SZLMM v Minister for Immigration
[2008] FMCA 305
•19 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLMM v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 305 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of India claiming fear of persecution for reasons of his political opinion and religion – no jurisdictional error – privative clause decision. |
| Migration Act 1958 (Cth), ss.36(2)(a),91(2)(a), 91(1)(a), 91R(2)(a), 414, 415, 420,424A , 425,424A(3)(a) |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 |
| Applicant: | SZLMM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3195 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 January 2008 |
| Date of Last Submission: | 11 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr. Mitchell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3195 of 2007
| SZLMM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant, who is a citizen of India, asks the Court to conduct judicial review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The decision was signed on 29th August and handed down on 20th September 2007.
The Applicant asks the Court to make the following orders:
a)To set aside the decision of the Refugee Review Tribunal.
b)To remit the matter to the Refugee Review Tribunal to determine according to law.
c)To direct the Respondent to pay the Applicant's costs.
The Applicant claims that the Tribunal fell into error because:
i)The Tribunal failed to see that the Applicant satisfied all the criteria required for a protection visa.
ii)The Tribunal failed to see that the Applicant satisfied the four key elements of the Convention definition as detailed by the Tribunal.
iii)The Tribunal erred in relying on materials from third party sources instead of relying on real facts by the Applicant.
iv)The Applicant has been denied proper natural and unfair[1] justice.
v)The Tribunal has been hasty in giving the decision against the Applicant and that the real facts and suffering was given by the Applicant in the application had not been considered and the Applicant had not been granted a proper chance or opportunity.
vi)The Tribunal failed to see that the Applicant was chased by his enemies and had to flee the country.
vii)The Tribunal merely stated that the Applicant did not give reliable evidence.
viii)A reading of the decision will show the case had not been considered properly and the Tribunal had dismissed it in haste.
ix)The Applicant seeks permission to file additional grounds at a later stage if required.
[1] sic
The background to this matter is that the Applicant arrived in Australia on 10th April 2007 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 19th April. A delegate of the Minister refused the application for a visa on 31st May 2007.
On 29th June in that year the Applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. The Applicant did not nominate any other person to be his authorised recipient and did not provide any additional information to the Tribunal at the time of lodging his application. The Tribunal wrote to him on 29th June 2007 acknowledging receipt of his application. On 1st August 2007 the Tribunal wrote to the Applicant and invited him to attend a hearing at 10:00am on 28th August 2007.
The Applicant submitted a two page statement setting out some claims which he wished to have considered at the Tribunal hearing.[2]
The Applicant indicated that he wished to attend the hearing and would require an interpreter in the Malayalam language. The Applicant in fact attended the hearing and gave evidence with the assistance of an interpreter in Malayalam. He provided his Indian passport to the Tribunal for photocopying.
[2] See Court Book pages 54 and 55
The Tribunal wrote to the Applicant on 31st August 2007 inviting him to attend the handing down of the decision, and the Tribunal handed the decision down on 20th September 2007. A copy of the Tribunal decision record can be found at pages 69 through to 85 of the Court Book. In the decision the Tribunal noted that the Applicant claimed that he was from the Nileshawar district of Kasawod in Kerala State and claims to have links with a political party known as the BJP. The BJP is the Bharatya Janata Party, and as the Tribunal noted its main opponent is the India National Congress Party.
The Applicant claimed to the Department that he had been the target of “Goondas” who were thugs who had killed his father while the Applicant and his father were riding on a motorcycle, and that they had set fire to his shop and they were waiting to kill him. The Applicant claimed that the Goondas came from the NDF, which he said was a Muslim terrorist party. The Tribunal noted that the NDF, or National Democratic Front, is an Islamist group based in Calicut Kerala with links to banned Islamist terror groups.[3]
[3] See Court Book page 72
The Tribunal set out the Applicant's claims of violence from the Goondas and the NDF, and referred to a notorious episode known as the Maraad episode, which is a fisherman's colony a few miles away from Calicut. In that incident there was a scrimmage between Hindus and Muslims in which three Muslims and two Hindus were killed.
A description of the Maraad massacre can be found in the Court Book at pages 74 to 76. The Tribunal also considered other items of Independent Country Information. The Tribunal's Independent Country Information also indicated that up to eight Hindu fisherman had been killed. The Applicant claimed to have been part of a group on the beach who had been attacked.
The Tribunal set out the Applicant's evidence at the hearing and asked the Applicant a considerable amount of questions about his case.
The Tribunal did, however, at the end of its description of the Applicant's evidence say:
The Tribunal notes an implied request on the applicant's part to provide more evidence. Due to the vagueness of the applicant's suggestion as to what the evidence might be, what its source might be and what form it would take, and also due to his vagueness as to what he had asked persons in India to try to obtain for him, the Tribunal did not consider it appropriate to grant the applicant a specific extension of time in which to seek further material in this matter. However, the Tribunal duly informed the applicant that in this matter he was entitled to submit any material he wished to submit in support of his application right up until the handing down of a decision, of which he would be given appropriate notice. The Tribunal duly informed him that it would consider recalling any signed decision right up until handing down and reopening the matter for fresh consideration in the event of receiving any such material.[4]
[4] See Court Book page 81
The Tribunal's findings and reasons are set out on pages 81 to 83 of the Court Book. The Tribunal accepted that the Applicant was a national of India based on the Applicant's passport. The Tribunal did not accept, however, that the Applicant's father's death had been caused by Convention related factors and did not accept that the NDF or any other political or religious entity had anything to do with the death of the Applicant's father. The Tribunal, based on the Applicant's own oral evidence at the hearing, did not accept that the Applicant had moved away from Nileshawar where he grew up, let alone that he had fled for Convention related reasons as he claimed.
The Tribunal noted the Applicant's claims to have suffered from trauma, but expressed its concern about the Applicant's vagueness as to the number of people in his group on the evening of the Maraad attack. The Tribunal also did not consider that the Applicant fitted the description he gave of the members of the group, who were in fact uneducated fishermen, whereas the Applicant appeared to be an educated businessman.
When considering all of the evidence the Tribunal did not accept that the Applicant was present at, involved in, or personally affected by the Maraad incident of 2nd May 2007. The Tribunal concluded that the Applicant's claims about his links to the Maraad massacre were an invention and came overwhelmingly to the view that the Applicant was an unreliable witness in the present matter.
The Tribunal went on to find:
Because the applicant's claims in this case lack credibility to such a critical degree the Tribunal gives no weight to his unsupported claim about his shop having been burned by any person or group at any point in the past. Owing to the applicant's lack of credibility in relation to his involvement in the BJP and his problems with the NDF and in relation to other alleged facts and events during his time in India the Tribunal gives no weight to the implied claim that he avoided harm in the last two years of his time in India by shifting from involvement in politics to organising his exit from India to Australia. The claim carries the suggestion that the applicant avoided harm by avoiding what would otherwise be freely articulated expressions of his political opinion.[5]
[5] See Court Book page 83
The Tribunal was not satisfied that the Applicant faced a real chance of Convention related persecution in India, and was not satisfied the Applicant is a person to whom Australia has protection obligations under the Refugees Convention, and therefore did not satisfy the criterion set out in s.36(2)(a) for a protection visa.
The Applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit in support on 15th October 2007. The Applicant sets out nine grounds in his application as follows:
a)The Refugee Review Tribunal has failed to see that the Applicant satisfies all the criteria required for a protection visa as stated in page three of the reasons.
i)First the Applicant is out of the country.
ii)Second, the Applicant apprehends serious harm as the government has failed to protect them from persecution.
iii)Third, the Applicant has fear of the persecution under s.91(1)(a) of the Act.
iv)Fourth, the Applicants have a well founded fear for a Convention stipulated reason.
b)The Refugee Review Tribunal failed to see that the Applicant satisfies the four key elements of the Convention definition as detailed by the Tribunal in its decision as above.
c)The Tribunal has erred in relying on materials from third party sources. From pages 6 to 9 the Tribunal has relied on some other country sources instead of relying on the real facts by the Applicant. By relying on unrelated items the Tribunal has committed legal and factual error.
d)For the above said reasons the Applicant has been denied proper natural and unfair justice.
e)The Tribunal has been hasty in giving the decision against the Applicant. The real facts and sufferings given by the Applicant in the application have not been considered. Therefore, the Applicant has not been granted proper chance or opportunity.
f)The Tribunal failed to see that the Applicants were chased by his enemies and thus had to flee the country.
g)In pages 14 and 15 of the decision the Tribunal has merely stated that the applicant is not “a reliable evidence”.
h)A reading of the decision will show that the case has not been considered properly and the Tribunal had dismissed it with haste.
i)The Applicant seeks permission to file additional grounds at a later stage if required.
The Applicant did not file any written submissions at that stage.
He attended Court at the hearing on 30th January 2008 and said that when he was at the Refugee Review Tribunal he was not able to present to the RRT his problems. He said it was emotionally and mentally disturbing. He said he was not able to present what he wanted to say there. He said he was asked by the RRT the names of the people who were murdered there, meaning at Maraad. He was not able to present them because of his emotional condition. The Applicant admitted that he had not given this evidence to the Refugee Review Tribunal, and I informed him that the Court had no jurisdiction to consider fresh evidence.
The Applicant went on to say that the situation back at home, meaning back in India, was such that in relation to what happened at the Maraad some of the culprits had been released from prison and were released just two weeks ago. This again was evidence that I indicated to the Applicant could not be taken into consideration as it was not evidence before the Tribunal. The Applicant complained that he was feeling giddy, so I adjourned the proceedings briefly.
Upon the hearing restarting the Applicant indicated that he wished to present further evidence and complained of giddiness. I took a break. The Applicant said he was not able to say what he wanted to say.
I informed the Applicant that I was happy for him to remain seated during the hearing if that would assist him. The Applicant, having complained of giddiness, I allowed him the opportunity to provide any further written submission that he wished to make by Wednesday, 13th February. I granted leave to the First Respondent, being the Minister, to file and serve any submissions in response to the Applicant's written submissions by Thursday, 21st February.
The Applicant had filed written submissions on 14th January 2008.
He did file further written submissions as directed by 13th February 2008. However, it transpired that he had not served a copy of those submissions on the lawyers for the Minister, and they therefore did not reply to the submissions by 21st February 2008.
Upon being made aware that the Applicant had filed a further submission, the lawyers for the Minister submitted a submission in reply on 11th March 2008. I have considered those further submissions.
In the Applicant's written submissions he claimed that the findings of the Tribunal Member demonstrated actual bias. He also in paragraph two he claimed that:
a)The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s.91 Rule (2) (a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do) if he asked to relocate in India.
b)The Tribunal's failure to satisfy the statutory obligation was a serious jurisdictional error caused by the Tribunal.
c)
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 outcome.
The Tribunal used all information for the matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look. The Tribunal also failed to consider the Amnesty International country information.
d)The Applicant claims that the Tribunal applied the wrong test:
i)by requiring independent evidence of the facts and
ii)by leaving out individual elements of the applicant's claims.
e)The Applicant claimed that the decision of the Refugee Review Tribunal was affected by jurisdictional error and that the Tribunal did not take into account certain relevant considerations or integers central to the Applicant's claims.
f)The Applicant claimed the Tribunal failed to carry out its review function and exercise its jurisdiction (a) by not considering that the Applicant had been under immense pressure from Muslim fundamentalists and other mainstream political parties because of his political background, and (b) the Tribunal did not consider his claim to fear serious harm as a result of his involvement in the BJP political activities.
g)The Applicant claimed that the Refugee Review Tribunal failed to note that the Applicants (and I note that the applicant now refers to himself in the plural) satisfies the definition of refugee as defined in article 1A(2) of the Convention.
The Applicant then goes on to describe the elements of a refugee as set out in the Convention. The Applicant then went on to refer to the provisions of ss.91(2)(a), 414, 415, 420 of the Migration Act.
The Applicant claims that the Tribunal failed to analyse properly the future harm that he would face if he had to return to India, and claimed that because of this the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the real chance test before assessing the Applicant's claim.
The Applicant submitted further written submissions on 13th February 2008 in which he claimed that the Tribunal failed to accord him procedural fairness under s.424 of the Migration Act – I am of a view that this was a typing error and the applicant meant s.424A – because the Tribunal relied on independent evidence as to the prevalence of claims about political persecution. The Applicant then went on to set out the terms of s.424A of the Migration Act. The Applicant further claimed that he had given adequate oral evidence to the Tribunal that his family had been threatened and attacked by NDF and Goondas, that his shop was burned down, his father was killed, and they attempted to kill his sister.
The third paragraph is that the Tribunal failed to ask a question that it was legally required to ask, whether the Indian authorities provided a standard of protection comparable with international standards.
The Applicant then claimed that the decision of the Refugee Review Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or integers central to the Applicant's claims. He claimed that he spent a number of hours being questioned without a break and felt stressed and intimidated.
The Applicant claimed the Tribunal failed to carry out its review function and exercise its jurisdiction:
i)the Tribunal did not consider that the Applicant had been under immense and intimidating pressure from Muslim toughs and goons, and
ii)the Tribunal did not consider the Applicant's claim to fear serious harm as a result of his involvement with the BJP.
Again, the Applicant claimed the Tribunal applied the wrong test by: (a) leaving out individual elements of the Applicant's claim, and testing whether they individually amounted to persecution rather than looking at the claim as a whole, and (b) by requiring independent evidence of the facts 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 failed to give him the benefit of the doubt.
There is a further paragraph six saying that the Tribunal failed to act.
It says that the Applicant satisfies the definition of refugee as defined in article 1A(2) of the Convention. Again the Applicant refers to the provisions of s.91R(2)(a), 414, 415 and 420 of the Migration Act, and submitted the Tribunal failed to analyse properly the future harm that he might face if he has to go back to India, and that due to that failure the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the real chance test before dismissing the Applicant's claims.
There is, as can be seen, a considerable similarity between the two sets of submissions. I would also comment that the submissions bear little if any relation to the grounds set out in the Applicant's application.
I would further comment that the matters referred to in the two written submissions appear to be part of standard form submissions which also appear as grounds of an amended application which are currently being circulated. It is perhaps coincidental that I have seen these grounds now three times over the past two days in applications before me.
Not all of them are relevant to the Applicant's individual circumstances and some of them are difficult to comprehend. However, I will deal with the grounds in the application and the matters in each of the submissions in turn.
In the application the Applicant in ground 1 complains that the Tribunal failed to see that he satisfied all the criteria required for a protection visa. This is no more than an attempt at merits review and the Applicant is cavilling at the Tribunal's findings. Merits review is not available on judicial review, and ground 1 fails.
Ground 2 is a claim that the Tribunal failed to see that the Applicant satisfied the four keys elements of the Convention definition of refugee. That again is no more than a claim for merits review. It is a challenge to the Tribunal's finding. That is not available, and ground 2 fails.
Ground 3 claims that the Tribunal erred in relying on materials from third party sources and the Applicant complained that the Tribunal relied on some independent country information instead of relying on "the real facts" as provided in his evidence. The Tribunal's choice of country information and the weight given to that material is a matter for the Tribunal, (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[6], see also VQAB v Minister for Immigration & Multicultural & Indigenous Affairs[7]). It is not for the Court to make its own assessment of the truth of country information that would amount to merits review. Ground 3 fails.
[6] [2004] FCAFC 10 at [11].
[7] [2004] FCAFC 104 at [32].
In respect of ground 4 the Applicant claims that he has been denied "proper natural and unfair justice". I presume that the Applicant means that he has been described fair justice, but in any event, ground 4 is no more than an attempt at merits review and must fail.
Ground 5 complains that the Tribunal has been hasty in giving the decision and that the real facts and suffering as given by the Applicant had not been considered, and that the Applicant had not been granted a proper chance or opportunity. In my view, the Tribunal decision record makes it quite clear that the Applicant's claim was considered in detail and there is no evidence that the Tribunal decision was made in haste or that the Applicant was denied an ability to appear before the Tribunal to give evidence and present arguments in support of his claim as is required by s.425 of the Migration Act. Ground 5 does not disclose jurisdictional error and therefore fails.
Ground 6 claims that the Tribunal failed to see that the Applicant, again Applicants, again in the plural, was chased by his enemies and had to flee the country. This again is a claim that was considered by the Tribunal and rejected.
Ground 7 complains that the Tribunal merely stated that the Tribunal was not of reliable evidence. Credibility is a matter for the Tribunal, it is a factual finding, and so long as there is evidence upon which such a finding can be made, there is no room for the Court to interfere.
Again, Ground 7 fails, no jurisdictional error has been shown.
Again in Ground 8 the Applicant claims that a reading of the decision would show that the case had not been considered properly and the Tribunal had dismissed it with haste. There is no evidence that the Tribunal failed to consider any aspect of the Applicant's claims, let alone any evidence that the decision was made in haste.
No jurisdictional error is shown, and Ground 8 fails.
Ground 9 contains a request for permission to file additional grounds at a later stage if required. Whilst I did allow further submissions to be made by the Applicant due to his claim of feeling unwell and being unable to proceed for no reason that I could ascertain, it is inappropriate to bring further grounds after the hearing. No jurisdictional error has been shown, and Ground 9 fails.
Turning to the Applicant's submission filed on 14th January 2008, the Applicant claims bias by the Tribunal Member in that the Tribunal rejected his claims without considering his oral evidence and did not treat the matter as a s.424A issue. It is well established that an allegation of bias is a serious matter which must be strictly alleged and strictly proved. The Full Court of the Federal Court has looked extensively at bias and bad faith in such decisions as SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[8], and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[9].
[8] [2002] FCAFC 358.
[9] [2002] FCAFC 361.
The Applicant claims that the Tribunal did not consider his oral evidence in relation to major issues as evidence of bias. There is no evidence of that from the Tribunal decision record. My reading of the Tribunal decision record indicates that the Tribunal considered the applicant's claim quite thoroughly. The reference to s.424A of the Migration Act in respect of a claim of bias is difficult to comprehend. The decision by the Tribunal was made on the basis of:
i)the Applicant's oral evidence, which the Tribunal did not find convincing, and
ii)Independent Country Information which is excluded by the provisions of s.424A(3)(a):
Information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.
The Applicant has not proved any bias on the part of the Tribunal and that claim must fail.
The Applicant goes on to claim in paragraph two that the Tribunal failed to consider properly the test whether the Applicant would suffer serious harm as per s.91R(2)(a) of the Migration Act. The Tribunal at page 71 of the Court Book did in fact consider serious harm:
The expression "serious harm" includes for example a threat to life or liberty, significant physical harassment or ill treatment, or significant economic hardship or denial of access to basic services, or denial of capacity to earn a livelihood where such hardship or denial threatens the applicant's capacity to subsist, s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or a member of a group.[10]
[10] See Court Book page 71
The reference to relocation in India does not appear to have any immediate connection with the definition of serious harm, particularly in respect of s.91R(2)(a) of the Migration Act. The claim fails.
The third paragraph claims that 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 outcome. The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa, the Tribunal was preoccupied and did not have a fresh look. The Tribunal also failed to consider the Amnesty International country information. There is no reason why the Tribunal should not consider Independent Country Information, and what weight the Tribunal gives to that information is entirely a matter for the Tribunal. There is no evidence that any information from Amnesty International was presented to the Tribunal. If the Applicant wished the Tribunal to consider evidence from Amnesty International then it was up to the Applicant to provide that information. I would note however that this ground is a generic ground in the set of grounds which have come to this Court frequently in the last couple of days, and does not bear any relation to the Applicant's case. Paragraph three does not make out any jurisdictional error.
Paragraph four complains that the Tribunal applied the wrong test by requiring independent evidence of facts and also by leaving out individual elements of the Applicant's claim. The Applicant provides no particulars of either of those assertions and I am unable to identify any section of the Tribunal decision to which those particulars are relevant. No jurisdictional error is demonstrated in paragraph four.
In paragraph five the Applicant complains the decision of the Refugee Review Tribunal was effected by jurisdictional error and that the Tribunal did not take into account certain relevant considerations or integers central to the Applicant's claims. The Applicant does not say what they are. No jurisdictional error is demonstrated.
Paragraph six claims that the Tribunal failed to carry out its review function and to exercise its jurisdiction by not considering to factual matters, (a) that the Applicant had been under immense pressure from Muslim fundamentalists and other mainstream political parties because of his political background and (b) did not consider the Applicant's claimed fear of serious harm as a result of his involvement with BJP political activities. I am satisfied from my reading of the Tribunal decision record that the Tribunal did consider those aspects of the Applicant's claim but rejected them. No jurisdictional error was demonstrated in paragraph six.
Paragraph seven contains a claim that the Tribunal failed to note that the Applicant satisfied the definition of refugee as defined in article 1(a)(2) of the Convention. That of course is a claim for merits review; it is a challenge to the Tribunal's findings based on the evidence.
No jurisdictional error is demonstrated.
The recital of s.91R(2)(a), s.414, s.415, s.420 of the Migration Act do not establish any jurisdictional error. The Applicant claims that the Tribunal failed to analyse properly future harm that the Applicant might face if he had to return to India and failed to assess or carry out the real chance test. This again is just cavilling at the Tribunal's factual findings; the Tribunal was not satisfied that the Applicant had a well founded fear of persecution based on the evidence (a) from the Applicant and (b) Independent Country Information. No jurisdictional error is demonstrated and that claim fails.
In the Applicant's further written submissions he claims that the Tribunal failed to accord procedural fairness under s.424 of the Migration Act by relying on independent evidence as to the prevalence of claims about political persecution. Of the course the Applicant means s.424A as he sets out that section, but in any event Independent Country Information is not caught by s.424A(1) of the Migration Act as it comes under the exclusion in s.424A(3)(a). No jurisdictional error is demonstrated in paragraph one.
In Paragraph two, the Applicant claims that he had given adequate oral evidence that his family had been threatened and attacked by NDF Goondas and he escaped from being killed, but eight other BJP members were killed, but the Tribunal Member failed to consider his claims. The fact is that the Tribunal did consider those claims, but rejected them. No jurisdictional error is shown.
Paragraph three of the application claims the Tribunal failed to ask the question:
Whether the Indian authorities provided a standard of protection comparable with international standards.
The Tribunal did not accept that the Applicant had suffered the harm that he had claimed, so the question of state protection and the adequacy of it was therefore irrelevant. No jurisdictional error is shown.
Paragraph four again complains that the decision was affected by jurisdictional error and that the Tribunal did not take into account certain relevant considerations or integers. The Applicant does not set out what they are; I have already discussed and dismissed this claim. On this occasion, however, the Applicant adds this:
Because I spent number of hours being questioned without a break and felt stressed and intimidated.
That is the third time that I have seen that claim in those words in the last two days. The Applicant provided no evidence of stress or intimidation or lengthy questioning and this is the first time that it has been raised. I reject it.
The Applicant's paragraph five claims the Tribunal failed to carry out its review function and exercise its jurisdiction by not considering the Applicant had been under immense and intimidating pressure from Muslim tough and goons or did not consider the Applicant's claim to fear serious harm as a result of his involvement with the BJP. That is no more than a rewording of paragraph six of the Applicant's original submission of 14th January 2008, which I have already considered and rejected.
Paragraph six, the first of two paragraphs six, claims that the Tribunal applied the wrong test (a) by leaving out individual elements of the Applicant's claim and testing whether the individually amounted to persecution rather than looking at the claim as a whole, and (b) by requiring independent evidence of the facts before the Tribunal would accept a claim being made, it was in fact placing too high an onus of proof. That of course is a restatement of the claims made in paragraph four of the Applicant's submission of 14th January 2008 except that the claims (a) and (b) have been transposed. I have previously considered and rejected it.
The second paragraph six claims that the Refugee Review Tribunal failed to act that the Applicant satisfies the definition of refugee as defined in article 1(a)(2) of the Convention. That claim in slightly different words appears as paragraph seven of the Applicant's original submission. I have already considered and rejected it. The Applicant has not made out any jurisdictional error.
I am mindful of the fact that the Applicant is not legally represented in these proceedings and appears to have obtained his advice in preparation of his application and two sets of written submissions from someone who is quite clearly not a lawyer.
My reading of the Tribunal decision does not disclose any arguable case of any jurisdictional error. It follows that in the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. Consequently it is not subject to orders in the nature of certiorari, mandamus or prohibition.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 13 March 2008
0
2
1