SZLYF v Minister for Immigration
[2008] FMCA 1152
•5 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1152 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424, 424A, 425 |
| Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 Selvadurai v Minister for Immigration and Ethnic Affairs and Another (1994) 34 ALD 347 |
| Applicants: | SZLYF, SZKYG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 247 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 5 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr B O'Donnell |
| Solicitors for the Respondent: | DLA Phillips Fox |
Orders amended pursuant to sub-rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001 (slip rule)
ORDERS
That the application be dismissed.
That the applicants pay the costs of the first respondent fixed in the sum of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 247 of 2008
| SZLYF, SZKYG |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 15 January 2008 affirming a decision of a delegate of the first respondent not to grant protection visas to the applicants. Only the first applicant made specific Refugee Convention claims and for convenience he is referred to hereafter as the applicant.
The applicant, a citizen of India, arrived in Australia in April 2007.
He and his wife applied for a protection visas in May 2007. The applications were refused and they sought review by the Tribunal.
The applicant claimed to fear persecution by reason of his political opinion, in particular on the basis that a named local Muslim political figure in his home state of Gujarat in India (Mr S) wished to have him killed. He claimed that the police were unable to protect him and that he had tried to relocate within India to avoid his troubles, but had found it difficult to do so.
The applicant claimed in his protection visa application that he and his family had been strong supporters of the Hindu organisations, Shiv Sena, Vishva Hindu Parished and the BJP in Gujarat and that he held office in Shiv Sena in the local area and worked as a volunteer for BJP. He claimed that he was involved in supporting the local BJP candidate in February 2002 elections. He claimed that during those elections Mr S, who supported the Congress Party, came to his family textile business and advocated support for the Congress Party.
He claimed that on the next day four Congress Party workers with one hired hitman came to the textile unit, threw stones and threatened to kill him and his family to stop them from campaigning for the BJP.
He claimed that the police were called but did not come and could not assist. The election was won by the BJP candidate. One month later three hired people came to the textile unit. The applicant became aware that they had a knife with which he claimed they intended to kill him. He claimed that he was able to escape from the unit but that these people, who were Muslims, told his associates that they would find him and kill him.
He claimed that he then tried to relocate to another town in Gujarat but it was not “easy” or “possible” to settle with his whole family and start business again. He returned in January 2007, but Mr S’s hired men knew he was there and came to the unit many times and threatened to kill him. He claimed that he escaped to save his life.
The applicant provided copies of documents in support of his claim, including an appointment letter in relation to his role in the Shiv Sena, a certificate stating that he was a BJP volunteer, an identity card issued by the Vishva Hindu Parishad and another identity card issued by the All India Consumer Protection Serva Samit.
The applicant provided further details in connection with his review application, indicating that he wished to amend some of the details provided in support of the protection visa application and provide further documentation. He clarified that the family had a textile factory and that the name of the Muslim leader was a “Mr S”. The applicant stated that he had mentioned some other name (although this was not the case).
The applicant elaborated on his claim about the clash in front of the factory at the time of the election in February 2002 and what occurred thereafter.
The applicant attended a Tribunal hearing. It is apparent that due to technical difficulties the original hearing, which was conducted by video link, was adjourned and reconvened on another occasion.
The Tribunal recorded that in the hearing it informed the applicant that it had difficulty accepting much of what he claimed about the reasons for his departure from India and his fear of returning, having regard to differences between what he claimed in his protection visa application and in oral evidence at the hearing and also because of inconsistencies in his evidence at the hearing. It identified those matters. When the applicant asked the Tribunal to set them out in a letter to give him an opportunity to comment in writing, it did so. The Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) on 27 November 2007 in relation to specified inconsistencies. It also asked the applicant to comment on information about the political situation in Gujarat discussed at the hearing.
The applicant responded to the Tribunal's letter commenting on the information put to him and requesting further time to provide originals of the documents that had been provided. The Tribunal stated that it refused this request as it accepted the faxed copies presented to it of documents confirming details of candidates and the results of February 2002 election, that the applicant's father had worked for the BJP for 20 years and that the applicant worked for the BJP and canvassed from village to village. It also accepted in light of the letters of support he had submitted that he may have been involved with the three named parties, including the BJP.
It is apparent from the material before the Court that the applicant faxed original documents to the Tribunal after the Tribunal member had signed his decision. The Tribunal member considered those documents and decided not to recall the decision because the documents were originals of the copies that the Tribunal had received.
In its findings and reasons the Tribunal accepted that the applicant was a national of India. It set out his claim that he would be killed for reason of his political opinion if he returned to India, in particular as a result of his work for the BJP during the campaign for the February 2002 elections. It recorded that he claimed an enemy within the opposition Congress Party made threats against him between 2002 and 2007 and that he was involved in several incidents of attempted violence.
However the Tribunal did not consider that the applicant's claims should be accepted for a number of reasons. It found that his oral evidence was “unsatisfactory in many respects”, that it “differed in significant aspects from the written account provided in his protection visa application”, was “internally inconsistent, and often vague” and “in significant respects” inconsistent with independent country information. The Tribunal also found that some of the claims were inherently implausible.
The Tribunal set out its concerns in some detail. It did not accept that the series of threatening incidents that the applicant claimed were directed at him by Mr S in fact occurred, having regard to the different accounts presented in his protection visa application and in his oral evidence as to the timing and nature of particular claimed threats.
In particular, in his oral evidence he had claimed Mr S came to his home and assaulted him before the 2002 election, that after the election he came to the factory with some thugs, but he escaped, and that the incident with the knife occurred in January 2007 (whereas he had originally claimed this incident occurred one month after the election).
The Tribunal set out the details of the inconsistencies and the applicant's explanation for failing to mention the assault at his home in his written statement. It did not accept his explanation that it was a brief statement and he had not thought it necessary to provide all details, given that he sought to explain other inconsistencies by saying that he had provided full details in his statement so did not see it necessary to do so at the hearing.
The Tribunal did not accept the applicant's claim that inconsistencies were due to differences between interpretations. It found that such differences appeared to reflect confusion on the part of the applicant about relevant events.
While it appreciated that the 2002 events occurred some time ago (so that the applicant's memory might be hazy), the Tribunal considered that if the January 2007 incident had taken place the applicant would have been able to provide consistent details of it in his statement and in his oral evidence. The fact he had not been able to do so and that he had also mixed up the details of different incidents led the Tribunal to conclude that the applicant was not telling the truth about the event. The Tribunal did not accept that he was threatened by his political enemies in January 2007.
This finding was said to be supported by another inconsistent and implausible aspect of the applicant’s evidence. Initially the applicant had stated he had moved away following the 2002 incidents and returned in 2007 considering his enemies would have forgotten about him. He made no mention of any continuing threats during that five year period. At the hearing he stated that he thought Mr S had forgotten about him during his absence. Subsequently he stated that Mr S continued to make threatening phone calls during his absence, including while he was living in another state. He had been unable to explain this contradiction.
The Tribunal did not accept that such continued threats by telephone by the applicant’s political enemies between 2002 and 2007 had occurred given that this claim was not mentioned in the protection visa application. It was of the view that he would not have made the statement in his written application and initially in his oral evidence that he thought that his enemy would have forgotten about him during his absence if this claim was true. It did not accept his attempt to explain this illogicality. Nor did it accept that the inconsistencies in his account reflected differences in translation, given that this would not explain a failure to mention a claim of continued threats which was contrary to his clear statement that he thought he would have been forgotten about.
In concluding that he was not generally a credible witness the Tribunal also had regard to confusion over the name of the applicant's political enemy in the protection visa application.
The Tribunal referred to the fact that it had informed the applicant that it had had doubts as to the truth of his claims about the level of his political activity, largely because at the beginning of his oral evidence at the hearing he had stated that the BJP was the only political party with which he was involved, but later in the hearing claimed a role in the Shiv Sena and the VHP. However the Tribunal had regard to his original claims and to the letters of support from the various parties and statements that the applicant was involved in the February 2002 by-election for the BJP. It was prepared to accept that the applicant may have had some involvement with these three organisations, including the BJP and in light of country information about clashes between the BJP and Congress supporters prior to the December 2002 general election it accepted that the applicant may have been involved in some form of conflict with members of another party at the time of the February 2002 elections.
However on the evidence before it the Tribunal found it could not be satisfied that any harm experienced by the applicant at that time was sufficiently serious to constitute persecution. It did not accept that the applicant had experienced ongoing threats to his life or any other form of persecution on a continuing basis after the elections and up to his departure or that he would be at risk of ongoing harm if he were to return to India now or in the reasonably foreseeable future. It found the applicant’s post-hearing claim that his enemy had been asking after him in recent times to be self-serving and not true. It found there was no credible evidence before it to suggest that the applicant was of any interest to any opposition political party outside the period of the February 2002 election campaign. It rejected his claim that he remained under threat until early 2007 when another incident precipitated his departure. It was not satisfied that any fear of harm now or in the reasonably foreseeable future was well founded. It was not satisfied that the applicant would be of ongoing interest for reasons of political opinions expressed during the 2002 election campaign.
The Tribunal then considered the situation if the applicant were to engage in political activity on his return to India. It was satisfied that he would not face persecution although there may be some risk of low-level political violence as described in country information to which it referred. Based on country information, the Tribunal did not accept that there existed political violence at such a level in Gujarat state that the lives of BJP members or supporters were at risk from supporters of opposition parties. Nor was there any evidence to suggest that the applicant would face harm amounting to persecution simply as a member of Shiv Sena or the VHP.
The Tribunal was satisfied on the information before it that the police would provide protection to BJP supporters if they faced serious harm for reason of their political opinion. It did not accept the applicant's claim that the police refused to protect him because of the influence of his enemy, finding that the independent information overwhelmingly supported the conclusion that the police in Gujarat favoured the BJP and being satisfied that if the applicant had in the past been unable to obtain help from the police or from his party leaders it was because any difficulties he had experienced were too trivial. The Tribunal was satisfied that if the applicant were to suffer serious harm or threat of harm amounting to persecution the state authorities would provide effective protection.
The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations. As no specific Convention claims were made on behalf of the applicant’s wife it followed that she also could not satisfy the criteria for a protection visa.
The applicant sought review by application filed in this Court on 5 February 2008. The applicant filed amended applications on 7 April 2008 and 11 April 2008, albeit the latter was apparently incorrectly stamped "Filed 11 April 2007", it was dated 11 April 2008. The applicant stated that he wished to rely on the amended application of 11 April 2008.
The applicant did not file written submissions. When given the opportunity to make oral submissions, he had nothing to add to what was in his amended application.
The first ground in the amended application of 11 April 2008 is that the Tribunal erred in making findings of well-founded fear and adopted “an unduly harsh approach to the Well-founded fear”. It may be that what is numbered ground two is intended to be a particular to ground one, as it commences “Particular: The Tribunal made opinion before the hearing. In a letter of 18 December 2007, the applicant sent response to the Tribunal's query about the fear of harm. He wrote ‘I again confirm that [Mr S] is the person from whom I have received a certificate from Gavada panchayat office Vija pur Dist. Mehsana N.G, Gujarat which confirms the said [Mr S] is the leader of the Muslim Groups as well as active volunteer of Congress Party’”.
The applicant seems to be contending that he provided confirmation to the Tribunal as to the identity of the person whom he claimed to fear. However that does not establish jurisdictional error on the part of the Tribunal. The Tribunal had regard to the applicant’s confusion over the name of his political enemy as it appeared in the protection visa application. It was open to the Tribunal to do so in assessing the credibility of the applicant. It was also open to the Tribunal to have regard to the other matters it considered as set out above, in particular internal inconsistencies and implausibility and inconsistency between these claims and country information (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67]). Credibility is a matter for the Tribunal par excellence and the Tribunal's findings were open to it for the reasons it gave on the material before it.
More generally, it is well established that the Tribunal is not obliged to engage in an uncritical acceptance of any and all allegations made by the applicants (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437at 451 – 452 per Beaumont J). As contended by counsel for the first respondent and as Heerey J stated in Selvadurai v Minister for Immigration and Ethnic Affairs and Another (1994) 34 ALD 347 at 348 a decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out. It has not been established that the Tribunal erred in its understanding or application of the concept of well-founded fear.
Insofar as the applicant takes issue with the Tribunal's findings of fact, fact-finding is a matter for the Tribunal and there is no error of law, let alone jurisdictional error, from a mere incorrect finding of fact. More generally, merits review is not available in this Court. Neither ground one nor ground two of the amended application establishes a jurisdictional error.
Ground three takes issue with the fact that the Tribunal did not accept the applicant's claim that he was attacked or his explanation for the inconsistencies in his claims about what occurred at particular times. The ground refers to the explanation given by the applicant in his letter of 18 December 2007 and the fact that he wrote that in his statement of 10 October 2007 about the incident on 12 February 2002 that: “This is true that the incident took place. Might be that I did not explain it properly or interpreter interpreted in different way at different time”.
Insofar as this ground seeks merits review, as indicated, merits review is not available. Insofar as it is a contention that the Tribunal did not consider the applicant's claim or his explanation for inconsistencies, that is not made out. The Tribunal understood and assessed the applicant's varying claims and also his explanations for inconsistencies in those claims. The fact that it did not accept his explanations for the inconsistencies does not establish jurisdictional error.
Ground four is that “the Tribunal has misconstrued the test” and “failed to carry out the “real chance” test as required by law.”
The particulars to this ground are that: “The Tribunal did not accept any oral or written evidence with regard to the fear of persecution or harm. There is no basis to say that all the documents related with involvement in the Political parties are fabricated or made to gain the protection visa.”
As to the first of these particulars, the Tribunal was not obliged to accept the oral or written evidence of the applicant in support of his claims. The Tribunal addressed the claims and the applicant’s evidence in support and gave reasons for its rejection of particular aspects of those claims.
The claim that there was no basis to say that documents were fabricated or made to gain a protection visa seems somewhat ill-conceived as the Tribunal accepted, having regard to the documents submitted by the applicant, that the applicant may have been involved not only with BJP but also with the other two parties from which he had provided documentation in support of his application and also that he was involved with the BJP in the February 2002 election.
The Tribunal did not find that the documents were fabricated or not genuine. Rather, while accepting that the applicant had some involvement in the February 2002 election campaign, it was not satisfied that he had experienced harm at that time that was sufficiently serious to constitute persecution. Further, for the reasons that it gave it did not accept that he had experienced ongoing threats thereafter, (including the complaints about an incident in January 2007). It then addressed the possibility of future harm and the availability of state protection. No jurisdictional error is established on the basis contended for in ground four of the amended application.
Ground five is that the Tribunal “failed to assess the cumulative effects of separate incidents related with his claim for protection visa”, that the applicants “were denied natural justice and procedural fairness” and that the Tribunal “asked many irrelevant questions to discredit the credibility of the applicant which were not required during the hearing.” It is not clear whether these aspects of ground five are intended to be independent. I gave the applicant the opportunity to elaborate on his claims of denial of natural justice and procedural fairness but he had nothing to add to the grounds in his amended application.
Insofar as it is contended that the Tribunal failed to assess the “cumulative effects of separate incidents” while the Tribunal accepted that the applicant had some involvement in the February 2002 elections, it considered his claims about the events of that time and was not satisfied that any harm he experienced at that time was sufficiently serious as to constitute persecution. It rejected his claims that he experienced ongoing threats or any other form of persecution on an ongoing basis thereafter. In those circumstances the allegation that it failed to assess the cumulative effect of the claimed incidents does not establish jurisdictional error, as it did not accept that the incidents occurred as contended. Again, insofar as the applicant seeks merits review, merits review is not available in this Court. Certainly such contention does not establish a denial of natural justice or procedural fairness.
Insofar as the claim of natural justice and procedural fairness is based on the contention that the Tribunal asked “many irrelevant questions” to discredit the applicant during the hearing, I note the operation of s.422B of the Migration Act. While no breach of any of the provisions of Div.4 of Pt.7 of the Act is pleaded, I considered whether any such breach was apparent on the material before the Court, bearing in mind that the applicant is self-represent
No failure to comply with s.425 of the Migration Act is apparent on the material before the Court (and see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). Nor is there any other indication of a denial of natural justice outside the obligations within Pt.7 of Div.4 of the Act.
The only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. It has not been established that the Tribunal erred in asking what might be described as irrelevant questions. It was open to the Tribunal in the course of the Tribunal hearing to test the applicant's credibility. The Tribunal's account of what occurred in the hearing indicates that it asked the applicant a number of questions in relation to aspects of his claims and inconsistencies therein, thus putting the applicant on notice of dispositive issues in the sense considered in SZBEL. Indeed when the applicant sought the opportunity to comment on the inconsistencies identified by the Tribunal, it gave him the opportunity to do so in writing after the hearing (whether or not that was required under s.424A in light of SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190). It appears that the Tribunal also adjourned the Tribunal hearing when it became apparent that there may have been some difficulties in conducting the hearing by way of video link.
There is no error in the Tribunal asking what the applicant considers to be irrelevant questions, if that occurred, by way of testing the applicant's credibility. Certainly there is nothing in the material before the Court to give rise to any suggestion of either apprehended or actual bias (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507).
No jurisdictional error is established on the basis contended for in ground five.
Ground six is that the Tribunal made the decision on the basis of “the unreliable information” and that the Tribunal “should have made an investigation before making the decision” and that this amounted to a denial of procedural fairness.
There is no particularisation of the information said to be unreliable. However the reliability of particular information is a matter for the Tribunal. Insofar as this ground intends to take issue with country information relied on by the Tribunal, the weight to be given to particular items of country information is a matter for the Tribunal.
The applicant also contended that the Tribunal should have made an investigation. This is not, however, a case in which the Tribunal was under an obligation to make further inquiries, for example in the manner considered by Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 or to otherwise undertake further investigations or obtain information whether pursuant to s.424 of the Act or otherwise.
It is for an applicant to put material before a Tribunal in support of his or her case and for the Tribunal to determine whether it is satisfied that the requirements for the class of visa for which the applicant applies are satisfied. No jurisdictional error, whether consisting of a denial of procedural fairness or otherwise, is made out on the basis contended for in ground six of the amended application.
In written submissions counsel for the first respondent addressed an issue which might have concerned the Court. In addressing the possibility of the applicant engaging in political activity on return to India the Tribunal made a statement based on the country information referred to above that it “does not accept that there is political violence at such a level in Gujarat state that BJP members or supporters' lives are at risk from opposition parties”. It was conceded that read in isolation this statement might indicate that the Tribunal equated the concept of serious harm with threat to a person's life and that if it had done so that would be an error.
However I accept that, as submitted by counsel for the first respondent, this aspect of the Tribunal reasons must be read in the context of the whole of the reasons. On that basis it is not apparent that the Tribunal in fact erred in the manner which was raised as a possibility. It is relevant to have regard to the fact that the Tribunal first considered the applicant's claims about what had occurred to him in the past. The Tribunal was not satisfied that the applicant had any well-founded fear of harm either at the time of decision or in the reasonably foreseeable future based on what it accepted had occurred in the past.
The Tribunal then addressed the possibility that the applicant may engage in political activity on his return to India. It did so in the context of his claim that he feared that he would be killed if he returned to India. However bearing in mind that it had found that he had not suffered harm sufficiently serious to constitute persecution in the past, it found that he would not face persecution, although there may be some risk of low-level political violence in association with clashes between parties involved in politics in India, as described in country information to which it referred.
However the Tribunal found, based on that country information, that the political violence that existed in Gujarat state was not at such a level that BJP members or supporters' lives were at risk from supporters of opposition parties or that the applicant would face harm amounting to persecution simply as a member of Shiv Sena of the VHP without more. In addition it was satisfied based on country information that the police would provide protection to BJP supporters who faced serious harm for reason of their political opinion. In context this was clearly a reference to serious harm in a broader sense than simply a threat to life. Further, as set out above, the Tribunal did not accept the applicant's claim that he had been refused protection in the past because of the influence of his enemy. On the basis of the independent information it was satisfied that if he were to suffer serious harm or a threat of harm amounting to persecution, the state authorities would provide effective protection.
Given that the applicant's claims had focussed on a threat to his life, the Tribunal's rejection of the proposition that the life of a political operative on the level which he claimed to have operated would be at risk should not be taken as an expression of a view that serious harm in the context of the Migration Act and the Refugees Convention was necessarily limited to threats to a person's life, particularly as it went on to address the availability of state protection, not just in relation to threats to a person's life but more generally in relation to the possibility that a BJP supporter (such as it accepted the applicant had been) would face serious harm for reason of his political opinion. No jurisdictional error is apparent on this basis.
In addition to the grounds relied on in the amended application filed on 11 April 2008, counsel for the first respondent addressed and I considered the more conventionally expressed grounds raised in the application of 7 April 2008, albeit that it appeared that no copy of that amended application had been served on the solicitors for the first respondent. The applicant was also given an opportunity to address those grounds but had nothing to say.
The first of those grounds is that “the Tribunal failed to consider the political opinion of the applicant as per Article 1(a) of the Refugees Convention.” The particulars are that “the Tribunal failed to appreciate that the applicant has a well founded fear of persecution due to his political opinion in India.” It is apparent however from the whole of the Tribunal reasons for decision not only that it understood the reasons enumerated in the Convention definition (which it set out at the commencement of its reasons for decision) but also that it understood and addressed the nature of the claims made by the applicant and that such claims were essentially based on the Convention ground of actual or imputed political opinion.
That is apparent for a number of reasons. The Tribunal set out the applicant’s claims. It recorded that in the Tribunal hearing it asked the applicant to comment on information about the political situation in Gujarat, an invitation it repeated in the s.424A letter. It referred to information suggesting that the police would provide protection to BJP supporters who faced serious harm for reason of their “political opinion”. It addressed the applicant's claims of involvement in political activity and in politics in connection with the February 2002 elections and at other times. Moreover, the Tribunal addressed independent country information in relation to political parties in India as well as the question of state protection.
Critically, in its findings and reasons it referred to the fact that the applicant claimed he would be killed for reasons of his political opinion if he returned to India. The Tribunal addressed this claim. Among other findings it was not satisfied that the applicant would be of ongoing interest for reason of political opinion expressed during the 2002 election campaign. It also addressed the availability of protection to BJP supporters if they faced serious harm for reasons of their political opinion. It is not established that the Tribunal failed to consider the political opinion of the applicant as the basis for his claims to fear persecution.
The particular that the Tribunal failed to appreciate that the applicant had a well-founded fear of harm on that basis seeks merits review which is not available in this Court.
The second ground in the amended application of 7 April 2008 is that “the Tribunal made findings in the complete absence of evidence.” There are three particulars. The first is that “the Tribunal erroneously found that the applicant has not well founded fear of political persecution.” Again this seeks merits review and does not establish jurisdictional error on the part of the Tribunal. This is not a case in which it can be said that there was no probative evidence. Rather, the Tribunal was not satisfied on the evidence before it, for reasons which it gave, of the credibility of aspects of the applicant's claims. Nor was it satisfied that he had a well-founded fear of persecution for a Convention reason. It was open to the Tribunal to have regard to matters such as inconsistencies in his evidence and inconsistencies between the applicant's evidence and independent country information. That does not establish that there was a “complete absence” of evidence.
The second particular is that it was “not open to the Tribunal to find that there was no evidence before it that the applicants were unable to access effective state protection.” The Tribunal findings in relation to state protection addressed the possibility of the applicant engaging in political activity on his return to India. Its finding was not in the terms expressed in this particular. Rather it was satisfied based on country information that the police would provide protection to BJP supporters if they faced serious harm for reason of their political opinion. In that context the Tribunal did not accept the applicant's claim that in the past the police had refused to protect him because of the influence of his enemy. It had regard to independent information which supported the conclusion that the police in Gujarat favoured the BJP and also on the basis of its finding in relation to what occurred in the past, concluding that if the applicant had in the past been unable to obtain help from the police or from his party leaders it was because any difficulties he had were too trivial. It cannot be said that there was a complete absence of evidence in relation to the findings of the Tribunal about effective state protection.
The final particular is that: “In finding that was (sic) no evidence before it that the applicants were unable to access effective state protection, the Tribunal ignored the evidence of the applicant that he had in fact been denied any social or any other protection because of his political identity and belief.” This particular is contrary to that part of the Tribunal decision to which I have just referred, in which the Tribunal did not ignore but in fact considered the applicant's claim that the police had refused to protect him in the past because of the influence of his enemy. It rejected that claim. Again, insofar as the applicant takes issue with the merits of the Tribunal findings in that respect, that does not establish jurisdictional error. More particularly, it has not been established that the Tribunal ignored the evidence of the applicant in this respect or otherwise made findings in relation to state protection in the absence of probative evidence.
The Tribunal set out in its reasons for decision independent country information in relation to the situation in India, in particular in Gujarat (such as the United States Department of State Country Report on Human Rights Practices for 2006 and also other information) which it found indicated that reports of partisan police behaviour in the state of Gujarat generally tended to reflect claims that the BJP and the Hindu nationalist movement generally had operated in Gujarat state with the tacit support of elements of the Gujarat police. This was consistent with its conclusion that independent country information supported the conclusion that the police in Gujarat favoured the BJP, the party which the applicant claimed he had been associated with and in relation to which the Tribunal considered the possibility of the applicant engaging in future political activity. No jurisdictional error is established on the basis contended for in the amended application of 7 April 2008.
As no jurisdictional error has been established on any of the bases contended for by the applicant the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicants have been unsuccessful and there is nothing in the circumstances of the present case to warrant a departure from the general principle that the unsuccessful applicants should meet the costs of the first respondent. The amount of $4,700 which is sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 August 2008
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