SZLOC v Minister for Immigration
[2008] FMCA 930
•11 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLOC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 930 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLOC”. |
| 1951 Convention relating to the Status of Refugees, Article 1A(2) Migration Act 1958 (Cth), ss.91R, 91X, 414, 415, 420, 424A |
| NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 |
| Applicant: | SZLOC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3321 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 30 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Malayalam interpreter |
| Counsel for the Respondents: | Ms B Anniwell (solicitor) |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 26 October 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3321 of 2007
| SZLOC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a twenty one year old male from Kasargod (Calicut) in the Nileshwar District of Kerala, India. He claims that he come from a farming family and has two younger brothers. He states that he has completed primary and secondary education and that he attended the Royal College in Nileshwar from 2003 to 2006. He then commenced work in a mobile telephone shop in his home town for eleven months until he came to Australia.
The applicant claims that he is a member of the pro-Marxist Student Federation of India (SFI) which is the student wing of the Communist Party (Marxist) (CP(M)). The applicant claims that the SFI comes under the Democratic Youth Federation of India (DYFI) which is part of the CP(M).
The applicant claims he faces serious harassment from the Akhil Bharatiya Vidyarthi Parishad (ABVP) which the applicant claims is the Cadre Party or student wing of the Bharatiya Janata Party (BJP).
The applicant states that he can neither stay in Kerala nor elsewhere in India. He states that although he was an active member of both the SFI and the DYFI, he was not an activist. He claims he was involved in erecting posters and door to door campaigning during elections and that he was targeted because of these activities.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
At the first Court date, the applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal. The applicant was allocated a panel advisor and the Court file indicates he received the advice.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by
29 January 2008. He complied with this order. An order was also made that the applicant was to file and serve a short outline of submissions and list of authorities fourteen days prior to the hearing. The applicant confirmed at the hearing that he had not complied with this order.
Tribunal decision
I rely on the summary of the Tribunal decision prepared by
Ms Anniwell, for the first respondent, in her written submissions and adopt paragraphs seven to twelve for the purposes of this judgment:
7. The Tribunal considered the documents provided by the applicant attesting to his membership of the SFI and the DYFI to be “problematic” and had doubts about their provenance. The Tribunal expressed serious concern about the applicant’s good faith in presenting those documents and found the applicant’s claims about being a member of either political organisation were unsupported.
8. The Tribunal found that the applicant’s oral claims about being a member of the organisations were “vague, contradictory and unimpressive”. In particular, the Tribunal considered the applicant failed to give satisfactory explanation as to why he was targeted amongst his colleagues and no satisfactory explanation as to why he could not live in Kerala.
9. On the evidence presented by the applicant, the Tribunal did not accept he had developed any significant commitment to student politics or to politics beyond the campus. The Tribunal accepted that the applicant completed his education in March 2006 finding that the applicant’s life as a student was unremarkable and that the claims about disruptions to his life at his graduation were a distortion;
10. With regard to the applicant’s claimed injury, the Tribunal held that, at best, the doctor’s certificate provided attested to alleged injuries at an alleged time. Even taking into account the scar on the applicant’s right knee, the Tribunal was not satisfied that the applicant had ever suffered any serious or that he suffered from politically motivated violence;
11. The Tribunal did not accept that the applicant was a witness of truth as he failed to commit to facts at nearly every stage of the hearing.
12. Thus, the Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention-related reason if he returned to India.
Consideration
When the applicant was invited to make oral submissions, he indicated that he required further time to enable him to obtain documentary evidence from India to support his claims. I explained to him that as this was a judicial review of the Tribunal decision, I was limited to considering only the material that had been before the Tribunal prior to the publication of its decision. The applicant was unable to say what he specifically was receiving from India or whether that request had actually been made. On the assumption that this was an application for adjournment of the hearing, the application was denied.
Ground one
1. The Tribunal failed to accord procedural fairness under s.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 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 systematic nature.
Section 424A of the Migration Act 1958 provides (not reproduced):
In accordance with the above section the delegate and the Tribunal would give me particular of the Independent information as to claims based on ‘adequate state protection to me’ though I raised the issues of the poor law and order situation in India and such information formed part of the reason for the Tribunal decision. The Tribunal mention to me the adverse information to decide my case neither at the time of review nor afterwards.
The applicant claims a breach of procedural fairness and mainly that the independent information on “adequate state protection” was not disclosed to him pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”). He relies on the principles set out in NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262. In that case, it was found that an applicant was denied procedural fairness because the decision-maker was obliged to disclose adverse information that was credible, relevant and significant to the decision. A jurisdictional error was due to the failure to give particulars of the adverse information to the applicant pursuant to s.424A of the Act.
In NARV, Ryan, Finkelstein and Downes JJ discuss this obligation as follows:
[20] Subject to one important qualification, we think that the Tribunal did not discharge its obligations when it failed to bring to the appellant’s attention the adverse material contained in the US Bureau of Democracy, Human Rights and Labor report. The fact that the information did not relate to anything personal to the appellant is immaterial. The information was credible, relevant and significant to its decision.
[21] The qualification to which we refer concerns s 424A and its relevance to the procedural fairness argument. Section 424A provides (emphasis added);
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) …
(3) This section does not apply to information:
(a) 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; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.’
[22] It is possible that s 424A, as it were, covers the field in the case of the Tribunal’s obligation to provide information to an applicant. That is to say, the effect of s 424A may be to replace the common law rules about procedural fairness. During the course of submissions, reference was made to Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57, where the High Court considered s 57 of the Act, which contains language similar to s 424(3)(a), which relevantly provides (emphasis added);
(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for refusing to grant a visa; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
(2) Subject to subsection (3), the Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.’
[23] The similarity of language between the two sections leaves open the possibility that the duty imposed respectively on the Minister (under s 57) and on the Tribunal (pursuant to s 424A) is substantially the same. As to s 57, McHugh J said (at 96):
Section 57 makes it mandatory for the Minister to give certain "relevant information" to the applicant. Relevant information means information that the Minister considers (a) would be the reason, or a part of the reason, for refusing to grant a visa; and (b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and (c) was not given by the applicant for the purpose of the application. In such circumstances the Minister must give particulars of the relevant information to the applicant, ensure the applicant understands why it is relevant and "invite the applicant to comment on it." However, information that the prosecutor says ought to have been provided to him for comment is not "relevant information" within the meaning of s 57.
The respondents argue that, because the statute establishes a mandatory duty to inform applicants about certain kinds of information, Parliament could not have intended that a similar duty should be imposed in relation to other types of information. But to so argue is to fall into the error of inferring from the presence of some matters concerned with natural justice that Parliament intended to exclude natural justice in all other respects [ Annetts v McCann (1990) 170 CLR 596 at 598 Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 349: "Reliance on the maxim expressio unius personae vel rei, est exclusio alterius can seldom, if ever, be enough to exclude the common law rules of natural justice."].’
If this view be accepted and applied to s 424A, the section will only add to the Tribunal’s common law duty. It is agreed by the parties that the statement in WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 at [36] that s 424A “must be treated as an exhaustive statement of the Tribunal’s obligation to bring information to the attention of a visa applicant, overriding any wider common law obligation” is obiter. (We note parenthetically that the express provision regarding “codification”, s 422B, was inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 and commenced on 4 July 2002. As the decision of the Tribunal was made on 25 June 2002, s 422B has no application to the present case.) It turns out, however, that it is not necessary for us to determine the correctness of this obiter opinion or whether the view of McHugh J is to be preferred. This appeal can be disposed of on the basis that the Tribunal breached its obligations under s 424A.
[24] The meaning of s 424A was recently considered by a Full Court in VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186, reasons in which were published after the present appeal had been heard. In that case there was a sharp difference of opinion on the meaning of s 424A(3)(a) between, on the one hand, Moore J and, on the other, Kenny and Downes JJ. In their separate reasons both Kenny and Downes JJ referred with approval to the observations of Gray J in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380. In Baig, Gray J considered whether the information in news items from Agence France Presse was information “just about” a class of persons of which the applicant was a member. His Honour concluded that it was not and pointed out, at [33];
Section 424A(1)(a) is expressed in terms of the Tribunal’s subjective view: if the Tribunal ‘considers’ that information would be the reason, or a part of the reason, for affirming the decision under review, it is obliged to give the applicant particulars of that information, ensure that the applicant understands why [it is] relevant to the review and invite the applicant to comment on it. Once the Tribunal reached the state of mind that it considered that the Agence France Presse items could be relied on to refute the applicant’s claim that he had campaigned in a by-election that took place on 15 April, it was obliged to follow the procedure in s 424A(1). The material did not fall within the exclusion in s 424A(3)(a), because it was not about a class of persons of which the applicant or any other person was a member. It bore specifically upon the question of the applicant’s involvement in campaigning in a by-election.’
Although not expressly stated by the applicant in ground one, it would appear that the above paragraphs are the ones relied on in this claim for a denial of procedural fairness. However, the issues being considered in NARV are different to those in this matter. The Tribunal stated in its “Findings and Reasons”:
The overwhelming problem for the applicant in this matter was his inability to commit to facts at nearly every stage in the hearing. The Tribunal does not accept that he is a witness of truth.
The Tribunal is not satisfied that the applicant faces a real chance of Convention related persecution in India. His claimed fear of such persecution is not well-founded. He is not a refugee. (CB 73-74)
Having rejected the applicant’s claim of persecution, the Tribunal did not (and was not required to) make a finding on the adequacy of state protection in India. It would appear that the applicant is complaining that the Tribunal failed to consider whether there was effective state protection for him in India. In the circumstances of this case, I cannot see that the Tribunal was obliged to consider this issue. The Tribunal comprehensively rejected the applicant’s claims that he had ever been persecuted in India and found that it was not satisfied that he had a well-founded fear of persecution for any Convention reason if he were to return. Such an obligation would only arise if the Tribunal were to have found that there had been a well-founded fear of harm and whether in those circumstances the applicant could access effective state protection. This simply did not arise here.
Further, the Tribunal did not rely on any independent country information in respect of state protection. The independent country information in the Tribunal’s decision makes no reference to state protection as it was not a relevant consideration for this Tribunal. I am satisfied that this ground cannot be sustained and should be dismissed.
Grounds two and three
2. That the decision of the refugee review tribunal was effected by jurisdiction error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claims, because I spent two hours being questioned without a break and felt stressed and intimidated.
3. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particular of grounds:
(a) The Tribunal did not consider the applicant who had been under immense and intimidating pressure from opposition members because of my involvement with SFI.
(b) In relation to above the Tribunal did not consider the applicant’s claim that the opposition party members will kill him if he returns to India.
Grounds two and three in effect raise two issues:
a)That the Tribunal did not take into account certain relevant “integers” central to the applicant’s claims.
b)That the applicant was questioned without a break for two hours during the hearing and felt continually stressed.
The Tribunal’s purported failure to consider all the applicant’s claims is not particularised and no evidence has been put forward to identify or suggest what material or claims have been ignored. In his original visa application, the applicant claimed:
Question 41: What do you fear may happen to you if you go back to that country?
The ABVP Goondas will kill me when I go back. They attacked me several times. One attack was on 12/08/00 and I was miraculously escaped from the incident. On 06/08/01 they attacked my house with throwing stones and dynamite. My father was seriously injured and admitted with burns in the leg to the near Ebrahim Kunju Hospital at Nreleshwaram. Even now I tremble with fear when I remember these memories. (CB 19)
Question 44: Do you think the authorities of that country can and will protect you if you go back? If not, why not?
The ABVP Goondas will [surely] kill me when I go back. The past memories are bitter and terror. I miraculously escaped two times. BJP is a national party. ABVP is the student section of it. Most of the states are ruled by BJP. The police will not take any action because of the political influence. Some government officials are favouring the party so we will not get any protection from them. (CB20)
The applicant gave the following information before the delegate:
The applicant claims that he has been attacked “several” times as he was a member of the Student Federation of India (Marxist). He claims that an altercation occurred between the AVBP and the SFI, which resulted in him having his leg broken. The applicant has not indicated which leg was broken. Furthermore, he claims to have received hospital treatment but provides no documentary evidence to substantiate his claim. Additionally, the applicant has not clarified whether (and why) he was singled out or were other student injured during this confrontation. The applicant claims that a case was lodged regarding this attack, but allegedly it is still pending. He does not substantiate his claim with documentary evidence, such as an incident report.
The applicant claims that he was again attacked on 11 December 1995 and was seriously injured. He provided absolutely no details regarding this attack, the circumstances surrounding the attack, the injury he sustained and whether he received hospital treatment, along with documentary evidence. He claims that the case was lodged, but is still pending. There is no evidence before me which suggests that the applicant did indeed lodge the incident with the police.
The applicant claims that another attack was mounted on 6 July 2006. However, it was his father and brother who were injured and not the applicant. He claims that both his father and brother were admitted to hospital, but his claim is devoid of substantiating evidence, such as a medical certificate.
The applicant claims that there was an attack upon him on 12 August 2000, but he managed to escape the incident. This claim has a fundamental contradiction in terms: on one hand the applicant claims that he was attacked and on the other hand he claims that he managed to escape. He claims that on 6 August 2001, his house was attacked with stones and dynamite, causing his father to sustain burns to his leg which required hospital treatments. The applicant has not provided documentary evidence to support the claim of his father being injured.
The applicant has made a serious of unsubstantiated and general claims. He claims to have been attacked on a number of occasions and on one occasion has had a leg broken. He does not specify which leg was broken nor does he substantiate claims of hospitalisation for himself or his father and brother with documentary evidence, such as a medical certificate. He claims to have lodged a complaint with the police on two occasions, but the cases are still pending. Again, his claim lacks substantiating evidence, such as an incident report. (CB 36-37)
When the Tribunal invited the applicant to appear before it, the applicant provided the following material:
a)Certificate from Dr P Gopinathan, Assistant Surgeon, indicating that the applicant received traumatic injuries to both legs and received treatment from 5 to 25 February 2006.
b)Document showing evidence of membership of Democratic Youth Federation of India, number 057561.
c)Membership card for Students Federation of India, number 25027.
d)Membership card for the Student Federation of India, number 25026.
Under the heading “Claims and Evidence”, the Tribunal indicates that it had before it the Department’s file relating to the applicant and the material referred to in the delegate’s decision. After discussing the applicant’s membership of the political organisation during his school and college years, the Tribunal summarised that evidence as follows:
All of the applicant’s claims about his political career and political adversity were unsupported, except by the membership cards, discussed above, and one doctor’s certificate, discussed below. Every one of these items were the subject of serious concern, raised by the Tribunal at the hearing, going to their authenticity and reliability. (CB 69.6)
The Tribunal then noted that the applicant claimed that his troubles commenced in year eight when he was assaulted by boys supporting opposing parties. Each of these issues was considered in some detail during the hearing. The Tribunal decision records the following summary of the hearing:
At the end of the hearing, the Tribunal put to the applicant that on his oral evidence he did not give the remote impression of having a mind for politics, inviting him to comment. He said his claims about being in politics were true. The Tribunal also drew attention to its concern about the reliability of his documents. The applicant said all his claims and evidence were true. The Tribunal put to the applicant that by continuing to work in his home town full time after he finished college he did not appear to have behaved like a person living under pressure of political persecution. The applicant then said, as noted above, that he did not flee during the period after he studied. This claim appears to be at odds with the claims about working full time at the telephone shop up to the time he came to Australia. The Tribunal asked the applicant if he was just saying this now (that he had fled his home town at some stage) in response to a potentially adverse observation of his evidence, and he referred the Tribunal to the evidence he submitted. The Tribunal put to the applicant that it did not have confidence in documents he submitted. He said he left India because he could no longer study. The Tribunal asked the applicant if he had any further information to provide, and he said he could not go back. (CB 71-72)
The Tribunal decision also referred to independent country information it considered in respect of political parties operating in Kerala and how those parties interrelated to the larger national political groups.
The applicant’s claim that the Tribunal did not take into account relevant integers central to his claims are not particularised and no submissions have been made that in any way clarifies this. After reviewing the material that the applicant has either tendered or delivered orally to the delegate or the Tribunal, it is not apparent that any of the issues he raised have not been addressed by the Tribunal in its decision. On a fair reading of the Court Book and in particular the Tribunal decision, it appears that all the issues and claims raised by the applicant were addressed, although perhaps not to the applicant’s liking. However, both the delegate and Tribunal member made it abundantly clear to him that there was serious question as to the authenticity and reliability of the material before each of them. In the circumstances, I am satisfied that this claim cannot be sustained.
Turning to the issue of the period of questioning at the Tribunal hearing, there is no transcript or hearing tape in evidence before this Court or any reference in the Tribunal decision to the applicant suffering from stress at the hearing. It is however widely recognised that a Tribunal hearing is conducted on an inquisitorial basis.
In VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872, Kenny J said at [27]:
[27] In Ex parte H, the Court took account of the fact that the proceedings of the Tribunal were inquisitorial in nature and that the parties cannot be represented in the same manner as they are in a court, remarking, at 435:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question … .
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
In the absence of any evidence supporting the claim that the Tribunal member had been intimidating, it must be accepted that in an inquisitorial hearing where substantial parts of an applicant’s claims are not accepted, it is likely that the applicant would experience some stress. However, there is no evidence to suggest that the Tribunal member has acted inappropriately. In the circumstances, this claim should be dismissed.
Grounds four and seven
4. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
7. The Refugee Review Tribunal a failed to act that the applicants satisfy the definition of ‘Refugee’ as defined in Article 1A(2) of the Convention. To go further the Tribunal failed to see that the applicants 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 protect visa.
The first element – applicant must be outside his country.
The second element – the applicant must fear persecution. If the applicant return to his country his life his life would be in danger.
The third elements – the persecution that the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The applicant fulfil this.
The fourth element – the fear of persecution for a Convention must be a “well founded” fear. The applicant fulfil all the four elements.
The Tribunal, which has described these in its decision have failed to take note of this.
The applicant alleges that the Tribunal failed to correctly apply s.91R(2) of the Act and establish whether he met the four elements of the definition of “refugee” as defined in Article 1A(2) of the Refugees Convention. Ground seven refers to “applicants” as opposed to “applicant”, which indicates that this ground may have been copied from another application and without a real understanding of the issue raised.
In the Tribunal decision, the legislative requirements of s.91R(1) and (2) of the Act are set out in the standard format usually adopted by the Tribunal. The Tribunal then summarised the applicant’s claims and oral evidence having regard to the foregoing requirements of the Act (CB 64-72). The Tribunal rejected the applicant’s claims of persecution and found that it was not satisfied that the applicant faced a real chance of Convention-related persecution in India. In those circumstances, the Tribunal was not required to proceed with an assessment of whether the harm claimed was “serious harm” as defined by s.91R(2) of the Act. The Tribunal was entitled to find that the applicant was not a person to whom Australia owed protection obligations under the Convention. I am satisfied that the alleged failure of the Tribunal to apply s.91R(2) cannot be sustained and should be rejected.
Ground five
5. 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.
The complaint in this ground relates to how the Tribunal used certain country information but is far from clear. The Tribunal had referred to a number of sources regarding the nature, structure and size of political parties operating in Kerala. This information appears to have been used to the limited extent of clarifying the structure and relationship between these organisations. However, no significant aspect of the decision making process appears to have been based on any of this material.
The adverse conclusions flowed directly from material provided by the applicant, namely membership cards from the DYFI and the SFI. The Tribunal expressed particular interest in the fact that these documents had been issued either blank or partly completed. This concern was clearly expressed in the Tribunal’s “Findings and Reasons”:
The documents provided by the applicant to the Tribunal attesting to his membership of the SFI and of the DYFI is problematic, partly because of their content, in one instance incomplete, partly because the applicant presented two consecutive receipts for one membership covering one period, and partly because his evidence indicated that his party membership documents were not originals that were issued by the parties or organisations named in them but by persons assisting him with his application. The Tribunal finds that it cannot rely on these documents as evidence of the applicant’s claimed membership of either organisation. More the point, arising from the applicant’s evidence about the prominence of these items, the Tribunal has serious concerns about the applicant’s good faith in presenting them, knowing as he claims to know that they are not originals and were filled out by friends assisting him with his application. The applicant undermines his own claim about it being impossibly simple for a lay person to obtain blank documents and fill them into order. The incompleteness of documents number 25026 also undermines his claim. However, until the Tribunal discloses these concerns, the applicant claimed that the documents were genuine originals. (CB 72)
This is the only reference, other than the doctor’s certificate, to material that has influenced the Tribunal’s decision. There is no reference to other country information which was significant to the decision made. In the circumstances, this ground cannot be sustained and should be dismissed.
Ground six
The Tribunal failed to ask question that it was, in circumstance of this case, legally required to ask.
(a) Whether the Indian authorities provided a standard of protection comparable with international standards.
The Tribunal considered the applicant’s claimed persecution and rejected those claims. Therefore, it was under no obligation to determine whether the protection provided by the Indian authorities “provided a standard of protection comparable with international standards”. This reflects a complete misunderstanding of the concept of state protection and the circumstances under which it operates. This misunderstanding is also reflected in grounds four and seven which ventilate a similar theme although based on a similar misunderstanding. This ground cannot be sustained and should be dismissed.
Claimed breaches of ss.414, 415 and 420
Refugee Review Tribunal must review decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
Powers of Refugee Review Tribunal
(1) The Tribunal may, for the purposes of the review of an RRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
Refugee Review Tribunal's way of operating
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
The applicant appears to have included this section to indicate how the Tribunal should undertake its review and presumably these four sections are to apply to each of the seven pleaded grounds.
The reference to s.91R appears to be a claim that the applicant faces serious harm because of threats to his life and liberty. The three remaining sections of the Act referred to are general procedural sections covering the operation of an ordinary Tribunal hearing. The applicant has not identified, nor is it apparent, how the Tribunal failed to observe any of these four sections in its consideration of the applicant’s claims which gives rise to any aspect of jurisdictional error. It would appear that the party assisting the applicant in preparing his claims has only a very general understanding of the mechanics of the Act and has misunderstood the operation of these sections. On a fair reading of the Tribunal decision, it is not apparent that it did not observe the obligations that apply to it under the provisions of these four sections. Unfortunately this part of the claim does not assist the applicant in his overall application.
Conclusion
I am satisfied that the submissions made by Ms Anniwell for the first respondent address the claims pleaded by the applicant. I agree with her submission that no jurisdictional error is identified by the applicant’s pleadings. On a fair reading of the contents of the Court Book and in particular the Tribunal decision, no jurisdictional error is apparent and the application should be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 11 July 2008
8
0