SZMZR v Minister for Immigration

[2009] FMCA 392

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 392

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review tribunal erred in considering the issue of relocation.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272
Abebe v Commonwealth of Australia (1999) 162 ALR 1
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10
SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473

First Applicant: SZMZR

Second Applicant: SZMZS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3150 of 2008

Judgment of: Emmett FM

Hearing date: 23 April 2009

Date of last submission: 23 April 2009

Delivered at: Sydney

Delivered on: 29 April 2009

REPRESENTATION

Applicants appeared on their own behalf

Solicitors for the Respondent: Mr J. Pinder, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3150 of 2008

SZMZR

First Applicant

SZMZS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 October 2008 and handed down on 4 November 2008.

2. The applicants claim to be citizens of India. The first-named applicant is the husband of the second-named applicant (“the First Applicant”). The second-named applicant is the wife of the First Applicant and her claims are dependent on the claims of the First Applicant (“the Second Applicant”).

3. The First Applicant arrived in Australia on 4 May 2008 having departed legally from Bombay on a passport issued in his own name and a visitor visa issued on 4 April 2008.

4. On 20 May 2008, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

5. On 17 July 2008, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for protection visas. 

6. On 18 August 2008, the applicants lodged an application for review of the Delegate’s decision by the Tribunal. 

7. On 14 October 2008, the Tribunal affirmed the decision of the Delegate not to grant protection visas. 

8. On 1 December 2008, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. 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.

2. 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”). 

3. Australia has protection obligations to a refugee on Australian territory.

4. 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 political 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.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The applicants’ application for protection visas

1. The First Applicant’s claims are accurately summarised in the written submissions of the solicitor for the First Respondent, Mr Pinder, as follows:

   “8.    Specifically, he claimed that:

   8.1On 12 November 2007 he was physically threatened and harassed by two BJP (Bharatiya Janata Party (“the BJP”)) leaders when he was seeking to raise campaign funds for the Congress Party;

   8.2On 23 December 2007, the date on which votes were counted following the election on 16 December 2007, he was beaten by BJP supporters and hospitalised for two days in an attack which resulted in the death of two people;

   8.3He then moved from his village to Ahmadabad for two months to avoid difficulties with BJP supporters;

   8.4When he returned to his house he was again attacked by BJP supporters who used abusive language and hit the doors of his house. He claimed that he called the police and the BJP supporters fled.

   8.5Two days after this incident the applicant was surrounded by BJP supporters while he was shopping and they assaulted him. He reported this incident to police but they did not catch the people involved.”

The Delegate’s decision

1. On 13 June 2008, the Delegate invited the applicants to attend an interview on 9 July 2008 to discuss the applicants’ claims. The First Applicant attended that interview.

2. On 17 July 2008, the Delegate refused the applicants’ application for a protection visa on the basis that the applicants are not persons to whom Australia has protection obligations under the Convention.

3. The Delegate found that the First Applicant’s lack of knowledge about the Congress Party was not consistent with his claim of being a leader of the Congress Party in his village. The Delegate also had regard to independent country information before it that indicated that India was a stable democracy and that there was no reliable information to indicate that the BJP government in Gujarat was engaged in political harassment of supporters of the Congress Party or any opposition party. The Delegate also found that it was not unreasonable to expect the applicants to relocate to other places within Gujarat or India.

The Tribunal’s review and decision

1. On 18 August 2008, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 28 August 2008, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 10 October 2008 to give oral evidence and present arguments. The First Applicant attended that hearing and gave evidence but the Second Applicant did not.

3. On 10 October 2008, the First Applicant gave evidence at the hearing before the Tribunal in which the First Applicant expanded upon his written claims.

4. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources. 

5. The Tribunal found the First Applicant was not a witness of truth.

6. The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:

   “The decision of the Tribunal

   16. The RRT found that the applicant was a genuine member of the Congress Party and accepted all of his claims with respect to involvement with the party and harassment and abuse at the hands of members of the BJP. The RRT also accepted the applicant's claim that if he returned to where he was living in India (the Kani region) he may be subjected to further harassment by BJP supporters.

   17. However, the RRT did not accept that the threat from the BJP extended to the whole of India and found that the applicant had the means and resources to relocate within India, as he has done in the past, and thereby live without fear of persecution.[1]

   18. The RRT referred to country information to find that upon his return to India the applicant will be able to express his political opinion freely and safely,[2] and further that the threat to him does not extend to the whole of India.[3]

   19. The RRT also found, with reference to the applicant's evidence and country information, that the authorities in India have acted appropriately in respect of his claimed harassment and they will continue to do so.[4]

   20. Consequently, the RRT affirmed the decision of the delegate not the grant the applicant a protection visa.

   21. Since the applicant's claims were rejected and he was the only one of the two applicants to have made claims, the secondary applicant's application was also refused.”

   [1] CB137 at [40]–[42].

   [2] CB137 at [43].

   [3] CB137 at [44].

   [4] CB137 at [45]–[46].

The proceeding before this Court

1. The applicants were unrepresented before this Court, although had the assistance of a Gujarati interpreter.

2. On 9 February 2009, Mr Kumar of counsel represented the applicants at a directions hearing before this Court and the applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. On 16 March 2009 the applicants filed an amended application.

3. The First Applicant confirmed that the applicants relied on the grounds contained in the amended application filed on 16 March 2008.

4. The grounds of the application are expressed to be as follows:

   “1. The Applicants submit that the Tribunal erred in making findings of well-founded fear.  The RRT erred in adopting an unduly harsh approach to the Well-founded fear.  The Stringent application of the test may also result in error in assessment of the finding in relation to well-founded fear.

   Particulars: In the finding of reasons, at Column 39 (Green Book Page 137) “the Tribunal accepts that between November 2007 and March 2008 he was targeted at least four times by supporters of the BJP who objected to his political activities”.

   The Tribunal clearly accepts that if the applicant returns to Kani region of the Gujarat he may be at risk of further targeting by BJP supporters.

   However, the Tribunal does not accept that applicant’s claim that he is at risk of harm by BJP throughout India because of his involvement with the Congress party.  The Tribunal does not accepts (sic) that the applicant was denied protection by the authorities, or that he will be denied protection by the state in the future.

   The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the BJP supporters to the Congress workers in Gujarat.  It is fact that the Gujarat State is one of the main places in India, which is infected by the Communal, riots and the BJP has strong hold in that state.  The Congress party supports Muslim Community and BJP and other Rightist parties support and protect Hindu supporters.  There are thousands of reports published by the Human Rights And other independent Organisations about the BJP’s atrocities over the Muslim communities.  Those who support Muslims in Gujarat suffers most.  The Tribunal ignored all other independent information and came on the conclusion that the applicant and persons like him have no fear of persecution and harm.

   The applicant claims that the Tribunal did not consider that the definition of refugee required that consideration be given to the cumulative effect of various fears of persecution held by the applicant for refugee status.

   2. The Applicants submit that the Tribunal has misconstrued the test; has failed to carry out the “real chance” test as required by the law.

   Particulars

   The applicant claims the Tribunal did not give consideration to each separate aspect of claim of fear of persecution made by the applicant for refugee status.

   3. The Tribunal erred in failing to properly consider the issue of relocation (in circumstances where relocation was an important consideration)

   Particulars

   The applicant submits that other than considering the ability to speak the language the Tribunal erred in not considering the reasonableness and practicality of relocation as decided in leading cases such as NAIZ, SZBJI cases.

   The Tribunal making other errors such as putting irrelevant and outdated country information to test the applicant’s skills and employability.

   The Tribunal did not understand the difficulties of relocating in the other parts of India and very easily made conclusion that the applicant can relocate in the other parts of India to avoid the problems from the opposite parties.  After several attacks on him he moved to Ahmedabad.

   4. The Tribunal committed a jurisdictional error by failing to review the adequacy and electiveness (sic) of state protection in accordance with the Migration Act 1958 instead of relying on what the applicant had to say.

   Particulars: In column 29 of the decision the applicant stated that the BJP supporters came to his house and shouted abuse and threats.  He and other members of his family were trapped in the house until the police came.  He stated that he was not safe in India so he and his wife came Australia.  In several times the applicant told that he did not feel protection from the authorities because they (BJP) have formed the Government in that state

   5. Tribunal made the decision on the basis of the unreliable information.  The Tribunal should made an investigation before making the decision, though the Tribunal has power the Tribunal did not make it, which amounts to denial of procedural fairness.”

5. Each of the grounds was interpreted for the assistance of the First Applicant who informed the Court that he appeared for both applicants. The First Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The First Applicant confirmed that the applicants had filed no evidence or submissions in support of the amended application. The First Applicant declined to make any submissions in support of the amended application.

6. At the commencement of the hearing before this Court, the First Applicant made a further complaint orally to the Court that the Tribunal had not given him enough time to obtain some documents from India. The Court asked the First Applicant what the documents were. The First Applicant answered that they were news clippings, his membership of the Congress Party and a copy of his complaint to police. The Court asked the First Applicant what attempts he had made to obtain the documents and he said he had asked his friends. The Court then asked the First Applicant whether he had asked the Tribunal for further time to obtain the documents and he had said he had asked his friends. The Court again asked the First Applicant whether he had asked the Tribunal for further time to obtain the documents or raise the existence of the documents with the Tribunal at all. The First Applicant respondent he had not.

7. In the circumstances, there is no evidence before this Court of any request by the First Applicant to the Tribunal for further time to obtain any documents in support of his review application.

8. In any event, the Tribunal accepted that the First Applicant was a member of the Congress Party and also accepted that the First Applicant had made complaints to the police about the harassment he claimed to have suffered. In relation to the newspaper clippings, there is no evidence before this Court of what those newspaper clippings may have said.

9. Moreover, the First Applicant had had more than 6 months from when he lodged his protection visa application to when the Tribunal handed down its decision, either to obtain any further documents upon which he intended to rely in support of his application for a protection visa or, at least, to raise the fact that he had further documents that he wished an opportunity to obtain. There is no evidence before this Court of any attempt by the First Applicant at any time to raise with any person in the Department or the Refugee Review Tribunal the existence of documents in India that he wished to obtain in support of his claims.

10. Not only had the First Applicant had a significant amount of time to produce any further documents in support of his claim, he had been requested on several occasions both by the Department and the Tribunal to send any further documents that he wished the Tribunal to consider in support of his claims. The First Applicant never responded to any of those requests that there were documents and that he wished to have further time to obtain them.

11. Accordingly this complaint by the First Applicant is not made out.

Ground 1

1. Ground 1 appears to assert that the Tribunal adopted “an unduly harsh approach in considering whether the First Applicant had a well-founded fear and that the Tribunal did not consider the cumulative effect of the First Applicant’s various fears of persecution” are unsupported by any meaningful particulars. The particulars provided in support of Ground 1 are no more than a recitation of various findings of the Tribunal with which the First Applicant did not agree. Such complaints invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).

2. A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the First Applicant’s claims; explored those claims with the First Applicant at a hearing; put to the First Applicant concerns it had about various aspects of his evidence; put to the First Applicant independent country information that was not consistent with the First Applicant’s claims about the risk of persecution from BJP supporters across India as a whole. In particular, the Tribunal discussed with the First Applicant the issue of whether or not state protection was available to the First Applicant in Kani and whether or not relocation within India and outside Gujarat was reasonable and practicable for the First Applicant in all the circumstances.

3. The Tribunal accepted that the First Applicant had been a member of the Congress Party, however, did not accept that he was a person of interest to anyone beyond the Kani area. The Tribunal also accepted that the First Applicant’s claim that if he were to return to the Kani region he may be at risk of further targeting by BJP supporters. However, the Tribunal rejected the First Applicant’s claims he would be targeted by members of the BJP throughout India.

4. The Tribunal found that the First Applicant’s fear of harm from the BJP throughout India was not well-founded having regard to the independent country information before it and which it discussed with the First Applicant at the hearing.

5. In the circumstances, the allegation in Ground 1 that the Tribunal erred in adopting an “unduly harsh approach” to the “well-founded fear” is not made out. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered carefully every aspect of the First Applicant’s claims and accepted his claims of past persecution by reason of his political involvement in Kani.

6. In concluding that the First Applicant did not have a well-founded fear of persecution throughout India, the Tribunal based its conclusion on the findings it had made following its analysis and evaluation of the evidence and material before it. In the circumstances, the findings that the Tribunal made, at least as far as the issue of relocation is concerned, was open to it on the evidence and material before it and for the reasons it gave.

1. Accordingly, Ground 1 is not made out.

Ground 2

1. The particular provided in support of Ground 2 does not appear to relate to the Ground itself which states that the Tribunal misconstrued and failed to carry out the “real chance” test. The particular in support states that the Tribunal did not give consideration to each separate aspect of claim of fear of persecution made by the First Applicant for refugee status.

2. The First Applicant declined to make any submission to the Court in relation to the particular that the Tribunal did not give consideration to each separate aspect of claim of fear of persecution. The Court asked him on at least two occasions what he alleged was the separate aspect of his claim that the tribunal had failed to consider. Each time the First Applicant declined to make any response.

3. A fair reading of the Tribunal’s decision record does not suggest that there was any claim or integer of the First Applicant’s claims that was not considered, analysed and evaluated by the Tribunal. Neither does a fair reading of the Tribunal’s decision record suggest that there was a claim that arose squarely on the evidence and material before the Tribunal that it failed to consider.

4. The Tribunal made findings in respect of the First Applicant’s claims, which, for the most part, it accepted. The Tribunal was of the view that the First Applicant had exaggerated his role in the Congress Party. However, as stated above, the Tribunal accepted the First Applicant’s claim of past harm and the source of that past harm and that the First Applicant’s fear of persecution from members of the BJP in Kani was well-founded.

5. Accordingly, the assertion in Ground 2 that the Tribunal failed to consider an integer of the First Applicant’s claim or a claim made by the First Applicant is not made out.

6. In relation to the Tribunal’s application of the “real chance” test, the Tribunal accepted that there may be a real chance of persecution by the First Applicant by members of the BJP if he were to return to Kani. However, in the light of country information before it and its evaluation of the First Applicant’s claims generally, the Tribunal was not satisfied that there was a real chance of persecution of the First Applicant in the foreseeable future by members of the BJP elsewhere in India other than Gujarat. It was open to the Tribunal to prefer the country information where the First Applicant’s evidence departed from it. The country information to which it has regard and the weight it gives such information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 (“NAHI”)at [11]). In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.

7. Accordingly, Ground 2 is not made out.

Ground 3

1. In Ground 3, the First Applicant alleges that the Tribunal erred in failing to properly consider the issue of relocation in that the Tribunal did not consider the reasonableness and practicality of relocation for the First Applicant.

2. The particulars in support of Ground 3 also assert that the Tribunal had regard to “irrelevant and out dated country information in relation to the [First Applicant’s] skills and employability”. This is an assertion regularly seen in applications before this Court and in identical terms. There was no finding by the Tribunal about the First Applicant’s “employability”. The First Applicant had claimed to be a wealthy business owner. In the circumstances, this allegation in Ground 3 is meaningless.

3. The Tribunal explored with the First Applicant during the hearing his financial resources and how he organised and paid for his journey to Australia. The Tribunal noted that the First Applicant responded that he was wealthy and that he had financial resources to relocate to Australia. The Tribunal had particular regard to the fact that the First Applicant had demonstrated the ability to relocate internally when he had moved to Ahmadabad after his difficulties in Kani. The Tribunal found that the conditions that existed in Ahmadabad when the First Applicant was there continued to exist and will exist in the reasonably foreseeable future.

4. The Tribunal stated that it was satisfied that “the applicant’s financial resources, as well as his personal circumstances, skills and knowledge, which enabled him to relocate previously in India will enable him to relocate again in the future.” I accept the submission of the solicitor for the First Respondent, Mr Pinder, that in using the term “skills and knowledge” the Tribunal was having regard to the First Applicant’s ability to survive in another environment without difficulty or harm.

5. There is no evidence before this Court of any particular difficulty or “practical reality” that the First Applicant may face if he were to relocate within India (NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22] per Branson J).

6. In considering the issue of relocation the Tribunal also had regard to whether the First Applicant would be able to continue to express his political opinion or continue his work with the Congress Party in India, if he were to relocate elsewhere in India. The Tribunal had regard to country information, which stated that members of the Congress Party were able to express their political opinions safely and freely throughout India without adverse interest from political opponents.

7. The Tribunal was prepared to accept that the First Applicant may be at risk if he returned to Kani of being targeted by BJP supporters who objected to his political activities. The Tribunal had regard to the fact that the BJP was the state party who was responsible in the Kani area whereas the National Congress Party was the party responsible for the national government of India and was also in power in many local and regional areas. The Tribunal did not accept the First Applicant’s claim that BJP members were everywhere in India and its members were seeking to harm Congress Party members and that there was no place in India where he could avoid harm from members of the BJP.

8. In particular, the Tribunal found that members of the Congress Party were “commonly able to express their views and participate in political activities of their choice without adverse interest from the BJP.” The Tribunal was satisfied that by relocating the First Applicant could avoid the difficulties he had experienced in the Kani region.

9. It is well settled law that it must be reasonable for a person to relocate within his or her own country without the effect of requiring that person to modify their behaviour in order to avoid persecution (Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473). However, the High Court of Australia in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 noted that “[t]here may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for well-founded fear of persecution” at [26].

10. A fair reading of the Tribunal’s decision makes clear that the Tribunal had regard to the reasonableness, in the sense of practicable, for the applicants to relocate elsewhere in India. The Tribunal’s finding did not suggest that the First Applicant would need to modify his behaviour. Indeed, the Tribunal made a positive finding that the First Applicant would be able to express his political opinion and continue his work with the Congress Party in India if he chose to do so.

11. In the circumstances, the Tribunal’s findings and conclusions with respect to the issue of relocation were open to it on the evidence and material before it and for the reasons it gave.

12. In relation to the First Applicant’s complaint in Ground 3 that the Tribunal put “irrelevant and outdated country information to test the applicant’s skills and employability”, the First Applicant provided no particulars, evidence or submissions in support of the allegation. The First Applicant declined to make any oral submissions in support of Ground 3.

13. A fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to the US Department of State Country Reports on Human Rights Practices – 2007, published on 11 March 2008. The Tribunal decision was signed on  handed down on 4 November 2008. There is no evidence before this Court to suggest that there was any more recent country information provided to the Tribunal by the First Applicant. On any reasonable view, the report to which the Tribunal had regard was not outdated or inappropriate for the Tribunal to consider. It is well established that it is for the Tribunal to decide the country information to which it has regard and the weight it gives that material (NAHI).

14. Further, a fair reading of the Tribunal’s decision record makes clear that the Tribunal had regard to evidence given by the First Applicant to the Tribunal that he was wealthy and had financial resources to enable him to relocate to Australia. That was information given to the Tribunal by the First Applicant for the purposes of his review. The Tribunal had regard to the First Applicant’s evidence in finding that the First Applicant’s financial resources, as well as his personal circumstances, skills and knowledge, which enabled him to relocate previously within India, would enable him to relocate again in the future. The First Applicant also stated in his written claims that he had completed high school and a diesel mechanic course, however, did not pursue his studies because he worked on the family farm.

15. The Tribunal noted that it listened to the recording of the First Applicant’s interview with the Delegate and stated that the First Applicant “essentially repeated the claims he provided in his written statement.”

16. In the circumstances, there is no evidence before this Court to support the First Applicant’s contention in Ground 3 that the Tribunal put irrelevant and outdated country information to test the First Applicant’s skills and employability.

17. Accordingly, Ground 3 is not made out.

Ground 4 – State protection

1. Ground 4 of the amended application asserts that the Tribunal failed to review the adequacy and electiveness of state protection in accordance with the Act. Ground 4 states that the Tribunal should have relied on what the First Applicant said. Plainly, that assertion is incorrect. The Tribunal was not required to accept the First Applicant’s evidence without question. It is the statutory duty of the Tribunal to evaluate the evidence before it and make findings accordingly. However, its findings must be open to it on the evidence and material before it. Such was the position in the case before this Court.

2. The particulars provided in support of Ground 4 refer to the evidence given by the First Applicant that he and members of his family were trapped in his house until police came when supporters of the BJP came to his house shouting abuse and threats. The particulars state that the First Applicant said that when the BJP followers saw the police car they ran away. Otherwise, the particulars in support of Ground 4 assert that the First Applicant told the Tribunal he was not safe in India and that he did not “feel protection from the authorities”.

3. A fair reading of the Tribunal’s decision record makes clear that the Tribunal specifically considered the First Applicant’s claim that the authorities in Kani had refused to assist him. However, after discussing the claim with the First Applicant the Tribunal found that the authorities in Kani had acted appropriately when he sought their assistance. The Tribunal noted that the First Applicant claimed that the assistance provided by police was not adequate because no person was arrested or any further action taken against persons who had harassed him. The Tribunal noted that the First Applicant was unable to provide any information to the authorities in Kani which would have enabled them to take action against the persons who harassed him. The fact that the First Applicant told the Tribunal that those who had come to his house to harm him and his family fled when the police car arrived must support the inference that the police were not complicit in any persecution of the First Applicant.

4. Otherwise, Ground 4 seeks merits review which this Court cannot undertake.

5. Accordingly, Ground 4 is not made out.

Ground 5

1. Ground 5 makes the bare assertion that the Tribunal made its decision on the basis of unreliable information and should have made an investigation before making its decision. Ground 5 asserts that the Tribunal’s failure to make an investigation amounted to a denial of procedural fairness. Ground 5 was unsupported by particulars, evidence or submissions. The First Applicant declined to make any submissions in support of Ground 5.

2. A fair reading of the Tribunal’s decision does not support the First Applicant’s contention that the Tribunal made its decision on the basis of unreliable information. There is no evidence before this Court to suggest that the country information to which the Tribunal had regard was “unreliable”. Otherwise, the Tribunal had regard to evidence given by the First Applicant in making findings that it did.

3. There is no general obligation on the Tribunal to investigate claims made or conduct enquiries. Ultimately, it is for an applicant to satisfy the tribunal that he meets the criteria required for being a refugee. This is not a case where there is obvious material available to the Tribunal that was centrally relevant to its decision and to which it failed to have regard, nor is it a case in which the authenticity of specific documents submitted by the First Applicant were in issue (SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22).

4. The analysis and evaluation of evidence before it is properly a matter for the Tribunal, including independent country information (NAHI).

5. Accordingly, Ground 5 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the applicants; explored those claims with the First Applicant at a hearing; had regard to all material provided in support. The Tribunal put to the First Applicant matters of concern it had about the evidence and noted the First Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. 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.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  29 April 2009