SZKGX v Minister for Immigration
[2007] FMCA 1222
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1222 |
| MIGRATION – Review of Refuge Review Tribunal decision – refusal of a protection visa – applicants claiming political persecution in India – some of the applicants factual claims accepted but Tribunal found no past persecution and no well founded fear of future persecution – numerous jurisdictional errors alleged – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425, 441A Federal Magistrates Court Rules 2001 (Cth) |
| Chand v Minister for Immigration (unreported, Federal Court, Full Court, 7 November 1997) Guo v Minister for Immigration (1997) 191 CLR 559 Minister for Immigration v Rajalingam (1999) 93 FCR 220 Minister for Immigration v SGLB [2004] HCA 32 Minister for Immigration v Yusuf [2001] HCA 30 M93 of 2004 v Minister for Immigration [2006] FMCA 252 NABE v Minister for Immigration (2004) 144 FCR 1 NAIZ v Minister for Immigration [2005] FCAFC 37 Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 2 Randhawa v Minister for Immigration (1994) 52 FCR 437 SZBJI v Minister for Immigration [2006] FCA 216 SZBYR v Minister for Immigration [2007] HCA 26 SZEEU v Minister for Immigration (2006) 150 FCR 214 VAT v Minister for Immigration [2004] FCAFC 255 WAEH of 2002 v Minister for Immigration [2002] FCAFC 364 Zuway v Minister for Immigration (1998) 160 ALR 391 |
| First Applicant: | SZKGX |
| Second Applicant: | SZKGY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 724 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 26 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
The First Applicant appeared in person
| Counsel for the Respondents: | Mr B O'Donnell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, in the amount of $5,000, pursuant to rule 44.15(1) and item 1(c) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 724 of 2007
| SZKGX |
First Applicant
| SZKGY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The decision was signed on 7 February 2007 and was handed down on 15 February 2007.
There are two applicants who I understand are a husband and wife.
I understand the relevant claims were made by the applicant husband, the first applicant[1]. The first applicant appeared alone for today's hearing. He told me that he was authorised to speak on behalf of his wife.
[1] References in these reasons to “the applicant” are references to him
Background facts relating to the applicants' protection visa claims and the decision of the Tribunal are set out in written submissions filed on behalf of the Minister on 18 July 2007. The first applicant confirmed that he had received and read those submissions. I adopt as background, for the purposes of this judgment, paragraphs 4 through to 14 of those written submissions:
The applicants claim to be citizens of India (court book “CB” 14.5, 28.2). They arrived in Australia on 1 June 2006 (CB 87.2).
On 19 June 2006, they applied to the Minister’s Department for protection visas (CB 1). The applicant’s claims to fear political persecution, as set out in his protection visa application (PVA) (CB 19-22), were accurately summarised by the Minister’s delegate thus (CB 38.4-6):
The applicant claims to be a photographer from Ahmedabad, in Gujarat, India. The applicant states that he was also an active member of the Congress Party and that he documented political events for his party. He asserts that he also gathered information on BJP [Bharatiya Janata Party] members and gave it to the Press which “heavily affected” politics in his area.
The applicant claims that he has been threatened and physically and mentally harassed many times by BJP members and that they have tried to kill him and his family. He asserts that some Congress Party members have been killed and that he had his left hand broken. The applicant claims that if he returns to India that [sic] he will face the same harm at the hands of those in BJP members [sic] that forced him to flee in May 2006. He maintains that the authorities will not provide him with effective protection against this harm.
(See also the Tribunal’s more attenuated summary at CB 89.6.)
On 9 September 2006, a delegate of the Minister refused to grant the applicants’ protection visas (CB 34-44): see Pt 7, Div 2 of the Migration Act 1958 (Cth) (“the Migration Act”).
On 6 October 2006, the applicants applied to the Tribunal for review of the delegate’s decision (CB 46-49).
On 27 October 2006, the Tribunal invited the first applicant to attend a hearing of the Tribunal to be held on 24 November 2006 to give evidence and present arguments in support of his claims (CB 52-53): see s. 425 of the Act. The applicant accepted this invitation (CB 54).
However, after the first applicant sent the Tribunal a medical certificate (but no formal request for postponement of the hearing) (CB 54) and after some further correspondence with the applicants’ representative after the applicant failed to appear at the scheduled hearing date (CB 57-67), the Tribunal reluctantly agreed to re-schedule the hearing for 2 February 2007 (CB 69; see generally CB 89.8-90.3).
On 2 February 2007, the first applicant appeared at the re-scheduled hearing (CB 90.3). The Tribunal summarises the further claims the applicant made at the hearing and its questioning of him at CB 90-91.
On 15 February 2007, the Tribunal handed down its decision rejecting the applicants’ application for review of the delegate’s decision (CB 82-93).
The Tribunal accepted the applicants’ claims when it made the following findings:
1) The applicant is a citizen of India (CB 92.1).
2)The applicant was at odds with Bharatiya Janata Party (BJP) members during local elections in Ahmedabad in July or August 2005, but there are no claims that he suffered serious harm during this period (CB 92.3).
3)In November 2005, an article with photographs appeared in a local paper under the applicant’s name. The article was about alleged misdeeds of the local council or local counsellors. The information in the article was known by many people and was passed on to the applicant by fellow Congress party members. (CB 92.3-4).
4)Some individual members of the BJP at a local level have an animosity toward the applicant as a member of the Congress party active in the same local area (CB 92.6).
5)At some point there was an opportunistic physical encounter between the applicant and individuals associated with the BJP (CB 92.8).
However, the Tribunal made the following findings that were inconsistent with the applicant’s claims:
1)Despite ample opportunity, the applicant failed to provide any particulars of either the harassment he claimed to have suffered as a result of writing the article or the reports thereof he claimed to have made to police (CB 92.4).
2)Apart from writing the article and providing general assistance to the party as an ordinary member, the applicant could not describe any activities he had undertaken for the Congress Party (CB 92.5).
3)The harm suffered by the applicant as a result of an opportunistic physical encounter with BJP members was not of a type or gravity that rose to the level of “persecution” (CB 92.9).
4)There is no evidence that the BJP as an organisation is involved in any systematic harassment of the applicant (CB 92.10).
5)The BJP would not use its organisational resources to find him if he moved to another district in India (CB 92.10).
In conclusion, the Tribunal wrote (CB 93.1-3):
In short, there is nothing before the Tribunal that indicates that the applicant has suffered serious harm amounting to persecution in the past. Nor is there anything to indicate that he cannot access State protection. The Tribunal finds that the chance that serious harm amounting to persecution will befall the applicant for a Convention reason in the reasonably foreseeable future is remote. It is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
These proceedings began with a show cause application filed on 2 March 2007. The application was clearly filed within time. The applicants now rely on an amended application filed on 4 May 2007. That application sets out four grounds of review with detailed particulars as follows:
State Protection
1.The second respondent committed a jurisdictional error by failing to review the adequacy and effectiveness of State protection in accordance with the Migration Act instead relying on what the applicant had to say in direct response to the Tribunal’s questions. In effect the Tribunal asked the wrong questions.
Particulars:
a)It is submitted that the Tribunal narrowed the test to simply whether or not the applicant had laid complaints against his assailants. The Tribunal should have considered what reasonable protection meant but failed to do so because it had limited its inquiries in the manner described.
b)It is submitted that the case of VAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 255 at [16] provides assistance as to what the Full Federal Court stated constitutes jurisdictional error:
It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness (authorities omitted).
c)It is submitted that the Tribunal asked itself the wrong questions and directed the hearing in a manner to suit itself.
The Tribunal accepted the fact that ‘some individuals of the BJP members at the local level have an animosity towards the applicant as a member of the Congress party...’ (at CB 92)
The Tribunal accepted the fact that the applicant ‘suffered harassment’ because he ‘wrote or took photos, about some local councillors and their misdeeds, and published this information in a local paper’. (at CB 92)
However, in accepting this the Tribunal made the conclusion that it was ‘satisfied that this was an opportunistic encounter between the applicant and various individuals affiliated to the BJP, as opposed to a systematic campaign by the BJP party itself against the applicant for reason of his political activities’.
The applicant refers to M93 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 252 (“M93 of 2004”). It is submitted that paragraphs [75]-[80] of the judgment the Federal Magistrates Court of Australia constituted by Mclnnis FM had concluded that the Tribunal in that instance fell into error because it had confined its inquiry in relation to state protection to the narrow issue of whether or not the state condoned or tolerated the relevant harm.
It is therefore submitted that the effect of that decision was the Tribunal in this instance should have considered whether or not the State of Gujarat and the Government of India could provide a reasonably effective and impartial police force and justice system to protect the life of the applicant.
It is submitted that the Tribunal in narrowing the incident of harm, persecution and harassment to ‘the same local area’ (at CB 92) fell into jurisdictional error by asking the wrong questions, relying on irrelevant material and reaching a mistaken conclusion.
d)The fact that the applicant had already suffered harm; a fact accepted in the findings of the Tribunal, notwithstanding the fact that the applicant did not lodge complaints with the police, nor had sought that the police provide him with protection, the finding by the Tribunal that the state authorities would provide protection to an acceptable international standard was wrong and an erroneous finding.
e)It is submitted that the Tribunal asked itself the wrong question and reached a mistaken conclusion. Once it had found that the applicant had suffered harassment and had political enemies, it was no longer appropriate for the Tribunal to consider whether the applicant was likely to be protected by the Indian authorities.
Issue of Relocation
2.The second respondent erred in failing to properly consider the issue of relocation (in circumstances where relocation was an important consideration).
Particulars
a)The issue of relocation has not been determined by the Tribunal, notwithstanding that there is some reference to issues going to relocation in the Tribunal’s reasons for judgment (at CB 92).
b)The second respondent’s finding “The Tribunal rejects the applicant’s claim that the BJP would use its organisational skills to find him (f he moved away from his home district. It is simply not plausible.” in its decision (at CB 92) is just a cursory mention by the Tribunal on the issue of relocation.
c)The applicant submits that other than considering the applicant’s background and asserting its own opinions (“This is mere assertion” “It is simply not plausible” at CB 92) the Tribunal has erred in not considering the reasonableness and practicality of relocation as decided in leading cases such as Randawa, NAIZ, SZBJI.
Procedural Fairness
3.The second respondent 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.
Particulars
a)The second respondent relied on the information before the Department (at CB 89) and the Tribunal (at CB 93).
b)The second respondent did not give the applicant written notice in accordance with sections 424A & 441A of the Migration Act of particulars of all information it considers would the reason, or part of the reason, for affirming the decision that is under review.
c)A statement to the affect that the information could be the reason or part of the reason, for affirming the decision under review ought to have been given to the applicant in the interest of procedural fairness.
d)An explanation from the Tribunal was called for in ensuing that the applicant understood why the information was relevant to the review and in particular that the information would be used in relation to the general assessment of the credibility of the applicant.
e)The Tribunal in not according the applicant this opportunity was guilty of jurisdictional error.
f)The applicant therefore submits that the Tribunal’s decision is infested with jurisdictional error due to the [applicant] being denied a fair hearing. The applicant could only provide answers to the direct questions posed to him by the Tribunal. The Tribunal at no stage shared information with the applicant that was adverse to the applicant and formed the basis of the Tribunal’s decision.
g)The applicant submits that the Tribunal erred and denied the applicant fair opportunity to present his case pursuant to the Migration Act and in particular pursuant to s.424A of the Migration Act. The applicant submits that subject to failure to allow the applicant an opportunity to fairly present his case amounts to jurisdictional error.
Rajalingam Test Application
4.The second respondent misapplied the Rajalingam test.
Particulars:
a)The second respondent failed to address that the certainty of claims and events may have happened and instead simply proceeded to reject the claims in breach of the test in the Rajalingam case and earlier cases (“What if I am wrong?” test).
b)The applicant submits that the second respondent Tribunal erred in relation to the assessment of incidents and claims that had occurred and that which could not be proven by the applicant.
c)The applicant claims that instead of the Tribunal directing its questions to fears, attacks, violence and persecution suffered by the applicant etc, the Tribunal steered the questions to suit its own agenda and give its own opinionated decisions.
d)An example of this is the Tribunal’s attempt at minimising the applicant’s claims as being confined to ‘small local area’ (at CB 92). The Tribunal ought to have looked at the bigger picture and concentrated on the gravity of the attack and the fears experienced by the applicant.
e)Instead the Tribunal further opinionated that the “Tribunal is satisfied that this was an opportunistic encounter between the applicant and various individuals affiliated to the BJP, as opposed to a systematic campaign by the BJP party itself against the applicant for reason of his political activities”. (at CB 92)
f)The applicant contends that this amounted to procedural unfairness and thus constituted a jurisdictional error. The Tribunal’s decision is logically inconsistent and cannot stand.
The first applicant filed an affidavit in support of the amended application on 4 May 2007. I accepted that affidavit as a submission. The first applicant asserts that the Tribunal trivialised his matter and failed to take into account reasons why he did not seek state assistance. The applicant repeats in the affidavit in summary form some of the assertions in the amended application but not all of them.
This matter first came before me on 2 April 2007. At that time I made orders for the filing of additional material, including additional affidavit evidence and a transcript of the tribunal hearing. I initially ordered a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) but on 28 May 2007 I dispensed with that preliminary hearing and listed the matter today for a final hearing.
The applicant did not comply with my order for the filing of a transcript by the due date. However, the first applicant tendered in Court today a transcript of the Tribunal hearing prepared by Spark & Cannon. Counsel for the Minister objected to the tender by reason of the lateness of tender but I accepted it as an exhibit, (exhibit A1).
I also have before me as evidence a book of relevant documents filed on 4 April 2007.
The Minister's submissions deal comprehensively with the grounds of review in the amended application. There is no substance for those grounds. The Tribunal did not need to consider the availability of state protection in India because it found that the applicant had not suffered harm amounting to persecution in the past and did not have a well-founded fear of future harm amounting to persecution. Although the Tribunal did purport to make a finding that there was no evidence that the applicant would be unable to access state protection if he was under a threat that finding appears to be surplusage.
Likewise, there was no need for the Tribunal to consider the issue of internal relocation. The Tribunal dealt with the matter on the basis that the applicants were not at risk of harm amounting to persecution in their state in India. Similarly, there was no need for the Tribunal to consider what the position would be if its findings were wrong. On a fair reading the Tribunal was not in any doubt as to its findings. The asserted breach of s.424A of the Migration Act is unparticularised and cannot succeed.
I agree with and adopt, for the purposes of this judgment, paragraphs 20 through to 34 of the Minister's written submissions.
Ground 1 of the amended application alleges that the Tribunal fell into jurisdictional error by “failing to review the adequacy and effectiveness of State protection”.
To begin with, it was not strictly necessary for the Tribunal to consider the issue of State protection at all. This is because the Tribunal found that the applicant had not suffered serious harm in the past and that neither the BJP nor its members were intending to cause him serious harm in the future. If the Tribunal has determined that no-one intends to cause the applicant serious harm, the question whether the State would protect the applicant if the applicant was under threat is strictly beside the point. As a result, any error that may have been made on the state protection issue would not constitute jurisdictional error because it was an error on a question which, under the circumstances, the Tribunal was not obliged to decide.
Furthermore, even if such an error did amount to a jurisdictional error, the court should exercise its jurisdiction not to grant relief because the Tribunal’s decision was supported on the logically independent basis of its finding that the applicant was not likely to suffer harm in the future: see SZBYR v Minister for Immigration [2007] HCA 26 at [27]-[29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [52]-[59] (Kirby J), [91] (Hayne J); SZEEU v Minister for Immigration (2006) 150 FCR 214 at [230]-[234] (Allsop J).
Nevertheless, the Tribunal did make a finding that there was no evidence that the applicant would be unable to access State protection, even if he were under threat.
The applicant complains that the Tribunal made this determination “relying on what the applicant had to say in direct response to the Tribunal’s questions” rather than conducting its own enquiries.
However, “the extent of the decision-maker’s task will be largely determined by the case sought to be made out by an applicant”: Randhawa v Minister for Immigration (1994) 52 FCR 437 at 443 (Black CJ); see also NABE v Minister for Immigration (2004) 144 FCR 1 at [61]-[62] (Black CJ, French and Selway JJ) and the authorities cited there. The Tribunal is empowered, but not obliged to actively seek information: s 424 of the Migration Act; WAEH of 2002 v Minister for Immigration [2002] FCAFC 364 at [19]-[24] (Wilcox, RD Nicholson and Downes JJ); Minister for Immigration v SGLB [2004] HCA 32 at [43] (Gummow and Hayne JJ). It was thus within the Tribunal’s jurisdiction to determine that it was not satisfied there was “anything to indicate that [the applicant] cannot access effective State protection” without going beyond the material put to it by the applicant.
That applicant’s reliance on M93 of 2004 v Minister for Immigration [2006] FMCA 252 is misplaced. In that case, the question was whether the Thai authorities provided State protection to abandoned girls in Thailand (which was alleged to be a particular social group for the purposes of the Refugees Convention). The Tribunal narrowed its enquiry to whether there was a deliberate and systematic failure to protect this group and ignored as irrelevant the issue of whether, quite apart from systematic intention, the Thai authorities were too corrupt or insufficiently competent and resourced to provide adequate State protection: see at [14] (at point “(d)”) and [16] (the quoted paragraph beginning “the Tribunal notes”). McInnis FM held that by doing so, the Tribunal asked itself the wrong question and thus fell into jurisdictional error: see at [72]-[78]. Here, there is nothing to suggest that the Tribunal inappropriately narrowed its enquiry regarding State protection. It considered the material before it and determined that there was nothing to suggest that the Indian authorities would be unwilling or unable to protect the applicant.
Relocation
Ground 2 of the amended application alleges that the Tribunal failed to “properly consider the issue of relocation (in circumstances where relocation was an important consideration)”.
The Tribunal need only consider the issue of relocation (also sometimes called “safe haven”) if it has already determined that that the applicant has a well-founded fear of persecution in some locality of his country of origin: see Randhawa v Minister for Immigration (1994) 52 FCR 437 at 441-2 (Black CJ), 450-451 (Beaumont J), 453 (Whitlam J). As the Tribunal here was satisfied that there was no real risk of serious harm if the applicant returned to Gujarat, there was no need for the Tribunal to consider the issue of relocation. If one is satisfied that the applicant will not be persecuted, there is no reason to consider whether the applicant might have an internal safe haven from persecution.
Procedural fairness (s. 424A of the Act)
Ground 3 of the amended application alleges that the Tribunal erred in failing to accord the applicant procedural fairness in that the applicant “was not given an opportunity to respond to ALL adverse findings and inconsistencies in accordance with the requirements in section 424A of the [Act]”. The amended application does not particularise what information it is alleged the Tribunal failed to put to the applicant.
Section 424A does not require the Tribunal to give the applicant particulars of “ALL adverse findings and inconsistencies”. Sub-section (3) sets out three categories of information that is exempt from the obligation in sub-s (1) and the authorities are replete with principles on what does and does not count as “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review” for the purposes of sub-s (1): see, e.g. SZBYR (above) at [16]-[22] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); SZEEU (above).
Thus, without particulars of what information it is alleged the Tribunal failed to put to the applicant, ground 2 of the amended applicant is without substance.
Rajalingam – “What if I’m wrong?”
Ground 4 of the amended application alleges that the Tribunal failed to apply the “What if I am wrong?” test enunciated in Minister for Immigration v Rajalingam (1999) 93 FCR 220.
In Rajalingam, Kenny J articulated the test thus at [137]:
After consideration of the material before it, the RRT may be of the view that a claimed event relied on by the applicant did not occur (or not for the reason alleged), although it is “only slightly more probable than not” that it did not occur as alleged. In that case, the Tribunal must take account of that uncertainty in considering whether it is satisfied, having regard to all the material before it, that the applicant has a well-founded fear of persecution. On the other hand, if the Tribunal is of the view that a claimed event did not occur and that it is unlikely to be wrong in that view, then the Tribunal must exclude that event from its consideration of whether it has the relevant satisfaction. Nor can the Tribunal, in the latter circumstance, be required to take into account any remaining uncertainty, albeit slight, that it might have about the happening of the claimed event, because it would have none that mattered: see Guo [v Minister] (1997) 191 CLR 559 at 576; Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Full Court, 7 November 1997); Zuway v Minister for Immigration and Ethnic Affairs (1998) 160 ALR 391. [Counsel’s emphasis retained.]
Sackville J expressed similar views at [60], [62]-[63]. North J agreed with Sackville J at [129]. (Note the criticism of the “What if I’m wrong” label by Sackville J at [63].)
There is nothing to suggest that, in this case, the Tribunal was anything but confident in its conclusion that the applicant was not at risk of serious harm if he returned to Gujarat. On that basis, there was no need for the Tribunal to apply the Rajalingam test.
In his oral submissions the first applicant raised another matter. He said that he had documents to support his claims of persecution in India. He referred to newspaper articles and a letter from a congressman. He said that he had taken these with him to the Tribunal hearing and had offered them to the Tribunal. They had not been accepted. The applicant's assertions are not supported either by the book of relevant documents or by the transcript. It is unclear from the book of relevant documents whether any newspaper article was given to the Tribunal at any stage.
The absence of a copy of any article from the book of relevant documents would tend to indicate that it was not submitted. Nevertheless, is as apparent from the tribunal's reasons and as is verified by the transcript, there was discussion at the Tribunal hearing about a single newspaper article apparently authored by the applicant and containing photographs. The Tribunal, in its reasons, accepted that and I quote from page 92 of the court book:
…the applicant was at odds with local BPJ members during local council elections in Ahmedabad in July or August 2005, but there are no claims that any serious harm befell him at that point. The tribunal accepts that in November 2005, an article with photographs appeared in a local paper with the applicant's name under it. The article was about apparent misdeeds of the local council, or some of the local councillors. This information was known by many people and had been passed on to the applicant by fellow Congress Party members. The applicant had taken photographs of scenes to illustrate the article. The applicant claimed that he was harassed by the BJP and claimed that he reported things to the police but, despite ample opportunity, gave no particulars of such harassment or reports.
It appears that the Tribunal accepted, without physical evidence, that the applicant had written the article referred to and taken photographs. There may have been an issue of legal significance if the applicant had sought to tender the article and photographs and that tender had been refused. However, the transcript establishes to my satisfaction that that did not occur. Not only did the applicant not offer the article and photographs to the Tribunal at the hearing, he was asked by the president member whether there was anything else that had not been covered and answered "No" (transcript, page 18).
The first applicant himself clarified during the course of oral argument that he did not have the letter from the congressman at the time of the Tribunal hearing. Neither did he submit it to the Tribunal. He told me that he had kept it for the purposes of these Court proceedings. I declined to receive it on the basis that it could not assist me. I advised the applicant that if the Tribunal decision is valid, only the Minister can change it. The consideration of any evidence that was not available to the Tribunal is a matter for the Minister.
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
The application, having been dismissed, costs should follow the event. The Minister seeks scale costs of $5,000. The applicant sought to clarify his rights at this point but did not make any submissions as to costs. I see no reason to depart from the Court's scale in this matter. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, in the amount of $5,000, pursuant to rule 44.15(1) and item 1(c) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM
Deputy Associate:
Date: 2 August 2007
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