SZLMT v Minister for Immigration - [2008] FMCA 572

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLMT v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 572

MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal accepted the applicant’s claims without any supporting evidence – Tribunal found there was no Convention nexus – no denial of procedural fairness – no failure pursuant to s.424A of the Act – no failure to consider applicant’s claims – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424, 424A, Division 4 of Part 7, 65, 36(2), 91R, 91S

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
Minister for Immigration and Multicultural Affairs v Respondent S152 of 2003 (2004) 222 CLR 1; [2004] HCA 18
MZRAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1261

Applicant:

SZLMT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3214 of 2007

Judgment of:

Nicholls FM

Hearing date:

5 May 2008

Date of Last Submission:

5 May 2008

Delivered at:

Sydney

Delivered on:

5 May 2008

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Appearance for the Respondents:

Ms B Anniwell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 16 October 2007, and amended on 3 March 2008, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3214 of 2007

SZLMT

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I have before me today an application originally made on 16 October 2007 and amended on 3 March 2008 under the Migration Act seeking review of the decision of the Refugee Review Tribunal made on 30 August 2007, and handed down on 20 September 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
The first respondent, in compliance with orders made by this Court, has put before the Court a bundle of relevant documents which I will refer to as the Court Book (“CB”). The following information may be discerned from this material.
The applicant is a citizen of India. He arrived in Australia in April of 2007 and applied for a protection visa. The application with annexures is reproduced at CB 1 to CB 30. I note that in May of 2007 a delegate of the respondent Minister refused to grant a protection visa to the applicant. The applicant applied for review of that decision with the Tribunal and a copy of that application begins at CB 43 of the Court Book. I note that the applicant did not put any further material before the Tribunal. On 1 August 2007, the Tribunal wrote to the applicant and a copy of this letter appears at CB 49. The Tribunal advised the applicant that on the information that had been put before it, it was unable to make a favourable decision for the applicant. The applicant was therefore invited to a hearing before the Tribunal to give evidence and make submissions.
It does not appear that the applicant responded to that invitation, and I note in this regard what is at CB 51, but nonetheless the applicant did appear at the hearing, that is clear, and gave evidence to the Tribunal. The Tribunal’s account of what occurred at that hearing is contained in its decision record. Apart from providing his passport at the hearing the applicant does not appear to have provided any further material to the Tribunal. The Tribunal therefore had before it (and I note this in relation to one of the grounds in the application which I will deal with in a moment) the applicant’s claims to protection as set out in his protection visa application and the claims as put before the Tribunal at the hearing.
Initially the applicant’s claims are those as set out in handwriting in the application for a protection visa, and in particular I note what is set out at CB 7 to CB 10 of that document. The applicant’s claims to protection as set out in that document are said to be based on his father’s membership of the Communist Party in India. The applicant claimed that while he was at school he was a member of a particular student organisation which I understood to be Communist-related, and that he was taught communism by his father. There are references to his father’s protests against a “corrupted leader”, resistance from this leader of a particular faction of the Communist Party of India, Marxist faction, (“CPI(M)”), and to cases being filed against the applicant and his father. In particular I note that the applicant states at CB 9 that he became a target of people associated with this “corrupted leader” as he is referred to.
What is also clear is that this is linked in the application for a protection visa with a supporter of this “corrupted leader” who appears to have been a property developer (but is referred to as a “promoter” in the application), and who made political donations. In particular, this person wanted to purchase the applicant’s father’s land to build a multistorey building. The “promoter’s” company was known as “Prasad Promoters”. The applicant’s father refused the offer, and then death threats were made against the applicant’s father and the applicant because, as he explained, as the only son he would inherit his father’s land. There are also references by the applicant to his fear that he would not be able to relocate elsewhere in India because his father continues in his political opposition.
The applicant appeared before the Tribunal on 30 August 2007 and gave evidence. Before the Tribunal, the applicant stated that he had been a member of the Student Federation of India, which he said was affiliated with the Communist Party of India, and was a member until he ceased being a student in 2005. Thereafter the applicant, on the Tribunal’s account, said that he had no involvement in politics but worked for a computer institute until coming to Australia on what is described as a temporary resident visa as part of a cricket team, and he is reported as having told the Tribunal that he was not genuinely a member of that team but travelled here with it. The applicant also told the Tribunal that his father had been involved with the CPI but only as an ordinary member at the local government level. The applicant told the Tribunal that his father is “full-time involved in real estate” and owns a number of properties in other locations away from the area where this developer that he claims to fear wants to buy the property.
I should just note here that despite opportunity provided at the first Court date in this matter which was on 21 November 2007, the applicant has not filed any transcript of the hearing that took place before the Tribunal so the only evidence before the Court of what occurred at that hearing is what is contained in the Tribunal’s own account. From that account the applicant is said to have acknowledged that the developer wants to acquire his father’s land for commercial reasons and that his father is the only landowner in the area who is resisting the developer’s offer.
Plainly, the applicant told the Tribunal that the developer is linked to the CPI(M) and this is the party which is in power at local government level. The Tribunal records that it put to the applicant that the essential and significant reason for the developer’s threatening to harm him does not appear to be political opinion notwithstanding that there appears to be a political element in the background to this matter. The Tribunal also reports that the applicant’s response to this was that the developer was associated with the CPI(M), and in response the Tribunal, importantly, records that it put to the applicant that the political inclinations of the developer and his father appeared only to be incidental to this dispute. The Tribunal records that the applicant did not address this question directly but stated that his father sometimes writes in the media, and this clearly picks up on what the applicant had initially stated in his protection visa application but is said to have qualified before the Tribunal by saying that this was not why the developer wanted his land or was threatening him.
Further, the Tribunal noted that there was no evidence from the applicant that suggested to the Tribunal that he would be unable to avail himself of the protection of the authorities in India for any Convention-related reason. In its “Findings and Reasons” in its analysis the Tribunal accepted that the applicant’s claims were true. While it noted that these claims were entirely unsupported, it said that it was prepared to accept those claims. Importantly, the Tribunal said that it was satisfied that the applicant had identified a form of harm that can reasonably be regarded as amounting to persecution and that he had identified a non-State source of the harm that he feared, that is, the developer, and it identified the reason that the applicant gave for this harm that he feared was that he was the son of his father who owned the land, that the developer wanted to own this land and the father’s resistance to selling the land was thwarting the developer’s commercial interest. The Tribunal also noted that the applicant had indicated that political opinion was the critical factor in his case.
The Tribunal, however, for reasons which it gave, found that on the evidence (essentially, the evidence provided by the applicant himself), neither the attempt to own the applicant’s father’s land nor the threats employed in the course of trying to own it were Convention-related. The Tribunal found that while the various protagonists could be said to have divergent political opinions attributed to them, that political opinion was not the essential and significant factor in the harm threatened or feared. This was particularly and obviously a reference to s.91R of the Act which provides a statutory enhancement to the relevant test that is derived from the UN Refugees Convention. In all, the Tribunal found in that regard that political opinion was not the essential and significant factor in the harm threatened or said to be feared. Rather, the motivation of the persecutor was for commercial reasons. The Tribunal simply found that while it accepted the applicant’s claims to fear harm, that this was not Convention-related.
The Tribunal also considered whether as the son of his father the applicant could reasonably be regarded as a member of a particular social group which it said could be defined as the family of which the applicant’s father is the head as a separate reason for the applicant claiming to fear persecution for a Convention reason. In this regard, and taking into account the requirements of s.91S of the Act, the Tribunal again found that the persecution feared by the applicant in relation to that ground was not for any of the five grounds identified in the Convention but arose from his father exercising his right to refuse to sell his land to a developer who had commercial ambitions. The Tribunal’s conclusion was that the case that had been put before it was a case of an individual allegedly resorting to criminal means for commercial gain, and again the Tribunal found that the applicant did not face persecution for reasons of membership of a particular social group.
The Tribunal also found following this that there was no evidence before the Tribunal to satisfy it that the applicant would be unable in any event to avail himself of State protection in India for any Convention-related reason. In all, however, the Tribunal found that the applicant did not have a well-founded fear of persecution in India for a Convention-related reason and on this basis it therefore affirmed the decision under review.
By way of amended application the applicant puts forward a number of grounds and I will deal with those in turn in a moment. I note that the applicant appeared before the Court in person today. He was assisted by an interpreter in the Malayalam language. Ms B Anniwell appeared on behalf of the first respondent. I should just note for the sake of completeness that for the respondent, in addition to the Court Book, I have written submissions before me prepared by Ms Anniwell.
At the hearing the applicant confirmed that he wanted the Court to consider the matters raised in his amended application, which he said had been prepared with the assistance of a friend. I also note that the applicant has put before the Court an affidavit made on 16 October 2007 which accompanied his originating application to the Court. In general, it takes issue with that decision and claims that he had been denied procedural fairness by the Tribunal, alleging in general terms a breach of the requirements of the Act. I should note that the amended application (I say this in particular for the benefit of the applicant) is in a form and style, and indeed, is remarkably similar in wording to applications often seen in this Court. While I appreciate that people who come to this country may and are often not versed in matters relevant to applications of this type before this Court and often have to rely on friends and acquaintances and others to assist them in putting their grounds before this Court, I must say that it is generally not of assistance to such applicants who (and this is not a criticism in any way of the applicant but it is of those who assist applicants) to put before the Court formulaic applications. This in particular can be seen with the stated ground one which is often seen in this Court in the terms set out in the amended application. The amended application was as follows:
“1.The Tribunal failed to accord procedural fairness under s424 of the Migration Act 1958 as considered by the full Federal Court in NARV v MIMIA (2003) FCAFC 262 insofar as the Tribunal relied in 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 claims nor of the genuineness of my statements about my harassment of systemic nature.
…
2.The second responded misconstrued the requirement of s 91R(1)(a) of Migration Act.
Particular:
(a)The Tribunal held incorrectly that applicant did not face persecution for reasons of ‘membership of particular social group’
3.The Tribunal failed to ask a question that it was, in the circumstances of this case, legally required to ask.
Particulars:
(a)Whether the Indians authorities provided a standard of protection comparable with international standards.
4.That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicants claims; because I was being questioned without a break and felt stressed and intimidated.
5.The Tribunal failed to carry out its review function and to exercise its jurisdiction.
Particular Ground:
(a)The Tribunal did not consider the applicant who had been under immense and intimidating pressure from CPI(M) members.
6.The Tribunal applied the wrong test:
(a)The Tribunal left out individual elements of the applicant claim and tested weather they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so 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 failed to give the applicant the benefit of the doubt.
6.The Refugee Review Tribunal a failed to act that the applicant satisfy the definition of ‘Refugee’ as defined in Article 1A(2) of the Convention. To go further the Tribunal failed to see that the applicant satisfy the four key elements that are required to satisfy the Convention definition. The applicants state that the Tribunal refers to four key elements and since they satisfy them they are entitled to protection visa.”
(Errors in original.)
I should just note that despite opportunity on two occasions today, the applicant was not able to assist the Court further in relation to the matters that had been set out in his amended application. Initially the applicant said that he had not much to say and, after hearing submissions by Ms Anniwell, that he had nothing further to say. In terms of the applicant’s complaints therefore the Court was left with what was stated in the amended application.
Ground one as stated has a number of difficulties with it. Despite raising s.424 of the Act, the rest of ground one goes on to set out relevant provisions of s.424A of the Act, which is of course a different section. But I understood what the applicant and his friend were seeking to say to the Court was that the Tribunal failed to accord the applicant procedural fairness and that this was a breach of s.424A of the Act because the Tribunal failed to provide to the applicant, presumably in the way set out in s.424A(1), particulars of the independent information as to the claims based on adequate State protection. Under ground one the applicant says:
“The Tribunal mention to me the adverse information to decide my case neither at the time of review nor afterwards.”
(Errors in original.)
I understood this to mean that it did not mention this adverse information relating to State protection to him. What must be noted first is that this is a case to which s.422B of the Act applies making Division 4 of Part 7 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]).
As I understood it, the applicant’s complaint is that there is a breach of s.424A of the Act because the Tribunal did not put to him the independent country information relating to the adequacy of State protection for him for comment. Despite the claim that, “the Tribunal was not satisfied as to the genuineness of my claims, nor the genuineness of my statements about my harassment”, the Tribunal in fact did accept the applicant’s claims. The complaint set out in this ground is factually incorrect. The issue was that having accepted those claims, the Tribunal, as it was required to do, addressed the issue of whether such claims could amount to persecution for the purposes of the Refugees Convention. Ultimately the Tribunal found that it could not be satisfied that the harm feared either in terms of political opinion or in terms of membership of a particular social group was for a Convention-related ground. Simply, the Tribunal found that the fear that the harm that was feared was for commercial reasons and not for any Convention-related reason. For reasons which I will expand upon further in relation to the other grounds that are put forward as complaints today, in my view these were findings that were open to the Tribunal to make on what was before it. [In relation to the complaint of a failure on the part of the Tribunal pursuant to s.424A, this ground is not made out by reason of s.424A(3)(b) of the Act.]
Ground two and the second stated ground “6” in the amended application complain that the Tribunal in effect misconstrued s.91R(1)(a) of the Act because it incorrectly held that the applicant did not face persecution for reason of his membership of a particular social group. That is expanded on in a sense in the second stated ground “6” where the applicant says that the Tribunal “failed to act” which I understood to mean that the Tribunal failed to find that the applicant satisfied the definition of “refugee” as defined in Article 1A(2) of the Convention. Article 1A(2) of the Convention is clearly the basis for the consideration that the Tribunal is required to give to applications of this type, but the Act provides statutory enhancement to what is set out in Article 1A(2). Relevantly, in this case, s.91R provides direction on the meaning of “persecution” for applications considered and made under the Act. I note the first respondent’s submissions in relation to this issue.

The first respondent submits that this ground is without merit in that the Tribunal correctly applied s.91R of the Act and that on what was before it, it was open to the Tribunal to find that the applicant failed to establish a Convention-related nexus to the harm that he claimed to fear, given that the provisions of s.91R of the Act amongst other things require that the reason for the harm feared must be the “essential and significant” reason for the persecution. Plainly in this case the Tribunal found that the reason, or the motivation, for the harm feared was commercial and not Convention-related. The respondent also submits that the Tribunal proceeded to an analysis of s.91S of the Act and also applied that section correctly and found that the persecution threatened was not persecution feared for any of the five reasons identified in the Convention. On what is before the Court, on any plain reading of the Tribunal’s decision record, I agree with the respondent that in both respects these findings were open to the Tribunal on what was before it and no error is revealed.
Ground three of the amended application asserts that the Tribunal failed to ask a question that it was in the circumstances of this case legally required to ask, and the particulars are whether the Indian authorities provided a standard of protection comparable with international standards. The issue then is did the Tribunal fail to address the relevant test in relation to the issue of State protection. I note that what the Tribunal did in this case was that it found that there was no evidence before the Tribunal to satisfy it that the applicant would be unable to avail himself of State protection in India for any Convention-related reason. I understood the applicant’s complaint (a complaint that was drafted with the assistance of some other unnamed person) to probably draw on what was said by the High Court (the joint judgment) in Minister for Immigration and Multicultural Affairs v Respondent S152 of 2003 (2004) 222 CLR 1; [2004] HCA 18 (“Respondent S152”).
The amended application makes no reference to that case, but an assertion of whether relevant authorities provided a standard of protection comparable with international standards was an issue considered by the High Court in that case. In that case the High Court referred to the obligation of a State to take reasonable measures to protect the lives and safety of its citizens and that this involved a reasonably effective and impartial police force and justice system. The indication was that the appropriate level of protection is to be determined by reference to international standards. What I also note is that while it can be said that the joint judgment in that case gives support to the use of international standards as some sort of guideline of adequate protection levels, it does not, with respect, as I understand it, require the Tribunal to identify and actually specify those international standards in any particular case where there is a claimed fear of persecution by a non-government party, that is, a third party. I note also what was said relevantly by Heerey J in MZRAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1261. I note further that in Respondent S152 it was not considered necessary to go on and consider the relevant standards, what these relevant standards might be or how they would be ascertained.
The difficulty for the applicant in this case, however (and the drafter of the applicant’s document would benefit from an awareness that each case that comes before the Court does turn on its own facts) is that on any plain reading of the Tribunal’s analysis, this case did not require any assessment as to the level of whether adequate protection was available or not such that international standards needed to be considered. It is unclear why the Tribunal, given its very clear earlier findings, felt it necessary to make the reference to State protection. It may be that having discussed this issue at the hearing the Tribunal felt some obligation to the applicant to deal with the issue or it may be, as Ms Anniwell submitted this morning, that the reference was for the sake of completeness. Whatever the reason however once the Tribunal made findings which were not attendant with any level of doubt that the applicant did not have a well-founded fear of persecution for a Convention reason, then it was not necessary for the Tribunal for the purposes of affirming the decision under review to go on and consider the issue of the adequacy or otherwise of State protection.
I should note had there been any such need, the Tribunal’s finding that there was no evidence before it to satisfy it that the applicant would be unable to avail himself of State protection would probably not have been sufficient to properly address that question. The issue of course is not one of “no evidence”, but whether in the Tribunal’s view it could be satisfied that reasonable and adequate State protection was available to the applicant. But, as I said, it is not necessary for this Court to consider that issue because simply the Tribunal’s earlier clear findings were not attended with any level of doubt to make consideration of the issue of State protection necessary. I should just note in passing too that the Tribunal’s reference to “no evidence” is probably a reference to insufficient evidence because there was some evidence in relation to this issue before the Tribunal, and that was the evidence that the applicant himself had put forward by way of his assertions (SZFJU v Minister for Immigration and Citizenship [2007] FCA 1461 at [10], per Branson J). But as I said, the issue is not one that, in light of the Tribunal’s findings, that can assist the applicant today.
Ground four in the amended application asserts that the Tribunal failed to consider integers central to the applicant’s claims. The application asserts that the Tribunal failed to take into account relevant considerations or integers central to the applicant’s claims and gives as the reason for this that the applicant was being questioned without a break and felt stressed and intimidated. As to the complaint that the applicant felt stressed and intimidated, there is no indication before the Court of any such difficulty at the hearing before the Tribunal arising from the material that has been put before the Court. As I noted earlier, the applicant was given the opportunity at the first Court date in November of last year to file additional evidence, relevantly, in this case by way of transcript of what occurred before the Tribunal. The applicant for whatever reason, as is his right, has chosen not to exercise that opportunity. But it leaves the Court in considering the applicant’s complaint as stated in this ground with what has been put before it, and on the Tribunal’s own account, and with reference to other material, there is nothing before the Court to show that he felt stressed and intimidated such that there was some failure on the part of the Tribunal to provide him with a proper and real opportunity for a hearing as envisaged by s.425 of the Act. Nor is there anything before the Court to show that being questioned without a break led to a similar result.
What I do note from the Tribunal’s hearing record at CB 52 was that the Tribunal start time was said to be 10.30am and that the hearing ended at 11.15am. Even taking into account that the interpreter is said to have arrived at 10.15am, to have started interpreting at 10.25am and to have ended at 11.15am, this can hardly be said on its face to be a lengthy hearing such as would necessitate some sort of break. Clearly, the actual questioning was less than an hour, indeed probably closer to half an hour. In all, therefore, this particular aspect of this complaint does not succeed.
In relation to whether the Tribunal failed to consider an integer of the applicant’s claims, I note as noted above that the Tribunal accepted the applicant’s claims. This was not a case, as is sometimes seen in this Court, where a Tribunal finding is based on some assessment of the applicant’s lack of credibility. Although the Tribunal expressed some concern that the claims were entirely unsupported, it was prepared to accept that those claims were true. The issue therefore is one of whether the Tribunal addressed each aspect of those claims. The applicant’s claims were initially set out in his protection visa application, and in particular I note what is handwritten at CB 7 to CB 10, and I note, as I outlined earlier in this judgment, the references to the applicant’s father’s involvement with the Communist Party, the applicant’s father’s issues with a corrupt leader, the applicant himself having been taught communism by his father, his involvement in student activities, although he says he was never involved in any violent activities, and I note also the references in that protection visa application to this promoter, the developer, and his political connections and background.
The applicant does not particularise or specify in his amended application what integers central to his claims were not dealt with. If, however, what is meant by this complaint is that the Tribunal did not accept some elements of those claims, insofar as the Tribunal did not accept that there was a political element to the harm that was feared or that the applicant was a member of a particular social group such that it should have found that there was a Convention nexus, then in my view this complaint does not succeed.
It is quite clear that the applicant set out a range of matters in his protection visa application and that his concerns were explained and in a sense refined at the hearing before the Tribunal, which is the appropriate mechanism and vehicle for an applicant to so act, that is, to explain and refine claims initially made. From the Tribunal’s account, which, as I said earlier, is the only account before the Court of what occurred at the hearing, the applicant reiterated his background as a person who was a member of a relevant student federation which had Communist Party affiliations but that this stopped when he ceased being a student in 2005. The applicant told the Tribunal that he left India and could not return because persons representing the interest of a named property developer threatened to kill him if his father continued to refuse to sell a specific parcel of land which the father owns in the city where his family lives. It was the applicant’s own evidence before the Tribunal that his father was a person who used to be involved in politics but only as an ordinary member of the Communist Party of India at the local government level. It was the applicant’s evidence that his father was involved full-time in real estate.
The account of the hearing shows that the Tribunal put to the applicant that although the protagonists (the developer and his family) appeared to have links to different political factions, political opinion did not appear to be the essential and significant reason for the harm threatened, and the applicant responded that the developer was associated with the CPI(M). The Tribunal again put its view that this appeared to be incidental and that the political connection was also incidental in relation to his father’s claimed political involvement and activities. Importantly, the applicant is reported as not having rebuffed this threshold concern and although he went on to say that his father sometimes wrote in the media, he added:
“[T]his was not why the developer wanted his land or was threatening him.”
Importantly, the applicant acknowledged at the hearing that the reason why the developer wanted his father’s land in the city was a commercial one and that although the developer was connected with a particular faction of the Communist Party, there was no claim that that party which was in local government at the time was in any way intervening in this matter. In terms of the applicant’s complaints therefore, the claims initially contained elements of a political connection (both his father’s and his own), but during the course of the hearing before the Tribunal that political connection was seen by the Tribunal as being incidental to or by way of background to what emerged at the hearing as the central claim, being that the property developer threatened the applicant because he wanted his father’s land.
When seen in this way, it is in my view clear that the Tribunal did deal with each integer of the applicant’s claim. Firstly, it dealt with a central claim, being the motivation of the developer, that is, the developer wanted the applicant’s father’s land, and that issue was relevant both in terms of the application of s.91R of the Act and in terms of the application of s.91S of the Act. But I am satisfied that the Tribunal also considered and addressed the other element of the applicant’s claim that there was a political element involved and that this was relevant both on its own and to the extent that it also brought the applicant within the ground of membership of a particular social group. On what is before the Court, the Tribunal also dealt with those issues and found that the political element was incidental in a finding which was clearly open to it on what the applicant himself had said to the Tribunal, and that once that was clear to the Tribunal or once the Tribunal had reached that view no Convention nexus could therefore be seen such that it was a reason that was the essential and significant reason for the persecution. Similarly, the Tribunal’s finding that, with reference to the threshold set out in s.91S(a) of the Act, it could not be satisfied that the applicant faced persecution for reasons of membership of a particular social group. The Tribunal therefore did deal with each integer of the applicant’s claim and this complaint also does not succeed.
Ground five in the application asserts that the Tribunal failed to carry out its review function and to exercise its jurisdiction, and failed to consider that the applicant had been under immense pressure from CPI members. This complaint is also not made out for the reasons that I have already referred to above. I reiterate that the applicant’s application did not succeed because the Tribunal could not find that the applicant’s claims, which it accepted, amounted to persecution for the purposes of the Convention.
In ground six of the amended application, the applicant asserts that the Tribunal applied the wrong test, and appears by way of particulars to explain this as a complaint that the Tribunal should have looked holistically at the applicant’s evidence rather than looking at each aspect of his claims. Further, that the Tribunal required independent evidence of the fact before the Tribunal would accept a claim being made by the applicant, it placed too high an onus of proof on the applicant and failed to give the applicant the benefit of the doubt.
I do not say this in any critical way in relation to the applicant but in relation to the person who may have assisted the applicant in the drafting of this application, the difficulty is that this does not appear to bear any resemblance to what actually happened in this particular case. The Tribunal did not require any independent evidence of any fact before it accepted the applicant’s claims, quite the contrary. While it found that the claims were entirely unsupported, it accepted those claims as being true. I can only agree with the first respondent’s submissions that the applicant’s complaint that the Tribunal did not look at the applicant’s claim holistically is not borne out on any plain reading of the Tribunal’s decision record.
Further, it is also the case, as the first respondent submits, that there is some misconception on the part of whoever drafted this document as to the role of the Tribunal. It is not for the Tribunal to make an applicant’s case for him. (I note the reference in submissions by the first respondent to Prasad v Minister for Immigration and Multicultural and Ethnic Affairs (1985) 6 FCR 155 at 169-170.) To the extent that there is a reference here to independent evidence also, the Tribunal’s reasoning did not turn on any question of independent evidence, and I have already dealt with that issue as it was said to relate to the issue of State protection. Simply, in relation to the application of ss.91R and 91S of the Act, the Tribunal relied on the applicant’s own evidence that he gave to the Tribunal. Ultimately, the Tribunal needs to reach a requisite level of satisfaction that an applicant meets the definition of “refugee” as set out in Article 1A(2) of the Convention and as further enhanced or qualified by the relevant parts of the Act. In this case, despite accepting that the applicant did have a fear of harm, the Tribunal could not be satisfied that such fear was for a Convention-related reason. Having arrived at that position, it was open to the Tribunal to conclude that given that there was not a well-founded fear of persecution for a Convention reason, Australia did not owe protection obligations to the applicant and therefore the protection visa, bearing in mind the provisions of s.65 of the Act, must be refused. This complaint also does not succeed.
I note in his affidavit the applicant made reference to denial of procedural fairness and I have already dealt with that issue. The applicant was unable to assist the Court today beyond putting the amended application before the Court. I cannot discern jurisdictional error as it is said to arise from that amended application nor can I otherwise discern jurisdictional error in the Tribunal’s decision, and being unable to find any such error, as I explained to the applicant, the Court accordingly dismisses the application made to it.
In my view it is appropriate in this case that an order for costs be made. As to the amount, I note it was open, in accordance with the relevant schedule to the Rules of this Court, for the Minister to seek an amount in excess of $2,700. The Minister seeks that amount on the basis of, as I understand it, what was actually incurred in responding to the application. From what is before the Court, I am satisfied it is a reasonable amount, bearing in mind preparation of multiple copies of the Court Book, the filing of a response, the preparation of written submissions and attendance at Court on two occasions by a solicitor. I am therefore satisfied that the amount is a reasonable amount and I will make that order.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: A Douglas-Baker

Date: 8 May 2008