a member is not a major force in any other state in India, according to electoral evidence available to the Tribunal. As a farmer he would be able to sell his 25 acres, and could resume farming in other parts of India.
The Tribunal finds that there is no real chance that the applicant will be persecuted by Members of the Congress Party, or workers associated with the Congress Party or by the police in India.
The Tribunal finds that the applicant does not face a real chance of persecution for reasons of his political opinions activities in India and his fear of persecution is not well founded. As stated above, it would be reasonable for him to relocate to another part of India if he held fears for his safety. While the Tribunal does not consider the applicant faces a real chance of persecution, relocation should remove any perceived real chance of persecution he feels. He is a married man and already he has moved about his home state with his wife and children with apparent ease. It would appear reasonable for him to relocate. The applicant claims to be a successful farmer when he tends his own land. The Tribunal notes that as the party he belongs to is not in existence in other states of India, the Tribunal finds no real chance he will be persecuted for a convention reason as relocation.
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 Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out three grounds as follows:
1)Tribunal did not consider all reasons
2)Tribunal did not do proper research
3)Tribunal did not consider personal circumstances
No particulars of the grounds have been provided. In his affidavit filed on 18 April 2007 the applicant seeks to submit five letters that were not put before the Tribunal. The applicant has sought to put before the Court a further four letters that were not put before the Tribunal. These documents are not admissible and the Court will have no regard to them.
The applicant sought an adjournment to seek further legal advice, but for reasons recorded in transcript, that adjournment was not granted.
Findings as to the grounds of the application
Ground one asserts that the “Tribunal did not consider all reasons”. The Court finds that the Tribunal dealt with all the claims by the applicant including his fear of persecution for his political opinion. It has not been established that any of the applicant’s claims were misunderstood or ignored by the Tribunal. The Tribunal did not accept the applicant’s claims that he was attacked or that his wife was harassed. Those were findings of fact which were reasonably open to the Tribunal on the material before it: Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547. This ground is rejected.
Ground two alleges that the Tribunal “did not do proper research”. “The applicant must establish his case to the satisfaction of the Tribunal, and that ‘all statutory elements are made out’”: Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 596.4.
“A decision maker is not required to make the applicant’s case for him or her”: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; Luu & Anor v Renevier (1989) 91 ALR 39 at 45.
“Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant”: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451.
The Court finds that the Tribunal was not required to conduct any research to support the applicant’s application. The Tribunal has a discretion under s.424 of the Migration Act that it “may get any information that it considers relevant”. It is not under a duty to obtain that information. There is nothing to indicate an improper exercise of that discretion.
It was open to the Tribunal to conclude that it was not satisfied with the evidence produced by the applicant. The applicant was invited on
30 August 2006 to appear at the Tribunal hearing. The applicant wrote to the Tribunal on the day of the hearing and stated that he attended for the hearing but no interpreter was available. He asked that another hearing be scheduled (CB 54). The Tribunal scheduled another hearing for 5 October 2006. The applicant appeared at that hearing and was assisted by an interpreter (CB 71.4). The decision of the Tribunal shows that the applicant’s claims were discussed with him in detail (CB 71.4-74.8). Ground two is rejected.
Ground three claims that the Tribunal did not consider the personal circumstances of the applicant. Insofar as that ground relies on the letters sought to be tendered to the Court, those letters were not produced to the Tribunal. It is apparent from its decision that the Tribunal considered all claims by the applicant and the information he provided. Ground three has not been established and it is rejected.
The applicant was directed to make written submissions to the Court by order of 21 December 2006, but failed to do so. The applicant was invited to make oral submissions to the Court and did so, but added nothing of substance to the grounds in his application.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 29 May 2007
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