SZNJN v Minister for Immigration

[2009] FMCA 608

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNJN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 608

MIGRATION – Review of decision of Refugee Review Tribunal – whether state protection is relevant to determining well-founded fear – relevant test in S152 – whether Tribunal properly applied test in S152 in assessing applicant’s claims – Tribunal properly applied test – Tribunal made findings open to it – Tribunal considered all claims – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65, 36(2), 91R

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1
Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104
WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73

Applicant: SZNJN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 713 of 2009

Judgment of: Nicholls FM

Hearing date: 26 May 2009

Date of Last Submission: 9 June 2009

Delivered at: Sydney

Delivered on: 1 July 2009

REPRESENTATION

Appearing for the Applicant: In person

Solicitors for the Applicant: In person

Appearing for the Respondents: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 24 March 2009 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 713 of 2009

SZNJN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 25 March 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 16 February 2009, which affirmed the decision of the delegate of the first respondent to refuse the grant of a protection visa to the applicant.

Background

1. The first respondent has put before the Court a bundle of relevant documents (Court Book (“CB”)) from which the following background may be discerned.

2. The applicant is a national of India who arrived in Australia on 6 July 2008 and applied for a protection visa on 19 August 2008 (application with annexures reproduced at CB 1 to CB 33).

3. The applicant attended an interview with the delegate on 14 November 2008. The delegate subsequently refused the application for a protection visa on 15 November 2008 (see CB 38 to CB 47). The delegate found that there was no Convention nexus in relation to his claims. He applied for review by the Tribunal on 9 December 2008 (application reproduced at CB 48 to CB 51). On 13 February 2009, the applicant appeared at a hearing before the Tribunal (CB 56)

Claims to protection

1. The applicant’s claims to protection contained in his application for a protection visa were that he worked as a cleaner, that his employers, who were Muslim and Hindu, harassed and assaulted him because he was a Christian, and that they saw him as being of an “inferior caste” and being “unhealthy”. He discovered drugs and alcohol at a shop where he had been working. He reported this to the police. The police detained him for five months and threatened that he would be “falsely” charged if he pursued the report, and that he would be killed if he did not leave the country. He claimed that people with ties to the shop had attended at his home and had made inquiries about him. He claimed to fear physical harm from people in the drug trade.

2. At the interview before the delegate, and at the hearing before the Tribunal, the applicant only pressed the claims to fear harm from drug dealers combined with the claim that the authorities would not protect him from the drug dealers.

The Tribunal

1. The Tribunal accepted the claims made by the applicant at the hearing before it. This included the fact that the submissions made on his behalf by a migration agent in support of the application for the protection visa contained a factual account that had not been made by the applicant, but “incorrectly” made by the agent (CB 68.7). It accordingly accepted his claims made at the hearing before it that he had reported finding drugs at his place of work to the police, that “people” had made enquiries about him at his home, and that he feared harm from people in the drug trade (CB 68.8). Nonetheless, even while accepting these claims, it was not satisfied that Australia owed protection obligations to the applicant because it found that he would be able to obtain state protection at a reasonable level if he did experience problems if he were to return to India in the reasonably foreseeable future (CB 68.9 to CB 69.3).

Application to the Court

1. The application to the Court filed on 25 March 2009 puts forward the following grounds:

   “1. The Tribunal failed to give consideration to the fact that he was wrongly suspected by the authorities and made an unreasonable error of fact and thus made jurisdictional error.

   2. The Tribunal failed to understand the seriousness of the fear the Applicant was facing and ignored the serious issue of the claims. The Tribunal failed to consider the serious issues of the claims and thus made a jurisdictional error.”

Hearing before the Court

1. At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Malayalam language. Ms K Whittemore appeared for the first respondent.

2. When given the opportunity, the applicant submitted:

   a)His application for a protection visa had been prepared by a “migration lawyer” for “somebody else’s case.”

   b)The Tribunal based its decision on what had been put in the protection visa application.

   c)He wanted more time to “call evidence” (documents) on his case because “two persons who were enemies” were murdered and his case involved “criminals and terrorist extremists.” His house had been “attacked” and damaged.

   d)The “lawyer” that he had obtained cheated him.

3. It was not appropriate, in my view, that the applicant be given any further time to provide documents to the Court. The applicant has had at least since the first Court date in this matter (22 April 2009), if not from the time of the making of his application, to provide documents to the Court.

4. Further, it was clear that the documents to which the applicant referred were documents going to the question of his refugee status and not documents directed to the question of jurisdictional error in the Tribunal’s decision. The applicant seemed unwilling, or incapable, of understanding the difference between the role of the Tribunal and the role of Court.

5. In any event, the applicant was given the opportunity that he sought because, during the course of the hearing, I raised with Ms Whittemore the question as to whether the Tribunal’s finding that the applicant did not have a well-founded fear of Convention related persecution was based on a proper understanding and application of the Refugees Convention concepts of “persecution” and “state protection”. In particular, the relationship between the two concepts. That is, whether the availability of state protection is relevant to determining whether an applicant has a well-founded fear of persecution, or whether the opportunity of state protection is to be considered separate to this consideration. Further, whether the Tribunal properly applied the relevant law to the case before it.

6. I gave the parties the opportunity to file written submissions on this issue. The Minister’s submissions were drafted by Counsel (Ms A Mitchelmore) and filed on his behalf. They comprehensively address the issue.

7. Although given the opportunity to file submissions in reply, the applicant filed a document headed: “Applicant’s Written Submissions”, but which appears to be a collection of items apparently downloaded from the Internet dealing with reported Christian/Muslim “clashes” in India. It appears that these were the documents relevant to his request for more time.

Persecution and State Protection

1. The Minister’s position is that the Tribunal in the current case found that the applicant did not have a well-founded fear of persecution for a Convention reason by applying, relevantly, the reasoning of the majority of the High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 (“S152”).

2. In S152 the majority of the High Court (Gleeson CJ, Hayne and Heydon JJ) held, relevantly, that where the fear of harm emanates from a source which is not the state, nor an agent of the state, then the willingness and the ability of the state to provide protection to its national may be relevant to whether the conduct of the claimed persecutor giving rise to the fear is persecution (see, in particular, S152 at [21], [22], and [29]).

3. In submissions the Minister referred this Court, in particular, to [23] of S152 where their Honours considered the ways in which the conduct of the state could be relevant to the question as to whether an applicant meets the definition of “refugee” in Article 1A(2) of the Refugees Convention.

4. The first is where the harm feared is inflicted by the state or its agents. The second is where the harm feared is not inflicted by the state, but where the attitude of the state is such that: “…it supports a conclusion of unwillingness to seek (external) protection based on a fear of persecution because of the state’s encouragement, condonation or tolerance of the persecution” (S152 at [23]).

5. The Minister submitted that in both of these scenarios the majority of the High Court saw the availability of state protection from harm as relevant to the issue of persecution. In particular, this Court was referred to what the majority said  in S152 at [25]:

   “…What kind of inability to protect a person such as the first respondent from harm of the kind he has suffered would justify a conclusion that he is a victim of persecution and that it is owing to a well-founded fear of persecution that, being outside his country, he is unwilling to avail himself of his country's protection?”

6. The factual situation in S152 involved a claim to fear harm in the Ukraine. The Tribunal in that case found that the Ukrainian authorities were unable or unwilling to protect the applicant. This was in circumstances where it found that the attacks on him were “random” and “unco-ordinated”, and that the police response was appropriate on the one occasion that they spoke to him, noting that he had never made any formal complaint.

7. The High Court said in these circumstances the relevant question was as set out in [25] of its Judgment (see [20] above).

8. The Minister relies on what the High Court said subsequently at [28] to [29] for the proposition that the majority considered the availability of state protection to be of relevance for the purposes of determining whether an applicant is able to satisfy the Tribunal that he or she has a well-founded fear of persecution.

9. The Minister also submits that in a separate judgment, Kirby J was similarly of the view that the availability of state protection was relevant to the question of whether a protection visa applicant had a well-founded fear of persecution (see at [100] of S152).

10. By contrast, earlier in Minister for Immigration v Khawar [2002] HCA 14; 210 CLR 1 (“Khawar”), McHugh and Gummow JJ held that the Tribunal would be in error if it injected the notion of state protection into the first part of Article 1A(2) of the Convention, that is, the testing of whether there is a well-founded fear of persecution (see at [66]). Their Honours’ view was that “persecution” did not encompass a “failure of protection” but was the denial of basic rights otherwise exercised by the citizens of the country of claimed persecution. This was with reference also to what was said by Mason CJ in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379.

11. McHugh J repeated this view in S152 at [65]:

    “If conduct constitutes persecution for a Convention reason when carried out by the State or its agents, it is persecution for a Convention reason when carried out by non-State agents. In neither its ordinary nor its Convention meaning does the term ‘persecution’ require proof that the State has breached a duty that it owed to the applicant for refugee status. Where the State is involved in persecution, it will certainly be in breach of its duty to protect its citizens from persecution. But that is beside the point. State culpability is not an element of persecution. The attitude of the State may be relevant, however, to whether a person has a well-founded fear of persecution, a point recognised by Gleeson CJ in Khawar.”

    [Citations omitted]

12. I should just note that to the extent that the Minister submits that Kirby J in S152 relevantly expressed a similar view to the majority in that case (at [100]), it could be said that, with reference to [111] to [112] of that judgement, no conclusion was expressed on the difference between the majority and McHugh J.

13. The Minister submits that in the current case the conclusion of McHugh and Gummow JJ in Khawar as to this issue is not the prevailing view, and was not even the prevailing view in Khawar.

14. The Minister refers to the “opinion” expressed by Gleeson CJ in Khawar as being similar to what was expressed by the majority in S152. That is, that in circumstances involving non-state agents of persecution, the failure of the state to intervene may be relevant to the issue as to whether a fear of continuing persecution is well-founded (at [29]). The Minister further submits that Kirby J in Khawar was of a similar view (at [117] to [118]). Further, that while Callinan J in Khawar did not comment expressly on this issue, he did make “comment” (at [155]) that, at least implicitly, appears to accept that the issue of state protection has some relevance to the existence of a well-founded fear of persecution.

15. The issue, then, is whether what was relevantly said by the majority in S152 is obiter or whether it is authoritative, as the Minister submits, over what was held in Khawar per McHugh and Gummow JJ.

16. For the purposes of the current case, and clearly for the purposes of this Court, this issue was addressed “recently” in SBZD v Minister for Immigration and Citizenship [2008] FCA 1236 (“SBZD”) per Gray J.

17. In that case the Court identified the “essential question” as being whether the Tribunal: “applied the wrong test when considering the issue of the availability of state protection in the context of an application for a protection visa” (at [1]).

18. The ground advanced on behalf of the applicant in that case and submissions in support were identified at [16]:

    “16 That ground is that the Tribunal failed to apply the correct legal test in ascertaining whether the appellant satisfied the requirement that his unwillingness to avail himself of the protection of the United Kingdom was the result of a well-founded fear of being persecuted. The argument put on behalf of the appellant rested heavily on the proposition that what the majority said in S152/2003 does not constitute a definitive statement of the appropriate test in circumstances such as those faced by the appellant, and needs to be read in the context of the case with which the High Court was dealing. Rather, it was suggested that the correct test was stated by McHugh J in that case. To deal with this submission, it is necessary to analyse S152/2003.”

19. After considering what was said in S152 by the majority, McHugh J and Kirby J, his Honour concluded (at [24]):

    “24 This examination of S152/2003 demonstrates that it is impossible to uphold the contention, put on behalf of the appellant in the present case, that the majority judgment in that case cannot be taken as an expression of the authoritative test to apply when the issue is whether the country of nationality of an applicant for a protection visa alleges that that country lacks the ability effectively to protect him or her from the harmful actions of non-state antagonists. By the time the case reached the High Court, it was a case about the adequacy of state protection. It had become such a case because the Full Court had held that the Tribunal had failed to deal with the ability of the Ukrainian Government to prevent future harm. The majority of the High Court allowed the appeal on the basis that the Tribunal had no evidence before it that would have justified a finding that the necessary state machinery of Ukraine fell below the required standard for protection of its citizens. The majority expressed this norm by reference to international standards, and made it clear that there is no requirement that a state provide absolute protection for its citizens. In the light of what the majority said, the view of McHugh J cannot be regarded as authoritative. In Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 773 (2004) 83 ALD 529 at [35]- [42], Mansfield J analysed S152/2003. It is clear that his Honour thought that the view expressed by the majority was authoritative. I respectfully share his Honour’s view. Even if what the majority said could be characterised technically as obiter, it would be necessary to characterise the view of McHugh J in the same way. It would be a bold step for a judge of this Court, or a federal magistrate, and especially a Tribunal member, to ignore what the majority said in favour of adopting the view of McHugh J.”

20. While it does not appear that the submissions made to the Court made reference to Khawar, or that consideration was given to it, nonetheless, this case, being a matter on appeal from this Court, means that his Honour’s conclusion (at [24]) is binding upon this Court.

21. That is, it is not open to this Court to ignore what was relevantly said by the majority in S152 even if it was “technically obiter” in addressing the same issue now as what arose in SBZD. That is, the relevant test to be applied is that expressed by the majority in S152 (SZBD at [25]).

22. In applying this test to what the Tribunal has done is this case, it is necessary first to consider a number of complaints made by the applicant to this Court.

23. The applicant complained before the Court that the Tribunal based its decision on what had been put in his application for the protection visa. That this statement had been prepared by his “migration lawyer” for “someone else’s case” and did not represent his claims.

1. In its account of what occurred at the hearing with the applicant the Tribunal reports ([48] at CB 68.1):

   “The Tribunal indicated to the applicant that the written statement provided to the Department is not a reliable record of his claims, for reasons discussed above, and the Tribunal preferred his oral evidence at the hearing as an accurate account [of] his circumstances in India and the difficulties he anticipates there. The applicant stated that the description he provided at the hearing was an accurate account of his circumstances. He agreed with the Tribunal that the written statement submitted on his behalf by the agent did not accurately describe his claims or circumstances in India.”

2. The applicant, despite opportunity, has not put evidence before the Court to dispute the Tribunal’s account of what occurred at the hearing.

3. Further, in its “Findings and Reasons” the Tribunal stated ([53] at CB 68.7):

   “The applicant claimed in his written statement that his difficulties in India related to his religion and politics. He indicated to the Tribunal that these claims were false and incorrectly submitted by the migration agent who assisted him to lodge his application. The Tribunal is satisfied that the applicant provided an accurate account of his claims at the hearing and finds that the written submission provided on his behalf by the migration agent was an inaccurate account of the applicant’s claims and circumstances in India.”

4. On the evidence available to this Court, therefore, the applicant’s complaint that the Tribunal based its decision on what the applicant’s “lawyer” or “agent” had put in the statement attached to his protection visa application is simply not made out.

5. Having accepted the applicant’s claim that what had been put in the statement did not represent his claims to fear persecution, the Tribunal proceeded to consider the claims as put by the applicant at the hearing.

6. Again, the only evidence before the Court as to what was said at the hearing is the Tribunal’s own account. The Tribunal reports that the applicant: “essentially repeated the claims he provided to the delegate at the interview” ([42] at CB 66.8). These were that he found a parcel containing a powder at the toilet at his work. He assumed that the powder “was drugs”. When he took police to the shop they: “arrested a boy who worked” there. Subsequently, the police told him that the parcel did not contain drugs. He assumed that they had been bribed, as this was said to be: “a common practice in India.” He then claimed that persons associated with the drug trade had gone to his house looking for him and he assumed that if they found him in the future they would cut off his hand or his foot. He asked to stay in Australia for five to ten years until the matter was “forgotten” ([43] at CB 66.10 to CB 67.2).

7. While the remainder of the Tribunal’s account of what occurred at the hearing is explored more fully below (at ground one), it is clear that at the hearing the applicant’s evidence was that: “he had no problems relating to his religion” ([44] at CB 67) as had been put in the written statement by the agent, and that: “religion played no part in the difficulties he had in India. He did not mention that he was a Christian.”

8. The Tribunal’s account reports (at [46] at CB 67.8): “The applicant essentially stated that his problems in India had nothing to do with religion or the religion of the persons he fears.”

   The applicant’s claims clearly arose from the following circumstances (at [46] at CB 67):

   “He stated that he found the drugs, the criminal’s lost money, and now they are seeking revenge. He stated that if he was allowed to stay in Australia he could earn some money and pay the criminals the money they lost when he reported the matter to the police. He stated that his mother told him not to tell anyone about the powder but unfortunately he did.”

9. Further, in relation to “politics” (at [47] at CB 67):

   “The Tribunal commended that in his written statement he made references to the government of Kerala. He stated that he was not involved in politics and the problems he faced in India had nothing to do with politics … The applicant stated that politics were irrelevant to the difficulties he anticipates in India.”

10. As already referred to above, the Tribunal clearly accepted the applicant’s evidence at the hearing as being truthful. It accepted that the written statement was not an accurate account of his claims. It therefore proceeded to consider the application on the basis of claims made at the hearing ([48] to [49], [53] to [54] at CB 68). That is, that his fear of harm emanated from the finding of the parcel and fear of harm from drug dealers because he reported the find.

11. The “Applicant’s Written Submissions” now put before the Court comprise a number of items “downloaded” from an Internet site. They deal with claimed Muslim/Christian clashes in India.

12. First, such material put before the Court now cannot assist the applicant. There is no evidence that such material was put before the Tribunal. This appears now to be an attempt to agitate claims going to the merits of his refugee application. This Court has no power to entertain any such attempt. This is clearly an attempt to engage the Court in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).

13. Second, it is not clear if the applicant is being disingenuous or if he simply cannot see the plain contradiction between his oral and written “submissions” made to this Court.

14. In oral submissions, he complained that the Tribunal wrongly assessed his claims as set out in a statement attached to his protection visa application. This was plainly, and clearly, factually incorrect. It assessed his claims as put by him at the hearing.

15. Yet in making these “written submissions” now, the complaint is squarely aimed as being in support of those very matters which were said to be “wrongly” asserted by his “agent/lawyer” in the statement. That is, claims relating to religious and political grounds. However, whatever the situation now, these “Written Submissions” do not assist the applicant for the reason set out above.

16. What is left to answer, therefore, is: did the Tribunal properly apply the test set out by the majority in S152 in assessing the applicant’s “surviving” claims that he feared harm in India because of his finding of the “parcel” and consequent reaction from “drug dealers”? I agree with the Minister’s submissions that it did.

17. The Tribunal accepted that he genuinely feared he would be physically harmed by drug dealers in India. But it found, based on independent country information before it ([55] at CB 68), and the applicant’s own evidence on what he said the authorities had done in Kerala when he reported the find, that: “the applicant will have access to a reasonable level of protection in the future if he encounters difficulties with the person he fears.” Further, it discussed this with the applicant at the hearing ([45] at CB 67) (SZBEL at [47]).

18. The Tribunal’s finding that India would provide “a reasonable level of protection” ([56] at CB 69) was open to it on what was before it and was consistent with the relevant authorities as to the level of protection to be afforded. The majority judgment in S152 said at [26]: “No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence.” What is required is that the state takes “reasonable measures” to protect the safety of its citizens (at [26] and see also [28]). At [117] Kirby J stated that the Convention does not require the elimination by the state of all risk of harm but rather that it “posits a reasonable level of protection, not a perfect one.”

19. The Tribunal’s finding that such a reasonable level of protection, notwithstanding that the applicant had a genuine fear of harm, meant that it could not be satisfied that the applicant faced a real chance of serious harm, that is, “persecution”, in India for a Convention reason, was also consistent with what was said in the majority judgment in S152.

20. In all, therefore, no error in this regard is revealed in the Tribunal’s analysis.

21. I should also just note that in oral submissions to this Court the applicant referred to those from whom he feared harm to be, in part, “terrorist extremists”. No such claim survived at the enunciation of his claims at the hearing before the Tribunal such that the Tribunal could be said to have failed to deal with an integer of his claims.

22. The applicant’s claim before the Court that his “lawyer cheated” him also does not assist him before this Court. The “lawyer” did not represent the applicant before the Tribunal. The “lawyer’s” role was to prepare a statement put before the delegate. As such, there is nothing before the Court to say that the “lawyer’s” actions vitiated the process before the Tribunal in such a way that jurisdictional error in the Tribunal’s decision is revealed (see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35). Nor, for that matter, is what is alleged, even in circumstances where the Tribunal has accepted that the “lawyer” acted in making submissions to the delegate that were “not correct”, on its own, capable of amounting to a finding of fraud. It may be that the applicant may achieve some satisfaction in reporting the actions of the “lawyer” or “agent” to the appropriate authorities, but it does not assist him before this Court.

Ground one

1. The first ground in the application complains that the Tribunal failed to consider a claim made in support of the application. That is, that “he was wrongly suspected by the authorities.”

2. In conducting the review the Tribunal is, of course, required to consider an applicant’s claims and each integer of those claims. However, the Tribunal is not required to deal with a case not stated by an applicant or not arising from the material put before it (Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79], VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46] to [47]).

3. The applicant has not put a transcript of the Tribunal hearing before the Court. Therefore, the only account before the Court is the Tribunal’s account contained in its decision record. What is reported as having transpired at the hearing was that the applicant departed from the claims made in his protection visa application and replaced those claims with what he said at the Tribunal hearing. That is, he pressed those claims, and only those claims, that he made at the Tribunal hearing and no longer pressed the claims in his written statement:

   “The applicant stated that the description he provided at the hearing was an accurate account of his circumstances. He agreed with the Tribunal that the written statement submitted on his behalf by the agent did not accurately describe his claims or circumstances in India.” (CB 68.2)

4. Importantly, at the Tribunal hearing, the applicant’s claims largely reflected those of what he had said at the delegate’s interview (CB 66.8). According to the Tribunal’s decision record (the only account of what occurred at the delegate’s interview before the Court), at the delegate’s interview the applicant stated that: “he had no problem in India with the authorities. He indicated that he had not been detained by the police” (CB 66.5).

5. This was confirmed at the Tribunal hearing:

   “He stated that he was afraid of drug dealers in the area where he lived and worked in Kerala. He stated that he had no problems relating to his religion, he was never detained by the police or mistreated by them.” (CB 67.3)

6. Essentially, the Tribunal’s account of what occurred at the hearing (being the only account put before the Court), indicates that the Tribunal pinpointed what the applicant’s actual claims to protection were. It confirmed with the applicant that his fear of harm derived from his fear from those in the drug trade combined with the fact that the authorities would not be able to protect him (“… he is afraid of drug dealers in India and he is afraid that the authorities will not protect him from those drug dealers” – CB 68.3).

7. The Tribunal did consider the claim that the applicant feared drug dealers and feared that the authorities would not protect him:

   “The Tribunal has considered the applicant’s claim that the authorities in India are corrupt and that they will not provide him with the protection he requires.” (CB 69.2)

8. It made specific findings in relation to this:

   “The Tribunal has formed the view that the authorities in Kerala acted appropriately when the applicant reported finding the parcel of drugs and it is satisfied that the applicant will have access to a reasonable level of protection in the future if he encounters difficulties with the persons he fears.” (CB 68.9 to CB 69.1)

9. Simply, the applicant’s claim that the Tribunal did not consider one of his claims is not made out on the material before the Court. There was no surviving claim before the Tribunal that he was “wrongly suspected” by the authorities. At best, this may be said to be an aspect of his claim made at the interview before the delegate. He is reported as having told the delegate that he left India “because he was afraid of being framed for possessing illegal drugs” (CB 65.2). Further, that a “policeman ‘scolded’ him by using ‘police language’” (CB 65.9). None of this, however, survived as part of his claims before the Tribunal.

10. This ground also alleges that the Tribunal “made an unreasonable error of fact.”

11. Even if unreasonableness were to be seen as an applicable ground of review to the applicants’ case, and even to the extent that illogicality may be said to be available in some circumstances (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [9] per Gleeson CJ), there is nothing in the analysis put forward by the Tribunal in its decision record to support any such claims.

12. The Tribunal’s decision record plainly does not reveal any support for any claim of “unreasonableness” or illogicality, nor for that matter “unreasonableness ” in the “Wednesbury sense” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223).

13. The applicant has claimed that the Tribunal made an error of fact. Even if there was something to support this claim (as not conceded by the first respondent), in that there could be said to be some factual error in the Tribunal’s analysis, then such an error is not jurisdictional error. Error of fact made by the Tribunal when exercising its jurisdiction is not a jurisdictional error (Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [137]).

14. As was said in SZJHR v Minister for Immigration and Citizenship [2007] FCA 1901 at [45]:

    “An error of fact made by the Tribunal when exercising its jurisdiction is not a jurisdictional error. An error of that kind does not provide this Court with jurisdiction to quash the decision: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137].”

15. Further, if what the applicant is saying is that the findings made by the Tribunal were not open to it on the “known material”, a plain reading of the Tribunal’s decision record reveals that the Tribunal’s findings were open to it on the material before it, and no error is demonstrated in this regard (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558 to 559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64] to [69] per Tamberlin and Nicholson JJ).

16. In essence, what the applicant again seeks is impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).

17. This complaint also does not succeed.

Ground two

1. In ground two the applicant asserts that the Tribunal failed to understand the seriousness of the fear the applicant was facing and ignored the serious issue of the claims: “The Tribunal failed to consider the serious issues of the claims and thus made a jurisdictional error.”

2. The second ground also contains a complaint that the Tribunal did not “understand the seriousness of the fear” held by the applicant.

3. It must be noted that the relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction that the criterion set out, relevantly in s.36(2) (that is, in effect, that the applicant meets the definition of “refugee” as set out in the Refugees Convention), such that in these circumstances a protection visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73).

4. In my view, the Tribunal properly understood what was required of it in fulfilling this obligation. It properly considered whether the applicant was a refugee and what constituted “serious harm” under s.91R of the Act (CB 63.3 to CB 63.5). The Tribunal did not make a finding denying that the harm faced by the applicant was of a “serious” nature, but rather that he would be adequately protected by the state if he were to return. Plainly, the Tribunal understood and accepted the “seriousness” of the applicant’s fear. It accepted that: “…the applicant genuinely fears that he will be physically harmed by the drug dealers in India” ([54] at CB 68).

5. However, as already set out above, the Tribunal found, notwithstanding the seriousness of this statement, the applicant would have adequate state protection. A finding, which I have already said, was open to it on what was before it. This ground does not succeed.

Conclusion

1. For the applicant to succeed before the Court there would have to be jurisdictional error (at least) in the Tribunal’s decision. I cannot discern such error. The application is therefore dismissed.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  1 July 2009