SZLLG v Minister for Immigration

[2008] FMCA 1019

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLLG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1019

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal made adverse credibility finding – findings open to the Tribunal on what was before it – subjective appraisals not “information” for the purposes of s.424A – Tribunal not obliged to conduct its own independent enquiries – Tribunal not obliged to put non-in personam information to the applicant – no illogical analysis – no failure to accord procedural fairness – application dismissed.

Migration Act 1958 (Cth), ss.424, 424A, 422B

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZEOK v Minister for Immigration & Anor [2006] FMCA 1600
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) CLR 259; [1996] HCA 6
VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 544; [2006] HCA 60
NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
SZATG  v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595
Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Re Ruddock & Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437; [2003] HCA 60
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17
SCAA v Minster for Immigration Multicultural and Business Affairs [2002] FCA 668 at [38]
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297

Applicant: SZLLG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL  

File Number: SYG 3091 of 2007

Judgment of: Nicholls FM

Hearing date: 31 March 2008

Date of Last Submission: 31 March 2008

Delivered at: Sydney

Delivered on: 24 July 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Ms B Rayment

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 5 October 2007, and amended on 7 December 2007, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $2,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3091 of 2007

SZLLG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 5 October 2007, and amended on 7 December 2007, made under the Migration Act (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 21 August 2007, and handed down on 11 September 2007, which affirmed the decision of the delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The first respondent has put a bundle of relevant documents before the Court (Court Book – “CB”) from which the following background can be discerned.

2. The applicant is a national of India who arrived in Australia on 27 March 2007 and applied for a protection visa (CB 1 to CB 26). The applicant claimed that his parents were members of the Communist Party of India (CPI (M)) and that they “sacrificed their life for the ideology of Communism”. He claimed that he became a member of the CPI(M) in 1992 and worked with a youth committee. He then became a committee member of the CPI(M). He became disenchanted with the party because of corruption. He claimed that from that time onwards, he was blamed for any problems in the party and subsequently left the CPI(M) at the end of 2003 and joined the CPI(ML) (a rival communist faction or party). As a result of this, he claims, he was attacked by the CPI(M) and was blamed for the stabbing of a CPI(M) member, and was subsequently detained for five days. The applicant claimed that if it were to return to India he risked being arrested, and detained, and that he would face “serious rights abuses”. He feared that he would be killed by CPI(M) party people.

The Delegate’s Decision

1. The delegate’s decision is reproduced at CB 29 to CB 36. The delegate found:

   “There are a number of factors which raise significant doubt as to the credibility of the applicant’s claims and genuineness of his fear under Convention related grounds” (CB 33.5).

2. Further:

   “The applicant’s claims are vague, generalised and lack detail in a number of aspects …” (CB 33.7)

3. The delegate ultimately held that he was not satisfied that the applicant had a well-founded fear of Convention-based persecution because:

   “The applicant has owned a business and lived at the same address in Kerala for a lengthy period of time until he left India.

   The applicant’s claims are vague, generalised and lacked detail.

   There is no evidence to support the applicant’s claims that he has been arrested and tortured by police.

   The applicant claims that he acquired a valid passport in his own name in 2006 and then left the country without attracting the attention of the relevant authorities.

   The applicant satisfied the requirements for the grant of a subclass UC 456 Short Stay Business visa and departed India legally” (CB 35.1).

The Tribunal

1. The applicant applied for review by the Tribunal on 22 May 2007 (CB 37 to CB 40).

2. The applicant put no further written claims before the Tribunal. He was invited to, and did attend, a hearing before the Tribunal on 12 July 2007 (CB 46). (The Tribunal inspected the applicant’s passport at the hearing– CB 48 to CB 54.) The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 59 to CB 71 and CB 63.3 to CB 66.10).

3. The Tribunal found that:

   1)It was:

   “not satisfied that the applicant was brought up as a communist because he did not know fundamental facts about the party, such as when it was formed in India or how, historically, the communist Party differed from the Congress party” (CB 69.3).

   2)In relation to the student Federation of India (SFI) (a “student arm of the CPI(M)”):

   “The Tribunal finds that the applicant was not aware of the SFI until the Tribunal raised the issue, and as a result he changed his evidence to claim that he was involved in the SFI” (CB 69.5).

   3)In relation to the workings of the CPI(M):

   “Despite repeated questioning and prompting by the Tribunal, the applicant’s evidence about his role in the CPI(M) and the secrets he knew was vague and not convincing. The Tribunal is not satisfied that the applicant did have a role in the CPI(M), let alone a role that resulted in him knowing all the party secrets” (CB 69.8).

   4)The applicant’s evidence about why he left the CPI(M) to join the CPI(ML):

   “… and his role in the CPI (ML) was very general and not convincing. The Tribunal is not satisfied that the applicant joined the CPI(ML) as claimed” (CB 70.3).

   5)In relation to the applicant’s claims that he had been charged and detained, the Tribunal was not satisfied that this had occurred because:

   “… the applicant did not have a role, if any, in the CPI(M) that would lead the CPI(M) to call for his arrest. In addition, the Tribunal finds it implausible that the applicant would be released on bail if he was acquitted of all charges as claimed” (CB 70.5).

   6)Further, in relation to his knowledge about the CPI(M), given his evidence, the Tribunal “would expect him to know when the CPI(M) came into power” and, further, did “not accept that the applicant would not know when the CPI(M) came to power if the change in power had affected his personal safety to the extent claimed” (CB 70.8).

4. The Tribunal found that there was not a real chance that the applicant would suffer serious harm from the CPI(M) or the police as a result of his involvement in the CPI(M) and subsequent involvement with the CPI(ML). It was not satisfied that the applicant was owed protection obligations by Australia. It was on this basis that it affirmed the decision not to grant the applicant a protection visa (CB 70.9 to CB 71.3).

The application to the Court.

1. Both the application, and the amended application, are in identical terms. I note, further, that the terms of the applications, even down to such detail as formatting, style, and presentation, are identical to a number of applications seen previously in this Court.

2. At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Malayalam language. Ms B Rayment appeared for the first respondent.

3. Before the Court the applicant stated that a migration agent (located near the Court) had assisted him in preparing his application (to the Court). Previously, he had told his “story” to a friend, who had assisted him in putting it to the Tribunal. In all, at best, the applicant’s complaint about the Tribunal’s decision was that he had not been “taken seriously by the Tribunal”.

Ground One – Failure to accord procedural fairness

1. Ground One in the application asserts a failure to accord procedural fairness under s.424 of the Act. Although, given what follows, this appears to be a complaint that there was a failure to accord procedural fairness pursuant to s.424A of the Act.

2. First, I note that this is a case to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule (absent bias) (see Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).

3. Section 424 does not oblige the Tribunal to seek further information from an applicant. The terms of this section are discretionary in this regard. The mandatory nature of what is contained in this section is that if the Tribunal so engages in such conduct, then it must have regard to any information it obtains. Nor can I see that the Tribunal engaged in any conduct, in the circumstances of this case, which could be said to be conduct pursuant to s.424.

4. In any event, the applicant’s complaint appears to be directed to s.424A, and asserts that to the extent that the Tribunal relied on “Independent evidence as to the prevalence of claim about political persecution”, that it failed to accord procedural fairness in relation to such evidence or information. Further, the applicant’s complaint appears to encompass what he says was independent information “as to claims based on ‘adequate state protection to me’” and further asserts:

   “though I raised the issues of the poor law and order situation in India and such information formed part of the reason for the Tribunal decision.”

5. First, to the extent that the applicant relies on NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 (“NARV”) to assert that he was denied procedural fairness by reason of the Tribunal’s failure to draw his attention to the independent country information, following the introduction of s.422B into the Act, NARV cannot assist the applicant in the circumstances claimed. Relevant principles of procedural fairness at general law may require that country information be put to an applicant as a matter of fairness (an example is found in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 – particularly where such information is critical to the Tribunal’s decision and the applicant is not on notice of the issues raised by that information).

6. However, since the introduction of s.422B, the relevant issue for consideration now is whether the “information” comes within the understanding given to that term for the purposes of s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [15] to [22]) and, if it does, whether such information is subject to any exemptions as set out in s.424A(3)(a) of the Act and, ultimately, if s.424A(1) is enlivened, whether the Tribunal wrote to the applicant in that regard.

7. First, to the extent that the Tribunal’s decision record does contain some references to independent evidence, particularly about the Communist Party in India, and tensions between CPI(M) and CPI(ML), and may have formed part of the background to the Tribunal’s reasons for affirming the decision under review, it is quite clear that such information falls with the exception contained within s.424A(3)(a), being non-in personam information. Therefore, the Tribunal did not have any obligation to write to the applicant pursuant to s.424A(1) (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]-[14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]).

8. Second, any plain reading of the Tribunal’s decision record reveals that the Tribunal affirmed the decision under review because it did not believe the applicant’s evidence given at the hearing. Such evidence given to the Tribunal for the purposes of the review, falls within the exception contained in s.424A(3)(b) from the obligation in s.424A(1). I should just note that, on what was before it (and the applicant has not brought any evidence to this Court to challenge the Tribunal’s account of what occurred at the hearing), the Tribunal’s finding as to the credibility of the applicant’s claims was open to it, and it gave cogent reasons. No error can be discerned in this regard either.

9. Further, the Tribunal’s subjective appraisals of the applicant’s evidence, and its inability to be satisfied as to what the applicant was saying, and as to whether it gave rise to a well-founded fear of persecution for a Convention reason, such appraisals are not information for the purposes of s.424A (see SZBYR at [18], and the approval by the majority of the High Court of the statement of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477).

10. To the extent that the last paragraph to Ground One of the application asserts that the Tribunal should have made a finding that adequate state protection was not available to the applicant, then, for example, what I said in SZEOK  v Minister for Immigration & Anor [2006] FMCA 1600 at [18] applies equally to the circumstances of this case:

    “… Thewillingnessand ability of the relevant state to provide the necessary level of protection is relevant as to whether a well founded fear of persecution for a Convention reason has been established. The absence however of such a (well founded) fear, or more particularly the absence of a real chance of persecution for a Convention reason in any particular part of the country in question, makes the consequent need to further consider adequate or effective state protection unnecessary.”

11. Plainly, in the circumstances of this case, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason anywhere in India. As such, it was plainly unnecessary for it to consider the issue of whether effective state protection was available.

12. Further, to the extent that the applicant asserts, in any event, that such independent information about state protection should have been put to him, there is nothing before the Court to show (even if the Tribunal had been required to consider the issue of adequate state protection available to the applicant, away from his home state) that such information did not fall within the exception contained in s.424A(3)(a). That is, that it was not non-in personam information such as to fall within the relevant exception.

13. Although not directly raised by the applicant (but to the extent that what he says in the last paragraph of Ground One refers to the Tribunal allegedly not putting to him “adverse information” used in deciding his case), I did consider (given that the applicant is unrepresented before the Court) whether the Tribunal fulfilled its obligations pursuant to s.425 of the Act and, in particular, bearing in mind what was said by the High Court in relation to s.425, and procedural fairness, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”).

14. At [35] in SZBEL the Court said:

    “The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.”

15. Any plain reading of the delegate’s decision reveals that the determinative issue in rejecting the applicant’s claim for a protection visa was that the delegate rejected the credibility of the applicant’s claim and the genuineness of his fear on any Convention related ground. The delegate found the applicant’s claims to be vague, generalised, and lacking in detail, which led the delegate to reject the factual basis of the applicant’s account of what he said had occurred in India, and of what he said had, therefore, given rise to a well-founded fear of persecution.

16. Any plain reading of the Tribunal’s decision reveals that the Tribunal again found the applicant’s evidence as being vague, unconvincing, lacking in detail and knowledge. That is similar as found and relied on by the delegate.

17. In any event, the Tribunal’s account (unchallenged by any evidence brought by the applicant to the contrary) of what occurred at the hearing reveals that it did discuss its concerns about the applicant’s evidence given in relation to the factual claims that he made to the Tribunal (at the hearing).

18. The Tribunal discussed the applicant’s account of what he said had occurred to him in India, relevantly, because of his alleged Communist involvement and activity, and pressed him as to whether he experienced any problems between the end of 2003 and the end of 2005 (CB 64.9). Further, the Tribunal questioned the applicant as to the cases that he claimed had been filed against him (CB 65.7) and, further, as to the harm that he claimed to have feared (see generally CB 65).

1. The Tribunal also questioned the applicant about his knowledge of the Communist Party (of which his claimed membership and activities on its behalf and his involvement with two factions of this party, was the very basis of the applicant’s claims). The Tribunal pressed the applicant about his lack of knowledge and put to him independent country information available to it about the CPI(ML) and various factions, to which the “applicant replied that he did not know much” (CB 66.7)

2. Ultimately, the Tribunal squarely put to the applicant:

   “Asked why he thought his application contained so many important errors, the applicant replied that what he was telling the Tribunal was correct” (CB 66.10).

3. As the High Court said in SZBEL at [47], what the Tribunal is required to do, with reference to the factual account as to why an applicant claims to fear persecutory harm for a Convention reason, is to discuss such relevant factual matters with the applicant and to “sufficiently indicate” its concerns (SZBEL at [47]). The Tribunal in this case plainly did so. I cannot see that the applicant was denied procedural fairness as required by the relevant statutory procedural code.

Ground Two – Failure to consider claims, or integers of claims

1. The second ground appears to contain two separate complaints about the Tribunal decision, although expressed as being related. First, the applicant complains that the Tribunal did not take “in to account certain relevant considerations or “integers” central” to his claims.

2. In this regard, I note with reference to all of the material contained in the Court Book and, in particular, the applicant’s claims as set out in his protection visa application, and what he is reported to have said to the Tribunal at the hearing (an account which again, it must be stressed, remains unchallenged before this Court by any evidence to the contrary), that this reveals that the Tribunal understood the applicant’s claim that he was a member of, and actively involved with, various Communist factions in his home state in India (including a youth wing), that he switched Communist parties and, therefore, attracted the enmity of former colleagues, and that he had been harassed, attacked, and blamed for having attacked a “BJP” man, that cases had been filed against him, and that he had been detained.

3. The Tribunal’s account of the applicant’s claims for protection is set out in its decision record at CB 64 to CB 65. I cannot see that the Tribunal misunderstood, or subsequently failed to address, any integers of the applicant’s claims. To the extent that the applicant asserts without any real particularity that the Tribunal “did not take into account certain relevant considerations”, I cannot see in the circumstances that this gives rise to anything more than a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) CLR 259; [1996] HCA 6).

4. Nor can the instance of what the applicant subsequently claims to be a failure to properly consider an integer of his claim be considered as such. The applicant’s complaint is that he spent two hours being questioned (by the Tribunal) without a break and felt stressed and intimidated. More properly, this is to be seen as a complaint that the applicant was denied a fair hearing by the Tribunal because he was prevented from properly giving his evidence at the hearing, not necessarily that the Tribunal failed to deal with integers of the applicant’s claims.

5. The Tribunal’s record of the hearing (on 12 July 2007) reveals that the hearing commenced at 9.15am and ended at 10.47am (CB 46). That is, that the hearing lasted for one hour and thirty-two minutes.

6. The applicant, however, has brought no evidence to this Court to support his claim now that he felt stressed and intimidated at the hearing, and that the conduct of the hearing, without a break, somehow contributed to a failure of fairness on the part of the Tribunal given that the hearing only lasted an hour and a half, not in itself an overly long hearing.

7. Nor does the applicant assert (let alone, put any evidence in support) that feeling stressed (and even intimidated) did, in fact, cause him such difficulty, in the sense of not being able to properly to give his evidence to the Tribunal.

8. The material before the Court (the only material on which the Court can proceed) does not reveal any difficulties as asserted by the applicant now. Nor, in any event, that any such difficulties were such as to prevent the applicant from properly giving his evidence and deny him a fair hearing. I note that the hearing took place on 12 July 2007. There is nothing in the material before the Court to show that the applicant took the opportunity following the hearing, until the handing down of the Tribunal’s decision on 11 September 2007 (over two months later) to complain that he had encountered such difficulties at the hearing. This complaint does not succeed.

Ground Three – Failure to exercise jurisdiction properly

1. The third ground in the amended application asserts the Tribunal failed to exercise its jurisdiction properly, and is explained by way of particulars, as alleging that the Tribunal did not consider that the applicant had been under immense pressure from the CPI(M) because of his involvement with the CPI(ML), and did not consider the applicant’s claim that opposition party members would kill him if he were to return to India.

2. The applicant’s complaint that the Tribunal failed to consider that he feared harm from the CPI(M) does not succeed on any plain reading of the material before the Court.

3. The Tribunal plainly understood that the applicant claimed to fear harm from the CPI(M) because he had left it to join the CPI(ML). It clearly questioned him about this at the hearing (see CB 64). It ultimately found that, based on the evidence before it, he did not have a role in the CPI(M) (CB 69.8), and was not satisfied that the applicant had joined the CPI(ML) as he had claimed (CB 70.3).

4. The Tribunal rejected the basis of the applicant’s claims for reasons that it gave and that were plainly open to it on the material before it. The applicant’s complaint in these circumstances does not rise above a request for impermissible merits review. In this sense, the applicant’s complaint that the Tribunal “did not consider” can only be seen, given that the Tribunal plainly did consider in some detail the applicant’s claims relevant to this complaint, as a complaint that the Tribunal “did not accept”, and as such, the complaint does not succeed.

5. I also agree with submissions made on behalf of the first respondent (see paragraph [17] of the written submissions) that to the extent that this may be said to be an allegation that the Tribunal failed to consider that the applicant had some incapacity as a result of alleged intimidation from the CPI(M) (particularly when read in conjunction with Ground Two, that is the “immense and intimidating pressure” and that he still feels “stressed and intimidated”), then I agree with the first respondent’s submissions that there was no evidence before the Tribunal that the applicant suffered any such incapacity.

6. That the Tribunal failed to consider this claim, as it was said to arise from his involvement with the CPI(ML) and that some incapacity arose because of the alleged intimidation from the CPI(M), then this does not succeed because there is nothing to show that any such claim was ever put to the Tribunal. Nor are the circumstances such that it could be said that any such claim could be said to have arisen from the applicant’s evidence beyond that the applicant feared harm from the CPI(M) because of his involvement with the CPI(ML). A claim squarely addressed by the Tribunal and rejected for the reasons which it plainly gave. This complaint also does not succeed.

Ground Four – Failure to consider evidence

1. Ground Four in the application asserts:

   “I have given adequate evidence to the Tribunal that I was arrested and physically assaulted on several occasions but the Tribunal member failed to consider.”

2. Again, the material before the Court does not support the applicant’s complaint. The applicant did give evidence that he was arrested and physically assaulted on several occasions. However, the Tribunal questioned him about this, and about, in particular, his claim to have been arrested by the Kerala police and detained for five days (CB 64.8).

3. The Tribunal did consider this claim, but found that the applicant’s evidence about the CPI(M) and, indeed, about his having left it to join the CPI(ML) was unsatisfactory. Specifically (at CB 70.4) it found that it could not be satisfied that the applicant had been arrested as claimed, and further found the applicant’s claim to be implausible in one important aspect.

4. Again, therefore, the applicant’s complaint that the Tribunal “failed to consider” must be seen as a complaint that the Tribunal “failed to accept” his claims. In this regard, the Tribunal is not obliged to uncritically accept an applicant’s claims. In this case, the Tribunal properly considered all of the applicant’s claims, but for cogent reasons which it gave, found that it could not accept the factual basis of what the applicant had put to it, and rejected those claims. For the applicant’s benefit, I note that there is a clear distinction between a failure “to consider”, and a failure “to accept”. This ground also does not succeed.

Ground Five – Failure to consider “serious harm”

1. Ground Five in the application complains that the Tribunal failed to consider whether the applicant (the amended application refers to “applicants”) would suffer serious harm with “as per sec.91R(2)(a) of the Migration Act”. This is said to be so in circumstances where: “if he asked to relocate in India”.

2. First, it should be noted that the Tribunal made no finding relating to the applicant’s relocation within India. Plainly, for the reasons already referred to above, the Tribunal did not affirm the delegate’s decision upon any basis relating to the applicant’s capacity, or otherwise, to relocate away from his home area, or state, to another part of India. Nor was there any requirement for it to do so, given its findings that on the applicant’s claimed past experience and claimed fear of future harm, it could not be satisfied in relation to any Convention related reason (see VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 544; [2006] HCA 60 per Callinan and Heydon JJ).

3. Second 91R(1) qualifies the definition of “persecution” found in Article 1A(2) of the Refugees Convention for the purposes of the Act, to the extent that s.91R(1)(b) requires the persecution to involve “serious harm to the person”. Section 91R(2)(a), to which the application makes reference, provides that one instance of “serious harm” for the purposes of s.91R(b) includes “a threat to the person’s life or liberty”. The applicant’s complaint therefore may best be understood that the Tribunal should have considered whether he faced “serious harm” on return to India.

4. The short answer to the applicant’s complaint, however, is that the Tribunal was not required to specifically consider the requirements of s.91R, given that after considering all aspects of the applicant’s claim and evidence, it found, on the basis of his oral evidence, and his clear lack of knowledge about the parties of which he claimed to have been an actively involved as a member, that his claimed fear of harm was not well-founded.

5. On this basis, the Tribunal reasoned that, given that it could not be satisfied that it could accept the applicant’s evidence to have been a member of these political parties, that the remainder of the applicant’s claims to fear of harm, as they were said to emanate from his membership of the CPI(M) and the CPI(ML), were also claims that must be rejected for the reasons that it gave. It was this rejection of the very factual basis of the applicant’s claims that was the reason for the decision.

6. In such circumstances, there was nothing left of the applicant’s claims to fear harm, “serious” or otherwise, for the Tribunal to be obliged to deal with them in the way contemplated by s.91R.  The applicant’s complaint in Ground Five is, therefore, in reality, a challenge to the Tribunal’s findings and the basis of its findings. These findings were all findings made within the proper exercise of its jurisdiction. This ground also does not succeed.

Ground Six – Independent country information

1. Ground Six, as stated, is often seen in applications of this type. Its exact meaning does not become any clearer with repetition.

2. In any event, if the applicant seeks to complain about the Tribunal’s use of country information on which it could be said to have relied, then such a complaint does not succeed. The Tribunal plainly did have regard to information about the two parties of which the applicant claimed to have been an active member (CB 67). The choice and use of country information of this type is, of course, a matter for the Tribunal in the proper exercise of its function.

3. To the extent that the application may be said to complain that the Tribunal gave some weight to this information (“considered to weigh against my case …”), then the Tribunal’s assessment of country information and the weight to be accorded to it is a factual matter before it, in the proper exercise of its jurisdiction (NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] and [13]).

4. If, however, the applicant seeks to complain that the Tribunal should have sought out other independent information (which, presumably, may have supported the applicant’s claims in some way), then even though s.424(1) confers power on the Tribunal to seek additional information that may be relevant to the determination of an application before it, the exercise of such power is discretionary (as already referred to above) and, in any event, only requires the Tribunal to have regard to such information if, in fact, it seeks it, and obtains it. Plainly, given that the Tribunal had difficulty in accepting the factual basis of the applicant’s claims, it did not see any need to do so, beyond the general reference to the information about the parties that it did have regard to.

5. Further, there is no obligation on the Tribunal to conduct its own independent enquiries, such as to make out the applicant’s case for him (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB  [2004] HCA 32; (2004) 78 ALJR 992 at [43] and SZATG  v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 at [26]). Ultimately, it was for the applicant to put forward any evidence or material that he wished the Tribunal to take into account in support of his claims, and it was for the Tribunal to decide whether the claim was made out (see Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at 578 ([187]) per Gummow and Hayne JJ and Re Ruddock & Anor; Ex parte Applicant 154/2002 (2003) 201 ALR 437; [2003] HCA 60 at [57] per Gummow and Heydon JJ).

6. To the extent that the this ground asserts that the Tribunal “was preoccupied and did not have a fresh look”, and that this could be said to be that the Tribunal did not bring an open mind to the proceedings, and therefore was biased, or acted in bad faith, such a complaint also does not succeed.

7. With reference to relevant authorities (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, [2001] HCA 17, SCAA v Minster for Immigration Multicultural and Business Affairs [2002] FCA 668 at [38]; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361), there is nothing in the material before the Court to show that any such complaint could succeed.

8. The ground as stated also asserts the Tribunal “failed to consider the Amnesty International country information”. It is not clear to what Amnesty International report the application makes reference. There is nothing in the material before the Court show that the applicant made a reference to any such report, nor asked the Tribunal to do so, and nor, for the reasons already referred to above, is the Tribunal required to search out any such report. This ground, therefore, in all, does not succeed.

Ground Seven – Tribunal acted “illogically”

1. Ground Seven in the amended application asserts that the Tribunal “acted illogically” and refers to (the instance of an illogical reasoning), the Tribunal’s finding that there would not be a real chance that he would suffer serious harm from the CPI(M) and the police as a result of his involvement with the CPI(M) and subsequent involvement with the CPI(ML). The ground further asserts that the Tribunal failed to “weigh” the applicant’s evidence that he was an active member of the CPI(ML), had been arrested, harassed and tortured by the police.

2. To the extent that it may be said that some jurisdictional error may be established by reason of some illogicality in the Tribunal’s reasoning (see, in this regard, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [9] per Gleeson CJ), there is nothing before the Court to show any illogical reasoning in the Tribunal’s analysis.

3. The Tribunal plainly considered the evidence that the applicant had given and the information available to it. Its decision was based on its findings of fact in relation to the various aspects of the applicant’s claims. The Tribunal gave cogent reasons as to why it rejected the applicant’s claim to have been an active member of the CPI(ML), as to why it rejected that he had been an active member of the CPI(ML), and why it rejected the applicant’s claim that he had been arrested, harassed, and tortured by police. These were all findings of fact made properly within the exercise of its jurisdiction.

4. As is often said, the Tribunal is the relevant finder of fact. The findings made by the Tribunal in this case, on what is before the Court, were plainly open to it to make, and it gave reasons for the findings it did make. Included in this is, as the first respondent submits, that the weight to be accorded to evidence put before the Tribunal is a matter entirely within the province of the Tribunal (see Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5] to [7] per Nicholson J). In all, this complaint can only be seen as a complaint that the Tribunal did not believe the factual basis of the applicant’s claims. It cannot, therefore, succeed before this Court.

Ground Eight – Failure to find the applicant a “refugee”

1. Ground Eight in the amended application complains that the Tribunal failed to find that the applicant satisfied the definition of “refugee” as defined in Article 1A(2) of the Refugees Convention. However, the applicant merely asserts, with reference to what he says are part of the four key elements that are required to satisfy the Convention definition, that the Tribunal failed to take note of these elements and, presumably, failed to apply them to his factual claims. That, had it done so, it would have ultimately found for him.

2. I note that in this case the Tribunal set out the relevant definition of “refugee” in its decision record in the usual and unobjectionable terms (see CB 60 to CB 62).

3. As already referred to above, the Tribunal evidently considered all of the applicant’s claims and evidence. But found, on the basis of the evidence that the applicant himself gave to the Tribunal, and in particular because of his clear lack of knowledge about parties of which he claimed to have been an active member, that the claimed fear of harm was not well-founded, and that he was ultimately not entitled to protection in Australia. I cannot see that the Tribunal misunderstood the relevant definition, nor that it misunderstood or misapplied the test that it was jurisdictionally required to apply.

1. That the applicant now complains that the Tribunal “failed to see that the applicants (sic) satisfy the four key elements that are required to satisfy the Convention definition” plainly, in all the circumstances, does not rise above a disagreement with the Tribunal’s reasoning and its ultimate conclusion. While clearly the applicant is aggrieved that the Tribunal did not believe that his claims amounted to a well-founded fear of persecution for a Convention reason, this in itself does not reveal jurisdictional error on the part of the Tribunal. Simply, the Tribunal was not satisfied that the applicant’s evidence could be relied upon to establish the claim to fear persecutory harm in India. The findings of the Tribunal, as I have repeatedly stated in this judgment, were clearly open to it to make on what was before it. This ground also does not succeed.

2. The application also makes various references to extracts from parts of the Act. To the extent that the applicant ultimately asserts in the application that the Tribunal failed to properly assess the future harm he would face if he were to go back to India, this complaint does not succeed. The Tribunal found based on its lucid reasoning that preceded it:

   “As such the Tribunal is not satisfied the applicant has a well founded fear of persecution if he returns to India for reasons of his political opinion, membership of a particular social group, or for any other Convention reason now or in the foreseeable future” (CB 71.1).

3. This was a conclusion that was plainly open to it on what had been put before it. This complaint also does not succeed.

Conclusion

1. For the applicant to succeed in his application before the Court, jurisdictional error would need to be discerned in the Tribunal’s decision. As I am unable to discern such error, this application is dismissed. 

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  24 July 2008