SZKNS v Minister for Immigration
[2007] FMCA 1456
•14 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKNS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1456 |
| MIGRATION – Country information – Tribunal may get any information that is considers relevant – weight is a matter for the Tribunal – applicant required to establish their case – Tribunal not required to make applicant’s case for them – test for adequate state protection. |
| Migration Act 1958 (Cth), ss.36(2), 91R(2), 414, 415, 420, 422B, 424A, 424(1), 425, 474, 476 |
| Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZKNS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1289 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 14 August 2007 |
| Date of last submission: | 14 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J. Mitchell |
| Solicitors for the Respondents: | Mr I. Muthalib of Blake Dawson Waldron |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1289 of 2007
| SZKNS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 23 April 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 7 March 2007, 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 filed an amended application on 3 July 2007.
The applicant was born on 28 February 1963 and claims to be from India and of the Islamic faith (“the applicant”).
The applicant arrived in Australia on 6 July 2006 on a visitor’s visa issued in New Delhi.
On 31 July 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed, in summary, as follows (Court Book “CB” 27-9):
·His “radical” Hindu employees (who were members of the RSS and BJP) were stealing produce from his farm; he reported the theft to the local police who refused to take any action. The applicant claimed that the workers, upon hearing of his complaint, attacked and beat him.
·In “self defense” the applicant joined the local Communist party; he went to his farm with 60-65 Communist volunteers “to negotiate the dispute”, but fighting erupted and a Communist party member was killed. The applicant claimed that since that incident the “RRS members keep planning to kill me”.
·He moved to Trichy and then to Chennai to escape, but was “aware [of] someone monitoring my movements” and so moved to Bangalore; language difficulties eventually forced him back home.
·He was also targeted for his Islamic preachings; he converted four Hindu families to Islam which “provoked the radical Hindus on me”.
·His Communist party colleagues arranged his travel to Australia in order to save his life; the RSS and BJP continue to search for him.
This application was refused by a delegate of the first respondent on 25 September 2006 (CB 39-52).
On 18 October 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 53). The applicant attended a hearing before the Tribunal on 4 January 2007 to give evidence and present oral arguments (CB 69).
By decision signed on 7 March 2007 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 80-84) (highlighting added):
The Tribunal is satisfied on the evidence available to it that the applicant is a national of India.
The Tribunal is also satisfied that the applicant lived in Tamil Nadu, and speaks Tamil and a little English. The Tribunal accepts that the applicant is a Muslim.
Generally, the Tribunal found that the applicant was able to give details about events which he alleged occurred to him; and that these details indicated that he had personal knowledge of the events, consistent with them having occurred to him personally.
He inherited his fathers’ grocery store and coconut farm when he was about 16 years old, and with the help of his grandfather, sold the grocery business and bought a second farm. He also operated a business in the local market. His grandfather helped him run the farms until his death in 2003.
The Tribunal accepts the applicant’s evidence that he became aware of thefts of his coconuts from his second farm. In January 2005, he went with friends to observe his workers at night and took photos of them stealing his coconuts. He later reported this to the Police, who did not take any action as they said there was insufficient evidence of the theft.
The Tribunal accepts that the applicant later became involved in a confrontation with his workers, and that he was hit on the head with a stick by one worker during this confrontation. He required two days hospitalisation for observation. This occurred nearly two years ago and the applicant had no lasting effects except headaches
The Tribunal accepts that later, in May 2006, the applicant, together with 60-65 Communist Party supporters, confronted the workers at the farm, in an effort to stop the on-going thefts of his coconuts. There were members of the RSS at the farm with the workers, and a confrontation occurred, which resulted in the stabbing death of a Communist Party member. The Police investigated, made several arrests but ultimately released the suspects as there was insufficient evidence to identify the attacker.
The applicant claims four of the seven workers on his second farm were Hindus who were members of the RSS, who are radical and opposed to Muslims. The Tribunal accepts this.
The applicant claims that he was responsible for the conversion of 4-5 Hindu families to Islam, though he did not travel and preach as his original statement indicates. The Tribunal accepts the applicant’s evidence given at hearing, and places no weight on the contradiction with the written statement, as it is satisfied with the applicant’s explanation for this discrepancy.
The applicant claims that he is now targeted by the RSS because he is Muslim and has converted 4 or 5 Hindu families in his village. His farm workers are Hindu and some are in the RSS and are attempting to take away his wealth because of his being a Muslim.
There is no doubt that the applicant has had conflict with his workers at the second farm. The reason was his attempts to put a stop to thefts by his workers. The applicant’s own evidence is that thefts are a common occurrence on the farms, not only his. He has had no problem with the workers at his other farm, though they are also Hindu and the farm is in the same locality. The applicant’s business in the village has not been adversely affected in any way. The conflict appears to have initially been an “industrial” matter, rather than based on the applicant’s religion or that of his workers.
The applicant claims that the RSS are now threatening him because he converted Hindu families to Islam and he is therefore seen as an enemy of the RSS. Initially, the RSS involvement appears to be more related to the applicant’s action in regard to the farm workers, whom the RSS supported. At this point, any antagonism from the RSS towards the applicant was in the context of the conflict with the workers, not the applicant’s religion or his conversion of Hindu families.
The applicant claims that the RSS are also persecuting him as he is a member of the Communist Party and he has spoken out against the RSS at Party meetings. The Tribunal notes that, at the time of the altercation at the farm in January 2005, the applicant was not a member of the Communist Party. Therefore, the injury he suffered on that occasion cannot be said to be due to his political affiliation.
The evidence given by the applicant at the hearing indicates that the on-going threats from the RSS are due to their concern that he would identify the RSS member who was responsible for the stabbing in June 2006.
In summary, the applicant claims that he is seen as an enemy of the RSS, as he has converted Hindu families to Islam; and because of his speaking out against the RSS at Communist Party meetings. The RSS have assisted his workers in confrontations with the applicant; and an RSS member has allegedly killed a Communist Party member during a confrontation with the applicant’s workers. He has received threats from the RSS and these continue still, according to his family.
The Tribunal finds that the applicant fears persecution by the RSS, due to his religious and political affiliations and activities. The Tribunal considered the issue of whether the harm feared by the applicant amounted to “serious harm”. The applicant stated that he believed that the RSS would engineer an “accident” in which he would be killed or seriously injured. He cited the “accident” when he was knocked over by a bike as evidence of this. Without any corroboration, the Tribunal does not accept was done deliberately or by the RSS as the applicant alleges. To date the other threats which the applicant has received have only ever been verbal. They are vague and unspecific. They have never been acted on despite the applicant having associated with Hindus and members of the RSS in his village for years.
Given the circumstances of the killing at his farm; the applicant’s role in converting Hindu families; and the antagonism by the RSS to Muslims generally, as indicated in the country information cited earlier, the Tribunal accepts that the harm which the applicant may face on return to his local area would amount to serious harm and there is a real chance the RSS would seek to inflict such harm upon the applicant.
The Tribunal is obliged to consider the totality of the evidence about the particular circumstances of the applicant against information about conditions in the country in reaching its conclusions about what has happened to the applicant in the past, what might follow an applicant's return to their country and how these facts relate to the definition of a refugee in the Refugees Convention.
The applicant has established a reputation in his local area as being an active opponent of the RSS. This is due to his conversion of Hindu families, to which the RSS is opposed; his membership of the Communist party; and his opposition to the RSS which he openly expressed at Communist Party meetings. The applicant has also been threatened, he believes by the RSS in his area. Given these factors, and the enmity by the RSS against Muslims generally, as indicated in the country information, the Tribunal is satisfied that there is a real chance the RSS would seek to inflict serious harm for an essential and significant reason of religion and political activity if he returned to his local area (Tamil Nadu) in India.
The Tribunal considered the issue of whether the applicant would be able to access adequate state protection if he returned and faced persecution in Tamil Nadu. The applicant himself told the Tribunal that the Police had failed to act against those who had stolen his coconuts and against those who had attacked and killed the person at his farm. However, he told the Tribunal that the Police had in fact responded to both incidents, but had not proceeded because there was insufficient evidence. This indicates that the authorities in Tamil Nadu would be willing and able to provide adequate protection if he was threatened or harmed in the future. The applicant has not provided any independent information as to any lack of state protection in Tamil Nadu, in relation to either Muslims or Communist Party members; and the Tribunal itself has not found any information to indicate that state protection would be withheld if the applicant faced harm for a Convention reason. The information on page 11 indicates an increase in the level of communal violence between Hindus and Muslims in Tamil Nadu and instances of discrimination, however, the applicant’s experiences and the information regarding the efforts of the pro-minority State government in Tamil Nadu (page 10) lead the Tribunal to be satisfied that the applicant would have access to adequate state protection against the harm from the RSS. The Tribunal notes that the relevant standard of state protection is not a perfect standard, the state is not required to provide a guarantee of protection, but rather is required to provide an appropriate standard of protection, including a reasonably effective and impartial police force: MIMA v Respondents S152/2003. The problems faced by Muslims in Tamil Nadu, outlined on page 11, all pre-date the change in government, which has resulted in greater protection of minorities and greater religious freedom. The information cited at page 10 indicates that the current government in Tamil Nadu ((DKM) has a history of support for religious minorities and has a commitment to secularism.
On the basis of the information available to the Tribunal, from the applicant and from the independent information cited earlier, the Tribunal finds that applicant would be afforded adequate state protection in relation to the harm the applicant faces from the RSS in Tamil Nadu. Therefore, the applicant does not have a well-founded fear of persecution in Tamil Nadu and consequently does not have a well-founded fear of persecution I relation to India as a whole for reasons of his religion and/or political opinion.
For the sake of completeness, the Tribunal also considered the issue of whether the applicant could relocate to another part of India to avoid persecution by the RSS and BJP. The information on the matter of relocation in India shows that Indians are free to move within the country, with the exception of the states of Jammu and Kashmir.
In relation to relocation to another area if India, the independent country information indicates that some states have a significant Muslim population. The information cited earlier at page 9 indicates that there has been “communal violence” against Muslims. However, since the change of government in 2004, there has been a marked improvement in conditions for freedom of religion in India. The BJP is no longer in power in India and the current government is working towards religious tolerance. The Tribunal does not accept that all Muslims in India face a real chance of persecution for reasons of their religion on the basis of the sporadic occurrence of communal violence in different parts of the country.
While the RSS is a national organization in India, the information available to the Tribunal indicates that the national and state governments actively protect minority groups, including Muslims, from persecution. The information cited at pages 9 and 10 above shows that, since the elections in 2004, dramatic changes have taken place; state governments attach a high priority to maintaining law and order and monitoring intercommunity relations at the district level; India has a democratically elected government; is governed essentially by the rule of law; has a judiciary which is independent, albiet slow-moving, which can hold the perpetrators of religious intolerance responsible. The Tribunal finds that there is no real chance that the applicant would suffer persecution by the RSS in another area of India because of his religion or political activity.
The applicant told the Tribunal that he could not live elsewhere in India because of his language difficulties. Based on the country information available, the Tribunal does not accept that this would be a real barrier to relocation in other areas of India where Tamil is a major language. Further, the evidence from the applicant indicates that he and his family have financial resources in India, including two farms and a market business, which would provide him with the financial resources to relocate within India. He does not have dependents who require him to remain in Tamil Nadu, as indicated in his evidence about his family; and as evidenced by the fact that he has come to Australia without any dependents.
The Tribunal finds that it would be reasonable, having regard to all the applicant’s circumstances, for him to relocate to one of a number of other areas in India.
In summary, considering the applicant’s circumstances as a whole, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for Convention reasons if he were to return to India.
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 Refugee Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) 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 Act”).
The application
In his application, the applicant set out three grounds as follows:
(1)A breach of rules of natural justice occurred in connection with the making of decision. RRT made an error of law when they failed to comply with the s.424A of the Migration Act 1958.
(2)The Tribunal left out individual elements of the applicants (sic) claim and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amounted to persecution.
(3)The Tribunal in its decision of 7 march 2007 failed in its written statement that a breach of rules of natural justice, therefore it rises the ground under section 476 of the Migration Act.
The applicant filed an amended application on 3 July 2007 setting out the following grounds and particulars:
(1)That the decision of the Refugee Tribunal was effected (sic) by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to the applicant’s claims;
(2)The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particulars
(a)The Tribunal did not consider the applicant who had been under immense and intimidating pressure from RSS and BJP members because of his involvement with the Communist party and conversion of Hindu families to Islam.
(b)In relation to above the Tribunal did not consider the applicant’s claim that RSS and BJP members will kill him if he returns to India.
(3)The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act of 1958.
(4)The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final out come (sic). The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.
(5)The RRT member emphasised on some irrelevant questions at the hearing and ignored my sexuality that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.
(6)The Tribunal applied the wrong test. The Tribunal left out individual elements of the applicant’s claims and tested weather (sic) they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution.
(7)The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to (sic) high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt.
Findings of the Court in relation to the grounds in the application
Ground one alleges a denial of natural justice through a breach of s.424A of the Act by the Tribunal relying on independent evidence. The applicant claims that he should have been given the independent evidence relied on by the Tribunal in deciding that the applicant would receive “adequate state protection”. The Tribunal relied on country information in reaching that conclusion, which is covered by the exception in s.424A(3)(a). No breach of s.424A is found. This complaint is rejected.
In the applicant’s written submissions he alleges that the Tribunal breached s.91R(2)(a) by failing to consider properly whether he would suffer serious harm if he relocated in India. The Tribunal considered whether relocation would expose the applicant to serious harm and concluded that it would not (CB 83). That finding of fact was properly open to the Tribunal and is not subject to review. That complaint is rejected.
The applicant complains about the country information that the Tribunal relied on, and complains about the Tribunal’s alleged failure to consider Amnesty International country information. As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
The Tribunal considered the Amensty International Report (CB 72.4). Those complaints are rejected.
Ground two alleges that the Tribunal ignored parts of the applicant’s claim and did not consider the evidence as a whole, and placed too high an onus of proof on the applicant. The Tribunal stated that it considered the evidence as a whole (CB 83.10). It has not been established that the Tribunal ignored important parts of the applicant’s claims. It has not been established that too high an onus was placed on the applicant. It is for an applicant to establish their claim to the satisfaction of the Tribunal; the applicant failed to do so. The Court refers to the passage quoted in paragraph 20 below. Ground two is rejected.
Ground three alleges a breach of natural justice by the Tribunal failing “in its written statement”. The Court understands this to mean an allegation that the Tribunal failed to give reasons for its decision and to set out the facts it relied on in reaching its decision. The Tribunal complied with those obligations. The Court rejects that complaint.
As to the allegation of a denial of natural justice, Division 4 of Part 7 of the Act is an exhaustive code of the natural justice hearing rule applicable to this matter (s.422B). A s.425 letter was sent to the applicant on 15 November 2006. The Court accepts the following submission for first respondent:
In respect of s.425, the issues that were determinative of the Applicant’s claims, namely the adequacy of state protection and the reasonableness of relocation, were discussed at the Tribunal hearing: CB 80. Relocation had also been an issue before the delegate: CB 52. Accordingly there was no breach of s.425. The determinative issues were discussed at the hearing and the Tribunal’s findings were obviously open on the material before it.
No breach of s.424A has been established, nor of s.425, or of any other provision of Division 4. A denial of natural justice has not been established. This ground is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground one alleges that the Tribunal did not take into account integers central to the applicant’s claim. This ground was included in ground two of the application and is rejected for the reasons set out thereunder.
Ground two alleges a failure to exercise jurisdiction.
Particular (a) alleges that the Tribunal did not consider the immense pressure that the applicant had been under from RSS and BJP members because of his involvement with the Communist Party and Hindu families converting to Islam. The Court rejects that claim. Those issues were considered by the Tribunal at CB 80.8-82.5. Particular (a) is rejected.
Particular (b) alleges that the Tribunal did not consider the applicant’s claim that RSS and BJP members will kill him if he returns to India. The Tribunal referred to that claim (CB 70.4, 80.2 and 81.10) but found that the applicant would be afforded adequate state protection in relation to the harm he faces from the RSS in Tamil Nadu (CB 83.1). The Tribunal concluded also that the applicant could relocate to another part of India to avoid persecution by the RSS and BJP (CB 83.2-83.9). Particular (b) is rejected.
Ground three alleges an error of jurisdiction because the Tribunal failed to investigate the applicant’s claims. The Court agrees with the statement by the Tribunal in another matter as follows:
The mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant (MIEA v Guo & Anor (1997) 144 CLR 559 at 596 [sic 144 ALR 596], Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70). The High Court has emphasised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Guo, referred to above, that the law requires that the Minister (or this Tribunal, on review) must be “satisfied” that a person is a refugee.
Ground three alleges also that the Tribunal denied the applicant procedural fairness. That complaint was rejected in relation to ground three of the application and is rejected here for the same reasons. Ground three is rejected in its entirety.
Ground four complains about the way the Tribunal used country information. As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
No error of law has been established. Ground four is rejected.
Ground five alleges that the Tribunal emphasised irrelevant questions and ignored the applicant’s sexuality that put his life in danger. The applicant has not provided a transcript of the proceedings before the Tribunal. There is no evidence that a claim relating to the applicant’s sexuality was put to the Tribunal and ignored by it. That claim has not been established and is rejected.
It has not been established that the Tribunal emphasised irrelevant questions. The Tribunal accepted much of the applicant’s evidence and found that he would be provided adequate state protection in India and can relocate. The Tribunal therefore considered the relevant questions. This claim is rejected.
Ground six alleges that the Tribunal applied the wrong test by considering individual elements and failing to look at the claim as a whole. The Tribunal considered each element of the applicant’s claims and then considered whether the evidence as a whole satisfied it that the applicant is a person to whom Australia has protection obligations (CB 83.10). The Tribunal concluded that the applicant does not satisfy the criteria for a protection visa (CB 84.1). Ground six is rejected.
Ground seven alleges that the Tribunal erred by placing too high an onus of proof requiring independent evidence of facts before accepting claims by the applicant. The Court refers to and repeats the reasons given for rejecting ground three in the application, in particular the passage quoted in paragraph 20 above. This ground is rejected.
The applicant complains that the Tribunal did not give the applicant the country information which it had, and alleges a breach of s.424A. Country information is subject to the exception in s.424A(3)(a). A breach of s.424A has not been established. The Tribunal put the determinative issues of state protection and relocation to the applicant (CB 80). No provision of Division 4 of Part 7 of the Act was breached. This complaint is rejected.
The applicant alleges in his written submissions that the Tribunal failed to accept that the applicant is a refugee according to four key elements. The first element is that the applicant is outside his country. Obviously, that was not contentious. The second element is alleged to be that the applicant must fear persecution. The Tribunal found as a matter of fact that the applicant does not have a well founded fear of persecution if he were to return to India (CB 83.10).
The third and fourth elements depend on a positive finding of a well founded fear of persecution; as that has been found not to exist, they do not call for consideration.
The applicant alleges in his written submissions that the Tribunal should have concluded that the applicant was under threat of serious harm as defined in s.91R(2). The Tribunal set out its reasons for finding that the applicant would be accorded adequate state protection in relation to harm that he would face if he returned to his local area (CB 82.6, 83.2). Those findings of fact were properly open to the Tribunal on the material before it. This complaint is rejected.
The applicant then sets out parts of ss.414, 415 and 420 of the Act and makes a general allegation that the Tribunal committed a serious jurisdictional error in failing to carry out the “real chance test.” The Tribunal concluded that the applicant would face serious harm if he returned to this local area, but concluded that he could access adequate state protection and could relocate within India (CB 82.6, 83.2, 83.9). This complaint is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that 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 and amended application are dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 24 August 2007
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