SZJXM v Minister for Immigration
[2008] FMCA 579
•22 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJXM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 579 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to consider issues of relocation and state protection – whether failure to comply with s.424A – whether lack of procedural fairness. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 |
| First Applicant: | SZJXM |
| Second Applicant: | SZJXN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3882 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 22 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr M. Mitchell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3882 of 2006
| SZJXM |
First Applicant
| SZJXN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 5 December 2006 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The first applicant is referred to for convenience hereafter as "the applicant". Only the applicant (the husband) made claims under the Refugees Convention as amended by the Refugees Protocol.
The applicants, who claim to be citizens of India, arrived in Australia in May 2006. In July 2006 they applied for protection visas. The application was refused and the applicants sought review by the Tribunal.
In his protection visa application the applicant claimed that he was a Hindu and that he had been a active member of the Vishua Hindu Parishad (the VHP) based at a particular named temple. He claimed that in 2002 he had become vice president of the VHP based at a temple and had been appointed a member of the central committee of the VHP in a particular zone in 1995.
He claimed that in February 2002 he was with other VHP and RSS members on a train which was set on fire. While many people had died, he had escaped. Thereafter there had been violence between Hindus and Muslims. He claimed that his store, which was described in his application as a diamond store, but which he told the Tribunal in the hearing was a pharmacy store, was burnt down. He made a number of claims about what occurred thereafter.
In particular, the applicant claimed that after his store was burnt down he had complained to the police. The police had arrested a few people but could not find others. He claimed that he moved to another place and spent six months working there. He also claimed that he had been harassed by the Muslim community, that he had opened another business in another town in 2003, but that from 2004 on he had received warnings from what he understood to be members of the Muslim community and that in March 2006 he had been assaulted. He claimed that he had reported this incident to the police, but that the police did not take any action because he had not seen the culprits.
In its findings and reasons the Tribunal set out the applicant's claims as made in the protection visa application and at the Tribunal hearing. It was satisfied that the applicant was a Hindu. However it stated that it had serious doubts about the applicant’s claims. It found that in the hearing he had given vague and general evidence that raised serious doubts about the veracity of his claims. However it decided to give the applicant the benefit of the doubt and accepted as plausible that he was involved in activities relating to the VHP. In particular it accepted as plausible that in 1992 he was elected as general secretary while in college, that he was a member of the central committee and recognised as a vice president of his own group. It also accepted as plausible his claims about canvassing votes, putting up posters, signs and placards in support of the party, supporting the aspirations of the VHP and listening to the problems of students and attempting to assist them.
However it found that the applicant’s claim that he travelled with the president of the VHP at the time of the 1993 elections and during the state and national elections to be vague, general and lacking in detail. Considering the evidence as a whole the Tribunal was not satisfied that the applicant had at any stage travelled with the president of the party. It found that he had fabricated this claim to enhance his protection visa application.
While the Tribunal accepted that the applicant was a low level member of the VHP, on the evidence as a whole it was not satisfied that such involvement in the VHP gave the applicant a significant political profile such as to lead to any ill-treatment or to him being targeted by the Muslim community in his area. It accepted his evidence that he was not involved in any other political party.
The Tribunal also accepted as plausible that on 27 February 2002 the applicant was on the train that was allegedly attacked by Muslim extremists. However it has regard to recent country information indicating that a commission had found that the fire was accidental and not caused deliberately and to information that after that incident there was a general period of unrest and rioting. On all the evidence the Tribunal did not accept that any harm the applicant suffered on 27 February 2002 was essentially and significantly related to any Convention ground, including religion and/or political association with the VHP. It reiterated that the train incident was an act of violence the cause of which was controversial. It found that for the applicant to claim that he was personally targeted was far-fetched.
The Tribunal also accepted as plausible the applicant's claim that his pharmacy store was set on fire on 4 March 2002. However it had regard to its finding that after the train incident there was a general period of unrest and rioting. Further, given its satisfaction that the applicant’s involvement in the VHP did not give him a significant political profile such as to lead to any ill-treatment or targeting by the Muslim community in his area, the Tribunal was not satisfied that the applicant received threatening phone calls or that any harm suffered as a result of the burning of the store “constitutes persecution as contemplated by the Convention or that to avoid hostility or reduce threats to his life he opened a business [elsewhere]”.
The Tribunal addressed the applicant's claims that during his stay in Sikrandabad (another part of India) he had received harassing telephone calls from the Muslim community. It found it implausible that Muslims in a different area knew about his store and/or that he had lodged a complaint with the police about the fire. It referred to the fact that when asked about these claims the applicant’s answers were vague and general. It did not accept that the applicant was harassed and/or threatened by the Muslim community in Sikrandabad. It was satisfied that the applicant was fabricating this claim to enhance his application.
The Tribunal then addressed the applicant's claims that after he returned to his home town he received warnings between 2004 and 2006. It found it difficult to accept that the Muslim community in his area had harassed and threatened him but that they had not taken further action if he was of interest to them as claimed. Having regard to this and the findings it had made about the applicant’s political profile as a low level member of the VHP, the Tribunal was satisfied he had fabricated these claims. It did not accept that he had received any threats.
On the basis of all the evidence and the available information the Tribunal did not accept that the applicant was attacked in March 2006 or warned or that he had experienced any near-death experiences as claimed, that he felt helpless, that he and his wife had any difficulty getting their Australian visas, that they would be killed if they returned to India or that the Indian police would not offer protection. The Tribunal had regard to information it had put to the applicant that generally members of the Hindu community in India were not ill-treated. On the evidence as a whole it did not accept that the applicant had a political, ethnic, racial or religious profile that meant that he had suffered any persecution “as contemplated by” the Convention, or that there was a real chance of this occurring in the reasonably foreseeable future.
While acknowledging that there were religious-based tensions in India, the Tribunal had regard to independent country information as to freedom of religion and government respect for this right in practice.
The Tribunal concluded that it was not satisfied that there were Convention reasons why the applicant should not return to India. It repeated its conclusion that it did not accept that the applicant had a political, ethnic/racial or religious profile that meant that there was a real chance of persecution as contemplated by the Convention. It noted that, by his own admission, the applicant wanted to stay in Australia to work, raising serious doubts about his claims of persecution. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The applicant sought review of the Tribunal decision by application filed in this Court on 22 December 2006. He relies on an amended application filed on 8 May 2007, an affidavit sworn by him and filed on the same day to which a transcript of the Tribunal hearing is annexed and written submissions filed on 31 March 2008. Insofar as the written submissions raise matters other than those raised in the amended application, the applicant sought to rely on such grounds, all of which were addressed in submissions by counsel for the first respondent.
It is convenient to consider first the grounds in the amended application. The first ground is that the Tribunal erred “in failing to properly consider the issue of relocation”. There are a number of particulars to this ground, which refer to the Tribunal account of its questioning of the applicant in relation to the issue of relocation. The applicant submitted on the basis of this material that the Tribunal had erred in not considering the reasonableness and practicality of relocation by reference to principles in cases such as Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437, NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 and SZBJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 216.
In written submissions it was contended that while the Tribunal made a cursory mention of the applicant relocating to other parts of India in its account of what occurred in the Tribunal hearing. It was mandatory for the Tribunal to consider the practicality and reasonableness of relocation in its decision. It was submitted that having regard to principles in cases such as Randhawa it was not reasonable for the applicant to relocate, that the Tribunal did not consider this aspect and that therefore it fell into jurisdictional error.
While the Tribunal did ask the applicant questions about matters relevant to relocation in the course of the hearing, the issue of relocation was not a part of its reasons for affirming the decision of the delegate. The Tribunal decision was relevantly based on its rejection of aspects of the applicant's claims about past persecution as fabrications. Insofar as it accepted aspects of the applicant's claims (in particular to be a Hindu and his claims about his past involvement with the VHP) the Tribunal was not satisfied that his profile was such as to lead any ill-treatment or targeting by the Muslim community.
In reaching that conclusion the Tribunal addressed a number of factors. It was not satisfied that the applicant's low level involvement in the VHP gave him a political profile such as to lead to ill-treatment or targeting by the Muslim community in his area. While it accepted his claimed involvement in the fire on the train, in light of country information about the accidental nature of that fire it did not accept that any harm the applicant had suffered on that basis was essentially and significantly related to any Convention ground or that he was personally targeted. While it accepted that his store was set on fire, the Tribunal regarded that as a random act of violence during a period of unrest and rioting. It found that the applicant did not have a political profile such as to lead to ill-treatment or targeting by the Muslim community in his area as he claimed occurred. In relation to his claim based on religion it had regard to the fact that generally members of the Hindu religion were not ill-treated and to information about freedom of religion and government respect for that right in practice.
It did not accept that the applicant had a political, ethnic/racial or religious profile “that means he suffered any persecution as contemplated by the Convention or that there is a real chance of this occurring to the applicant in the reasonably foreseeable future”.
This ground also raised a different issue; that is that it was “wrong for the Tribunal to state that the Tribunal noted that the applicant desired to stay in Australia”. That issue is also canvassed in other grounds. It is apparent from the transcript of the Tribunal hearing that while the Tribunal initially raised the issue of the applicant wanting to stay in Australia, the applicant confirmed that was the case and gave reasons for his desire to do so. Insofar as the applicant takes issue with the Tribunal's reference to the applicant's admission that he wanted to stay in Australia to work, the Tribunal's reliance on an admission by the applicant, albeit made in response to questioning about a desire to stay in Australia, does not demonstrate either a failure to properly consider the issue of relocation as contended or that it made a jurisdictional error in relying on that evidence from the applicant.
The second ground in the amended application is that the Tribunal “failed to review the adequacy and effectiveness of state protection in accordance with the Migration Act 1958, instead relying on what the applicant had to say”. The particulars in relation to this ground are that at no stage during the hearing did the Tribunal address the issue of state protection, but only acknowledged that the police at one stage had acted upon a complaint by the applicant; that instead of making proper enquiries the Tribunal had relied upon answers of the applicant to “pointed” questions in finding or assuming the adequacy or effectiveness of state protection; and that in M93 of 2004 v Minister for Immigration & Anor [2006] FMCA 252 the Tribunal was said to have erred because it confined an inquiry in relation to state protection to the issue of whether the state condoned or tolerated the relevant harm.
It was submitted that the Tribunal should have considered whether the state of Gujarat and the government of India could provide a reasonable effective and impartial police force and justice system to protect the life of the applicant.
Again, given the basis for the Tribunal findings, it was not necessary for it to engage in the detailed consideration of state protection that is contended for under this ground in the absence of findings of past persecution or a real chance of that occurring in the future.
While the applicant filed detailed written submissions he was not able to assist the Court with clarification of those written submissions. An issue arose as to whether or not the applicant had made a claim in relation to the adequacy of state protection. In the statement annexed to his protection visa application, after setting out his claims, in particular his claims of threats between 2004 and 2006 that he and his wife would be killed by Muslims, the applicant claimed that if he returned to India they would be killed by Muslims or maybe even by power-hungry Hindu fundamentalists and “Indian police can never protect us”.
However the Tribunal rejected the applicant's claims to have received any such threats between 2004 and 2006. Because it rejected those claims and the claim that the applicant had been attacked, it then rejected his claim that he and his wife would be killed if they returned to India or that the Indian police would not offer protection. In other words, on the basis of rejection of the underlying claims of threats that the applicant would be killed it did not accept the claim that he feared he would be killed and hence the claim that the Indian police would not offer protection in relation to such a fear which was not accepted. In those circumstances it was not necessary for the Tribunal to consider the adequacy of state protection in the manner considered in M93 of 2004.
In any event, the applicant acknowledged police had provided him with protection after the train incident and had arrested some people following the burning down of his store. The Tribunal put to the applicant that it would appear that the police had in fact acted upon his past complaints. It was open to the Tribunal to take this into account in reaching its conclusion that it did not accept that the Indian police would not offer protection.
There was in fact no clear claim that the applicant had been denied adequate state protection in relation to past incidents of alleged harm. The Tribunal found that the incidents of past harm were not persecution or were fabricated. It dealt with the claim in relation to protection by the police insofar as it related to a claimed fear being killed in the future. In the circumstances the Tribunal was not obliged to address the adequacy of state protection in the manner considered in M93 of 2004. The Tribunal was not obliged to speculate further or to address a claim in relation to the adequacy of state protection that was not articulated and did not arise squarely on the material before the Tribunal. (See Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112 at [1], NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at 58 and SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 265 at [19]).
The third ground in the amended application is that the Tribunal “failed to afford the applicant procedural fairness in circumstances where he was not given an opportunity to respond to all adverse findings and inconsistencies in accordance with the requirements in s.424A of the Migration Act 1958”. The particulars to this ground are that the Tribunal stated in its decision that it had the Departmental file before it and that it had had regard to material that the delegate referred to in the delegate's decision and other material available from a range of sources. Issue was taken with the Tribunal's reliance on “other material available to it from a range of sources” on the basis that there had been no reference to such other material in the Tribunal hearing and the Tribunal had not given the applicant written notice of all information it considered would be the reason or part of the reason as required under s.424A.
Insofar as this is a contention that the Tribunal should have put to the applicant independent country information, the Tribunal did refer to some independent country information in its decision but such material is within the exception to the obligation in s.424A(1) by virtue of s.424A(3)(a). Insofar as this is a reference to material that the applicant provided to the Tribunal (such as his testimony at the Tribunal hearing) that is within the exception in s.424A(3)(b).
There is a suggestion that inconsistencies had to be put to the applicant. This may be intended to be a reference to claims in the protection visa application. However in its findings and reasons, while the Tribunal took issue with the vagueness and generality of the applicant's claims at the Tribunal hearing, it did not rely on inconsistencies between his original claims and his claims at the Tribunal hearing. The applicant’s submissions do not identify any material in the protection visa application which in terms constitutes a rejection, undermining or denial of his claims such as could be said to come within sub-s.(1) of s.424A. (See SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [17].) No failure to comply with s.424A is established in the manner contended for in the amended application or in the written submissions.
The next ground in the amended application is that the applicant was denied a fair hearing. The particulars to this claim are that the Tribunal set the agenda at the beginning of the hearing by stating:
Also if you're vague it might indicate to me that I need to be concerned about the veracity of your claims.
It was contended that instead of making such a statement the Tribunal ought to have pursued its line of questioning to check the veracity of the applicant's claims rather than relying on credibility (just because the applicant could not clearly express himself or be as articulate as the Tribunal expected him to be). It was contended that instead of pursuing a line of questioning or asking the applicant for details or elaboration the Tribunal had terminated particular lines of questioning by constantly saying:
I'm going to think very carefully about your claims.
References are made to five places in the Tribunal hearing where the Tribunal indicated that it would think carefully about the applicant's response, claims or evidence. This was said to have denied the applicant procedural fairness because it denied him the opportunity to clearly express his thoughts and relate his ordeals.
It was also contended that in expressing an opinion that because the applicant's answers were vague, general and lacking in details that raised serious doubts about his claims the Tribunal denied the applicant a fair hearing and that the applicant ought to have been questioned at length to ascertain his claims, rather than leaving it to plausibility and vagueness. It was submitted that the applicant was denied a fair opportunity to present his case.
While this claim is expressed in terms of a denial of procedural fairness it has also been considered as a claim of apprehended bias and a breach of s.425 of the Migration Act in relation to conduct of the hearing.
Insofar as there is a claim of apprehended bias in the manner considered by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 this is not made out. I am not persuaded that from the perspective of the appropriately informed, fair-minded lay observer it might reasonably be apprehended that the Tribunal member might not bring an impartial mind to the resolution of the issue to be decided.
The fact that the Tribunal member indicated on a number of occasions that she would think very carefully about the applicant's responses, when read in the context of the whole of the Tribunal hearing in fact indicates that the Tribunal appropriately brought to the attention of the applicant issues in relation to his claims (in particular as to the credibility of his claims and the veracity of aspects of his claims relevant to its determination).
Moreover, on two occasions towards the end of the hearing the Tribunal gave the applicant the opportunity to tell it if there was anything else he wanted to say. After the Tribunal had reiterated that it had to decide whether Australia owed the applicant protection, the Tribunal asked the applicant if there was anything else he wanted to tell the Tribunal member (p.24 line 21). The applicant responded “No, I don't want to say anything. Just I request you just leave me over here”. The Tribunal then went on to outline some of the concerns that it had and some of the issues that might be said to be dispositive in relation to the particular circumstances of the applicant's claims (such as its concern as to whether or not the applicant's activities with the VHP had given him a profile that meant that Muslims would be interested in him for that reason, the need for a Convention nexus in relation to the claims about the burning of the shop and the incident on the train and the relevance of information in relation to the situation of Hindus and tensions between the Muslims and Hindus in India). After raising a number of such issues with the applicant, the Tribunal stated (at p 26 line 15):
But what I'm saying to you, even if I accept you were involved with the VHP. Even if I accept that, the activities that you told me about, in my view, do not give you a significant political profile that would mean that you would be persecuted. But I'm going to think very carefully about that. I don't have anything else to say. Is there anything else you want to say, applicant, before I close the hearing?
The applicant's response to this was:
Just that I request you to give me some time to stay over here and whenever is all the thing you like back to my home.
At that point the Tribunal again reiterated the nature of the task before it to determine whether Australia owed the applicant protection.
Contrary to the applicant’s contentions it has not been established that he was not given the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review as required under s.425. No jurisdictional error is established in the manner contended for under ground four of the amended application. The applicant was given a reasonable opportunity to present his claims.
More generally, there is nothing in the transcript to establish that the Tribunal was hostile or otherwise overbearing in the manner in which it dealt with the applicant (see Ex parte H and NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 214 ALR 264). Nor, notwithstanding its expression of possible views in relation to a number of issues, is there anything to establish either that there was actual bias in the sense of predetermination. It was open to and appropriate for the Tribunal to put to the applicant its concerns in relation to aspects of his claims and evidence in the manner in which it did.
The fifth ground is that the Tribunal misapplied the Rajalingam test. I take this to be a reference to Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220. It was contended in the particulars to this ground that the Tribunal “failed to address the certainty of claims events that may have happened instead simply proceeding to reject the claims in breach of the test in the Rajalingam case and earlier cases ("What if I am wrong" test)”. It was also contented that the Tribunal erred in relation to the assessment of incidents and claims that may have occurred that could not be proved by the applicant.
No jurisdictional error is established on this basis. The Tribunal did not express doubt in relation to conclusions it made in relation to those events which it found had not happened and which constituted fabrications. Insofar as it might be said to have had doubts in relation to the applicant's claims of involvement in the VHP, it acknowledged that the claims were vague and general raising serious doubts but gave the applicant the benefit of the doubt and assessed his claims on the basis that he was involved in activities as a member of the VHP (with the exception of the specific claim in relation to travelling with the President, which it rejected for reasons which indicate that it had no doubt in relation to the fabrication of that claim). No jurisdictional error is established on the basis contended for in ground five of the amended application.
The applicant's written submissions make a number of other claims. It was submitted that the applicant was a member of a particular social group against which a finding of protection ought to have been found. It was submitted that he belonged to a group of Gujarati people who were a named family group. I do not repeat the family name for the purposes of this decision, bearing in mind the provisions of s.91X of the Migration Act. It was further submitted that the particular family group was perceived to be wealthy, that being one of the reasons for their persecution and intimidation.
It is not apparent on the material before the Court that the applicant claimed that he suffered persecution for reason of his membership of such group or that such a claim arose squarely on the material before the Tribunal. There was no evidence before the Tribunal that the applicant suffered past harm for reasons of membership of such social group or that he held fears for that reason. (See Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 240 – 241). In submissions in reply the applicant clarified that in fact he had wanted to make such a claim to the Tribunal. He claimed that he did not have the opportunity to do so and that the Tribunal did not hear him properly.
Neither of these claims establish jurisdictional error. First, as indicated above, nothing in the material before the Court indicates that such a claim arose on the material before the Tribunal. When the applicant was given an opportunity in these proceedings to indicate whether he made such a claim in writing, or in the Tribunal hearing, he was not able to point to any such claim, but rather said that he had wanted to make such a claim. There is nothing to indicate that the applicant did not have the opportunity to make such a claim either in writing or at the Tribunal hearing, particularly given the opportunities he was afforded at the end of the hearing to make further claims.
In the absence of any evidence of material errors in interpretation or that the interpretation was wholly inadequate, it cannot be said on the transcript that the applicant provided to the Court that any misunderstanding existed between himself and the Tribunal, that may have contributed to the fact that the did not raise such a claim. It has not been established that he did not have the opportunity required to be afforded to him under s.425 of the Act or that there was any lack of procedural fairness or apprehended bias or otherwise jurisdictional error in the manner in which the hearing was conducted.
Neither his complaints in the written submissions or the complaint as rearticulated in the course of oral submission establishes a jurisdictional error on the part of the Tribunal, whether consisting of a failure to take into account relevant considerations or otherwise arising. In that respect it is notable that as Gleeson CJ stated in S395 of 2002 at [1], after referring to the nature of proceedings before the Tribunal:
… on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process(Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 77 ALJR 437 at 443 [31]; [2003] HCA 1; 195 ALR 1 at 8).
The written submissions also contend generally that there was a failure by the Tribunal to deal with the applicant's claim of a well-founded fear of persecution in relation to adequate state protection. I have already discussed this issue. It is also said that the Tribunal failed to address the applicant’s political affiliation and his religious persuasion. However it is apparent on the material before the Court that while not using the language of “political affiliation” and “religious persuasion” the Tribunal did in fact consider the applicant's claims based on his religion as a Hindu, his claims to have participated in religious activities insofar as such activities occurred through the VHP and also his claims based on actual or imputed political opinion including those based on his activities with the VHP.
The Tribunal was not obliged to specify in terms that it was addressing the issue of political affiliation and/or religious persuasion. It is apparent from the whole of the Tribunal reasons for decision that it was aware of and considered the Convention reasons provided for in the Refugees Convention, including race, religion and political opinion. It has not been established that it failed to consider those aspects of the applicant's claims which raised particular reasons under the Refugees Convention. The fact that the Tribunal found that it was not satisfied that there were Convention reasons as to why the applicant should not return to India does not establish that it failed to consider the possibility that there were such claims. Insofar as the applicant's complaint takes issues with the merits of the Tribunal decision, merits review is not available in this Court.
Aspects of the applicant’s submissions reiterate his claims that the Tribunal failed to adequately address state protection. That matter has been considered above and no jurisdictional error is established on that basis.
Finally, the applicant contended generally that there was a constructive failure to exercise jurisdiction and a failure by the Tribunal to carry out its statutory function. The applicant took issue with the conduct of the Tribunal hearing, contending that the Tribunal had a statutory fact finding duty but that it did not direct the hearing to specifics, but rather let it continue on its “general uncharted course”, and that the Tribunal was jurisdictionally wrong in the manner in which it questioned the applicant in it did not have structure and there was no coherent flow to the line of questioning.
These contentions do not establish jurisdictional error on the part of the Tribunal. It is not obliged to conduct the Tribunal hearing in a particular manner as appears to be contended, provided the applicant is given a reasonable opportunity to ascertain dispositive issues as required under s.425 and given the opportunity to present his case. He was given that opportunity in this case. There was no obligation on the Tribunal to ask questions in a particular manner or to structure the hearing in a particular manner. Again, I refer to the fact that the applicant was given two opportunities toward the end of the hearing to raise further issues after the Tribunal had drawn to his attention concerns it had about aspects of his evidence and claims.
The second aspect of this contention is that the Tribunal committed what is described as a “gross” jurisdictional error by making a statement of fact that never existed in reality. This takes issue with the fact that the applicant did not volunteer that he wanted to stay in Australia, but rather acknowledged this in response to a Tribunal question. However this does not establish jurisdictional error. The applicant agreed in response to the Tribunal questioning that he wished to stay in Australia. He also elaborated on the reasons he wished to stay in Australia in an unprompted manner. It was appropriate for the Tribunal to ask such a question and not inappropriate for it to refer to the response in the findings and reasons filed of its decision.
The Tribunal reached its conclusion for a number of reasons. Even if it did take into account the applicant's admission that he wanted to stay in Australia to work, it was open to the Tribunal to have regard to that in reaching its finding as to the serious doubts it had about the applicant's claims of persecution, in particular the genuineness of his claims of a well-founded fear of persecution. It has not been established that the Tribunal constructively failed to exercise its jurisdiction or failed to carry out its statutory function under the Migration Act.
The applicant suggested that the Tribunal did not hear him properly or could not understand him fully. When asked to clarify this claim he suggested that the Tribunal could not understand his problems. Again, insofar as he seeks merits review, merits review is not available in this court. There is nothing in the transcript of the Tribunal hearing to indicate that there was any misunderstanding such as seems to be contended. While the Tribunal did not accept the credibility of all of the applicant's claims, such findings were open to it on the material before it for the reasons that it gave. Neither the conduct of the hearing or the Tribunal reasons establish any jurisdictional error arising out of any failure to hear or to understand the applicant's claims.
As no jurisdictional error has been established the application must be dismissed. The applicant has been unsuccessful and the Minister seeks costs of $5,000. The applicant told the Court that he could not afford $5,000. However the applicant's impecuniosity is not a reason in this case for departing from the general principle that the unsuccessful applicant should meet the costs of the respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is consistent with the amounts awarded in cases of this nature and with the amount provided for in the Federal Magistrates Court Rules. I consider it is appropriate in the circumstances of this case.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 9 May 2008
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