SZLTN v Minister for Immigration - [2008] FMCA 668

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLTN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 668

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – application for Protection (Class XA) – whether procedural fairness and denial of natural justice – whether breach of s.425 and s.424A of the Act – credibility – merits review not function of judicial review – whether claims properly considered – assessment and weight of country information.

Judiciary Act 1903, s.39B
Migration Act 1958, ss.5, 36, 65, 91R, 91S, 424A, 425, 474

Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61
SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62
SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth (1998) 197 CLR 510
SBBS v Minister for Immigration & Migration & Indigenous Affairs (2002) 194 ALR 749
NAOA v Minister for Immigration & Indigenous Affairs [2004] FCAFC 241
SZBYR v Minister for Immigration & Citizenship (2007) HCA 26
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
QAAC of 2004 vRefugee Review Tribunal [2005] FCAFC 92
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 (FC)
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68

First Applicant:

SZLTN

Second Applicant:

SZLTO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3839 of 2007

Judgment of:

Orchiston FM

Hearing date:

26 March 2008

Date of Last Submission:

26 March 2008

Delivered at:

Sydney

Delivered on:

3 June 2008

REPRESENTATION

The Applicant appeared in person:

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application filed on 14 December 2007 and the amended application filed on 12 March 2008 are dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $3,300 payable within three (3) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3839 of 2007

SZLTN

First Applicant

SZLTO

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

By an application filed on 14 December 2007 under rule 44.05 of the Federal Magistrates Court Rules, the applicants seek an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (the Act) in respect of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 November 2007. The Tribunal affirmed the decision of a delegate of the first respondent to refuse to grant Protection (Class XA) visas to the applicants.

Background

The first applicant (the applicant) was born on 1 June 1957 and was aged 49 years at the time of his application for a protection visa.
The second applicant, his wife, was born on 1 June 1964 and was aged 42 years at the time of her application for a protection visa.
The applicants claim to be nationals of India, and of Hindu faith.
The applicants arrived in Australia on 28 March 2007 on Indian passports issued in their own names, holding Visitors visas, which were granted on 23 March 2007.
The applicants lodged an application for protection visas on 11 May 2007 on the basis that:
[The] Applicant claimed persecution in the hands of extortionists and the state authority refused to protect them for his political opinion (Court Book (CB) 19).
The applicant then stated in the application:
We will make detailed submissions sometime later and we request that he be invited for interview (CB 19).
The second applicant made no claims for protection and relied on her husband’s claims as a member of his family unit.
No further information was received by the Department by 28 May 2007, on which day the delegate made the decision not to grant the applicant a protection visa on the basis that he was not a person to whom Australia had protection obligations under the Refugees Convention (CB 34-39) (see Legislative framework).
On 20 June 2007 the applicants applied to the Tribunal for review of the delegate’s decision (CB 40–43).

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

On 19 July 2007, the Tribunal sent a letter to the applicants inviting them to appear before it on 20 August 2007 to give oral evidence and present arguments (CB 46–47).
On 16 August 2007, the Tribunal forwarded to the applicant information requested under the Freedom of Information Act (CB 50-51).
The applicant attended the Tribunal hearing on 20 August 2007 and gave evidence. The second applicant did not attend.

Claims and evidence

The Tribunal summarised the applicant’s claims in the protection visa application (at CB 72). It further summarised the applicant’s claims at the Tribunal hearing (CB 72–74), including that:
·the applicants lived in Mansa in Gujarat and the applicant was a farmer. The applicants have two daughters and two sons who remain in India. There was an election of the sarpanch (leader) in the applicant's village in June 2006. There were two parties and another party sarpanch was elected
·after the election the other party people attacked the applicant and his home and they threatened him and told him that he must leave the village
·the applicants moved to the wife's parent’s home in Solawa but came to Australia as her parents could not financially support them
·the applicant claimed that he had reported the incident to the police who had refused to help him. He claimed not to have had enough money to bribe the higher police and nobody would support them.
The Tribunal asked the applicant why he came to Australia instead of going elsewhere in India and he said the Australian government would support him. The applicant told the Tribunal that he left India for the survival of his family and because he had been threatened with being killed.
When asked by the Tribunal why he had not made a claim to the Department about the election of the sarpanch, he said he did not have the time at the time of his application, and his migration agent had not told him to.
When asked if there was anything further he wished to tell the Tribunal he stated that he did not want to tell anything.

Section 424A letter (CB 63-65)

Subsequent to the hearing, the Tribunal sent a s.424A letter to the applicant on 23 August 2007 inviting his comment or response on the information set out in the letter which may be the reason or part of the reason for the Tribunal affirming the decision that was under review. Included in that information was the following:
You claimed in your Protection Visa Application (PVA) that you left India because you suffered harm for your political opinion and that you suffered harm at the hands of extortionists.
At a Tribunal hearing you told the Tribunal that you were threatened for your involvement of the election of sarpanch of your village. You complained to the police but they did nothing as they wanted money from you and they supported the other side. You fled from the threats on your life to your in-laws home.
This information is relevant as it suggests that you have not provided consistent information to the Tribunal and to the Department and it suggests that you are not a witness of truth.
The letter also invited the applicant to comment on country information which the Tribunal considered indicated that the applicant would be able to access effective state protection as a Hindu in India:
This [country] information suggests that if a Hindu citizen does not receive police assistance because of bribery then there are legal mechanisms in place for action to be taken against the police authority requesting a bribe.
The letter also stated:
If the Tribunal forms the view that you are not a witness of truth the Tribunal may find that you have created your claims in order to obtain the visa sought and that you are not entitled to a protection visa.
The letter also (in bold emphasis) advised the applicant that:
If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your views on the information.
The applicant did not reply to the s.424A letter.

The Tribunal’s findings and reasons (Court Book (CB) 76-78)

The Tribunal found that the applicant was not a witness of truth for the following reasons, (at CB 76-77):
I do not accept the applicant is a witness of truth. In his PVA the applicant claimed that he fled India because of extortionists but he told the Tribunal at a hearing that he fled India because of his imputed political opinion when involved in the election of a sarpanch of his village. When put to him at the hearing that he made no claims to the Department about involvement in the election of the sarpanch, he responded that he did not have time at that time, nobody suggested it to him. He also stated that his migration agent did not tell him to write about his problem. When this inconsistency, of being involved in the election of the sarpanch, was put to the applicant by s.424A letter the applicant did not respond. I am of the view that that had the applicant been involved in the election of a sarpanch and was threatened with harm for his imputed political opinion some mention would have been made in his PVA. I reject his claim that his migration agent did not telll him to write about his problem. I am of the view that had this incident occurred then he would not have needed anyone to suggest to him the need to inform the Department about the incident. It is the core of his claim for protection.
I find on the evidence before me the applicant was not involved in the election of a sarpanch in his village, no adverse political opinion was imputed to him and no threats of harm were made to him by any person or group in his village. As there was no threats made to him I find that he did not complain to the police and that the police did not seek any bribes from him.
I am satisfied that the applicant did not leave India fearing Convention related persecution.
The Tribunal also considered the situation if the applicants, as Hindus, were to return to India. Relying upon independent country information the Tribunal was not satisfied that they would face a real chance of persecution for this reason in the reasonably foreseeable future.
For these reasons, the Tribunal found that the applicant did not have a well-founded fear of persecution if he were to return to India for any Convention based reason, now or in the foreseeable future.

The proceedings before this Court

The applicant filed the application in this Court on 14 December 2007 setting out 3 grounds for review of the Tribunal’s decision. The applicant filed an amended application on 12 March 2008 setting out 3 grounds.
The applicant appeared in person before the Court on 26 March 2008 and on behalf of his wife, with the assistance of a Gujarati interpreter. Ms Johnson appeared for the first respondent.

Grounds of application

The grounds of the application are:
(1)That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth)
Particulars:
(a) The tribunal did not disclose the information in accordance with s.424A(1).
(2) That the tribunal made error of law and lack procedural fairness and therefore committed Jurisdictional error.
(3) That the tribunal made denial of natural justice. Because the tribunal was wrong in concluding that the applicant’s claims were not convention related, such as significant economic hardship.

Ground 1 of the application.

This ground is dealt with under Ground 1 of the amended application.

Ground 2 of the application.

Ground 2 asserts that the Tribunal committed jurisdictional error through error of law and lack of procedural fairness.
The applicant has provided no particulars in support of these contentions. Nor has he provided the Court with a transcript of the Tribunal hearing.
The applicant is not entitled to common law procedural fairness: s.422B of the Act. Rather, the Tribunal must observe the statutory expression of natural justice in Part 7, Division 4 of the Act: (Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 at [8].
For the same reasons set out under Ground 1 of the amended application, I detect no breach of s.424A of the Act in this case.
I am further satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act. The Tribunal at the hearing, (CB 73), identified to the applicant the determinative issues in this case and gave him the opportunity at the hearing of giving evidence and making submissions in relation to those determinative issues, before reaching its conclusions in accordance with the principles in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [33]–[48]. Beyond this, as observed in SZBEL at [47]-[48], procedural fairness does not require the Tribunal to disclose its mental processes and subjective appraisals, including its disbelief of an applicant’s claims and his lack of credibility, in reaching its decision.
The procedural fairness requirements in Part 7 Division 4 deal only with the process of decision-making, not the merits of the decision. As relevantly stated in SZBEL at [25]:
what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law. The Tribunal’s finding that the applicant was not a credible witness was a finding of fact par excellence, not open to review by this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67].It is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].
There is also nothing disclosed on the face of the Tribunal decision record to demonstrate that the Tribunal was motivated by factors extraneous to its jurisdiction: SBBS v Minister for Immigration & Migration & Indigenous Affairs (2002) 194 ALR 749 at [43] ff; NAOA v Minister for Immigration & Indigenous Affairs [2004] FCAFC 241 at [21].
Accordingly, I detect no breach of s.425(1) and s.424A in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule under the Act.
Accordingly, for the reasons stated above, Ground 2 of the application is rejected.

Ground 3 of the application.

The applicant claims that the Tribunal denied him natural justice as it was wrong in concluding that the applicant’s claims were not Convention related, such as significant economic hardship.
The applicant did not make any independent claim that he was owed protection as a refugee for reasons of economic hardship. The applicant did mention to the Tribunal that he was not well off financially. The applicant only raised this matter in relation to his claims to fear harm because of his political opinion and that the police would not take any action against those he claimed were harming him:
The police will not take action. He did not have money to get into an election or go somewhere. He did not have enough money to go to the higher police. He was not a member of any political organisation. Nobody supported him and he went to his uncle’s place and borrowed money (CB 73).
I am satisfied that the Tribunal made it clear in its concluding remarks that it had considered all the applicant’s claims in this regard:
I have considered if all the Convention related harms feared by the applicants cumulatively amount to persecution. On the basis of the evidence before me I am not satisfied that all the harms complained of by the applicants give rise to a real chance of persecution now or in the reasonably foreseeable future (emphasis added) (CB 78).
In any event, it is not the case that the Tribunal denied the application on matters related to economic hardship and whether it had a Convention nexus. Rather, the applicant was unsuccessful because the Tribunal did not believe his claims to fear persecution, per se. The Tribunal stated in its Findings and Reasons that:
I do not accept the applicant is a witness of truth…… I am satisfied that the applicant did not leave India fearing Convention related persecution.
I thus detect no procedural unfairness on this basis (and see ground 1 of the application above).
Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicant's claims; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; closely noted the applicant's responses; and provided its concerns to the applicant upon which it might make an adverse finding for his comment or response. The Tribunal further had regard to independent country evidence; and then made findings based on all the evidence and material before it.

I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Accordingly, for the reasons stated above, Ground 3 of the application is rejected.

Grounds of amended application

The grounds of the amended application, as stated by the applicant, are:
(1)The tribunal has wrongly applies the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group and due to his political opinion persecution the applicant claims
Particulars: Section 91R (1)(b) & (c) of the Act requires the persecution to be of serious harm and systematic and discriminatory.
The tribunal failed for not providing more opportunities to the applicant and therefore generalize the applicants claim and therefore failed to apply correct test in accordence with section 424A(1) of the Migration Act. Ref. SAAP Vs Minister for Immigration and Multicultural Affairs HCA.
(2)There was certain informations used by the tribunal without providing an opportunity to respond. The adverse informations used by the tribunal was not given by the applicant for the purpose of review. This information was given for protection visa claim purpose to the delegate in deciding protection visa. The tribunal did not disclose the information in accordence with S 424A(1) of the migration act.
(3)The tribunal has importantly dealt with the aspect of the applicant’s claim relating to state tolerance and complicity of the applicants religion and membership of a particular religionor social group and as a result of all he faced financial hardship, to whom the Australia has protection obligation as a member of such group. And therefore the tribunal’s decision was involved jurisdictional error and failure of jurisdiction or mis application of law and procedure. The tribunal conclude that the applicant can relocate in other parts of India. And therefore did not apply correct test of relocation principles. The applicant is currently residing in Australia and the Australia has protection obligation under the UN convention and therefore relocation principles is not the failure of the tribunals jurisdiction. The matter should be remitted to the tribunal for further determination and to decide in accordance [sic] with the law and procedures.

Ground 1 of amended application.

The first limb of this amended ground states that the Tribunal “wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group and due to his political opinion persecution.”
The applicant has not provided any particulars as to how the Tribunal wrongly applied the law in relation to ss.91R(1)(b) and 91R(1)(c) of the Act.
The Tribunal did not make any findings as to whether the harm that the applicant claimed to fear was sufficiently serious to amount to persecution, or involved systematic or discriminatory conduct. Rather, as indicated above, the applicant was unsuccessful because the Tribunal did not believe his claims to fear persecution, per se. Given this, I accept the submission by the first respondent that:
It was not necessary for the Tribunal to [make these findings] because it was not satisfied on the evidence before it that any of the claimed harm had in fact occurred.
The second limb of this amended ground states that the Tribunal’s decision was in breach of s.424A(1) in that it failed to apply the correct test in accordance with that section.
I accept that the s.424A letter sent to the applicant was correctly addressed and complied with the requirements of s.424A and s.441A of the Act.
As indicated above, the letter outlined the Tribunal’s concerns about the applicant’s claims and why that information was relevant to the review. The contents of the letter referred to perceived inconsistencies in the information from the applicant’s protection visa application and oral evidence provided by the applicant at the Tribunal hearing. The letter also invited the applicant to comment on country information which indicated that the applicant would be able to access effective state protection as a Hindu in India.
The Tribunal thereby disclosed to the applicant the material information on which it would make a decision on his credibility, and on his position as a Hindu if he returned to India. It clearly indicated to the applicant the consequences of his not replying to the letter. The applicant chose not to reply.
In any event, the Tribunal was also not obliged to put to the applicant in writing its adverse findings as to his credibility. It is clear that the word “information” in s.424A, upon a proper construction, does not extend to the Tribunal's subjective thought processes and appraisals of the evidence, including its failure to believe the applicant's evidence. As observed by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 at [18]:
… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
Equally, in the present case, the lack of credibility of the applicant’s evidence was at the forefront of the Tribunal’s thought processes.
Likewise, in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27], the Full Federal Court commented that:
The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of sub 424A(1) does not fit easily into the structure of s.424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review ... The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of sub 424A(1).
The Tribunal was also not obliged to put country information to the applicant in the s.424A letter: s.424A(3)(a) of the Act: QAAC of 2004 vRefugee Review Tribunal [2005] FCAFC 92 at [7-30] and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11-16].
In any event, the Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J. Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137].
The weight the Tribunal accorded country information was ultimately a factual matter for it: NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]. As relevantly observed in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] in the context of country information:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Furthermore, merely because the Tribunal provided a s.424A letter to the applicant does not create any inference that the material contained therein constitutes “information” for the purposes of s.424A(1). As observed by the Full Federal Court in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]:
The appellant submitted that if the Tribunal felt it necessary to invite an explanation, then s.424A(1) must apply. That submission has no merit. The Tribunal may, out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant in circumstances where s.424A has no application.
I therefore detect no breach of s.424A of the Act in this case. I consider that the applicant was accorded procedural fairness in compliance with the statutory regime.
Accordingly, for the reasons stated above, Ground 1 of the amended application is rejected.

Ground 2 of amended application.

The applicant claims under this amended ground that there was certain information used by the Tribunal which the Tribunal did not disclose, or provide the applicant with an opportunity to respond to, in breach of s.424A(1).
The matters relevant to this ground have already been dealt with under ground 1 above of the amended application. I adopt my reasoning therein in the present context.
Accordingly, Ground 2 of the amended application is rejected.

Ground 3 of amended application.

Contrary to the applicant’s assertion that the Tribunal did not apply the “correct test of relocation principles”, the Tribunal did not consider the issue of relocation or make any relocation finding since it was not satisfied on the material before it that the applicants had a well-founded fear of persecution in India for a Convention reason.
Otherwise, the remaining matters raised by the applicant under this amended ground, have already been dealt with in the grounds above.
Overall, I am satisfied that the Tribunal made clear and well reasoned findings on each integer of the applicant’s claims in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations.
Accordingly, Ground 3 of the amended application is rejected.

Applicant’s written submissions

In his written submissions, the applicant submits that in regard to the Tribunal hearing:
but RRT informed us to attend interview we were not ready to attend interview and was mentally upset was not in condition to describe my statement or discuss it but I had to attend interview…
In this regard, the applicant has not put the transcript of the Tribunal hearing into evidence before the Court. There is also nothing disclosed on the face of the Tribunal decision record to indicate that the applicant made any complaint to the Tribunal at the time of the hearing or after, nor that he sought an adjournment of the hearing for this reason.
Accordingly, I detect no procedural unfairness on this basis.

Conclusion

The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application and amended application before this Court are dismissed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 3 June 2008