SZLSA v Minister for Immigration
[2008] FMCA 680
•2 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 680 |
| MIGRATION – Review of decision of Refugee Review Tribunal – adverse credibility finding – no Convention nexus – impermissible merits review – findings open to the Tribunal – no obligation on Tribunal to conduct own enquiries – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424, 427 |
| Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 SZIYN v Minister for Immigration and Citizenship [2008] FCA 151 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 24 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659; [2007] HCA 40 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Abebe v The Commonwealth (1999) 197 CLR 510 MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 | ||
| Applicant: | SZLSA | |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3703 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 26 May 2008 |
| Date of Last Submission: | 26 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr J Knackstredt |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 30 November 2007, and amended on 14 April 2008 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3703 of 2007
| SZLSA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 30 November 2007, and amended on 14 April 2008, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 15 October 2007, and handed down on 6 November 2007, which affirmed the decision of the delegate of the first respondent to refuse a protection visa to the applicant.
Background
In compliance with Court orders made at the first Court date in this matter on 12 March 2008, the first respondent has filed a bundle of relevant documents (the Court Book – “CB”) from which the following background may be discerned.
The applicant is a National of India, born in Kerala, who arrived in Australia on 11 May 2007 (CB 15.4), and on 14 May 2007, applied for a protection visa (CB 1 to CB 46). This application was refused on 19 June 2007 (CB 47 to CB 57). The applicant sought review by the Tribunal on 13 July 2007 (CB 60 to CB 63). The applicant made a number of written submissions to the Tribunal and provided a number of documents as evidence in support of his claims (see CB 67 to CB 87, CB 92 to CB 141). The applicant also attended a hearing before the Tribunal on 11 September 2007. The Tribunal’s account of what occurred is set out in its decision record reproduced at CB 154.5 to CB 159.2.
Applicant’s claims to protection
The applicant’s claims before the Tribunal were that he was born in Kerala in India. He is a Hindu. He had worked in various locations in India on construction projects following his graduation in 1994. His claims to protection were said to arise from circumstances where he and partners founded a particular firm (Vaishnavi Constructions) which had been awarded a subcontract from another firm (SOMA TRG Joint Venture) for the construction of railway tunnels in Jammu and Kashmir. The applicant claimed that his company became the subject of extortion demands by Muslim terrorist groups, which with other technical problems, lead to the subcontract with SOMA TRG being terminated in early 2006. The applicant claimed to have fled Jammu and Kashmir and India because he feared harm from SOMA TRG who had brought a civil action against him in the High Court of Jammu and Kashmir which subsequently led to criminal action being taken against him. He claimed that he feared harm from Muslim terrorists and Muslim trade unionists, and from creditors following the collapse of his business venture, and he also claimed to fear harm because he and his partners were Hindus in Jammu and Kashmir and were opposed by Muslim extremists in circumstances where Hindus in Jammu and Kashmir are targeted and murdered by Muslims.
Tribunal’s findings and reasons
The Tribunal found:
1)Although it had some doubts as to the applicant’s claims relating to the work project in Kashmir, in light of documentary material submitted by him, it gave him the benefit of the doubt and accepted that he and two friends had formed the company in August 2003, and that the company was involved in the construction of a particular tunnel in Kashmir. The Tribunal also accepted that the company’s subcontract was subsequently cancelled “due to non-performance” (CB 161.2 to CB 161.5).
2)Although it had some doubts about the documentary material provided by the applicant in support of his claim that he had been subject of a Court case (“there are some peculiarities about the ‘notice for the appearance of parties””), it accepted that the document was authentic and that a Court case had been brought against the applicant by SOMA TRG. The Tribunal, however, was not satisfied that the applicant had subsequently been the target of a “warrant”, or the subject of criminal proceedings. The Tribunal found that the material presented by him did not give any support to this assertion and found his evidence at the hearing “once more evasive and confused” (CB 161.6 to CB 162.3).
3)It accepted, given a newspaper report provided by the applicant, that the civil case brought against his company by SOMA TRG Constructions had proceeded by way of arbitration, but was not satisfied that it could give any evidentiary weight to a subsequent letter provided by the applicant from a lawyer indicating the outcome of the case against the applicant, nor could it be satisfied that any evidentiary weight could be given to a letter said to have been written to the applicant by his “housemate or brother”. In all, the Tribunal, was not satisfied the applicant had been charged with any criminal offence in the High Court of Jammu and Kashmir, or that he would face criminal charges there or anywhere else in India for this reason. Nor was it satisfied as to any of the other related claims made by the applicant in this regard (CB 162.3 to CB 163.2).
4)It accepted, even though the applicant had not provided any substantiation, that his company had been faced with extortion demands from terrorist organisations but was not satisfied that it was plausible that they would have the desire or means to target him if he were to return to live in his home state of Kerala (CB 163.3 to CB 163.5).
5)Similarly, the Tribunal did not accept the applicant’s “alternative reason for his claimed fear of Muslim terrorist groups”, namely that he feared harm from them because he had exposed their corruption. It found his evidence was confused, and that ultimately, this claim was implausible (CB 163.5).
6)The Tribunal also found that it was not plausible that Muslim trade unionists would have sought to kill the partners of the company because workers had lost their jobs, or even less plausibly that they would have a motive or means to do so nearly two years later if he returned to his home state of Kerala (CB 163.7).
7)The Tribunal found the applicant’s claims in relation to fear harm from creditors were “notably vague and devoid of circumstantial detail”, and that there was “no substantiation for his claim that he is at risk of physical harm from them for this reason”. In all, the Tribunal found that while the applicant may be reluctant to return to India where he “could be subjected to debt recovery measures” there was nothing to suggest that this had any nexus with a Convention ground or that it could be considered as a Convention-based harm (CB 164.3).
8)The Tribunal also was not satisfied that there was any basis that the applicant would be at risk of Convention-based harm from SOMA TRG should he return to India (CB 164.5)
9)In relation to the applicant’s general claims that he and his partners face harm in Jammu and Kashmir because they were Hindus, and were opposed by Muslim extremists, the Tribunal found that “whatever the truth” of the applicant’s claims, that he could return to live in his home state of Kerala “and never again venture near Jammu and Kashmir”. Further, the Tribunal was not satisfied that living in Kerala he would be at risk of harm from “Muslim extremists whether or not they were based in Jammu and Kashmir” (CB 164.6).
10)In all, the Tribunal accepted some of the applicant’s claims, and rejected some aspects of his claims for reasons which it gave. For those claims which it accepted the Tribunal found that either these claims lacked a Convention nexus, were implausible or that the applicant could safely and reasonably avoid harm by returning to live in his home state of Kerala. The Tribunal found in all that the applicant was not a person to whom Australia owed Refugees Convention obligations, and therefore affirmed the decision under review.
Application to the Court
In his originating application to this Court, the applicant (with some particulars) put forward the following grounds:
“1.That the decision of the Refugee review Tribunal was effected by jurisdictional area in the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claims;
2.The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
…
3.The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.
4.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 out come. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.
5.The Tribunal failed to accord procedural fairness under s.424A 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 statements about my harassment of systematic nature. ….”
(Errors in original.)
By way of amended application, the applicant asserts that he presses the grounds in his originating application and adds the following “additional grounds of particulars”, which in some part go to grounds already put forward but appear to also raise the following:
1)A failure to address the issue of relocation.
2)The Tribunal did not accept all of his claims and made a number of mistakes.
3)The Tribunal did not invite him to make comments on information that was adverse to him. This appears to be a complaint that the Tribunal should have, pursuant to s.424A of the Act, put to him its adverse views for comment.
Hearing before the Court
The applicant appeared in person at the hearing. He was assisted by an interpreter in the Malayalam language. Mr Knackstredt of Counsel appeared for the first respondent.
At the hearing, the applicant stated that the Tribunal made “mistakes”. He referred to the Tribunal’s decision record (CB 161) and that it had incorrectly reported the cost of the tunnel project. He pressed that he had to hide in India following the events in Kashmir and the Tribunal did not makes its decision after considering “these things” (a reference, in context, to what he said had occurred to him in Kashmir).
Failure to consider integers central to claims
Grounds one and two of the application complain that the Tribunal did not take into account certain integers “central to the applicant’s claims”, and thereby failing to carry out its review function, the Tribunal decision was affected by jurisdictional error. The applicant particularises this complaint by stating that the Tribunal did not consider the following:
a)That he had been under “immense and intimidating pressure from Soma Trg Company and Muslim extremist group Lashkar e Taiba Harkat”.
b)It did not consider that “Soma-Trg has instigated criminal as well as civil proceedings” against the applicant’s company and its partners.
c)That he had given “adequate evidence” to the Tribunal that the Court in Kashmir and Jammu had made a decision against him and his firm, and that he had been informed by his lawyer that they had already initiated criminal proceedings against him.
d)That the Tribunal’s failure to “analyse properly future harm” that the applicant may face if he would return to India is a “serious jurisdictional error”.
I saw the applicant’s complaint before the Court at the hearing as directly pressing this ground.
The Tribunal set out the applicant’s claims in its decision record (see CB 152.3 to CB 154.5) and his claims as made at the hearing (at CB 154.5 to CB 159.2). In relation to the applicant’s specific complaints as raised in the application to the Court, the Tribunal set out these claims at:
a)The harm from SOMA TRG and Muslim groups (see CB 152.9, CB 153.4, CB 153.9 CB 155.2, CB 155.4, CB 156.5, CB 157.1 to CB 157.4, and CB 158.4).
b)That SOMA TRG had instigated criminal as well as civil proceedings (see CB 153.9, CB 156.5 to CB 156.7, CB 157.1 to CB 157.3, CB 157.6 and CB 158.7).
c)That the High Court in Kashmir and Jammu had made a decision against the applicant and his firm (see CB 156.7 and CB 159.5).
d)That he would be harmed if he were to return to India (see generally, CB 154.9, CB 155.1 to CB 155.3, CB 157.2 to CB 157.4, CB 158.4 and CB 159.3).
Any plain reading of the Tribunal’s reasons reveals that it made findings in respect to each of those claims. (I note in particular that the Tribunal accepted that the SOMA TRG took civil action against the applicant, but found that any future harm was not for a Convention-related reason. (See generally, CB 162 and CB 164.4.) It found that in relation to claimed harm from Muslim terrorists; the given that he had been driven out of business by them it was “at least unlikely” that they would be motivated to continue to target the applicant and his partners. Further, it was even less likely that they would still seek to target the applicant some two years after he was last in Jammu and Kashmir.
In relation to the applicant’s claim that they were well organised all over India, the Tribunal found it implausible they would target him if he were to return to live in his home state of Kerala, the Tribunal rejected his claims in this regard (see CB 163). The Tribunal also found as implausible the applicant’s claim to fear the terrorists because he had opposed their corrupt behaviour in seeking to extort businesses.
In relation to there having been a decision made by the High Court against him and his partner, the Tribunal records, in its unchallenged account of what occurred at the hearing (CB 157.2), that the applicant did not know the status of the civil case brought against him. But the Tribunal, for reasons given, found that it was not satisfied that the applicant had been charged with any criminal offence in the High Court (CB 162.8). In relation to the real chance of harm should he return to India, the Tribunal variously found, even accepting some of the applicant’s claims, that none of the claims would result in the applicant being subject to a well-founded fear of harm of persecution for a Convention reason (variously, some claims lacked a Convention nexus, others were implausible, and the applicant could safely and, relevantly, return to his home state of Kerala.)
I agree with Mr Knackstredt that the Tribunal’s findings in relation to each of these matters were clearly open to it on what was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ). The Tribunal’s determination of the weight to be given to evidence provided by the applicant is a matter for the Tribunal (see Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]).
Ultimately, the applicant’s complaint in my view can only be seen as a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). The Tribunal is not obliged to uncritically accept any or all of the applicant’s claims (see Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”) at 451). Grounds one and two of the application and as pressed at the hearing before the Court do not succeed.
Failure to investigate claims
Ground three asserts that the Tribunal failed to investigate the applicant’s claims within the requirement of the Act. No particulars appear to have been provided in relation to this complaint. The applicant does not particularise this complaint. Nor was the applicant able to explain before the Court what was meant by this complaint.
At best, I understood the applicant’s complaint to be that in failing to investigate his complaints, the Tribunal failed to properly examine them in the sense that it did not accept some of his claims. If this is the extent of the applicant’s complaint, then the Tribunal’s findings, as referred to above, were open to it on what was before it and no error is revealed simply because the Tribunal did not believe some of the evidence provided by the applicant, or was unable to be satisfied on that evidence, that the applicant was owed protection in Australia.
As the Minister submits, the Tribunal may seek additional information pursuant to s.424(1) of the Act. In that sense, a Tribunal may be said to further investigate an applicant’s claims by seeking such additional information.
The difficulty for the applicant in this case, if this is what is meant by the ground, is that first, the exercise of this power is discretionary and the only mandatory aspect to it is that once the Tribunal acts to obtain further information, it must have regard to it. The difficulty for the applicant is that there is no obligation on the Tribunal to conduct its own independent enquiries (see, for example, SZIYN v Minister for Immigration and Citizenship [2008] FCA 151 at [16]). Nor on what is before the Court can I see any such obligation arising from the circumstances before the Court.
Further, while s.427(1)(d) of the Act provides that the Tribunal may arrange for the making of further investigation, this again is discretionary on the part of the Tribunal (see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 24). Ultimately, it is not for the Tribunal to make out an applicant’s case (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170).
I cannot see that there was any obligation on the Tribunal to have conducted any further investigation or that in failing to do so the applicant was denied procedural fairness. On the material before the Court, the applicant was able to provide documentary evidence in support of his claims, was given the opportunity of expanding and explaining his claims at a hearing before the Tribunal, and was even given the opportunity to provide further documentation to the Tribunal after the hearing. Ultimately, it was open to the applicant to have put before the Tribunal any additional material which he now implies should have been investigated by the Tribunal.
I note that at the conclusion of the hearing before the Tribunal the applicant sought the opportunity to submit further documents to the Tribunal and sought a period of three to six months to obtain them from India. I cannot see error in the Tribunal providing the applicant one month in which to respond. The Tribunal’s view that in all the circumstances this was reasonable is confirmed in that the applicant did provide further documentation within that period. Even further, the applicant has not made any submission to the Court now that there was other material which could have been obtained, and in respect of which he was denied the opportunity. This complaint does not succeed.
Tribunal relied on independent country information
Ground four as stated in the application is a ground often seen and stated in identical terms before this Court. I specifically asked the applicant at the hearing if he could assist in explaining this ground. He was not able to help. In any event, the applicant’s complaint appears to be about the Tribunal’s weighing, and use, of general country information.
While it is, as the respondents submits, correct that the Tribunal referred to general independent country information in its summary of the hearing, I agree that the Tribunal’s reasons do not depend on any independent country information in coming to its decision, other than a reference to a “copy of the Indian Express submitted by the applicant” (CB 162.3), which in any event led the Tribunal to accepting that the civil case brought against the applicant did proceed by way of arbitration. A matter favourable to the applicant in that the Tribunal accepted he had been the subject of civil litigation.
Ultimately, the Tribunal’s decision to affirm the delegate’s decision did not turn on any independent country information before it, but was based on the applicant’s own evidence and documents in support, and the Tribunal’s findings of implausibility of some aspects of the account, the lack of Convention nexus with others, and the lack of evidence in relation to yet other aspects of the applicant’s claims. This ground is not made out.
Failure to accord procedural fairness
Ground five is stated to be a failure to accord procedural fairness under s.424 of the Act, yet extracts “s.424A” as the particulars to this complaint. The applicant also relies on the judgment in NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 (“NARV”).
As already referred to above, I cannot see that the applicant was denied procedural fairness under s.424 given that there was no obligation on the Tribunal to have engaged in the procedure contemplated in that section.
To the extent that the applicant complains about s.424A, the applicant’s amended application and his written submissions appear to explain this complaint in terms that the Tribunal should have invited the applicant “to make comments on the information which was adverse to me and appeared in the tribunal decision”.
Any plain reading of the Tribunal’s decision reveals that the information relied on by the Tribunal was the applicant’s own evidence and documents which he gave to it. As such, this information falls within the exception contained in s.424A(3)(b) from the obligation in s.424A(1). Even if the Tribunal had relied on independent country information to make the findings adverse to the applicant (which, as already set out above, it did not) any such information (for example, as referred to at the hearing) plainly would have fallen within the exception contained in s.424A(3)(a) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264).
Further, to the extent that the applicant complains that the Tribunal should have put to him its adverse thought processes and given him the opportunity to comment, such appraisal is not “information” within the meaning of s.424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18], citing with approval VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214). Nor is there any obligation on the Tribunal to have provided a draft statement of reasons to the applicant for his comment prior to the making of its decision. This ground also does not succeed.
I should also note that to the extent the applicant makes reference to NARV, following the introduction of s.422B into the Act, this authority cannot assist the applicant to substantiate his complaint that the Tribunal relied on independent evidence as to the “prevalence of claim about political persecution”, noting of course that the applicant did not make any claims which could be said to fall within the meaning of political persecution. In any event, the Tribunal’s decision did not turn on any independent country information. That the Tribunal discussed such information with the applicant at the hearing but then subsequently chose not to, or did not need to rely on, or refer to, such information in its reasoning and analysis in finding against the applicant, does not reveal any failure of procedural fairness on its part, let alone jurisdictional error. This ground also does not succeed.
Relocation
In his amended application, the applicant complains that the Tribunal failed to address the issue of relocation. This complaint is not particularised, nor was the applicant able to assist before the Court with anything further in relation to this complaint.
The 1951 Convention Relating to the Status of Refugees (see Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status – Geneva January 1992) contemplates that in determining whether an applicant is owed protection, it is not whether the country of nationality is able to provide protection in any particular region or location, but upon whether protection is able to be provided by reference to the whole of the country of nationality (see Randhawa per Black CJ, with whom Whitlam J agreed).
Where a fear of persecution in one locality is determined to be well-founded, the availability of protection in the rest of the country of nationality must be considered by the Tribunal. Of course, such relocation must be reasonable in all the circumstances (see Randhawa and SZATV v Minister for Immigration and Citizenship (2007) 81 ALJR 1659; [2007] HCA 40).
The particular circumstances of this case present a somewhat different situation to that generally seen in comparable cases where any fear of local harm which amounts to persecution for a Convention reason generally relates to the local area where the applicant is said to have lived. The circumstances before the Court now in this case reveal that the applicant was born in Kerala in India, grew up and was educated there (see CB 152.4), and that while the applicant worked “in various places in India” (see CB 34.6), it was his work in Jammu and Kashmir which gave rise to the situation from which his protection claims derived. That is, when he and his partners entered into an arrangement to do tunnel construction work in Jammu and Kashmir in August 2003 (CB 34.9).
The Tribunal accepted that the applicant (notwithstanding some doubts) had entered into this contract for construction work and that he and his partners had encountered some difficulties and that their company’s subcontract was cancelled (CB 161.5).
The Minister responds that although the Tribunal accepted some of the applicant’s claims, it was not satisfied as to most of them and found that the past experiences that it had accepted as having occurred were not Convention-related. In these circumstances, the Tribunal was not required to consider whether the applicant could avoid harm feared by internal relocation (see paragraph [37] of written submissions). I sought further clarification of the Minister’s position from Mr Knackstredt at the hearing before the Court. I understood this to be that in any event a relevant finding could be inferred from the Tribunal’s decision.
The Tribunal accepted that the applicant had been involved in a construction project in a partnership and subcontract arrangement in Jammu and Kashmir, and that he and his company had run into difficulties and that the contract was cancelled due to non-performance. The applicant claimed to variously fear harm from “Soma-TRG”, Muslim terrorists/extremists, Muslim trade unionists and creditors, and that such fear related to all of India.
The Tribunal found in relation to each:
1)SOMA TRG – that civil proceedings against him by SOMA TRG were “on the basis of a commercial dispute”, and that even though he and his partners “may well be pursued through the Indian legal system”, that this matter did not provide “any basis for believing that the applicant would be at risk of Convention-based harm from SOMA-TRG should he return to India” (CB 164.4). In relation to this claim, the Tribunal was not required to consider any issue of relocation given that its finding was a lack of Convention nexus throughout all the country of nationality.
2)The applicant also claimed to fear harm from SOMA TRG on the basis that the civil case against him had progressed to include criminal action, and that an arrest warrant had been issued against him. The Tribunal was not satisfied that the applicant had been charged with any criminal offence in the High Court of Jammu and Kashmir and was not satisfied that the applicant had been charged with, or would face, criminal charges anywhere in India. In these circumstances, no relocation consideration was required.
3)In relation to harm from creditors, the Tribunal found that the applicant’s claims were “notably vague and devoid of circumstantial detail” (CB 163.10). But in any event, again, found that in relation to a return “to India” that there was nothing to suggest that this had any nexus with a Convention ground, or that it could be considered as a Convention-based harm (CB 164.3). Again, in these circumstances no further consideration of relocation was required.
4)In relation to harm from Muslim terrorists, the Tribunal accepted (albeit that there was no substantiation for the claims) that the applicant’s company may well have been “faced with extortion demands from terrorist organisations”. The Tribunal found that it would seem unlikely that such groups would be motivated to continue to target the applicant and his partners, given that he was driven out of business by them, and that it seemed “even less likely” that they would have reason to target him now two years after he was last in Jammu and Kashmir. The Tribunal specifically considered the applicant’s claims that “Muslim terrorist groups are active and well-organised in many areas of India”, but ultimately found that it was not plausible that they would have the desire or the means to target the applicant if he were to return to live in his home state of Kerala “far from Jammu and Kashmir” (CB 163.4) (see further [42] below).
5)In relation to the applicant’s alternative reason for his claimed fear of Muslim terrorists, that is, that his company had exposed their corruption, the Tribunal found the applicant’s evidence on this point was “confused”, but in any event, found that even if the applicant’s company had exposed Muslim terrorist extortion, that this could not have been a matter of any concern for the terrorists given that the applicant’s own evidence was that paying extortion to Muslim terrorists in Kashmir and Jammu “was so common that the police were not concerned by it”. In these circumstances, the Tribunal found it “quite implausible that any action by the Applicant’s company to report or publicise the extortion would cause its partners to be targeted” (CB 163.6). In rejecting the factual basis to the applicant’s complaint, the Tribunal similarly was not required to proceed further to consider the issue of relocation.
6)In relation to harm from Muslim trade unionists, the Tribunal accepted the applicant’s evidence that many of the workers of the applicant’s company may have been Muslims, and may have been members of trade unions, and that those who lost their jobs may have been disgruntled, but was not satisfied that it was plausible that “Muslim trade unionists would have sought to kill the partners of the company for such a reason” (CB 163.8). This is sufficient to have dealt with the applicant’s claim without needing to consider the issue of relocation.
7)In relation to the applicant’s claim that “the main reason” he and his partners faced harm in Jammu and Kashmir was that they were Hindus and were opposed by Muslim extremists and that Hindus were specifically targeted there and many were murdered, the Tribunal found that the applicant did not need to live in Jammu and Kashmir, nor return there for any reason, and that the applicant could return to India and live safely in his original home state of Kerala and would not be at risk there of harm from “Muslim extremists whether or not they were based in Jammu and Kashmir” (CB 164.7). In this regard, the Tribunal did consider whether it was reasonable for the applicant to return to Kerala, and did turn its mind to whether the applicant could reasonably relocate there and found that he could do so (see CB 164.8).
In context, and when the Tribunal’s decision is read fairly, I saw the finding that the applicant could reasonably and safely return to live in his home state of Kerala without being at real risk of harm from Muslim terrorists generally, as also encompassing the fear of harm from them specifically articulated as arising from the work circumstances in Kashmir (with reference to [41.4] above).
In all, therefore, the Tribunal’s findings, as set out above, were all open to it on the material before it where appropriate and as applicable to the applicant’s circumstances. I cannot see that this complaint about “relocation” can assist the applicant now.
Bias
The applicant also complains in his amended application that the Tribunal was biased against him. At best, the applicant appears to complain in this regard that the Tribunal’s failure to provide him with the opportunity to comment on “adverse information against to me (sic)” was the basis for his claim of bias.
As already referred to above, to the extent that the applicant complains that the Tribunal failed in this regard to meet its obligations pursuant to s.424A(1) of the Act, this complaint does not succeed for the reasons set out above. Nor is bias made out because the Tribunal did not provide the applicant with the opportunity to comment in writing on “adverse information” in the sense of providing the applicant with its draft reasons for decision. There is no obligation on the Tribunal to do so, and with reference to the relevant authorities (Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17, SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22]), what is required for the applicant to succeed in any such claim of bias is evidence that the Tribunal did not bring an open mind to the proceedings. On what is before the Court, this is not made out. Indeed, it is a rare and exceptional circumstance where bias can simply be made out with reference only to the Tribunal’s decision record (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], per von Doussa J).
Further and more broadly as to what may also be said to arise from this complaint, the applicant was given a very clear opportunity at the hearing before the Tribunal to address the Tribunal’s concerns about his claims. The Tribunal’s account of what occurred at the hearing remains unchallenged before the Court by any evidence to the contrary. The applicant has not put before the Court a transcript of the hearing before the Tribunal. The Tribunal, on any plain reading of its account of what occurred at the hearing, discussed each aspect of the applicant’s claim, and particularly in relation to each group from whom he said he feared harm (see generally at CB 155 to CB 158.5).
In particular at CB 158.6 and following, the Tribunal states:
“I explained to the Applicant that on the basis of all the information he had put to the Tribunal there were a number of issues which would be important in considering his claims and which could be a reason for affirming the delegate’s decision.”
The Tribunal then proceeded to enunciate these issues to the applicant and gave him the opportunity to comment, and indeed provided him with the opportunity of submitting further documents to the Tribunal, an opportunity which the applicant took up. In these circumstances, the Tribunal plainly complied with its procedural fairness obligations in the context of what was said about procedural fairness by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) in that the issues and in particular, the substratum of matters informing those issues, were all fully aired by the Tribunal during the course of the hearing such that the explanation of that concept in SZBEL was satisfied. Even further, the Tribunal provided the applicant with an opportunity to submit further documents. An opportunity he took up and which the Tribunal plainly considered in its determination.
Complaints raised at the hearing before the Court
At the hearing before the Court the applicant claimed that the Tribunal “made mistakes”. He submitted that the mistake made by the Tribunal was that in its decision record (see CB 161.4) the Tribunal said that the work involving the applicant concerned the “construction of a one-kilometre tunnel at a cost of 100 million Rupees”, and that the Tribunal was in error in relation to this amount. I understood (although not clearly expressed by the applicant) that his complaint involved the Tribunal’s finding flowed from what was said to be the cost of the construction of the tunnel.
The relevant part of the Tribunal’s decision record is as follows (at CB 161.5):
“I have some doubts as to the accuracy of the Applicant’s claims in this area. In particular, as put to him at the hearing, it seems somewhat implausible that a project of this magnitude, involving construction of a one-kilometre tunnel at a total cost of 100 million Rupees, would have been awarded exclusively to a company such as Vaishnavi with a total working capital of only half a million Rupees, three partners who lacked significant managerial experience and no previous record in this field having been formed specifically to bid for the subcontract.”
The applicant’ complaint before the Court, as best as I understood it, was that his company had not been awarded this contract but that the contract had been awarded by Indian Railways to SOMA TRG and that his company’s relationship was a subcontractor relationship with SOMA TRG. In these circumstances, therefore, the applicant’s complaint appears to be that it was not open to the Tribunal to have drawn the conclusion that it did in these circumstances.
First, I note that there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact to the extent that the applicant’s complaint may relate to the actual cost of the project (Abebe v The Commonwealth (1999) 197 CLR 510 [137] and MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [28]).
In any event, this account of the relationship with SOMA TRG appears to be consistent with what the applicant put in his statement attached to his protection visa application (see CB 35.9 and following):
“The Vaishnavi Constructions in which I am a partner has got the sub contract from M/S ‘SOMATRG’ – Joint Venture. The proposed work was with the Northern Railway named as USBRL Project (Udhampur–Srinagar–Baramullah–Rail-Link–Project) tunnel No-10 at ‘Katra’ which is subcontracted by above SOMA TRG Joint Venture. The estimated cost of the work is 100 (hundred) million Rupees.”
As our firm is newly formed one – and the estimated cost of the project was 100 (hundred) million Rupees for the mobilization of necessary funds for the commencement of the work we have to resort borrowing money from private parties in the State of Jammu – Kashmir ….”
The Tribunal’s record of the hearing with the applicant (not challenged by any evidence brought by the applicant before this Court) reveals (at CB 155.8):
“… until forming his company, Vaishnavi, in August 2003 with a working capital of half a million rupees. He gave details of the other two partners in the company, one of whom had a diploma in civil engineering and the other a Bachelor’s degree in civil engineering. He said Vaishnavi was formed specifically to bid for the contract, which was for all aspects of construction of the one-kilometre long Number 10 tunnel on the UBRL railway project, using equipment supplied by the head contractor, SOMATRG. The project was valued at Rupees 100 million …”
On what was before it I cannot see error in the Tribunal’s characterisation of the cost of the project and the relationship between the applicant’s company and SOM ATRG.
But even if some factual error had been made by the Tribunal in this regard (which is not evident) the applicant’s complaint, even in those circumstances, would not reveal jurisdictional error on the part of the Tribunal. These matters went to the issue of the veracity of the applicant’s claims relating to the formation of the company and the work on the railway project, and their relationship with SOMA TRG. In this regard, the Tribunal found (at CB 161.5):
“However, taking into account the documentary material submitted by him I am prepared to give him the benefit of the doubt by accepting that he and two other friends formed a company named Vaishnavi Constructions in August 2003 and that their company was involved in construction of tunnel number ten on the USBRL railway in Kashmir.”
No jurisdictional error is revealed in these circumstances. This complaint also does not succeed.
Conclusion
I cannot discern the jurisdictional error in the Tribunal’s decision as it is said to arise as stated in the applicant’s application and amended application, or his written submissions, or otherwise. This application is therefore dismissed given that for the applicant to succeed at least jurisdictional error must be shown.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 2 June 2008
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