SZLMI v Minister for Immigration - [2008] FMCA 639

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLMI v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 639

MIGRATION – Review of decision of Refugee Review Tribunal – impermissible merits review – no Convention nexus – no failure to afford procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.422B, 441A, 425, 424, 427, 424A, 65, 36(2), Division 4 of Part 7

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
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
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572
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
SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102

Applicant:

SZLMI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3186 of 2007

Judgment of:

Nicholls FM

Hearing date:

6 May 2008

Date of Last Submission:

6 May 2008

Delivered at:

Sydney

Delivered on:

6 May 2008

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 15 October 2007, and amended on 6 May 2008, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3186 of 2007

SZLMI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”) on 15 October 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) delivered orally on 20 September 2007 (I note that a written version was subsequently signed on 28 September 2007) which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Pursuant to orders made by this Court, the first respondent has filed a bundle of relevant documents in this matter which I will refer to as the Court Book (“CB”) and from which the following background may be discerned from this information.
The applicant is a national of India who arrived in Australia in April of 2007, and applied for a protection visa. With annexures, this application is reproduced at CB 1 to CB 32. Following refusal of this application by the Minister’s delegate (I note that this is relevantly set out with covering letter at CB 35 to CB 43), the applicant applied for review to the Tribunal. This application is set out at CB 44 to CB 47.
The applicant was invited to attend a hearing before the Tribunal, and he did attend on 20 September 2007. At the conclusion of that hearing the Tribunal delivered its decision orally. The written version is reproduced at CB 65 to CB 70.
The applicant’s claim to protection, initially set out at CB 19 to CB 23 in his application for a visa, was that he was a Hindu in India, that he had fallen in love with a Muslim girl whose father was described as a big “political magnet”, but I think the word intended is “magnate”. The applicant claimed that the girl’s father and her brother were office holders in what he described as “IUML Goondas”, which I understand to be the “Indian Union Muslim League” (“IUML”). He claimed that he had been observed in a park with the girl by her brother, and the following day he was threatened by the girl’s brother, who was accompanied by some people from the IUML. He claimed that he was admitted to hospital, and lodged a complaint at the police station. Following a suicide attempt by this young girl the parents sought what he described as an “amicable settlement”, but this appeared to be conditional on his converting to Islam. The applicant objected, and subsequently he was again attacked, seriously injured, and again admitted to hospital. The police subsequently filed a case, but the applicant claimed no further action had been taken.
He claimed further that as a result of this his father fled to Bangalore and spent four years there. On return, and as a result of what he described as the news having spread in the village of the applicant’s return, the girl’s brothers and the Goondas attacked him, and his father was admitted to hospital with a broken chin. The applicant subsequently fled India to seek protection.
Importantly and relevantly I note the delegate’s decision (in particular I refer to CB 42) and that after looking at the applicant’s claims, the delegate concluded (at CB 42.8):
“In any case, I find that the claims made are not for a Convention related reason.”
Before the Tribunal, the applicant gave evidence that he was about 15 and still at school when he first met and fell in love with the young Muslim girl. Initially he said that the relationship continued for 10 years, and ended in 2002. The Tribunal recorded in its decision record that the applicant gave confusing and conflicting evidence at the hearing as to whether the relationship had ended, and changed his evidence during the course of the hearing in this regard. The Tribunal recorded the applicant as having “clearly stated that the woman’s family was not seeking to harm him either because of his political opinion, real or perceived, or because of him being a Hindu, but because they did not want him to associate with their daughter” (CB 69.1).
The Tribunal’s analysis reveals that it accepted that the applicant was a Hindu who had lived in the same town all his life until coming to Australia. It also accepted that he had run a hardware business, which later closed because it was not making, as the Tribunal reports, sufficient profit. However, the Tribunal did not accept the claim that the shop closed due to harassment from any source.
The Tribunal further recorded that it had difficulties accepting the applicant’s story about his relationship with the young woman, because, as it said, much of the evidence was contradictory. However, it concluded that even if it did accept that he did once have a relationship with a woman and that her family objected, and sought without success, to convert him to Islam, it was unimpressed as to the consistency of his claims about the harm threatened against him by the woman’s family. It did not accept that the applicant’s hardware business, and the difficulties relating to that business, had anything to do with the woman’s family’s disaffection about the relationship. And the reason that the Tribunal gave for this is that it found the applicant’s improvised contradictions that the relationship, if it ever existed, ended in 2002, several years before the year in which the applicant claims the shop closed down.
Importantly, in light of the applicant’s complaints that have been put before the Court and which I will obviously address in a moment, the Tribunal, while finding that the applicant’s evidence of the relationship was somewhat unreliable, proceeded on the basis that even if the relationship did exist, it was satisfied on the evidence before it that the threat of persecution was “a thing of the past, and that it was in no way Convention-related” (CB 70.4). This latter finding, of course, endorsed what had earlier been found by the Minister’s delegate. The Tribunal also considered that even if the applicant were to persist in the relationship, a point which it found moot since the applicant claimed to have lost all means of contacting the woman, that his evidence in this matter did not remotely support the view that the woman’s family’s reaction, however ruthless, could be regarded as Convention-related.
Having addressed both the claims of past harm, and also considering the chance of persecutory harm in the future, the Tribunal concluded that it was not satisfied that the applicant faced a real chance of Convention-related persecution in India, and that his claimed fear of such persecution was not well-founded. It therefore affirmed the decision under review.
I will read onto the Court record the grounds set out in the applicant’s application:
“1.That the decision of the Refugee Review Tribunal was effected 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 to exercise its jurisdiction.
Particulars of grounds
A.The Tribunal did not consider the applicant who had been under immense and intimidating pressure from her family members because of his relationship with her.
B.In relation to above the Tribunal did not consider the applicant’s claim that her family members will kill him if he returns to India.
3.The Tribunal exceeds its jurisdictional or constructively failed to exercise jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my claims with the requirement Migration Act 1958.
4.The Tribunal did not use the country information as specific however the general information gathered by the Tribunal considered to way against my case in the final outcome. 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 relationship with a Muslim girl that put my life in danger. In doing so the Tribunal member had ignored relevant material and made finding which is erroneous or mistaken.
6.The Tribunal applied the wrong test:
Particulars
A. The Tribunal left out individual elements of the applicant’s claims and tested whether they individually amounted to persecution rather than look at the claims as a whole and determined whether the claims as considered amounted to persecution.
B. 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 too high an onus of proof on the applicant and failing to give the applicant to benefit of the doubt.
7.The Tribunal failed to accord procedural fairness under section 424 of the Migration Act 1958 as considered by the Full Federal Court in NARV v MIMIA [2003] FCAFC 262. Insofar as the Tribunal relied on independent evidence as to the prevalence of claim about political persecution on the basis of that the Tribunal was not satisfied as to the genuineness of my statements about my harassment of systematic nature.”
Before the Court today the applicant appeared in person. He was assisted by an interpreter in the Malayalam language. Mr A Markus appeared for the first respondent.
I note that in addition to his originating application, the applicant also filed, on 15 October 2007, an affidavit of that date. The affidavit annexed the written decision record of the Tribunal and, amongst other things, made reference to a denial of procedural fairness on the part of the Tribunal.
Before the Court, I understood the applicant to seek leave to file an amended application which he had attempted to file at the Court’s registry on 7 March 2008 but which was not accepted for filing because it was out of time with reference to orders made by the Court at the first Court date.
In any event, without objection from Mr Markus, I granted leave for the amended application to be filed in Court today. The amended application contains a handwritten attachment which I will read onto the record:
“I have previously provided my grounds and details of the grounds in my Federal Magistrate Applications. In addition, I state that when the RRT rejected my case it found a number of adverse information during the hearing. The adverse information should have sent me in writing to my response before this decision was made. This is unfair and biased breach of natural justice breach of s.424A which required to provide any adverse information before a decision is made by the Tribunal.
Therefore i need a new hearing by the Tribunal. Relocation: The Tribunal did not address how I could relocate elsewhere in India without continuing to face a risk of persecution.”
Before the Court today I gave the applicant the opportunity to make submissions. The applicant claimed that he had not received the Tribunal’s decision record. He claimed that he had not received anything from the Tribunal after the hearing. When I pointed out to the applicant that attached to the affidavit which he had made and filed in this Court was a copy of the Tribunal’s decision record (the applicant confirmed that the affidavit was his affidavit), the applicant did not press this complaint.
The applicant then said that there was nothing more that he could say. I was concerned to provide the applicant with every opportunity to explain the grounds in the application, particularly as some of the grounds lacked any particularity. The applicant confirmed, from the Bar table, that the documents that he had put before the Court he had prepared himself, and initially said that he had not received any help. I took the applicant through the grounds that I considered would benefit from some further explanation from the applicant, and I will deal with the applicant’s responses as I go through each of those grounds.
Mr Markus sought to rely on submissions already filed on behalf of the first respondent. He also made submissions in relation to grounds one and six concerning the applicant’s complaint about what he said was a relocation finding made by the Tribunal. I will deal with those in a moment.
Ground one in the application complains that the Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims. The application does not particularise this complaint, and before the Court today the applicant made reference to the fact that relocation in India was not possible for him, and at best, therefore, I understood that ground one, at least in part, sought to put forward the complaint that the Tribunal did not properly deal with the applicant’s claims relating to a difficulty in relocating in other parts of India.
Any plain reading of the Tribunal’s decision record does not reveal any failure on the part of the Tribunal to consider any integer of the applicant’s claim. On the material before the Court, the applicant’s claim, both in his protection visa application and as recorded by the Tribunal (I must emphasise here that despite the opportunity provided at the first Court date, the applicant has not put before the Court any transcript of the Tribunal hearing) was that the applicant feared harm in India for the Convention-related reasons of religion and political opinion. Plainly, in the circumstances, these fears were said to arise from his relationship with a young Muslim woman in circumstances where her family was concerned about this relationship, initially wanted him to convert to Islam, but then threatened and harmed him when he refused to do so.
What needs to be noted is that despite concerns about the consistency of the applicant’s claims made before it, the Tribunal relevantly made two findings in relation to this relationship. The first was that even if the relationship had existed, it was satisfied that the threat of persecution was a thing of the past, and secondly, in any event, it was in no way Convention-related. In relation to specific harm, the Tribunal found that even putting aside what it described as “improvised contradictions”, this claimed relationship (again, if it existed) was, on the applicant’s own evidence, said to have ended in 2002, which was several years before the shop which the applicant claimed to have closed because of his difficulties was in fact closed.
In terms of the applicant’s stated complaint in this application, the Tribunal plainly considered the aspects of the applicant’s case in terms of the difficulties that he said arose out of his relationship with this young Muslim woman and the harm that he said that it had occasioned and visited on him. It found, even giving the applicant the benefit of the doubt, that the relationship had existed, that it was a thing of the past and was not Convention-related. As to the circumstance of the chances of future harm if the applicant were to return to India, specifically the Tribunal found that even if the applicant were to persist in the relationship (presumably on return, a point which it found moot since the applicant claimed to have lost all means of contacting the young Muslim woman), the evidence did not remotely support the view that the woman’s family’s reactions to the relationship could be regarded as Convention-related.
Specifically in relation to the applicant’s reference to relocation, I accept submissions made by Mr Markus today that the Tribunal did not make any relocation finding. While plainly the issue was raised at the hearing, and I agree with Mr Markus’ presentation that it arose at CB 69 of the Court Book initially from evidence that the applicant gave, and the Tribunal ultimately noted that at the hearing the applicant had said that he had resided in his home town from birth, the Tribunal noted with the applicant that this did not sit with his general claim about not being able to avail himself of protection anywhere in India.
Plainly, on what is before the Court, the issue in that sense was raised by the applicant himself. The Tribunal in its reasoning made reference to the fact that the applicant did not satisfy it that he was unable to avail himself of the protection of India, irrespective of where he might reside there, but as Mr Markus submitted today, when read in context, this is not a relocation finding. Indeed, I should also note, it is not a finding on the availability of adequate state protection. But even if it was, the issue is that having found that the applicant’s claims, whether considered in light of past claimed harm, or a chance of future harm, was in no way Convention-related. Having made this very clear finding, and I must emphasise a finding made by the Tribunal where the applicant was given the benefit of the doubt in relation to evidence about which the Tribunal had some considerable concern, it really was not necessary for the Tribunal to go on and consider any issues of relocation and state protection.

The applicant’s complaint, therefore, as ground one is explained, does not succeed. Nor as stated in the application does it succeed. In essence, as stated the ground really, in my view, seeks to challenge the Tribunal’s findings in the sense of taking issue with those findings and seeking merits review by this Court, which, of course, this Court cannot provide (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”).
This is also evident in relation to ground two. Ground two in the application asserts, with particulars, that the Tribunal failed to carry out its review function to exercise its jurisdiction. This is particularised, first, that the Tribunal did not consider that the applicant had been under immense and intimidating pressure from the girl’s family because of his relationship with her, and secondly, it did not consider the applicant’s claim that her family members would kill him if he returned to India.
Given what I have already said, the Tribunal plainly did address those issues. Ultimately, amongst a number of other reasons, it found that these claims were not Convention-related. The particulars as stated therefore, again, in my view, did not rise above a request for impermissible merits review (Wu Shan Liang). (I should just note that nothing further from the applicant in explaining that ground was provided during the course of the hearing today.)
The Tribunal plainly understood that the applicant was claiming that he was threatened by family members because of the relationship with the young Muslim girl, and that there were threats to his safety, and his life, if he were to return. As I have already said, and in a sense unfortunately for the applicant, the Tribunal rejected these claims on the basis that it was unimpressed as to the consistency of his claims about the harm threatened against him by the woman’s family. In relation to the business, it found that the threatened harm was in the past by several years. Centrally, in relation to the claim to fear for his safety and life, the Tribunal again noted that while his evidence of the relationship was somewhat unreliable, even on the basis that it did exist it was found to be a thing of the past and critically was in no way Convention-related.
In my view, these findings were plainly open to the Tribunal to make on the evidence before it (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ). No error is revealed in these circumstances.
I note further that the Tribunal gave reasons, and importantly I should also emphasise again, that in terms of future harm the Tribunal did consider the applicant’s claim that her family members would harm him if he were to return to India, and again specifically found that the relationship, if it did exist, is a thing of the past and the fear of harm was not Convention-related.
Further, I should note that in terms of the claim of the fear from the family in broader terms, the evidence given by the applicant at the hearing before the Tribunal was that the girl’s family did not have a problem with Hindus as such; and further that the applicant provided no argument to suggest that religion could reasonably be regarded as the essential and significant factor in the harm allegedly threatened against him.
I note, lest it be said in the context of a complaint of failure to deal with integers of the applicant’s claims, that it may be said that the circumstances of the applicant’s claims were such that the family may have had other motives, religious motives in particular, for threatening harm against the applicant beyond, merely, as they were said to arise, from the claimed relationship with the young girl. In all, therefore, I cannot see that the Tribunal failed to consider the applicant’s claims as particularised, and this ground also does not succeed.
In ground three the applicant claims that the Tribunal denied him procedural fairness, and this echoes the claim made in the affidavit, to which I have already referred, and this is said to be that the Tribunal failed to “investigate my genuine claims” within the requirement of the Act.
Before the Court today the applicant said that he was unable to assist further in relation to this ground. I should note that it is submitted on behalf of the Minister that this is a matter 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 (of course absent bias) (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]). Simply, I cannot see that there is any breach of the requirements and obligations set out in this Division.
I will deal with s.441A later, as this is the subject of a separate complaint by the applicant. But I note, relevantly, that the applicant was invited to a hearing before the Tribunal, pursuant to s.425 of the Act. He gave his evidence, and there is nothing in the material before the Court to show that the Tribunal failed in its obligations in providing a fair and proper hearing to the applicant. Again, I emphasise that despite opportunity, the applicant has not put any evidence before this Court, for example by way of a transcript of the Tribunal hearing, to contradict the Tribunal’s own account of what occurred.
To the extent that the applicant also complains that the Tribunal failed to investigate my genuine claims, to the extent that I understand this, in context, to be that it failed to consider his genuine claims, then this complaint, again in context, does not rise above a request for impermissible merits review (Wu Shan Liang). Even if the Court was to focus, and it does, on the applicant’s assertion that the Tribunal failed to investigate, then again I agree with the respondent’s submission that it is not for the Tribunal to make out an applicant’s case for him. I note reference to the matter of Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 in the Minister’s written submissions.
While Division 4 of Part 7 does provide, relevantly in context of the complaint, that the Tribunal may get any information that it considers relevant (and I refer here to s.424 of the Act, a section which is stated in the applicant’s ground seven), that the Tribunal is not compelled to do so. While also the Tribunal has the opportunity to obtain further information pursuant to s.427(1)(d) of the Act, this again is discretionary and not mandatory. Importantly, I cannot see that in the circumstances of this case that the Tribunal was required to exercise its discretion pursuant to either of these two provisions, such that it was required to conduct a further investigation.
Ground four in the application asserts, to the best that some coherent meaning can be discerned from what is set out here, that the Tribunal used country information in its reasoning and evaluation of the case, and the complaint is that it was used to weigh against the applicant in the final outcome.
The problem for the applicant, of course, is that on any plain reading of the Tribunal’s decision record it does not appear that the Tribunal relied on any independent country information in affirming the decision under review. The Tribunal relied on the applicant’s own evidence given at the hearing before it. Again, in the context of the statutory procedural fairness obligations, there was in any event no obligation on the Tribunal to have provided any such independent country information for comment. Noting, of course, that it did not rely on any such information, but as a general proposition, unless the information makes specific reference to a person, then such information does not enliven the obligations set out in s.424A(1) of the Act because of the provisions set out in s.424A(3)(a) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 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]). As the respondent submits, with reference to SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 at [16] on the issue of weight, that it is a matter for the Tribunal to decide what weight should be given to country information as part of its fact finding functions.
When I asked the applicant today to assist the Court in relation to this ground, the applicant was unable to assist the Court by pointing to any such country information said to have been relied upon by the Tribunal in its decision record.
Ground five asserts that the Tribunal member emphasised irrelevant questions at the hearing and ignored the applicant’s relationship with the Muslim girl that put his life in danger. In relation to the part of that complaint as to what is said to have occurred at the hearing, I can only again say that despite opportunity the applicant has not put before the Court any evidence by way of a transcript of the Tribunal’s hearing to contradict the Tribunal’s account that is set out in its own decision record.
From that record I cannot see that the Tribunal erred by posing irrelevant questions at the hearing. On any plain reading the questioning appears to be focussed on the applicant’s claims, and to the test that the Tribunal was required to apply. To the extent that the applicant complains that the Tribunal asked irrelevant questions and ignored his relationship with the Muslim girl, this complaint is simply not made out. For example, the Tribunal, for the purposes of its analysis, did accept that the applicant did at one time have a relationship with this woman and that the family objected to that relationship and it assessed his claims in that light. This ground also does not succeed.
Ground six asserts that the Tribunal applied the wrong test. Firstly, this appears to be particularised with a complaint that the Tribunal did not look at the applicant’s claims in what could be said to be a holistic way, and left out individual elements of his claims. I have to say that I cannot see that the Tribunal left out any aspects of the applicant’s claims. In my view, on what is before the Court, these were comprehensively addressed at the hearing. As to whether the Tribunal approached the issue in a holistic way, the application, as stated, does not explain what parts of the claim that the Tribunal dealt with on an individual basis, and did not look at holistically. Ultimately, the Tribunal turned its mind to whether the applicant’s claims, as they were said to arise from his relationship with the Muslim girl, and the various acts of harm that were said to have occurred to him, including the harm to his business, and found that this persecution was not Convention-related. Further, in the event that the applicant was to return to India, even in circumstances where the applicant’s claim to have lost all means of contacting the woman in question, the Tribunal found that the evidence did not remotely support the view that the Muslim woman’s family’s reaction to the claimed relationship could be regarded as Convention-related.
As I said earlier, the Tribunal addressed both past harm, and the chance of harm in the future if the applicant were to return to India, and on what is before the Court did so by looking at all the elements of the applicant’s claims.
Before the Court today the applicant made some reference again to relocation in relation to this ground. If by this the applicant means to complain that the Tribunal by not properly addressing the issue of relocation failed to look at all of his circumstances in a holistic way, then the answer to that complaint is, for reasons that I have already given, that the Tribunal, having found no Convention nexus between the claimed harm was not required to go on and consider the applicant’s complaints in light of relocation, or indeed even in light of state protection.
The second particular to ground six asserts that what has been imposed on the applicant was a high onus of proof, and that the Tribunal failed to give the applicant the benefit of the doubt.
As is asserted in written submissions by the first respondent, again, the applicant misconceives the role of the Tribunal, which is not obliged to make out an applicant’s case for him. It is, of course, for the applicant to put forward what he wanted to have considered, and for the Tribunal to consider the applicant’s claims in light of the relevant requirements of the Act (I refer here to ss.65 and 36(2), by which the Tribunal is required to consider all of the applicant’s claims and to either form a requisite level of satisfaction that the applicant, in effect, meets the definition of “refugee”, such that in those circumstances a visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
If, on the other hand, the Tribunal cannot reach such a level of satisfaction then the Act mandates that the visa must not be granted (Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32 at [4], per Gleeson CJ). Plainly, during this process, the Tribunal is not required to accept uncritically any, or indeed all, of the applicant’s claims or submissions or assertions (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437).
But again, I can only note that in spite of its misgivings the Tribunal did proceed on the basis that it did accept some of the applicant’s claims and in that way plainly gave the applicant the benefit of the doubt. Ultimately the Tribunal could not be satisfied that these claims were Convention-related. This ground also does not succeed.
Ground seven in the amended application was also the subject of specific opportunity before the Court today for the applicant to explain. To the extent that the applicant asserts a breach of procedural fairness pursuant to s.424 of the Act, I gave the applicant the opportunity to explain the relevance of this reference to his claims and his circumstances. The applicant made some general reference to his political problem. Again, as I have already noted, the Tribunal was not obliged to engage the provisions of this section, but to the extent that it could be said that the Tribunal did not further investigate the applicant’s claims about political problems, by way of seeking further information from him, or from other sources, pursuant to s.424, then again, I refer to what I earlier said where the Tribunal, as a result of what was discussed at the hearing addressed any broader issues that may be said to arise from the applicant’s claims in relation to political problems. I cannot see that any obligation arose in light of that for the Tribunal to make further enquiries.
In any event, it appears that what the applicant was really seeking to complain about by way of this ground seven, and it must be noted that the wording of ground seven is almost identical to the wording seen in a large number of cases before this Court, even down to the, if I can call it that, the coincidence of placing “s.424”, the reference to “NARV” and “s.424A” all in the space of two lines, and if that is the intent of the complaint that the Tribunal did not disclose to him pursuant to s.424A (relying on what was said by the majority in NARV) evidence as to the claim about political persecution, then as I have already stated, firstly the Tribunal did not rely on any independent country information going to the applicant’s claims of political persecution in India in making its decision. As I said earlier, in any event, any such information, given that at best it was non-in personam information, would fall within s.424A(3)(a) of the Act. The information relied on by the Tribunal, plainly, was the evidence given by the applicant himself at the hearing, and as such, falls within the exception contained in s.424A(3)(b) from the obligations set out in s.424A(1) of the Act.
I should just note that to the extent that the applicant complains in that ground that the Tribunal was not satisfied as to the genuineness of his statements, then the Tribunal’s reasoning and analysis of the evidence and information before it is plainly not “information” for the purposes of s.424A (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [18]). This ground also does not succeed.
To the extent that the attachment to the amended application purports to complain that the Tribunal found a number of adverse information during the hearing and that the applicant complains that the Tribunal’s adverse view of his claims should have been put to him pursuant to s.424A, I note that the applicant could not explain that when I asked him to assist the Court today in circumstances where the applicant claims to have drafted and prepared this attachment himself. But in any event, if this is a complaint that the Tribunal’s adverse information should have been given to him, then the Tribunal’s adverse views of the evidence that he gave is not “information” for the purposes of s.424A(1) of the Act (SZBYR at [17]-[18]). The applicant was unable to explain what other adverse information he could possibly be referring to in putting forward this complaint.
To the extent that the applicant complains that the Tribunal was biased, this very serious complaint is not made out. It requires evidence to support such a claim, and such a complaint cannot be made out simply because the Tribunal did not accept or believe some aspects of the applicant’s evidence (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102). That complaint also does not succeed.
The applicant also complains in this document that the Tribunal did not address how he could relocate elsewhere in India without continuing to face the risk of persecution. I have already referred in that regard to this issue. In particular, I note the submissions made by Mr Markus today, which I accept. I have already stated while that issue was raised at the hearing, initially by the applicant himself, in its findings and reasons the Tribunal made a statement that the applicant did not satisfy the Tribunal that he is unable to avail himself of protection in India, irrespective of where he might reside there. The short and simple answer to the applicant’s complaint, as I have already stated, is that the Tribunal really did not need to consider the issue of relocation, or state protection, having found that even at best, even on the best view of the applicant’s evidence, his fear of persecution was not Convention-related. As the delegate found, the claims lacked the requisite Convention nexus even with the benefit of the doubt given by the Tribunal to the applicant, and that circumstance did not change before the Tribunal.
I should just note, for the sake of completeness, that had there been the situation in this case of the Tribunal needing to look at the issue of relocation or, indeed, state protection, I am not satisfied that the Tribunal’s one and a half lines appearing at CB 70.6 would satisfy what a Tribunal is required to do in this regard, and in that context I agree with Mr Markus that the Tribunal did not make any finding on relocation again, for the reason that it did not need to.

Before the Court today, as I said earlier, the applicant was given every opportunity to explain, or to add to his written material. The applicant, when given a final opportunity, said that he had nothing further to say to the Court.
I cannot discern jurisdictional error by way of any of the complaints put forward by the applicant in his documentation. I cannot see that the Tribunal’s decision is affected by jurisdictional error either by way of these complaints, or indeed, otherwise. For this reason the application to the Court as amended is dismissed.
In my view, it is appropriate that an order for costs be made in this matter. There is nothing before the Court nor, despite opportunity, has the applicant put anything before the Court to argue against the making of such an order. In my view, it is appropriate, that where an applicant who quite properly exercises his right to come to this Court with a complaint about the Tribunal’s decision nonetheless, in so doing, has incurred costs on the Minister who is required to respond to the application made by the applicant, and in circumstances where the Minister’s response is to contest the complaints made, and incur costs, without anything to argue against the making of the costs order, that an order for costs be made.
As to the amount, I note submissions by Mr Markus this morning that while the Minister could have sought an amount up to $5,000 pursuant to the relevant Schedule to the Rules of this Court (I should just note for the record that I do not take the view that I am bound by what is set out in that Schedule but that nonetheless it is a very useful guide), and note and agree with submissions that an amount of $5,000, in the circumstances of this case would be excessive, but am satisfied that given the work that has been done (I note the multiple copies of the Court Book that have been prepared, the response, the filing of written submissions served on the applicant, attendance by a solicitor at the first Court date, attendance at the hearing by a senior solicitor from the Australian Government Solicitor, the firm representing the Minister in this matter) and am satisfied, in all of these circumstances, that the amount sought, of $3,800 is a reasonable amount. I will make that order accordingly.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 16 May 2008